Three mandatory bar association dues cases on SCOTUS’ April 1 conference list

By

Janie Valentine
UnionStationHeader.png

The Supreme Court has 122 cases up for consideration during today’s conference, including three challenges to mandatory state bar association dues. Here’s a rundown of each of those cases. To follow along, keep an eye out for the order list to be posted here on Monday. 

Taylor v. Heath

In this case, Michigan attorney Lucille S. Taylor’s petition says that the state’s “requirement that practicing attorneys must join and pay dues to an integrated bar association … forces them to join in promulgating speech on policy matters with which they do not agree.” 

Respondents in the case, who are members of the State Bar of Michigan Board of Commissioners, say the Supreme Court has “repeatedly denied petitions for certiorari presenting indistinguishable claims” and that the “questions presented do not merit this Court’s review.” They also say “Michigan’s mandatory dues pass constitutional muster because they fund government speech unconstrained by the First Amendment.” 

  • Appealed from the Sixth Circuit.
  • Docketed Sept. 7, 2021. First distributed for the Jan. 7 conference. 
  • Question presented in the petition: 

“Prior to [Janus v. AFSCME], the Court had developed two lines of case law together, frequently alternating and each building on the other—the aforementioned public-sector employees and whether they could be forced to fund a union—and attorneys and whether they could be forced to join and fund an integrated bar association. After Janus held that such compulsion in the union context was impermissible, the question is: Can the State of Michigan compel practicing attorneys to fund an integrated bar association that takes policy positions, or does such a law fail exacting scrutiny and violate the attorneys’ First Amendment rights?” 

“1. Whether this Court should overrule [Lathrop v. Donohue] and hold that Michigan violates Petitioner’s free-association right by requiring that licensed attorneys be members of the State Bar of Michigan.”
“2. Whether this Court should overrule [Keller v. State Bar of California] and hold that Michigan violates Petitioner’s free-speech right by requiring that licensed attorneys pay dues to the State Bar of Michigan, even though the State Bar has a mechanism for requesting a dues refund—one that Petitioner has never invoked—when a bar member believes that the State Bar’s public advocacy involves ideological matters.”  

The case name and number are Lucille S. Taylor v. James W. Heath, President-Elect, State Bar of Michigan Board of Commissioners, et al. (No. 21-357).

Schell v. Darby

In this case, Oklahoma attorney Mark E. Schell’s petition says he “recognizes that there is no need to ‘overturn’ Keller in order to strike down compulsory subsidies for bar associations’ political speech.” Instead, the petition says, “Keller held that bar dues and union fees must be subject to the ‘same constitutional rule.’ … And Janus held that the rule is ‘exacting scrutiny.’ … In light of those holdings, the Tenth Circuit was wrong to follow Keller’s dicta about how bar dues might be analyzed under the now-defunct rule of [Abood v. Detroit Board of Education]. Since Janus overturned Abood, the only way to be faithful to Keller’s core holding is to make clear that both mandatory bar dues and compulsory union fees are subject to the same rule of exacting scrutiny.” 

The respondents in the case—the Chief Justice and Justices of the Oklahoma Supreme Court, the members of the Oklahoma Bar Association’s Board of Governors, and the executive director of the Oklahoma Bar Association—reply, “According to petitioner, Keller’s actual holding was that the First Amendment standard governing the use of mandatory bar dues for expressive activity blindly tracks forever the First Amendment standard governing the use of mandatory union dues for expressive activity. That holding, petitioner argues, means that when this Court later changed the First Amendment standard governing (some) mandatory union dues, in Janus v. AFSCME … that automatically changed the First Amendment standard governing mandatory bar dues. That reading is borderline frivolous. No court has ever adopted it (although hundreds of cases have cited Keller), the rule it would produce is unprecedented and unworkable, and the reading itself runs afoul of this Court’s precedent.” 

  • Appealed from the Tenth Circuit.
  • Docketed Nov. 24, 2021. First distributed for the Jan. 7 conference.   
  • Question presented in the petition: 

“Are mandatory bar dues that subsidize the political and ideological speech of bar associations subject to ‘the same constitutional rule’ of exacting First Amendment scrutiny that applies to compulsory union fees under Janus?” 

“In Keller v. State Bar of California … this Court ‘held that lawyers admitted to practice in [a State] could be required … to fund activities “germane” to the association’s mission of “regulating the legal profession and improving the quality of legal services,”’ … The question presented is whether the Tenth Circuit correctly understood and applied Keller’s holding here.”

The case name and number are Mark E. Schell v. Richard Darby, Chief Justice, Supreme Court of Oklahoma, et al. (No. 21-779). 

McDonald v. Borunda Firth

In this case, Texas attorneys Tony K. McDonald, Joshua B. Hammer, and Mark S. Pulliam filed a petition saying that “This Court should grant certiorari and hold that members of a mandatory bar cannot be compelled to finance any political or ideological activities, and cannot be compelled to join a bar that engages in such activities. … In the alternative, if Keller and Lathrop actually do authorize the use of coerced dues for the broad array of ideological and controversial activities challenged here, then those decisions should be overruled.”

The respondents, members of the Board of Directors of the State Bar of Texas, reply, “The Keller standard remains workable, as the Fifth Circuit’s application of that standard to the Bar activities challenged in this case demonstrates. Furthermore, the mere requirements that attorneys enroll in and pay annual membership fees to an integrated bar operating under Keller do not significantly impose on attorneys’ First Amendment interests, especially given that attorneys remain free to express views or join associations that disagree with the bar. On the other hand, overruling Keller and Lathrop would frustrate the substantial reliance interests of the numerous states with integrated bars, severely disrupting how the legal systems in those states operate and—at least in Texas’s case—likely requiring extensive legislative intervention. Therefore, any ‘weighing of practical effects’ decisively favors allowing Keller and Lathrop to stand.”

“Does the First Amendment prohibit a state from compelling attorneys to join and fund a state bar association that engages in extensive political and ideological activities?

“Whether the First Amendment permits Texas to require lawyers licensed to practice in the state to enroll in the State Bar of Texas and pay annual Bar membership fees, as long as the Bar limits its expressive activities to those germane to regulating the legal profession or improving the quality of legal services.”

The members of the Board of Directors of the State Bar of Texas filed a conditional cross-petition on Dec. 30, 2021, saying that the court “should deny the plaintiffs’ request for review. But if the Court is inclined to revisit Keller, this conditional cross-petition asks that the Court reassess that decision in its entirety—including Keller’s holding that integrated bars should be treated like labor unions rather than government agencies, and thus do not qualify for the protection of the government speech doctrine.”

The case names and numbers are Tony K. McDonald, et al. v. Sylvia Borunda Firth, et al. (No. 21-800) and Sylvia Borunda Firth, et al. v. Tony K. McDonald, et al. (No. 21-974). 

About the justices’ conference

The Supreme Court receives around 7,000 to 8,000 petitions every year. The justices consider these petitions during their weekly conference, which is usually held on Fridays. In order for a petition to be granted, at least four of the nine justices must vote to hear the case. During its past five terms, the court has agreed to hear an average of 71 cases per term.

To subscribe to Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court, click here. 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 132 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

  • California AB1714: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.   
    • Democratic sponsorship.
    • Assembly Judiciary Committee hearing held March 29. Committee recommends “do pass.” Re-referred to Assembly Appropriations Committee.  
  • California AB2556: This bill would change the time frame for a local public agency employer to implement a final offer after the factfinders’ recommendation has been submitted in the case of a dispute between the employer and employee organization.
    • Democratic sponsorship.
    • Assembly Public Employment and Retirement Committee hearing held March 30. Committee recommends “do pass.” Re-referred to Assembly Appropriations Committee.
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits. 
    • Democratic sponsorship.
    • Senate Labor, Public Employment and Retirement Committee hearing scheduled for April 4. 
  • California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.  
    • Democratic sponsorship.
    • Senate Labor, Public Employment and Retirement Committee hearing scheduled for April 4.
  • Oklahoma SB1579: This bill would allow school boards to grant unpaid leaves of absence for employees to hold office in an employee association if certain criteria are met. An employee organization would be required to comply with this law in order to be recognized as the representative of a bargaining unit.     
    • Democratic sponsorship.
    • Second Reading referred to House Common Education Committee 3/28/2022.