Wisconsin integrated bar challenge appealed to SCOTUS 

A Wisconsin attorney challenging the constitutionality of the state’s integrated bar association filed an appeal to the U.S. Supreme Court on July 28. In April, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed U.S. District Judge Lynn Adelman’s dismissal of the case.

At least 30 states have integrated bars—bar associations in which membership is necessary to practice law in the state. 

About the case

The plaintiff is Schuyler File. File practices law in Wisconsin, where he is required to be a member of and pay yearly dues to the State Bar of Wisconsin. Attorneys from the Liberty Justice Center, which says its mission is to “[fight] for the constitutional rights of American families, workers, advocates and entrepreneurs,” represent File.

File’s attorneys filed a lawsuit against the State Bar of Wisconsin’s president and executive director and the seven justices of the Wisconsin Supreme Court in the U.S. District Court for the Eastern District of Wisconsin on July 25, 2019. The complaint said:

“Like the public-sector collective bargaining in Janus, almost all of [the State Bar’s] activities are inherently about the law and thus of public concern; there can be no logical line drawn that sets ‘direct lobbying’ on one side and renders everything else non-ideological and of private concern. … Because the State Bar is always speaking about the law, and because lawyers come to the law with different viewpoints, jurisprudential principles, backgrounds, and experiences, the State Bar’s speech on all legal topics contains some element of ideology and touches on issues of public concern.” 

The Liberty Justice Center’s web page for the case says, “The State Bar of Wisconsin and the Wisconsin Supreme Court, which requires this mandatory membership, are violating [File’s] First Amendment rights[.] … Because these State Bar activities deal with matters of public concern, forced membership in the association is unconstitutional under the Supreme Court’s Janus v. AFSCME ruling.”

In the 5-4 Janus decision, Justice Samuel Alito wrote, “States and public-sector unions may no longer extract agency fees from nonconsenting employees. … By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. … Rather, to be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence. … Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.” Janus overturned the precedent established in Abood v. Detroit Board of Education in 1977. 

Here are some other historical cases related to this one: 

• In 1961, the Supreme Court ruled 7-2 in Lathrop v. Donohue that Wisconsin’s integrated state bar was constitutional. 

• In 1990, the Supreme Court unanimously upheld the constitutionality of integrated bars in Keller v. State Bar of California. Chief Justice William H. Rehnquist wrote in the court’s decision that “the compelled association and integrated bar is justified by the State’s interest in regulating the legal profession and improving the quality of legal services.”  

• In 2020, the Supreme Court declined to hear Jarchow v. State Bar of Wisconsin, another challenge to Wisconsin’s integrated bar. Justices Clarence Thomas and Neil Gorsuch dissented from the denial in that case. Thomas wrote, “Short of a constitutional amendment, only we can rectify our own erroneous constitutional decisions. We have admitted that Abood was erroneous, and Abood provided the foundation for Keller. In light of these developments, we should reexamine whether Keller is sound precedent.”

In response to File’s lawsuit, attorneys for the State Bar of Wisconsin defendants said that File failed to “prove that Keller is no longer good law.” Attorneys from Wisconsin Attorney General Josh Kaul’s office said File’s claims “[fail] on the merits under Keller” and that the claims against the Wisconsin Supreme Court justices “would properly be dismissed for lack of standing and due to the Justices’ immunity.”

U.S. District Judge Lynn Adelman dismissed File’s lawsuit on June 29, 2020, ruling that File’s “claim is foreclosed by Keller, which only the Supreme Court may overrule.” President Bill Clinton (D) appointed Adelman to the court. 

On April 29, 2022, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed Adelman’s decision. Chief Judge Diane Sykes wrote: 

“The Supreme Court denied certiorari in Jarchow, with two justices dissenting. … The Court has turned away several additional opportunities to revisit Keller based on Janus—including, most recently, in two cases just a few weeks ago. … Keller therefore remains binding on us. File must seek relief from the Supreme Court.” 

President George W. Bush appointed Sykes to the court.  

About the petition

File’s attorneys filed a petition for a writ of certiorari to the U.S. Supreme Court on July 28, 2022. The petition asks the court to consider “[w]hether membership in a mandatory state bar is subject to heightened scrutiny under the First Amendment.” 

File’s attorneys wrote:

“This case presents an ideal vehicle to resolve the pure legal question about the level of scrutiny applicable to mandatory state bar membership. Like Janus, this case is an appeal of a lower court decision affirming dismissal of a First Amendment claim. The Court of Appeals rested its decision on this Court’s failure to reconsider Keller after Janus. No factual dispute matters. … More, Wisconsin’s State Bar started this line of cases in Lathrop after it chose to make its bar mandatory, so compelled membership in that bar squarely raises the ongoing validity of this Court’s precedents. Finally, even if the State wanted to try to satisfy exacting scrutiny, that argument could be resolved on remand. Only this Court can clarify the appropriate standard of review. This Court’s intervention is necessary to ensure that neutral, consistent principles of law govern First Amendment jurisprudence.” 

The State Bar of Wisconsin and Wisconsin Supreme Court defendants have until Aug. 31 to file a response. 

The case is Schuyler File v. Kathleen Brost, et al. (No. 22-95).

Additional context 

In April 2022, the Supreme Court declined to hear similar petitions from Michigan, Oklahoma, and Texas. 

The Supreme Court is currently in recess. The opening conference for October Term 2022 is scheduled for Sept. 28, and the term begins on the first Monday in October. 

What we’re reading

• FEDweek, “FLRA Reinstates its Own Labor-Management Forum, ‘Pre-Decisional Involvement,’” Aug. 10, 2022
• Tennessee Lookout, “Campaigns for and against Tennessee’s ‘right-to-work’ constitutional amendment heat up,” Aug. 10, 2022
• JD Supra, “Virginia Public Employers Grapple with Still-New Collective Bargaining Authority,” Aug. 10, 2022
• Virginia Lawyers Weekly, “Federal appeals court nixes effort to recover union fees,” Aug. 9, 2022
• AFGE, “In Big Legal Win For AFGE, Court Strikes Down Trump-Era FLRA Policy Allowing Agency Heads to Unilaterally Rewrite Union Contracts,” Aug. 8, 2022
• Route Fifty, “A Legislative Staff Unionization Wave is Hitting Blue State Capitols,” Aug. 5, 2022 

The big picture

Number of relevant bills by state

We are currently tracking 149 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 AB1577: This bill would allow state legislative employees to organize and bargain collectively.
  • Bipartisan sponsorship. 
  • Senate Appropriations Committee hearing Aug. 11. Committee recommendation: amend and pass as amended. Senate read second time and amended Aug. 11. 
• 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. 
  • Senate Appropriations Committee hearing Aug. 11. Committee recommendation: do pass. Senate read second time and ordered to third reading Aug. 11. 
• California AB2556: This bill would change the time frame for a local public agency employer to implement a final offer after a factfinders’ recommendation has been submitted in the case of a dispute between the employer and employee organization.
  • Democratic sponsorship. 
  • Senate Appropriations Committee hearing Aug. 11. Committee recommendation: do pass. Senate read second time and ordered to third reading Aug. 11.
• California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and would set civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. 
  • Democratic sponsorship. 
  • Assembly Appropriations Committee hearing Aug. 11. Committee recommendation: do pass as amended.
• California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
  • Democratic sponsorship. 
  • Assembly Appropriations Committee hearing Aug. 11. Committee recommendation: do pass. 
• 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. 
  • Assembly Appropriations Committee hearing Aug. 11. Committee recommendation: do pass.

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