Demonstrators outside the U.S. Supreme Court during arguments in the union fees case Janus v. AFSCME, on February 26, 2018. Demonstrators outside the U.S. Supreme Court during arguments in the union fees case Janus v. AFSCME, on Feb 26, 2018. Photo: Diego M. Radzinschi/ALM

A federal appellate court on Friday rejected a First Amendment challenge to North Dakota's mandatory bar association.

A three-judge panel of the U.S.Court of Appeals for the Eighth Circuit ruled that there was no constitutional violation in the bar association's procedures for collecting members' dues and that attorney Arnold Fleck's First Amendment association claim failed because he forfeited the issue in the district court.

The panel actually was revisiting its earlier ruling in favor of the bar association after the U.S. Supreme Court vacated and remanded that ruling for reconsideration in light of the justices' 5-4 decision last year in Janus v. AFSCME. In Janus, the majority overruled a decades-old decision upholding the constitutionality of dues paid by nonmembers of public sector unions required to represent them. The high court also held the unions could not deduct agency fees from nonmembers' wages unless the nonmembers affirmatively consented.

On remand in Fleck v. Wetch, Fleck argued that Janus required reversal of the district court's decision in favor of the bar association, because Janus had undermined the theoretical underpinnings of Keller v. State Bar of California, a 1990 Supreme Court ruling in which the justices held that an integrated bar can, consistent with the First Amendment, use a member's compulsory fees to fund activities germane to "regulating the legal profession and improving the quality of legal services," but not for political or ideological activities.

"Assuming without deciding that Keller 'left the door open' to pursue this freedom of association claim in the district court and in this court, Fleck explicitly chose not to do so," wrote Judge James Loken of the U.S. Court of Appeals for the Eighth Circuit, joined by Judges Steven Colloton and Jane Kelly. "Based on prior Supreme Court precedent, we conclude the record is inadequate as the result of Fleck forfeiting the issue in the district court and on appeal. Accordingly, we decline to invoke our discretion to take up this claim for the first time on remand."

As to Fleck's claim that the bar's fee procedures violate Janus and the First Amendment, the panel said a member's right to pay or refuse to pay dues to subsidize non-chargeable expenses is clearly explained on the fee statement in advance of the member consenting to pay by delivering a check to the bar association.

"Doing nothing may violate a member's obligations to pay dues, but it does not result in the member paying dues that he or she has not affirmatively consented to pay," wrote Loken. "The best that can be said for Fleck's argument is that a busy or careless lawyer might fill out the fee statement and write a check to [State Bar Association of North Dakota] for the full annual dues without noticing the option to take the Keller deduction. The record contains no evidence this has ever happened or is likely to happen."

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