A protest outside the Supreme Court on Feb. 26, 2019, as the justices prepared to hear “Janus v. AFSCME .” Credit: Diego M. Radzinschi/NLJ

A North Dakota attorney took a second shot at convincing a federal appeals court that mandatory bar dues are unconstitutional, this time relying on the U.S. Supreme Court's recent landmark ruling involving public-sector labor union dues to bolster his case.

The justices remanded the North Dakota case to the U.S. Court of Appeals for the Eighth Circuit for reconsideration in the wake of its 5-4 decision in Janus v. AFSCME last year. That decision has sparked a flood of challenges to mandatory bar membership and dues in states such as Oklahoma, Oregon, Texas and North Dakota.

The conservative majority in Janus, led by Justice Samuel Alito Jr., overruled a four-decade-old precedent that said unions could impose “fair share” fees on nonmembers for the cost of collective bargaining.

On June 13, Goldwater Institute attorney Timothy Sandefur argued the Supreme Court's ruling means the state bar must prove it has no other less restrictive means to obtain its goals before it implements the bar fee.

As a result, Sandefur said, the panel should no longer apply precedent from Keller v. State Bar of California. That 1990 Supreme Court decision said lawyers could be compelled to join state bar associations, but compulsory dues could only apply to the costs of regulating or improving the legal profession—not for political or ideological activities.

Sandefur's client, Arnold Fleck, filed a federal lawsuit in 2015 over his objection to paying dues to the State Bar Association of North Dakota that were used to advocate for political issues. He specifically opposed the association's stance on a 2014 ballot initiative that involved parental rights in custody cases, a provision he had advocated for.

The panel comprised of Judges James Loken, Steven Colloton and Jane Kelly unanimously ruled against Fleck in 2017, finding a state provision allowing members to opt out of funding nongermane activities such as the ballot initiative, and to subsequently pay a lower membership fee, was not unconstitutional.

North Dakota has an integrated bar, meaning Fleck and other licensed attorneys must maintain membership in and pay annual dues to the state bar association as a condition of practicing law.

The panel repeatedly questioned Sandefur Thursday on how to proceed given his client had already conceded earlier in the litigation that Keller was the controlling precedent, and that the record was built on that presumption. The judges also noted that Janus and other cases cited in Fleck's litigation only deal with dues charged to nonunion members, a completely separate issue from Fleck's situation.

Sandefur said the court was not bound by that earlier concession, and questioned whether the option to opt out of paying for bar activities, instead of opting in, is consistent with Janus.

“The baseline after Janus must be that the person is presumed not to agree, not to consent, unless that person takes a step and demonstrates by clear and convincing evidence, and is willing to participate,” Sandefur said.

Representing the State Bar Association of North Dakota, attorney Randall J. Bakke, of Bakke Grinolds Wiederholt, said he found it interesting that Fleck and his attorneys are now claiming the state's dues notice is not compliant with Keller even though they helped craft it.

The dues notice was changed to include the opt-out provisions after a district court judge determined earlier in the litigation that it did not comply with Keller, Bakke said.

The dues notice goes out each November, and includes a sheet with information on the Keller policy. Members then have the option to opt out of having any money going into political activities, but they do opt in for the pro bono fund, the bar fund and various committees.

Bakke added that Janus does not affect Fleck's case given the 2018 decision only involved collecting labor union dues from nonmembers.

“[Janus] was a public union case only, involving compelled fees,” Bakke said. “We have no compelled fees. This is not a situation where there is an employer and employee. This is not a collective bargaining situation.”

 

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