U.S. Supreme Court. Credit: Diego M. Radzinschi / ALM |

Last year in the U.S. Supreme Court fight over public-sector union fees, the conservative Goldwater Institute urged the justices to strike down the decades-old decision that upheld mandatory attorney bar associations.

That time is now, according to the Arizona-based Goldwater Institute. The Institute's James Manley recently filed a petition for review on behalf of Bismarck, North Dakota, attorney Arnold Fleck.

“This case challenges the constitutionality of North Dakota's mandatory bar association laws under the First Amendment,” the petition said.

The new challenge takes aim at the 1990 ruling in Keller v. State Bar of California, and the high court's 1961 decision in Lathrop v. Donohue. The petition raises questions about the lawfulness of forcing a lawyer to join a trade association he or she opposes as a condition of earning a living, and it asks whether mandatory bar association violates the First Amendment by forcing a lawyer to opt out of political spending by the bar association instead of affirmatively opting in.

Manley said two recent Supreme Court decisions—Harris v. Quinn and Knox v. Service Employees International Union—provided additional fodder for his challenge to mandatory bar associations.

Those two rulings cast doubt on the 40-year-old decision upholding the constitutionality of so-called “fair share” fees that are paid by non-union members to public employee unions for the costs of collective bargaining. The high court deadlocked 4-4 last term on whether to overrule the 1977 decision, Abood v. Detroit Board of Education. But the court will consider the question again this term in Janus v. AFSCME.

The “deeper question,” Manley said, is whether mandatory bar associations can still be justified under the heightened scrutiny that the justices have applied in cases like Harris and Knox.

“If you look back at Lathrop, the court said the state might reasonably think bar membership serves the purpose of attorney regulation,” he said in an interview. “That was the only scrutiny the court gave. The change in the law is significant in the sense the court is now taking a genuine look at whether these speech impingements can be justified.”

Fleck's beef with the State Bar Association of North Dakota dates to 2014, when he discovered the bar association was on the other side of a child custody ballot measure that he was supporting financially. The bar's spending to oppose the measure, according to Fleck, was illegal, and he sued in 2015.

In August, the U.S. Court of Appeals for the Eighth Circuit, citing Keller and Lathrop, upheld the dismissal of Fleck's challenge to mandatory bar membership. It also ruled that the opt-out procedure was tailored to minimize infringement of First Amendment rights.

The state bar has yet to respond to the petition. But the threat to mandatory bar associations is likely to generate considerable opposition.

In last term's union fees case, 21 past presidents of the District of Columbia Bar said in an amicus brief that the Abood/Keller line of cases “represents a firmly rooted body of law upon which not only states and unions but also integrated bars, including the D.C. Bar, have long relied in structuring their activities.”

Their attorney, Covington & Burling senior of counsel John Nields Jr., warned that overruling Abood “would very likely spawn additional time-consuming and expensive lawsuits by bar members who do not want to pay their mandatory bar dues.”

Nields continued: “Such lawsuits would severely distract this country's 32 integrated bars from their critical work serving the 'state's interest in regulating the legal profession and improving the quality of legal services.'”

Manley said 19 states now allow attorneys to choose to join or not, “and they're all managing to regulate attorneys.”