SCOTUS declines to hear challenge to compulsory bar association membership, dues

The Supreme Court declined on Monday to take up an appeal from a pair of Wisconsin attorneys in a case with broad First Amendment implications for both the freedom of speech and freedom of association, The Washington Free Beacon reported.

At the heart of the petition to the court was the fact that the attorneys at issue were required to join their state’s bar association in order to practice law and were forced to pay membership dues that were used to advocate for political positions with which they disagreed.

Unfortunately, though Justices Clarence Thomas and Neil Gorsuch supported taking up the case, the rest of the court apparently did not, and no explanation was given as to why the appeal was rejected.

Attorneys object to mandatory dues

The case known as Jarchow v. State Bar of Wisconsin was brought by attorneys Adam Jarchow and Michael Dean, and in support of their petition to the court, they pointed to the Supreme Court’s 2018 ruling in the case of Janus v. AFSCME in which the court struck down on First Amendment grounds a mandate that workers pay dues to public-sector unions.

The attorneys argued that the mandatory dues they are forced to pay to the State Bar of Wisconsin are similar to the compulsory union dues discussed in Janus in that they are essentially compelled speech that violates the First Amendment.

Furthermore, the attorneys challenged the requirement of membership in the State Bar of Wisconsin as a prerequisite for practicing law in the state, which they argued is a violation of their right of free association, given that the organization regularly advocates in support of political and social positions the two attorneys do not share.

In making their argument, the attorneys repeatedly referenced two past Supreme Court precedents — Lathrop v. Donohue in 1961 and Keller v. State Bar of California in 1990. Both cases upheld mandatory membership in a state bar association as precondition for the practice of law (known as an “integrated bar”), but the lawyers claimed that those rulings had since been undermined by the Janus ruling and should therefore be reconsidered.

SCOTUS declines to hear case

In its response to the petition, the State Bar of Wisconsin essentially argued that its advocacy on political and social issues is largely funded by voluntary donations from members who agree to pay a higher fee.

The bar association further asserted that members are free to opt-out of the higher membership rate and pay a lower base fee that purportedly only covers the basic, non-controversial services offered by the association.

In addition, the bar association contended that, since it is a state-created, quasi-governmental organization, it cannot be held to the same rulings and standards that would apply to the privately-run public sector employee unions that were at issue in the Janus case.

Unfortunately, a majority of the Supreme Court justices either agreed with the State Bar of Wisconsin or didn’t feel like digging in to the pertinent First Amendment issues contained within this case and decided not to hear the appeal of the attorneys.

Thus, unless some other similar case comes along that raises these same issues, attorneys who practice law in a state with an “integrated” bar association will still be required to maintain membership in that organization and pay annual dues even if they strongly disagree with the political positions those funds are used to support.

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