MONTH-IN-BRIEF (Nov 2019)
Eighth Circuit Ducks Constitutional Issues in Challenge to Integrated Bar
By Keith R. Fisher
A number of cases have been filed presenting the question whether state law may, consistent with the First Amendment, presume that a member of an integrated (or mandatory) bar has consented to subsidizing non-chargeable speech by the bar association that the member is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the member must affirmatively consent. The best-known of these cases is Fleck v. Wetch, involving a challenge by a North Dakota lawyer. In December 2018, the Supreme Court, without opinion, simultaneously granted the petition for certiorari, vacated the Eighth Circuit’s earlier decision in favor of the North Dakota State Bar, and remanded with instructions for further consideration in light of the 2018 decision in Janus v. State, County, and Municipal Employees. Janus involved a former Illinois state employee who disagreed with the union's politics and refused to join but was nevertheless forced to pay a monthly fee because the union represented all employees in contract negotiations.