8th Circuit Once Again Rejects Attorney's Bar Dues Challenge

By Laura Temme, Esq. on September 06, 2019

In 2017, North Dakota attorney Arnold Fleck learned that his state’s bar association opposed a ballot measure establishing a presumption that parents have equal parental rights. As someone who supported the measure, Fleck took issue with the fact that his mandatory bar dues seemed to support a cause he didn’t believe in.

Fleck’s case made its way through the 8th Circuit courts, where precedent supported the North Dakota state bar’s actions. After getting all the way to the United States Supreme Court, the case was remanded for reconsideration.

On August 30, 2019, the 8th Circuit rejected Fleck’s arguments all over again.

Supreme Court Says “Think Again”

SCOTUS remanded Fleck’s claims for reconsideration under Janus v. AFSCME, a 2018 decision that held requiring public employees to pay union dues violates their freedom of speech.

However, the reigning rule on lawyer dues comes from a 1990 case, Keller v. State Bar of California. In Keller, the Supreme Court ruled that state bars can require payment of lawyer dues to fund regulatory activities and improvements to the quality of legal services. As long as there were no political or ideological initiatives, dues weren’t a problem.

In the original suit, Fleck settled one of his claims when the bar agreed to change fee statements to provide attorneys with an avenue to opt out of a portion of their dues – calling it a “Keller deduction.”

Going in Circles

Ultimately, the 8th Circuit held that Fleck’s First Amendment claim was not the right arena to overturn Keller, finding the issue could not be decided on appeal when it was not raised at the district court level. Fleck apparently chose not to pursue his claim that mandatory membership in the state bar association violated his freedom of association because at the time it was foreclosed by Keller.

So, it seems Fleck is setting himself up to head back to the Supreme Court, where the issue of compelled speech and association can be better resolved.

Which reminds me, I better pay my bar dues.

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