Falk v. State Bar of Michigan, 60722

• Court: Supreme Court of Michigan
• Citation: 411 Mich. 63,305 N.W.2d 201
• Docket Number: No. 5,No. 60722,60722,5
• Parties: Allan FALK, Plaintiff, v. STATE BAR OF MICHIGAN, a public body corporate, Defendant. Calendar
• Decision Date: 29 April 1981

Page 201

305 N.W.2d 201

411 Mich. 63

Allan FALK, Plaintiff, v. STATE BAR OF MICHIGAN, a public body corporate, Defendant.

No. 60722.

Calendar No. 5.

Supreme Court of Michigan.

Argued June 5, 1979.

Decided April 29, 1981.

Allan Falk, pro se.

George E. Bushnell, Jr., and Lynn H. Shecter, Southfield, for defendant.

PER CURIAM.

This matter comes before this Court pursuant to plaintiff's "Petition for Special Relief". In his petition the plaintiff sets forth his objections to a number of State Bar activities and asks that the petition "be granted".

Based on the record we have before us, three members of the Court are of the view that the plaintiff is entitled to partial relief and would order it to be afforded. Several issues, however, cannot be decided without further development.

Two members of the Court are of the opinion that the plaintiff is not entitled to relief and would deny the petition.

Two members of the Court are of the view that further hearings on this matter are required, believing that the present state of the record is such that while some of the issues could be resolved based upon an evaluation of the record, several other issues should not be decided without further development.

In light of these circumstances, there being no majority of the Court at this time for a decision which would determine this matter, we order that the Honorable James H. Lincoln be appointed to conduct an additional evidentiary hearing. At this hearing the parties shall further develop the record with regard to the following bar activities: the Young Lawyers Section and Lawyers Wives, ¹ the Lawyer Placement Service, the commercial sale of the bar's mailing list, and bar activities addressed to influencing legislation.

The hearing on remand shall be concluded not later than July 31, 1981 and the transcript thereof filed with the Clerk of this Court within 60 days after conclusion of the hearing. Thereafter the plaintiff shall file any additional brief he wishes to present for consideration within 30 days of the filing of the transcript and the State Bar shall file any responsive brief within 60 days of the filing of the transcript.

A majority of the Justices are in favor of the action directed by this opinion. All of the Justices agree that, there being a majority for this action, an order to effectuate these directions shall be issued.

COLEMAN, C. J., and MOODY, LEVIN, KAVANAGH, WILLIAMS, FITZGERALD and RYAN, JJ., concur.

RYAN, Justice.

The issue in this case is:

To what extent, if any, may this state, through the combined actions of the Supreme Court, the Legislature, and the State Bar, compulsorily exact dues for, and require association in, an integrated bar organization over the First Amendment ¹ objections of an affected individual attorney?

We would hold:

The State of Michigan, through the combined actions of the Supreme Court, the Legislature, and the State Bar, may compulsorily exact dues, and require association, to support only those duties and functions of the State Bar which serve a compelling state interest and which cannot be accomplished by means less intrusive upon the First Amendment rights of the objecting individuals affected.

I. Factual Background

A

This case was commenced as an original proceeding in this Court on November 30, 1977 when plaintiff attorney Allan Falk filed a pleading entitled "Petition for Special Relief" which named the State Bar of Michigan as the defendant.

The plaintiff's petition is a three-page document which sets forth a series of factual allegations and legal assertions expressing his First Amendment objections to various activities and expenditures of the State Bar of Michigan, to which he must belong and pay dues. While Mr. Falk brings an unusual, and relatively complex, claim to this Court, we find that his petition bears at best only a remote resemblance to a complaint under our court rules, GCR 1963, 101, 111. The petition certainly contains allegations that various activities and expenditures of the State Bar violate the plaintiff's First Amendment rights. ² However, we are unable to discern the statement of any other claim or cause of action. ³ Further the demand for judgment or relief (see GCR 1963, 111.1(3)) requests only that the "petition for special relief be granted". ⁴ We treat the petition as a complaint for a writ of superintending control over the State Bar of Michigan, within our original jurisdiction pursuant to GCR 1963, 851(6); M.C.L. §§ 600.215, 600.219; M.S.A. §§ 27A.215, 27A.219. We further interpret the petition as seeking an order from this Court relieving the plaintiff of the obligation of paying the pro rata portion of his State Bar dues which relates to alleged "unlawful and unconstitutional activities".

Our role under these unusual circumstances is comparable to that of a trial court, responsible for making the appropriate factual determinations and applicable conclusions of law in reaching a judgment resolving the claims presented.

Subsequent to the filing of Mr. Falk's petition, this Court entered an order appointing former Judge Maurice E. Schoenberger to conduct a hearing and make findings of fact on the issues presented in this case. 402 Mich. 960 (1978).

On June 5 and 6, 1978, the hearing was held, and both parties presented testimony relating to the various activities and functions of the State Bar. A transcript of the hearing is part of the present record. On September 29, 1978 Judge Schoenberger submitted his report to this Court. The report summarizes the presentations of the State Bar and Mr. Falk, lists the exhibits received into evidence at the hearing, and concludes that there are no controverted factual matters which require resolution.

Thereafter, plaintiff Falk filed a brief, a reply brief, and a supplemental reply brief. The defendant State Bar filed a brief in opposition and a motion to file an answer to plaintiff's supplemental reply brief which contained the answering brief. All of this material has been considered by this Court. Finally, pursuant to our order of April 6, 1979 oral arguments were heard on June 5, 1979. 406 Mich. 1117 (1979).

A review of the record establishes certain salient facts relating to plaintiff Falk's claim. One of those uncontroverted facts is that the State of Michigan, through the combined actions of this Court, the Legislature, and the State Bar, compels all licensed attorneys to associate in and provide financial support for the integrated State Bar. Another uncontroverted fact is that the State Bar engages in various lobbying efforts in the Legislature, and that such efforts are financed, at least in part, by the compulsorily exacted dues of the Bar's members. It is likewise undisputed that compulsory bar dues are used to finance other activities which plaintiff contends are non-regulatory in nature, such as the Prepaid Legal Services programs, Lawyer Referral Service programs, the Lawyer Placement Service, and the Client Security Fund.

B

The integrated State Bar of Michigan was legislatively authorized by 1935 P.A. 58. ⁵ Thereafter, this Court in cognizance of the legislation and pursuant to its own inherent power to regulate the practice of law in this state, ⁶ entered an order organizing, and promulgating rules concerning, the integrated bar. ⁷

Section 1 of the first Supreme Court Rules Concerning the State Bar provided:

"The State Bar of Michigan is the association of the members of the bar of this State, organized pursuant to powers of the Supreme Court over the bar of the State. The association shall, under these rules, aid in the promotion of improvements in the administration of justice and the advancement of the science of jurisprudence, in the improvement of the relations between the profession and the public, and in the promotion of the interests of the legal profession in this State." ⁸

This original declaration of the purposes of the integrated bar has not been materially altered by any restatement in the subsequent 44 years. ⁹

At all times since the formation of our integrated State Bar, all actively practicing lawyers in this state have been required to be members of, ¹⁰ and pay dues to, ¹¹ that organization.

There can be no question that since 1935 the privilege of practicing law in this state has been conditioned upon association with, and financial support of, the integrated State Bar of Michigan compelled by the state.

II. Relevant United States Supreme Court Decisions

Our analysis of Mr. Falk's claim under the First Amendment is controlled, of course, by the applicable decisions of the United States Supreme Court. We therefore here undertake the task of presenting our understanding of certain United States Supreme Court decisions which are implicated by Mr. Falk's claims and the State Bar's response.

A. Hanson, Street, and Lathrop

In Railway Employees' Dep't v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956), non-union employees of a railroad brought suit in a Nebraska state court against the railroad and various unions representing the railroad's employees seeking to enjoin anticipated enforcement of a union shop ¹² agreement entered into between the railroad and the unions. The contract required that all employees of the railroad become members of the specified union as a condition of their employment.

The union shop agreement was permissively authorized by the Federal Railway Labor Act. That act authorized union shop agreements "notwithstanding the law of 'any State' ". 351 U.S. 228, 76 S.Ct. 716.

The Nebraska state constitution contained a "right to work" provision which outlawed union shop agreements.

The Nebraska trial court enjoined enforcement of the agreement. The Nebraska Supreme Court affirmed, holding that the union shop agreement violated the First Amendment in that it deprived employees of their freedom of association, and violated the Fifth Amendment, ¹³ in that it required members of the union to...