Falk v. State Bar of Michigan

• Decision Date: 29 December 1983
• Docket Number: No. 14,M,Docket No. 60722,14
• Citation: 418 Mich. 270,342 N.W.2d 504
• Parties: Allan FALK, Plaintiff, v. STATE BAR OF MICHIGAN, Defendant. arch Term 1983. Calendar418 Mich. 270, 342 N.W.2d 504
• Court: Michigan Supreme Court

Page 504

342 N.W.2d 504

Allan FALK, Plaintiff, v. STATE BAR OF MICHIGAN, Defendant.

Docket No. 60722, March Term 1983.

Calendar No. 14.

418 Mich. 270, 342 N.W.2d 504

Supreme Court of Michigan.

Argued March 8, 1983.

Decided Dec. 29, 1983.

Released For Publication Dec. 29, 1983.

Allan Falk, pro se.

George E. Bushnell, Jr., John K. Parker, Detroit, for defendant.

PER CURIAM.

Disposition of this matter requires us to determine whether petitioner Falk is entitled to the relief he prayed for in his "Petition for Special Relief" originally filed November 30, 1977.

A majority of the Court is not persuaded that he is so entitled and, accordingly, the relief requested in the Petition for Special Relief is denied.

This proceeding has convinced us all, however, that certain practices of the State Bar may warrant closer scrutiny pursuant to our duty to superintend its activities. We will in the near future, therefore, by separate administrative order, appoint a committee to review those practices and activities and make recommendations to the Court.

Petition dismissed.

WILLIAMS, C.J., BOYLE, LEVIN, KAVANAGH, CAVANAGH, BRICKLEY and RYAN, JJ., concur.

BOYLE, Justice.

Plaintiff Falk began this suit on November 30, 1977, by filing a "Petition for Special Relief" naming the State Bar of Michigan as defendant. Plaintiff raised First Amendment constitutional challenges to various activities of the State Bar based on the funding of those activities from his mandatory dues. ¹ This Court appointed former Judge Maurice E. Schoenberger to conduct a hearing and make findings of fact. After receipt of Judge Schoenberger's report and the transcript of the hearing he conducted, and after briefing and oral argument, this Court rendered its first opinion in this case. Falk v. State Bar of Michigan, 411 Mich. 63, 305 N.W.2d 201 (1981) (Falk I ).

The members of this Court were unable to agree in Falk I concerning the extent of the relief, if any, that plaintiff should receive. The Court unanimously agreed, however, that further factual findings should be ordered. Therefore, the Court appointed the Honorable James H. Lincoln to conduct additional hearings. The Court ordered further development of the record with regard to the following activities of the State Bar:

"[T]he Young Lawyers Section and Lawyers Wives, the Lawyer Placement Service, the commercial sale of the bar's mailing list, and bar activities addressed to influencing legislation." 411 Mich. 83, 305 N.W.2d 201. ²

We now have the results of those extensive hearings. Both sides have again briefed and argued the relevant issues.

At the outset, I agree with the opinion of Justice Ryan in Falk I, pp. 84-87, 305 N.W.2d 201, ³ concerning our jurisdiction to hear and dispose of this case. That is, I agree that plaintiff's petition most closely resembles and is properly treated as a complaint for a writ of superintending control under GCR 1963, 851(6); M.C.L. Secs. 600.215, 600.219; M.S.A. Secs. 27A.215, 27A.219. I note also that Justice Williams in his opinion in Falk I, supra, p. 122, fn 4, 305 N.W.2d 201, reached this issue and concurred with Justice Ryan's treatment of the petition as a complaint for a writ of superintending control. Because five members of this Court have previously reached and disposed of this issue, it is properly viewed as the law of the case. Therefore, I agree that this case is properly within this Court's original jurisdiction.

I. The Effect of Falk I

As pointed out in the several opinions in Falk I, it is undisputed that the State Bar of Michigan is an "integrated bar". "[T]he 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." Falk I, supra, p. 87, 305 N.W.2d 201 (opinion of Ryan, J.).

Plaintiff challenges the use of his mandatory dues to finance various activities of the bar. Justice Williams listed those activities in Falk I:

"(1) lobbying and other political activity, (2) compulsory membership in Young Lawyers Section, (3) promoting prepaid legal services, (4) lawyer referral, (5) lawyer placement, (6) Client Security Fund, (7) public education about legal services, (8) funding of Lawyers Wives of Michigan and Children's Charter of Michigan activities, (9) giving and paying for social functions, including those where the Supreme Court Justices are guests of honor, (10) appearing before the State Officers Compensation Commission in support of higher Supreme Court and other judicial salaries, and (11) sale of use of State Bar mailing roster." 411 Mich. 120, 305 N.W.2d 201.

Upon analysis of the several opinions in Falk I, it appears that some of these challenged activities have passed constitutional muster. The Court unanimously rejected plaintiff's challenge to the use of his dues for support of the bar's lawyer referral service. ⁴ The Court was also unanimous in rejecting the challenge to expenditures for public education about legal services. ⁵ A majority of the Court also upheld the use of bar dues to finance a Client Security Fund. ⁶ By application of the law-of-the-case doctrine, we are foreclosed from reconsideration of those items here.

In addition, two other challenges are now moot. At the present time, the bar provides an opportunity to its members to remove their names from the mailing list which is offered for sale to interested parties. Similarly, otherwise eligible members of the Young Lawyers Section may disassociate themselves from membership in that organization. ⁷ Therefore, neither of these issues presents a constitutional question requiring resolution at this time.

To summarize, plaintiff's challenges to the following activities remain undecided after Falk I: (1) certain activities of the Young Lawyers Section, (2) promotion of prepaid legal services, (3) lawyer placement services, (4) certain activities of the Lawyers Wives, (5) social functions, (6) appearing before the State Officers Compensation Commission, and (7) lobbying and other political activity.

II. The Constitutional Test

As indicated above, there was no agreement among a majority of the members of this Court in Falk I concerning the proper constitutional standard to be applied to test plaintiff's challenges to expenditures of the integrated State Bar of Michigan. Three members of the Court believed that relevant First Amendment ⁸ decisions of the United States Supreme Court required that bar activities be subjected to strict scrutiny:

"We therefore conclude that, in light of the controlling First Amendment principles as hereinabove discussed, the State of Michigan, through the combined actions of this 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 compelling state interests and which cannot be accomplished by means less intrusive upon the First Amendment rights of objecting individual attorneys." 411 Mich. 112, 305 N.W.2d 201 (opinion of Ryan, J.).

Two other members of the Court believed a different constitutional test was applicable:

"We find that the First Amendment is not absolute but will give way to certain state activities which are germane to a compelling state interest. The state has a compelling interest in promoting improvements in the administration of justice and advancing the science of jurisprudence in order to fulfill its function of protecting the health, safety and welfare of its citizens. The state may employ activities which are germane to this compelling state interest." 411 Mich. 132, 305 N.W.2d 201 (opinion of Williams, J.).

The remaining two members found it unnecessary to decide what the appropriate standard of judicial scrutiny was because of the inadequately developed record. ⁹ See Falk I, supra, p. 175, 305 N.W.2d 201 (opinion of Levin, J.).

I am unable to agree that either of the formulations of the constitutional test in Falk I is correct. I am brought to this conclusion by a careful analysis of the precise First Amendment interest to be protected under these circumstances and by an examination of the cases in which the United States Supreme Court has discussed such an interest.

A. The Interest

The most familiar First Amendment claim is a challenge to state action in which a citizen complains of some interference by the government with an attempt to exercise, in an affirmative way, protected rights to speak or to associate with others. Typical First Amendment cases involve persons who wish to express themselves in a particular manner in the face of limiting or prohibitory government regulation. ¹⁰ Other typical cases involve individuals who wish to associate with others and who claim that governmental action in some manner inhibits their ability to do so. ¹¹

This case does not fit the typical mold. Rather, what plaintiff complains of here is, in essence, government action which compels him to associate and compels him to participate in certain forms of expression. ¹² The right that plaintiff asserts is a right of non-association and of non-expression.

Because the individual seeks, in effect, to remain silent, the right of non-association cannot logically be based on the policy of maintaining a "free marketplace for ideas" which is usually advanced in connection with rights of unfettered expression. However, compelled association can reasonably be seen as an infringement upon more personal individual interests such as freedom of conscience. See Gaebler, First Amendment Protection Against Government Compelled Expression and Association, 23 B.C.L.Rev. 995, 1004 (1982). Professor Laurence Tribe has described this interest more completely:

"The Constitution has enumerated specific categories of thought and conscience for special treatment: religion and speech. Courts have at times properly generalized from these protections, together...