Fleck v. Wetch, 083019 FED8, 16-1564

Docket Nº:16-1564
Opinion Judge:LOKEN, CIRCUIT JUDGE.
Party Name:Arnold V. Fleck Plaintiff- Appellant v. Joe Wetch, President of the State Bar Association of North Dakota, et al. Defendants - Appellees Pacific Legal Foundation Amicus on Behalf of Appellant State Bar of California; The Missouri Bar; State Bar of Alaska; State Bar of Arizona; State Bar of Kentucky; State Bar of Michigan; State Bar of South ...
Judge Panel:Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
Case Date:August 30, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Arnold V. Fleck Plaintiff- Appellant

v.

Joe Wetch, President of the State Bar Association of North Dakota, et al. Defendants - Appellees

Pacific Legal Foundation Amicus on Behalf of Appellant

State Bar of California; The Missouri Bar; State Bar of Alaska; State Bar of Arizona; State Bar of Kentucky; State Bar of Michigan; State Bar of South Dakota; State Bar of Wyoming Amid on Behalf of Appellees

Texas Legal Ethics Counsel Amicus Curiae

No. 16-1564

United States Court of Appeals, Eighth Circuit

August 30, 2019

Submitted: June 13, 2019

Appeal from United States District Court for the District of North Dakota - Bismarck

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

LOKEN, CIRCUIT JUDGE.

To practice law in North Dakota, every resident lawyer must maintain membership in and pay annual dues to the State Bar Association of North Dakota (SBAND). See N.D.C.C. §§ 27-11-22; 27-12-02, -04. When attorney Arnold Fleck learned that SBAND was using his compulsory dues to oppose a state ballot measure he supported, Fleck commenced this action against SBAND and various state officials in their official capacities, asserting First Amendment claims. The district court1 granted summary judgment for the defendants. Fleck appealed; we affirmed. Fleck v. Wetch, 868 F.3d 562 (8th Cir. 2017). Almost one year later, the Supreme Court issued its decision in Janus v. American Federation of State, County, and Municipal Employees, 138 S.Ct. 2448 (2018). The Court then granted Fleck's petition for a writ of certiorari, summarily vacated our decision, and remanded "for further consideration in light of Janus." 139 S.Ct. 590 (2018). We reopened the case and directed the parties to submit supplemental briefs addressing the issues on remand. Having considered the supplemental briefs, the record on appeal, and the Supreme Court's decision in Janus, we again affirm the decision of the district court.

I. Framing the Issues on Remand.

A. In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Supreme Court held that public-sector unions may collect compulsory "agency fees" from non- members within the bargaining unit to fund activities germane to collective bargaining, but may not use those fees to fund non-germane political or ideological activities that a nonmember employee opposes. In Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 303 (1986), the Court held that the procedure a union adopts to implement this distinction must "be carefully tailored to minimize the infringement" of a nonmember's First Amendment rights. This includes, the Court declared, "an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending." Id. at 310.

In Keller v. State Bar of California, 496 U.S. 1, 13-15 (1990), the Court held that an integrated bar such as SBAND can, consistent with the First Amendment, use a member's compulsory fees to fund activities germane to "regulating the legal profession and improving the quality of legal services," but not to fund "activities having political or ideological coloration which are not reasonably related to the advancement of such goals" that the member opposes (non-germane activities). Lacking an adequate record to address procedural alternatives in detail, the Court stated that "an integrated bar could certainly meet its Abood obligation by adopting the sort of procedures described in Hudson." Id. at 17.

In Janus, the Supreme Court overruled Abood and held that public-sector unions may not deduct agency fees or "any other payment to the union" from the wages of nonmember employees unless the employees waive their First Amendment rights by "clearly and affirmatively consent[ing] before any money is taken from them." 138 S.Ct. at 2486. On remand, Fleck argues that Janus "requires reversal of the district court decision" because Keller's theoretical underpinnings have been undercut by Janus and by Harris v. Quinn, 573 U.S. 616 (2014).

Like Keller, this case involves a mandatory bar association, not a public-sector union. The majority in Janus did not discuss Keller nor respond to the dissent's assertion that Keller was a "case[] involving compelled speech subsidies outside the labor sphere [that] today's decision does not question." 138 S.Ct. at 2498 (Kagan, J...

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