A. Lathrop: the unified bar upheld.
In the 1956 case of Railway Employees' v. Hanson, the Supreme Court, asked to rule on the constitutionality of a union shop provision, stated casually, "On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated [unified] bar."23 Apparently, the constitutionality of the compulsory bar was so obvious to the justices as to be beyond question.
However, far from precluding challenges to the compulsory bar, the Court's casual pronouncement on the constitutionality of the compulsory bar—a question which was not before it, and which had not been briefed—marked the beginning of more than 30 years of legal wrangling over the constitutionality of the compulsory bar.24 Only recently has a clear body of doctrine begun to emerge.
The Supreme Court first had to face the fact that the issue was not so simple just five years after Hanson. In Lathrop v. Donohue, Trayton L. Lathrop, a Wisconsin attorney, argued that his compelled membership and financial support of the State Bar of Wisconsin, which engaged in various political and legislative activities with which Lathrop disagreed, violated his rights under the First Amendment.25 The Court quickly realized that its cavalier pronouncement in Hanson on the legitimacy of a compulsory bar was problematic.
The case split the Court into no fewer than five camps. Writing for a four justice plurality, Justice Brennan found that mandatory membership in a unified bar was constitutional, but that certain political and legislative expenses of such an organization might violate First Amendment rights of free speech.26 However, as the record did not reveal any particular political or legislative activities that Lathrop alleged violated his rights, the plurality reserved decision on the question.
Justice Harlan, joined by Justice Frankfurter, concurred in the judgment, but would have found that the State Bar of Wisconsin's use of compulsory bar dues to promote legislative goals, regardless of the views taken, was not prohibited by the First Amendment. Justice Whittaker concurred only in the result, being of the opinion that, whatever its activities, a mandatory bar did not even raise First Amendment issues.
In dissent, Justice Black wrote that the State Bar of Wisconsin's use of compulsory dues for political purposes violated Lathrop's First Amendment rights of free speech. Also dissenting was Justice Douglas, who went Black one better by arguing that even compulsory membership in a state bar association violated the First Amendment right of free association.
Despite the fractured nature of the Lathrop opinions, eight of the court's members—all save Douglas—agreed that compulsory membership was constitutional: The other question posed by Lathrop—what limits, if any, does the First Amendment place on the expenditure of compulsory dues income—was left for another day. It would be over 30 years before that day arrived in the Supreme Court. Meanwhile, the issue continued to percolate in lower courts as other Trayton Lathrops pressed their cases in states around the country, including Michigan.
B. The Falk Decisions
On November 30, 1977, Allan Falk, a lawyer employed by the state, filed an original action against the State Bar of Michigan in the Michigan Supreme Court. In his "Petition for Special Relief," Falk did not attack the validity of the compulsory bar per se, but claimed that the use of mandatory dues to fund certain activities of the State Bar violated his First Amendment rights of speech, assembly, and religion.27
Falk's argument hung primarily on a post-Lathrop labor law decision of the United States Supreme Court, Abood v. Detroit Board of Education.28 In Abood, the Detroit Board of Education had reached a collective bargaining agreement with the local teachers' union which implemented an "agency shop" arrangement. Under this agreement, teachers who chose not to join the union nevertheless had to pay to the union a "service fee" as a condition of employment with the school system. The plaintiffs, Detroit public school teachers, objected that their compelled dues were used to fund ideological and political lobbying for causes unrelated to collective bargaining and repugnant to their beliefs. The Supreme Court held in Abood that the Board of Education, as an arm of the state, could not compel individual teachers to pay dues to support ideological activities unrelated to collective bargaining, and that the plaintiffs were entitled to a pro rata refund of dues spent on such activities.29
Falk's case was eventually argued to the Michigan Supreme Court on June 5, 1979, but the Court did not issue an opinion for nearly two more years, until April 29, 1981.30 When it finally did issue an opinion, the Michigan court found itself as sharply divided as the United States Supreme Court had been over Lathrop 20 years before.
Three members of the Court—Justices Ryan, Moody, and Fitzgerald—found largely in favor of Falk and would have drastically restricted the Bar's legislative and commercial activities. Ryan, writing for this plurality, would have held the state's actions to an exacting standard of "strict scrutiny." Under this standard, in order to avoid running afoul of the First Amendment, the State Bar would have to show that forced membership in the bar, and expenditures of dues for legislative activity, were of "paramount" interest to the state. Additionally, forced membership and dues could only be imposed if this were the least drastic means available to satisfy the identified government interest. The plurality would have limited the use of mandatory dues to disciplinary and licensing matters, legal education for lawyers and the public, maintenance of a lawyer referral service, and publication of the Michigan Bar Journal. All other compulsory dues would have to be refunded to dissenting bar members.31
However, two members of the Court—Justice Williams and Chief Justice Coleman—would have found all the State Bar's activities to be acceptable save the commercial sale of the Bar's membership roster. These justices read Abood to require only that the use of mandatory dues be "germane" to the purpose of the bar and that the state have "an important interest" in maintaining a compulsory bar. These justices then argued that the opinion of the State Bar was always an important interest of the state. Indeed, Williams wrote, "Authorizing the State Bar to aid the state . . . is essential to the state's continued existence," a rather stunning claim for any organization.32
Finally, Justices Levin and Kavanagh urged that a ruling be delayed to allow for additional evidentiary hearings, and, as no majority could be found to do anything else, this was done.33
Nearly two years later, the case found its way back before the Michigan Supreme Court. By this time, Justices Moody, Fitzgerald, and Coleman had left the court, to be replaced by Justices Kavanagh, Brickley, and Boyle.
However, the result was the same. Justice Ryan, joined this time by Justices Cavanaugh and Brickley, again argued that the Bar's use of compulsory dues should be drastically curtailed. Justice Boyle, taking the view of the departed Coleman, joined Williams in support of the constitutionality of the full range of unified bar activities. Wrote Boyle, "[T]heir [the Bar's] input is of broader interest to the Legislature" than the input of other citizens or groups. Justices Kavanagh and Levin continued to argue that more empirical study was required for a decision.34 Falk failed to carry the day; the case was dismissed.
Thus, in two attempts over four years, the Michigan Supreme Court was unable to reach any decision on the merits of Falk's claims. Eight of the ten justices who heard the case agreed that the issue should be decided on its merits. Five of the eight essentially would have held for Falk, three for the State Bar. Justices Levin and Kavanagh, by sticking to their position that the issue was not ripe, kept the court from issuing any meaningful decision.
C. Keller v. State Bar of California—The Supreme Court Sets a Standard.
In Keller v. State Bar of California,35 the Supreme Court finally returned to issues left unresolved since the Lathrop decision more than 25 years previous.
In Keller, members of the compulsory State Bar of California, echoing the Falk cases, argued that use of their mandatory membership dues to finance ideological and political activities to which they were opposed violated their First Amendment rights. Among the activities challenged by the plaintiffs were lobbying for or against legislation on such issues as changing the gift tax to exclude gifts made to pay for education tuition or medical care, creating criminal sanctions for violation of laws pertaining to the display for sale of drug paraphernalia, and requesting Congress to refrain from enacting a guest worker program for alien labor; filing amicus curiae briefs in cases involving the constitutionality of a victim's "bill of rights," disqualification of a law firm from a case, and the power of a workers' compensation board to discipline attorneys; and adopting resolutions on issues such as gun control, a nuclear weapons freeze, and federal court jurisdiction over abortion, public school prayer, and court ordered busing to achieve school desegregation.36 The California Supreme Court, ruling that the State Bar Association was a state agency, had upheld the use of mandatory dues for all such activities.37 The United States Supreme Court unanimously reversed.
The Court began with a perfunctory statement, "lawyers admitted to practice in the State may be required to join and pay dues to the State Bar . . ." However, the Court went on to hold that a unified bar could not use mandatory dues to engage in the full range of activities that might be open to a state agency.
The Court found, "The State Bar of California is a good deal different from most other entities that would be regarded in common parlance as `governmental agencies."' It noted that the bar's revenues came not from legislative appropriations, but from dues income; that only lawyers were members; and that the State Bar did not ultimately have the power to admit anyone to the practice of law, nor to disbar or suspend an attorney, nor to establish codes of conduct. It was not created, the Court noted, to participate in the general govern-ment of the State, and its members and officers were not selected because they were citizens or voters, but because of their status as attorneys.38
Rather than viewing the unified bar as a state agency, the Court saw "a substantial analogy between the relationship of the State Bar and its members ... and the relationship of employee unions and their members." Borrowing from the holding of Abood, the Court held that mandatory dues could not be used for activities not "germane" to the purpose for which compelled association was justified. In the case of the compulsory bar, it found compelled association justified only by the State's interest in regulating the legal profession and improving the quality of legal services. Only if challenged expenditures were "necessarily or reasonably incurred" for those limited purposes could they be funded with mandatory dues.39
The Court admitted that the line between permissible and impermissible expenditures of mandatory dues would be murky but shrugged off any need to provide clear guidance by pointing out, "the extreme ends of the spectrum are clear." Mandatory dues could not be spent lobbying on issues such as gun control or a nuclear weapons freeze; they could be spent for activities connected with attorney discipline and ethical codes.40 The Court then held that a compulsory bar association would have to develop some procedure to assure that it would not spend mandatory dues income on impermissible activities.41
Finally, the Court concluded by leaving at least one issue open. The Keller plaintiffs had also argued that, because of the compelled nature of their membership in the Bar, their First Amendment rights to free association, including the right of disassociation, were violated by the State Bar's use of its name to engage in political or legislative activities opposed by the plaintiffs, regardless of whether or not the Bar funded such activities with mandatory dues.42 This argument the Court declined to address. 43
In the wake of the Keller decision, compulsory bars were required to develop mechanisms to determine the amount of dues spent on activities for which dues could not be involuntarily extracted, and to allow dissenting members to deduct that amount from their dues. The results—in Michigan, at least—were eye-opening.
23 Railway Employees' v. Hanson, 351 US 225, 238 (1956).
24 Constitutional issues surrounding the compulsory bar had popped up in some prior state court decisions, see e.g. Board of Comm'rs of Miss. State Bar v. Collins, 59 So 2d 351 (Miss. 1952). An interesting case is Petition for Rule of Court Activating, Integrating and Unifying the State Bar of Tenn., 282 SW2d 782 (Tenn. 1955), in which the State Bar of Tennessee argued that a legislative statute prohibiting a compulsory bar was unconstitu-tional under the state constitution as an infringement on the state Supreme Court's powers. The Tennessee Supreme Court refused to order unification after a poll showed a substantial majority of the state's lawyers opposed unification. Today, Tennessee remains a voluntary bar state, with substantial majority of the state's lawyers as members. Schneyer, supra n. 1 at 10.
25 Lathrop v. Donohue, 367 US 820 (1961). Lathrop wrote to the Treasurer of the State Bar, "I do not like to be coerced to support an organization which is authorized and directed to engage in political and propaganda activities . . ." Lathrop, 367 US at 822. Neither the Supreme Court's opinion nor that of the Wisconsin Supreme Court indicated the nature of the legislative activities and positions to which Lathrop objected. His dues were $15 for the year. Id.; Lathrop v. Donohue, 10 Wis 2d 230, 102 NW2d 404, 406 (1960).
26 367 US at 844-848.
27 Falk v. State Bar of Michigan, 411 Mich 63, 305 NW2d 201 (1981).
28 431 US 209 (1971).
29 It would be several years before the Supreme Court specified minimum standards and procedures by which a union in such a situation could meet its obligations to refund dues pursuant to Abood. Teachers v. Hudson, 475 US 292 (1986).
31 Falk 1, 305 NW2d at 202-219 (Opinion of Ryan, J.).
32 Falk I at 228 (opinion of Williams, J.). One wonders how the state of Michigan survived between statehood in 1835 and the unification of the bar in 1937!
33 Falk 1, 305 NW2d at 201, 241-247.
34 Falk v. State Bar of Mich., 342 NW2d 504 (1983).
35 496 US 1 (1989).
36 Id. at 4, 5-6 n. 2.
37 Keller v. State Bar of California, 47 Cal 3d 1152 (1989).
38 496 US at 11, 13.
39 Id. at 13-14.
40 Id. at 15-16.
41 Id. at 17.
42 The Supreme Court has long recognized that the First Amendment protects the right not to be associated with certain beliefs. West Virginia State Bd. of Educ. v. Barnette, 319 US 624 (1943)(flag salute by public school children can not be compelled); Wooley v. Maynard, 430 US 705 (1977)(requiring individual to display motto, "Live free or die," on license plate violated right to "refrain from speaking."). This right has only been recognized, however, where the individual is in some way compelled to voice positively the objection-able viewpoint. Still, it is hard to see how anyone would think that the driver of the car any more supports the slogan placed by the state on his license plate than a lawyer supports the positions of the compulsory state bar of which she is a member. Indeed, as many citizens do not realize that state bar membership is mandatory, but know that a state auto license is required, it seems more likely that people would mistake membership in the bar for support of the bar's positions. Forced association through compulsory bar membership, therefore, seems the more intrusive and misrepresentative of the two. See also Lathrop, 367 US at 877-885 (Opinion of Douglas, J., dissenting).
43 486 US at 17.