937 F.3d 1112
8th Cir.2019Background
- North Dakota requires all resident attorneys to be members of the State Bar Association of North Dakota (SBAND) and to pay annual dues.
- Arnold Fleck sued SBAND and state officials asserting First Amendment claims after SBAND used compulsory dues to oppose a ballot measure he supported.
- District court granted summary judgment to defendants; the Eighth Circuit affirmed; the Supreme Court vacated and remanded in light of Janus v. AFSCME.
- Fleck pursued three claims: (1) inadequate notice/opt-out procedures for non-germane spending (settled), (2) lack of affirmative consent before subsidizing non-germane expenditures (opt-out procedure claim), and (3) compelled association via mandatory bar membership (freedom of association claim).
- On remand the Eighth Circuit considered whether Janus and related cases required changing its prior affirmance; it again affirmed the district court as to the two live claims (association and opt-out), primarily on procedural-forfeiture and record-inadequacy grounds for the association claim and on the adequacy of SBAND’s revised fee statement for the opt-out claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandatory SBAND membership violates freedom of association | Fleck: Keller/Lathrop no longer control after Janus; exacting or strict scrutiny should apply and bar membership is unconstitutional | SBAND: Keller and Lathrop remain binding; Fleck conceded this claim below and thus forfeited it; record is inadequate to decide associational challenge | Forfeited and not considered on the merits; court declines to reach associational claim because Fleck conceded it below and the record lacks evidence required to adjudicate it |
| Whether SBAND’s dues collection violates Janus’s requirement of clear, affirmative, prior consent to subsidize non-germane speech | Fleck: Janus requires consent that is clear, affirmative, and prior to collection; SBAND’s form does not provide such consent because it effectively has members pay unless they take the Keller deduction | SBAND: Members are sophisticated, must calculate and send a check; revised fee statement (with Keller deduction line and inserts) gives clear, advance notice and requires affirmative payment decision | Held for SBAND: Janus does not overrule Keller/Hudson; SBAND’s revised fee statement and procedures meet Hudson/Keller notice and affirmative-consent requirements in this context |
| Whether Janus overruled Keller and requires new merits review of settled/forfeited claims | Fleck: Janus undermines Keller’s premises and should prompt reversal or further review | Defendants: Janus did not discuss Keller; Harris explicitly warned against assuming Keller’s undermining; binding precedent controls | Janus did not overrule Keller; the court follows Keller where directly controlling and declines to revisit settled precedent on remand |
Key Cases Cited
- Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (allowed agency fees from nonmembers for collective-bargaining–related activities but not for non-germane political activities)
- Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986) (procedural protections required for fee collection: adequate explanation, prompt challenge, escrow of disputed amounts)
- Keller v. State Bar of California, 496 U.S. 1 (1990) (integrated bars may charge compulsory dues for activities germane to regulating the profession but not for non-germane political/ideological activities)
- Janus v. AFSCME, 138 S. Ct. 2448 (2018) (overruled Abood; public-sector unions cannot deduct fees from nonmembers without clear affirmative consent)
- Harris v. Quinn, 573 U.S. 616 (2014) (distinguished Keller; cautioned against assuming Keller was called into question)
- Lathrop v. Donohue, 367 U.S. 820 (1961) (upheld compulsory dues to an integrated bar on financial-support grounds; court noted it did not address involuntary membership in other aspects)
- Knox v. SEIU, 567 U.S. 298 (2012) (fresh notice and affirmative consent required when unions impose special assessments or dues increases)
- Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (associational-speech framework; discussing demanding scrutiny where association rights are implicated)
- Agostini v. Felton, 521 U.S. 203 (1997) (court of appeals should follow directly controlling precedent even if other lines of decisions question its reasoning)