Empower Wisconsin | Jan. 3, 2020
By M.D. Kittle
MADISON — The U.S. Supreme Court ended forced union dues for public employees nationwide in its 2018 landmark Janus v. AFSCME ruling.
Now, two Wisconsin attorneys want the high court to do the same for compulsory membership in the state bar association.
In their request for review, Adam Jarchow and Michael Dean argue that, despite previous Supreme Court decisions, bar association membership dues are not different than union “agency fees.”
The Janus ruling found that requiring such agency fees was a violation of public employee First Amendment rights.
Jarchow, a former state representative, told Empower Wisconsin that he and Dean believe forced membership in the State Bar of Wisconsin is more egregious than the union arrangements impacting public employees.
Wisconsin is among 32 states that require bar association membership in order to practice law. This, despite the fact that the state Board of Bar Examiners and the Office of Lawyer Regulation oversee licensing and attorney discipline in the state.
“In Janus, the only thing you had to do was pay dues. You didn’t have to associate with the union and the union’s position,” said Jarchow, who serves as president of Empower Wisconsin’s C-4 news and opinion website. “Here we not only have to pay our dues, we have to associate with their positions. We are forced to be members of their organization.”
As Jarchow and Dean point out in the lawsuit, State Bar viewpoints and positions have long tilted to the left. For two conservative, originalist attorneys, forced association with the liberal bar association has been a tough professional and personal pill to swallow.
The organization’s views run well beyond its primary mission of regulation and continuing education, the plaintiffs contend. Wisconsin’s Bar has weighed in with a liberal position on everything from “the death penalty, gender identity, gun rights and regulation, criminal justice initiatives, policies towards suspected sex offenders, President Trump’s tweets, immigration policies and public education,” the attorneys state in court documents.
“The Wisconsin Bar does not engage in any speech that even arguably confers a direct financial or material benefit on Wisconsin attorneys,” Jarchow and Dean contend in their latest brief. “The line that Janus concluded is impossible to draw in the labor union context between political and non-political speech is equally untenable in this context.”
Last month, Judge Barbara Crab of the U.S. District Court in Madison granted the State Bar of Wisconsin’s motion to dismiss the lawsuit, citing the previous U.S. Supreme Court decisions that bar associations can compel lawyers to join and pay membership fees. The most recent of those rulings requires bar associations to reduce membership fees to extract funding for political or idealogical activities.
Jarchow and Dean, represented by Washington, D.C.-based BakerHostetler and the Wisconsin Institute for Law & Liberty, asked the 7th Circuit Court of Appeals to grant its motion effectively giving the attorneys leave to petition the Supreme Court for review.
Their lawyer, Andrew Grossman of Baker Hostetler, recently told Reuters that the case will be the first purely post-Janus First Amendment challenge at the Supreme Court to mandatory bar association membership and dues.
Jarchow acknowledges the Supreme Court takes up a fraction of petitions for review each year, but he said the case is national in scope.
“The time is right to begin the process of defining the edges of Janus, and this is a really nice vehicle for that,” he said. He chuckled in considering that the lawsuit could not have a less sympathetic group of plaintiffs at its core: lawyers.