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Sixth Circuit Rejects Constitutional Challenge to Mandatory Bar Membership in Michigan

Judge Thapar writes separately to note such requirements remain vulnerable under existing precedent.


Today the U.S. Court of Appeals for the Sixth Circuit rejected a constitutional challenge to Michigan's requirement that attorneys licensed in the state maintain a their membership in an integrated bar.

Judge Moore's opinion for the Court in Taylor v. Buchanan begins:

Attorneys in Michigan, like those in most other states, must join an integrated bar association in order to practice law. In this suit, Lucille S. Taylor, a Michigan attorney, argues that requiring her to join the State Bar of Michigan violates her freedom of association, and further that the State Bar of Michigan's use of a portion of her mandatory membership dues for certain advocacy activities violates her freedom of speech. The district court rejected Taylor's First Amendment claims, holding that they are foreclosed by two Supreme Court decisions that have not since been overruled.

Judge Moore's brief opinion applies existing precedent in a straightforward fashion.

Judge Thapar wrote a separate concurring opinion noting that the court's ruling does not foreclose all First Amendment challenges to integrated bar membership requirements.

Judge Thapar writes:

Because Supreme Court precedent forecloses the plaintiff's compelled association claim, and because the plaintiff failed to bring the one claim that remains viable, I concur.

Michigan has an integrated bar. That means that the plaintiff must provide financial support to the Michigan Bar Association, which engages in lobbying and other such work. As the majority notes, the plaintiff's claim that forcing her to be part of an integrated bar violates her associational rights cannot succeed. The reason lies not in the First Amendment, but in Supreme Court precedent.

First, the Supreme Court held that mandatory bar membership, like union-shop agreements, was compelled association allowed by the First Amendment. Lathrop v. Donohue, 367 U.S. 820, 842–43 (1961). Then, the Court held that public employees could be required to pay union dues. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235–36 (1977). And in Keller v. State Bar of California, the Court again upheld mandatory bar membership and again analogized "the relationship of the State Bar and its members" to "the relationship of employee unions and their members." 496 U.S. 1, 12 (1990). So relying on its precedent in Abood, the Keller Court reasoned that just as a state could require public employees to pay union dues, so too could a state require lawyers to pay state bar dues. Id. at 13–14. As far as the Court was concerned, state bars and public-sector unions seemed to go hand-in-hand.

But then in Janus, the Supreme Court overruled Abood, and said that "[c]ompelling individuals to mouth support for views they find objectionable" violates the First Amendment. Janus v. Am. Fed'n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2463 (2018). And the Court repeated Thomas Jefferson's warning that compelling an individual "to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical." Id. at 2464 (cleaned up). So after Janus¸ one might believe that this is an easy case. But it is not. Why? Because Janus did not overrule Keller's bar mandate. See Jarchow v. State Bar of Wis., 140 S. Ct. 1720, 1720 (2020) (Thomas, J., dissenting from denial of certiorari) (noting that Janus "casts significant doubt" on Keller). But see Harris v. Quinn, 573 U.S. 616, 655–56 (2014)(refusing to extend Abood but maintaining Keller's vitality). And only the Supreme Court can overrule its previous decisions. Until it does, we must follow Keller.

But even after Keller, some claims can still be brought against integrated bars. If an integrated bar association engages in political or ideological activity that does not relate to regulating the legal profession, a plaintiff can bring a freedom of speech and/or association claim. The speech claim would prevail if an integrated bar association used mandatory membership fees to fund non-germane political or ideological activity without providing adequate opt-out procedures. See Chicago Tchrs. Union v. Hudson, 475 U.S. 292, 306–07 (1986) (identifying opt-out procedures). The association claim could go forward even if the bar association allowed lawyers to opt out of funding ideological activity. See Keller, 496 U.S. at 17; see also McDonald v. Longley, No. 20-50448, 2021 WL 2767443 at *9 (5th Cir. July 2, 2021). The plaintiff here, however, concedes that the Michigan State Bar's ideological activities "do not cross the [germaneness] line set in Keller." Maj. Op. at 3. So neither claim remains.

Because the plaintiff did not bring a viable challenge, I concur.