By Robert Franklin, Esq.
In one of my blog posts on Measure 6, the North Dakota initiative that would establish a presumption of equal parenting in the state, I pointed out that any monetary support given to the opposition (or proponents) by the State Bar Association of North Dakota (SBAND) would violate the holding of the United States Supreme Court in Keller vs. State Bar of California. Keller holds that a mandatory state bar association’s activities are limited to those directly related to the regulation of the legal profession in the state. To do otherwise would be to violate the free speech rights of members who are required to pay dues, but disagree with the position taken by the state bar. Justice Rehnquist outlined to what expenditures mandatory bar associations (like that of North Dakota) were limited:
Thus, the guiding standard must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or "improving the quality of the legal service available to the people of the State."
Needless to say, equally shared parenting by divorced parents in North Dakota has nothing whatever to do with regulating the behavior and education of attorneys in the state. About that there can be no serious dispute.
But I’ve had some email correspondence with Tony Weiler, Executive Director of the North Dakota Bar, and he claimed that the bar complies with Supreme Court rulings. It doesn’t. In the case of Teachers vs. Hudson, the U.S. Supreme Court held that mandatory dues paid to a labor union were improperly used for a non-union purpose but that the union could establish procedural safeguards to protect members’ First Amendment rights of free speech. A unanimous Court stated:
"[T]he objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Union's ability to require every employee to contribute to the cost of collective-bargaining activities."
The same is true when the dues collecting entity is a state bar association. So, what is the North Dakota Bar required to do in order to not violate the free speech rights of dissenting members? First, its procedural safeguards must be narrowly tailored so as to avoid impinging members’ First Amendment rights.
Second, the [bar member] — the individual whose First Amendment rights are being affected — must have a fair opportunity to identify the impact of the [bar’s] action on his interests and to assert a meritorious First Amendment claim.
The North Dakota Bar fails both tests and does so obviously. What procedural safeguards does it afford its members? Executive Director Tony Weiler outlined them in one of his emails to me.
If any member is interested in a Keller Refund, they should contact me and I’ll address it with them individually, after consulting with my Board.
Yes, that’s it. Nowhere does the SBAND inform its members of their right to a refund; nor does it afford them the type of impartial decision-making process so clearly required by the Teachers case. Where is the impartial decision maker? Where’s the due process of law? Weiler’s notion of the first is him and his Board and the second is individuals contacting him on an ad hoc basis. To say that those don’t comply with U.S. Supreme Court rulings is about as controversial as saying the earth isn’t flat.
Don’t believe me? Read what the unanimous court in Teachers said on the subject:
[A] “pure rebate approach 475 U.S. 292, 304] is inadequate.” We explained that, under such an approach, in which the union refunds to the non-union employee any money to which the union was not entitled, “the union obtains an involuntary loan for purposes to which the employee objects.”
A “pure rebate” approach of course is precisely what Weiler is offering his members.
First, as in Ellis, a remedy which merely offers dissenters the possibility of a rebate does not avoid the risk that dissenters’ funds may be used temporarily for an improper purpose. “[T]he Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.”... A forced exaction followed by a rebate equal to the amount improperly [475 U.S. 292, 306] expended is thus not a permissible response to the nonunion employees’ objections.
The Court could have been speaking directly to Weiler and the SBAND.
Then there’s that little matter of an impartial decision maker that happens to be required by Supreme Court precedent.
Finally, the original Union procedure was also defective because it did not provide for a reasonably prompt decision by an impartial decisionmaker. Although we have not so specified in the past, 19we now conclude that such a requirement is necessary. The nonunion employee, whose First Amendment rights are affected by the agency shop itself and who bears the burden of objecting, is entitled to have his objections addressed in an expeditious, fair, and objective manner.20 [475 U.S. 292, 308]The Union's procedure does not meet this requirement. As the Seventh Circuit observed, the "most conspicuous feature of the procedure is that from start to finish it is entirely controlled by the union, which is an interested party, since it is the recipient of the agency fees paid by the dissenting employees."
Somehow, according to the Executive Director of the State Bar Association of North Dakota, a members’ objection to his dues being shanghaied by the Bar to oppose a measure he supports is adequately addressed by,
“If any member is interested in a Keller Refund, they should contact me and I’ll address it with them individually, after consulting with my Board.”
Has anyone at the North Dakota Bar even read the cases governing its behavior? You’d think they would have, but if Tony Weiler is any evidence, they certainly don’t understand the plain English of those precedents. But whatever the case, if my sources on the matter are correct, they’ll soon get to prove it in court. I’ve been informed that a lawsuit will be filed seeking to enjoin SBAND from future expenditures of bar funds for activities so clearly unrelated to regulating the legal profession in the state.
But again, don’t take my word for it. A law review article analyzed state bars’ efforts to comply with Keller; the verdict on North Dakota wasn’t flattering:
The North Dakota procedure is deficient in almost every respect. First, it does not provide an adequate explanation of the basis for the fee by categorizing items as chargeable or nonchargeable, and it expressly places an unconstitutional burden on the dissenting member to identify the challenged legislative policy. The procedure does not provide a reasonably prompt opportunity to challenge the determination of amount of dues devoted to nongermane activities, nor does it provide payment of interest on any amount refunded from the date the dues are paid. Finally, the policy does not provide for a hearing before an impartial decisionmaker, or for an escrow for the amount reasonably in dispute while the challenges are pending.
A court in North Dakota should immediately issue a restraining order against the State Bar Association of North Dakota prohibiting it from further expenditure of members’ dues for a purpose utterly unrelated to the regulation of the legal profession and under procedures that are entirely insufficient according to Supreme Court precedent. The SBAND is acting outside the law when it uses members’ dues to oppose Measure 6 that would establish a presumption of equal parenting in North Dakota.
Of course, as I suggested in yesterday’s post, if the SBAND didn’t oppose the measure, who would?