Goldwater Institute Sues: State Bars are Unconstitutional Mandatory Unions

State bars are acquiring a chilling reputation for misusing the dues of attorneys forced to join them, including using those dues to target conservative attorneys. Right-leaning attorneys are frequently disbarred and disciplined for actions completely unrelated to the practice of law, a gross overreach of power. Oddly, even though there is no realistic difference between state bars and unions, the former still exist in a mandatory capacity in over half the states - including right-to-work states.

Loaded with money confiscated from mandatory dues, these powerful unions are constantly expanding their reach and authority through political activism and lobbying. Controlled by Democrats, the money always goes to promote left-wing causes. Although the Arizona State Bar already had the third highest bar dues in the country, last year its board of governors voted to increase dues by another 13 percent, to $520 annually by 2019 – which doesn’t even include the cost of 15 hours of mandatory continuing legal education. Inactive attorneys are charged $265 annually, the highest in the nation and more than some active attorneys in other states.

Political activity by mandatory bars is illegal and violates the U.S. Constitution. In the 1990 Supreme Court case Keller v. State Bar of California, the court held that attorneys who are required to be members of a state bar have a First Amendment right to refrain from subsidizing the organization’s political activities. Incredibly, state bars have ignored the Keller decision, no doubt because not only do they have virtually unlimited resources at their disposal with members’ dues money to fight any challenges, but what attorneys dare to sue the bar that controls their fate as an attorney?

Fed up with the abuse that has become commonplace and outrageous, conservative legal organizations have started suing these powerful attorneys’ unions. One conservative watchdog group is finally demanding to have mandatory bar associations declared unconstitutional. Last week, the legal wing of the right-leaning Goldwater Institute filed a lawsuit, Fleck v. McDonald, against the mandatory State Bar Association of North Dakota for misusing members’ dues for political activism. The bar donated at least $50,000 to Keeping Kids First, an advocacy group formed to oppose a ballot initiative for shared parenting. It appears that all of the money donated to the group came from the bar – meaning the group was merely a shell for the bar. Greatly outspending proponents of the initiative, the measure failed.

The dirty money seems to have made all the difference in the vote. A month prior to the election, a poll conducted by the University of North Dakota College of Business Administration and Public Policy found that those in favor of Measure 6 outnumbered those opposed by a 45 to 30 percent margin. There also appeared to be an improper, commingled relationship between the state bar and the advocacy organization, as I covered previously.

Shared parenting enjoys broad support from across the political spectrum, but due to a small minority of feminists and many family law attorneys who are heavily involved with state bars in order to protect their profits through a system that perpetuates conflict, there has been a misuse of mandatory attorney dues to defeat this common sense legislation. Leading Women for Shared Parenting, which brought women together from across the political spectrum in order to fix the broken child custody system, first spotted the misuse of resources by the North Dakota bar, and was the catalyst that brought together family-oriented conservatives with taxpayer and legal watchdogs.

The lawsuit has a good chance of winning and dissolving the mandatory nature of the North Dakota bar. A similar lawsuit filed by the Mountain States Legal Foundation against the Nebraska State Bar Association for improper political lobbying resulted in the Nebraska State Supreme Court restructuring the bar into mostly a voluntary organization last year.

Clint Bolick, the Goldwater Institute’s Vice President for Litigation who helped spearhead the suit, goes so far as to refer to mandatory bars as cartels. “We hope this case is the beginning of the end for lawyer cartels. If there is any profession that would benefit from competition and transparency, it is the legal profession.”

The legal cartel – which in some states, like Colorado, reputedly has ties to the mob – has finally met its match when a Reaganlike coalition of social conservatives, economic conservatives, and libertarian litigators join forces. And it’s a double whammy considering state bars are really unions.

I consider state bar requirements violations of the Privileges and Immunities of Citizens Clause of Art. IV, sec. 2 of the U.S. Constitution. Americans have the right to make a living irrespective of their state of residence, and if an attorney moves from Florida to Georgia he should not be prohibited from making a living because the state has its own bar requirement. Throw in the fact that state bar associations, like labor unions, impose compulsory dues that they use to carry out political speech that has not been authorized by the dues payers, a clear violation of the Freedom of Speech and Freedom of Association (SCOTUS hasn’t ruled as such yet, but it appears to be on its way to overturning Abood and making it so), and state bar associations should be declared unconstitutional post haste.

In my state the Bar serves to keep out Republicans and once they are in they are targeted disproportionally by the disciplinary board for disbarment...

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