Court Rejects Free-Speech Challenge To Mandatory Bar Dues In Wisconsin

A U.S. appeals court on Friday upheld Wisconsin’s requirement that lawyers join the state bar association and pay dues, rejecting claims that it violates lawyers’ constitutional rights by forcing them to subsidize political speech.

The 7th U.S. Circuit Court of Appeals became the fifth appeals court to reject claims by lawyers that a 2018 U.S. Supreme Court decision barring compulsory union fees for public workers also applies to mandatory bar dues.

The Supreme Court upheld compulsory bar membership in the 1990 case Keller v. State Bar of California, and a unanimous three-judge 7th Circuit panel said that decision had not been explicitly overruled by the high court in the 2018 case, Janus v. AFSCME.

The decision came less than a month after the Supreme Court declined to review similar rulings involving mandatory bar membership in Oklahoma and Texas.

The 7th Circuit in 2019 had rejected a separate challenge to compulsory bar membership in Wisconsin, but did so summarily in an unpublished decision.

Since then, four other federal appeals courts — the 5th, 6th, 9th and 10th Circuits — have delved into the issue and ruled that Janus did not overrule Keller.

Cheryl Daniels, president of the State Bar of Wisconsin, in a statement said “the decision confirms our longstanding position on Keller as binding law, and will help guide the organization moving forward.”

Daniel Suhr of Liberty Justice Center, who represents plaintiff Schuyler File, said in an email that he would ask the Supreme Court to take up the case.

At least 30 states require lawyers to join their state bar associations and pay dues in order to practice. The Supreme Court in Keller said states have a compelling interest in regulating the legal profession, but said compulsory dues could only be spent on activities germane to that purpose.

The court in Keller cited its 1977 ruling in Abood v. Detroit Board of Education, which upheld fees public workers were required to pay to cover the costs of collective bargaining.

Abood was overruled by the Supreme Court in the 2018 Janus ruling, and in a lawsuit the following year File argued that Janus had also implicitly overruled Keller. File is an employee benefits consultant at insurance agency Haussmann Group.

But the 7th Circuit on Friday, affirming a Wisconsin federal judge, said lower courts must continue to follow Supreme Court precedent unless it is explicitly overturned.

The panel included Circuit Judges Diane Sykes, Diane Wood and David Hamilton.

The case is File v. Martin, 7th U.S. Circuit Court of Appeals, No. 20-2387.

For File: Daniel Suhr of Liberty Justice Center

For the state bar: Roberta Howell and Andrew Gresik of Foley & Lardner