Amicus Curiae Brief — Mark E. Schell, Petitioner v. Richard Darby, Chief Justice, Supreme Court of Oklahoma, et al.

Supreme Court briefDec 21, 2021

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No. 21-779

In The

Supreme Court of the United States

____________________

MARK E. SCHELL,

Petitioner,

RICHARD DARBY, CHIEF JUSTICE,

SUPREME COURT OF OKLAHOMA, et al.,

____________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION, CATO

INSTITUTE, ATLANTIC LEGAL FOUNDATION,

AND REASON FOUNDATION

IN SUPPORT OF PETITIONER

____________________

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

DLaFetra@pacificlegal.org

Counsel for Amici Curiae (additional counsel inside cover)

ILYA SHAPIRO

TREVOR BURRUS

Cato Institute

1000 Mass. Ave., NW

Washington, DC 20001

Telephone: (202) 842-0200

ishapiro@cato.org

LAWRENCE S. EBNER

Atlantic Legal Foundation

1701 Pennsylvania Ave., NW

Ste. 200

Washington, DC 20006

Telephone: (202) 729-6337

lawrence.ebner@atlanticlegal.org

MANUEL S. KLAUSNER

Reason Foundation

Law Offices of Manuel S. Klausner

5538 Red Oak Drive

Los Angeles, California 90068

Telephone: (213) 617-0414

MKlausner@klausnerlaw.us

QUESTION PRESENTED

In Keller v. State Bar of California, 496 U.S. 1, 13

(1990), this Court held that mandatory bar dues are

“subject to the same constitutional rule” as

compulsory public-sector union fees. In Janus v.

AFSCME, Council 31, 138 S. Ct. 2448 (2018), the

Court held that compulsory public-sector union fees

are subject to “exacting” First Amendment scrutiny.

The question presented is:

Are mandatory bar dues that subsidize the

political and ideological speech of bar associations

subject to “the same constitutional rule” of exacting

First Amendment scrutiny that applies to compulsory

union fees under Janus?

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF REASONS

TO GRANT THE PETITION ..................................... 3

REASONS TO GRANT THE PETITION................... 5

I. MANDATORY STATE BAR ASSOCIATIONS,

LIKE PUBLIC EMPLOYEE UNIONS,

ENGAGE IN PERVASIVE POLITICAL AND

IDEOLOGICAL ACTIVITIES .......................... 5

II. COMPULSORY BAR DUES REQUIRE

EXACTING SCRUTINY ................................. 14

CONCLUSION.......................................................... 17

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977) ............................................. 1

Agostini v. Felton,

521 U.S. 203 (1997) ........................................... 14

Boudreaux v. Louisiana State Bar Ass’n,

3 F.4th 748 (5th Cir. 2021) ................................ 17

Brosterhous v. State Bar of Cal.,

12 Cal. 4th 315 (1995) ......................................... 1

Calzone v. Summers,

942 F.3d 415 (8th Cir. 2019) ............................. 16

Crosetto v. State Bar of Wisconsin,

12 F.3d 1396 (7th Cir. 1993) ............................... 7

Crowe v. Oregon State Bar,

142 S. Ct. 79 (2021) ............................................. 1

Crowe v. Oregon State Bar,

989 F.3d 714 (9th Cir. 2021) ............................. 10

File v. Kastner,

469 F. Supp. 3d 883 (E.D. Wis. 2020),

appeal pending, docket no. 20-2387

(7th Cir. 2020).................................................... 16

Fleck v. Wetch,

139 S. Ct. 590 (2018) ........................................... 1

Fleck v. Wetch,

140 S. Ct. 1294 (2020) ......................................... 1

Gardner v. State Bar of Nevada,

284 F.3d 1040 (9th Cir. 2002) ....................... 6, 13

Janus v. Am. Fed. of State, Cty., and Mun.

Emps., Council 31,

138 S. Ct. 2448 (2018) ....................... 1, 3–6, 8, 14

Jarchow v. State Bar of Wisconsin,

140 S. Ct. 1720 (2020) ................................... 1, 14

Keller v. State Bar of Cal.,

496 U.S. 1 (1990) ............................... 1, 3, 5, 6, 13

Kingstad v. State Bar of Wisconsin,

622 F.3d 708 (7th Cir. 2010) ............................. 13

Lathrop v. Donohue,

367 U.S. 820 (1961) ............................................. 3

Liberty Counsel v. Fla. Bar Bd. of

Governors,

12 So. 3d 183 (Fla. 2009) ................................... 13

Mentele v. Inslee,

916 F.3d 783 (9th Cir. 2019) ............................. 16

Minn. Voters Alliance v. Mansky,

138 S. Ct. 1876 (2018) ......................................... 8

Nat’l Ass’n for Gun Rights, Inc. v. Mangan,

933 F.3d 1102 (9th Cir. 2019) ........................... 15

Popejoy v. N.M. Bd. of Bar Comm’rs,

887 F. Supp. 1422 (D.N.M. 1995)...................... 13

Rodriguez de Quijas v. Shearson/Am. Exp.,

Inc., 490 U.S. 477 (1989) ..................................... 7

Romero v. Colegio de Abogados de Puerto

Rico, 204 F.3d 291 (1st Cir. 2000)................... 6, 8

Taylor v. Buchanan,

4 F.4th 406 (6th Cir. 2021), pet. for writ

of cert. pending, docket no. 21-357

(filed Sept. 1, 2021) ............................................ 16

Va. State Bd. of Pharmacy v. Va. Citizens

Consumer Council, Inc.,

425 U.S. 748 (1976) ............................................. 9

Washington Post v. McManus,

944 F.3d 506 (4th Cir. 2019) ............................. 15

Zuckerman v. Bevin,

565 S.W.3d 580 (Ky. 2018) .................................. 7

Rules of Court

Sup. Ct. R. 37.2(a) ..................................................... 1

Sup. Ct. R. 37.6 ......................................................... 1

Other Authorities

Hawaii State Bar Association, Mission,

https://tinyurl.com/4xux8ub2 (visited

Dec. 7, 2021) ...................................................... 12

Herring, Mark R., Va. Atty. Gen. Op., 2015

WL 9701653 (Oct. 2, 2015) ................................ 10

Higgs, Robert, Crisis and Leviathan:

Critical Episodes in the Growth of

American Government (1987).............................. 9

Idaho State Bar, Mission Statement,

https://tinyurl.com/2yjj8dp5 (visited Dec.

7, 2021)............................................................... 12

Louisiana State Bar Association, The

Mission of the Louisiana State Bar

Association,

https://tinyurl.com/2uapdkey

(visited Dec. 7, 2021) ......................................... 12

Mississippi Bar, Mission,

https://tinyurl.com/4tn82a5a

(visited Dec. 7, 2021) ......................................... 12

Mittman, Bailie, First Amendment

Freedoms Diluted: The Impact of

Disclosure Requirements on Nonprofit

Charities, 96 Ind. L.J. Supp. 102 (2021) ........... 16

Petition for Writ of Certiorari, McDonald v.

Firth, docket no. 21-800

(filed Nov. 24, 2021)............................................. 6

State Bar of Arizona, Mission, Vision, and

Core Values,

https://tinyurl.com/2p8n87km

(visited Dec. 7, 2021) ......................................... 12

State Bar of Michigan, Mission Statement,

https://tinyurl.com/2p8sm6yw

(visited Dec. 7, 2021) ......................................... 11

State Bar of North Dakota, Board of

Governors, https://tinyurl.com/2p97dz9s

(visited Dec. 7, 2021) ......................................... 11

State Bar of Texas, McDonald v. Sorrels,

https://tinyurl.com/38sv96h7

(visited Dec. 6, 2021) ........................................... 6

State Bar of Texas, Mission Statement,

https://tinyurl.com/3uyrx97e

(visited Dec. 7, 2021) ......................................... 11

Transcript of Oral Argument, Keller v. State

Bar of Cal., Oyez,

https://www.oyez.org/cases/1989/88-1905

(visited Dec. 9, 2021) ........................................... 4

Wright, R. George, A Hard Look at Exacting

Scrutiny, 85 U.M.K.C. L. Rev. 207 (2016) ........ 15

INTEREST OF AMICI CURIAE

Pacific Legal Foundation (PLF) was founded in

1973 and is widely recognized as the largest and most

experienced nonprofit legal foundation of its kind. 1

Among other matters affecting the public interest,

PLF has repeatedly litigated in defense of the right of

workers not to be compelled to make involuntary

payments to support political or expressive activities

with which they disagree, including representing the

plaintiff attorneys in Keller v. State Bar of Cal., 496

U.S. 1 (1990), and Brosterhous v. State Bar of Cal., 12

Cal. 4th 315 (1995). PLF also participated as amicus

curiae in cases involving state laws mandating forced

association and compelled speech in violation of the

First Amendment from Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977), through Janus v. Am. Fed. of

State, Cty., and Mun. Emps., Council 31, 138 S. Ct.

2448 (2018), and supported the petitions for writ of

certiorari in Fleck v. Wetch, 139 S. Ct. 590 (2018)

(petition granted, decision vacated and remanded),

140 S. Ct. 1294 (2020) (second petition after remand

denied), Jarchow v. State Bar of Wisconsin, 140 S. Ct.

1720 (2020), and Crowe v. Oregon State Bar, 142 S. Ct.

79 (2021).

The Cato Institute is a nonpartisan public policy

research foundation established in 1977 and

1 Pursuant to this Court’s Rule 37.2(a), all parties consent to the

filing of this brief. Counsel of record for all parties received notice

at least 10 days prior to the due date of the Amici Curiae’s

intention to file this brief. Pursuant to Rule 37.6, Amici Curiae

affirm that no counsel for any party authored this brief in whole

or in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than Amici Curiae, their members, or their counsel

made a monetary contribution to its preparation or submission.

dedicated to advancing the principles of individual

liberty, free markets, and limited government. Cato’s

Robert A. Levy Center for Constitutional Studies was

established in 1989 to help restore the principles of

limited constitutional government that are the

foundation of liberty. Toward those ends, Cato

publishes books and studies, conducts conferences and

forums, and publishes the annual Cato Supreme Court

Review.

Established in 1977, the Atlantic Legal

Foundation is a national, nonprofit, public interest

law firm whose mission is to advance the rule of law

and civil justice by advocating for individual liberty,

free enterprise, protection of property rights, limited

and efficient government, sound science in judicial

and regulatory proceedings, and school choice. With

the benefit of guidance from the distinguished legal

scholars,

corporate

legal

officers,

private

practitioners, business executives, and scientists who

serve on its Board of Directors and Advisory Council,

the Foundation pursues its mission by participating

as amicus curiae in carefully selected appeals before

the Supreme Court of the United States, federal

courts of appeals, and state supreme courts.

Reason Foundation is a national, nonpartisan,

and nonprofit public policy think tank, founded in

1978. Reason’s mission is to advance a free society by

applying and promoting libertarian principles and

policies—including free markets, individual liberty,

and the rule of law. Reason supports dynamic marketbased public policies that allow and encourage

individuals and voluntary institutions to flourish.

Reason advances its mission by publishing Reason

magazine, as well as commentary on its websites, and

by issuing policy research reports. To further Reason’s

commitment to “Free Minds and Free Markets,”

Reason participates as amicus curiae in cases raising

significant constitutional or legal issues, including

Janus, 138 S. Ct. 2448.

Amici believe that Janus’s requirement of

“exacting

scrutiny”

requires

this

Court’s

reconsideration of compelled subsidies in the

analogous mandatory bar context, which Keller held

to be subject to the “same constitutional rule.”

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION

Mark Schell has been a licensed attorney in

Oklahoma since 1984. As required by state law, he has

been a member and paid annual dues to the Oklahoma

Bar Association (OBA) as a condition of practicing

law. The Oklahoma Supreme Court enforces these

requirements. Pet. App. 58a, 66a–67a. State law and

the OBA’s bylaws permit the association to engage in

political and ideological speech through lobbying

efforts and publication of a bar journal that is

distributed to the entire membership. The law and

bylaws are broadly written to authorize lobbying and

other speech related to “the administration of justice”

or “any proposal for the improvement of the law,

procedural or substantive.” Pet. App. 59a–60a.

This Court has to date assumed that that

integrated, mandatory bar associations efficiently,

effectively, and (for the most part) non-controversially

manage the core functions related to regulation of the

legal profession. See Lathrop v. Donohue, 367 U.S.

820, 843 (1961); Keller, 496 U.S. at 5, 13. This

assumption is reasonable in light of the fact that the

Keller petitioners conceded that Lathrop was

controlling on the constitutionality of the integrated

bar, eliminating any need for the Court to consider

that question in 1990. 2 However, the history of

mandatory bar associations since Keller demonstrates

that the assumption is unwarranted and should be

reconsidered in light of Janus.

State bar associations—Oklahoma’s being no

exception—perceive their role as general guardians of

the legal system and often extend their reach into

political and ideological activities while couching their

involvement under innocuous-sounding phrases. Pet.

App. 59a–60a. Yet virtually all matters involving the

legal system, occupational governance and public

policy are inherently and “overwhelmingly” political

“matters of great public concern” because they involve

the allocation of public money and collateral policy

matters. See Janus, 138 S. Ct. at 2475–77, 2480.

Ideological activities extend even further to social and

cultural concerns. Given the sheer breadth of such

political and ideological activities, many attorneys

have abundant reasons to resent subsidizing

mandatory bar associations, just as public employees

may not want to subsidize public employee unions.

2 Counsel for petitioners, Anthony T. Caso, made this point in his

opening remarks of the Keller oral argument. Keller v. State Bar

of Cal., Oyez, https://www.oyez.org/cases/1989/88-1905 (visited

Dec. 9, 2021) (“This case does not challenge the right of California

to regulate attorneys through a mandatory bar association.

Instead, it asks whether having done so, may it also authorize

the bar to, in the words of the [California Supreme Court],

comment generally upon matters pending before the

legislature.”). The Keller complaint was filed in 1982, just five

years after Abood, a case representing a jurisprudence far less

protective of individual First Amendment rights.

Overruling Abood, Janus held that laws requiring

non-union members to pay public-sector union fees

are subject at least to “exacting scrutiny.” 138 S. Ct.

at 2465. Keller relied on established clear parallels

between the public sector unions and state bar

associations when it held that attorneys regulated

under state law are subject to “the same constitutional

rule” that applies to public employees. 496 U.S. at 13.

Therefore, subjecting mandatory bar associations to

“the same constitutional rule” as public-sector unions

now means subjecting them to exacting scrutiny that

reveals unjustifiable violations of attorneys’ First

Amendment rights. This Court should grant the

petition and direct federal courts to review compelled

subsidies for bar association speech under exacting

scrutiny.

REASONS TO GRANT THE PETITION

MANDATORY STATE BAR

ASSOCIATIONS, LIKE PUBLIC EMPLOYEE

UNIONS, ENGAGE IN PERVASIVE POLITICAL

AND IDEOLOGICAL ACTIVITIES

This case asks the Court to harmonize First

Amendment doctrine across the parallel and

analogous contexts of public employee union dues and

mandatory state bar dues. The question presented by

this petition is one of national importance that can be

settled only by this Court. 3 State bars’ mission

3 Cases raising similar issues have been filed across the country.

While the specifics of each bar’s program differ, the underlying

issue—whether the principles announced in Janus apply to

mandatory bar associations—remain consistent across the

statements and bar officials’ statements focus on their

organizations’ roles as disciplinarians and evangelists

for legal representation and justice. In truth, however,

bars across the country continually engage in a wide

range of political and ideological activities designed to

implement the officials’ view of a better society, just

as public employee unions engage in a wide array of

political activity to achieve workplace goals and their

view of a better society.

The Janus majority was silent as to that ruling’s

impact on mandatory bars, but the primary dissent

acknowledged that, like Keller, the decision weaves

together policies that underlie both agency fee and

state bar cases. Janus, 138 S. Ct. at 2498 (Kagan, J.,

dissenting). In both contexts, Janus provides a greater

understanding of the nature of the injury to

individuals forced to support expressive activities

against their will. See Keller, 496 U.S. at 12 (“There is

. . . a substantial analogy between the relationship of

the State Bar and its members, on the one hand, and

the relationship of employee unions and their

members, on the other.”); Gardner v. State Bar of

Nevada, 284 F.3d 1040, 1042 (9th Cir. 2002) (“[T]here

is some analogy between a bar that, under state law,

lawyers must join and a labor union with an agency

shop.”); Romero v. Colegio de Abogados de Puerto Rico,

litigation. The Texas State Bar has compiled pleadings filed in

cases in Texas, Louisiana, Oregon, Michigan, South Dakota,

Utah, and Wisconsin, as well as the present case, detailing

specific bar activities that extend well beyond attorney

regulation and discipline. See State Bar of Texas, McDonald v.

Sorrels, https://tinyurl.com/38sv96h7 (visited Dec. 6, 2021). The

McDonald case itself is now pending before this Court on a

petition for writ of certiorari as well. See McDonald v. Firth,

docket no. 21-800 (filed Nov. 24, 2021).

204 F.3d 291, 298 (1st Cir. 2000) (“No reason has been

presented to give attorneys who are compelled to

belong to an integrated bar less protection than is

given employees who are compelled to pay union dues,

and Keller suggests the two groups are entitled to the

same protection.”); Crosetto v. State Bar of Wisconsin,

12 F.3d 1396, 1404 (7th Cir. 1993) (“[Keller]

represented the first definitive legal statement that

mandatory bar dues had the same restrictions on their

use as compulsory union dues.”).

Despite the clear analogy, and Keller’s instruction

that mandatory bar dues are analyzed under the

“same constitutional rule” as public employee union

agency fee cases, the lower courts are unwilling to

apply Janus’s exacting scrutiny without this Court’s

explicit permission to do so. See Pet. App. 3a (Mr.

Schell’s challenge to mandatory bar dues is

“precluded” by Keller and Lathrop), citing Rodriguez

de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477,

484 (1989); id. at 21a (“Janus did not overrule Keller’s

discussion of Abood, or its related discussion of

germaneness, as the test for the constitutionality of

mandatory dues and expenditures.”). 4 The court below

considered itself bound by Keller regardless of

whether Keller’s discussion and application of Abood

is considered a direct holding or dicta. Id.

This Court’s previous unwillingness to grapple with the

implications of Janus on Keller is even leading some judges to

question whether the “same constitutional rule” holding remains

good law. See, e.g., Zuckerman v. Bevin, 565 S.W.3d 580, 611 n.53

(Ky. 2018) (Keller, J., dissenting, joined by Cunningham and

Wright, JJ.) (opining that the rule of law announced in Janus

was narrowly “specific to public sector employees”).

This Court should grant certiorari to hold

explicitly that the First Amendment doctrine

announced in Janus applies to mandatory bar

associations—a holding that would follow naturally

from the Court’s precedent. First, Janus clarified that

all advocacy relating to the allocation of public

resources is inherently political, as well as speech on

matters of “value and concern to the public.” Janus,

138 S. Ct. at 2474–76 (listing examples including

speech related to collective bargaining, education,

child welfare, healthcare and minority rights, climate

change, the Confederacy, sexual orientation and

gender identity, evolution, and minority religions).

This is consistent with the Court’s general

understanding of the vast range of what constitutes

“political” expression. See, e.g., Minn. Voters Alliance

v. Mansky, 138 S. Ct. 1876, 1888 (2018) (“political” can

be expansively defined to include anything “of or

relating to government, a government, or []

governmental affairs” or the “structure of affairs of

government, politics, or the state.”) (citation omitted);

id. at 1891 (“All Lives Matter” slogan, National Rifle

Association logo, rainbow flag all can be construed as

political expression).

Beyond the world of expressive activity that can

be described as political, the compelled speech cases

also protect individuals from being forced to associate

with “ideological” expression, even though what is

“ideological” can be tricky to pin down. See Romero v.

Colegio de Abogados de Puerto Rico, 204 F.3d 291, 302

(1st Cir. 2000) (finding no “bright line between

ideological and non-ideological” bar association

speech). But, in general, “ideology” encompasses “the

body of ideas reflecting the social needs and

aspirations of an individual, group, class, or culture.”

Am. Heritage Dictionary of the English Language at

654 (Morris ed. 1981). Justice Stewart defined

“ideological expression” as follows: “Ideological

expression, be it oral, literary, pictorial, or theatrical,

is integrally related to the exposition of thought that

may shape our concepts of the whole universe of man.”

Va. State Bd. of Pharmacy v. Va. Citizens Consumer

Council, Inc., 425 U.S. 748, 779 (1976) (Stewart, J.,

concurring).

Scholars define “ideology” in varying ways, but all

stress the social aspect of ideological thought:

• “[A] distinct and broadly coherent structure of

values, beliefs, and attitudes with implications

for

social

policy.”

James

Reichley,

Conservatives in an Age of Change: The Nixon

and Ford Administrations 3 (1982), quoted in

Robert Higgs, Crisis and Leviathan: Critical

Episodes in the Growth of American

Government 36 (1987) (Higgs).

• “[A] collection of ideas that makes explicit that

nature of the good community . . . [T]he

framework by which a community defines and

applies values.” George C. Lodge, The New

American Ideology 7 (1975), cited in Higgs,

supra, at 36.

• “[A]n economizing device by which individuals

come to terms with their environment and are

provided with a ‘world view’ so that the

decision-making process is simplified. [It is]

. . . inextricably interwoven with moral and

ethical judgments about the fairness of the

world the individual perceives.” Douglas C.

North, Structure and Change in Economic

History 49 (1982), cited in Higgs, supra, 36–37.

At a minimum, therefore, “ideological” activities that

cannot be funded with compelled fees include those

seeking social change or “good” government. See

Crowe v. Oregon State Bar, 989 F.3d 714, 721 (9th Cir.

2021) (Oregon State Bar seeks “fairness” in the way

the world operates); Mark R. Herring, Va. Atty. Gen.

Op., 2015 WL 9701653 (Oct. 2, 2015) (statute

authorizes use of mandatory bar dues to fund a

“Diversity Conference” without any opt-out

procedure).

These goals of social change, good government,

and fairness permeate mandatory bars’ mission

statements and activities. 5 Here, the Oklahoma Bar

Association’s communications cover a gamut of topics

including corporate speech, limitations on campaign

spending, oil and gas regulation, and so forth. Pet.

App. 6a–7a. The Bar’s legislative and public policy

activities reflect

similarly

broad scope,

encompassing issues related to “the administration of

justice,”

“administrative

bodies

exercising

adjudicatory functions,” and “any proposal for the

improvement of the law, procedural or substantive in

principle.” Pet. App. 5a (cleaned up).

5 Lawyers have ample alternative professional voluntary outlets

to collectively express political or ideological views including

national organizations such as the American Bar Association,

DRI (civil defense attorneys), American Association for Justice

(trial lawyers), and voluntary bars such as the Bar Association of

the District of Columbia, California Young Lawyers Association,

as well as dozens of national and regional women’s and minority

bar associations.

Like the OBA, other mandatory state bar

associations assert a broad mandate to mold the laws

and legal system to fit their political and ideological

views. For example, the mission of the State Bar of

North Dakota is “to serve the lawyers and the people

of North Dakota, to improve professional competence,

promote the administration of justice, uphold the

honor of the profession of law, and encourage cordial

relations among members of the State Bar.” 6 The

Texas State Bar’s mission

is to support the administration of the

legal system, assure all citizens equal

access to justice, foster high standards of

ethical conduct for lawyers, enable its

members to better serve their clients and

the public, educate the public about the

rule of law, and promote diversity in the

administration of justice and the practice

of law. 7

The Michigan State Bar’s mission is to “aid in

promoting improvements in the administration of

justice and advancements in jurisprudence, in

improving relations between the legal profession and

the public, and in promoting the interest of the legal

profession in this State.” 8 The Louisiana State Bar

Association exists to

State Bar of North Dakota, Board of

https://tinyurl.com/2p97dz9s (visited Dec. 7, 2021).

Governors,

State

Bar

Texas,

Mission

https://tinyurl.com/3uyrx97e (visited Dec. 7, 2021).

Statement,

State

Bar

Michigan,

Mission

Statement,

https://tinyurl.com/2p8sm6yw (visited Dec. 7, 2021).

assist and serve its members in the

practice of law, assure access to and aid

in the administration of justice, assist

the Supreme Court in the regulation of

the practice of law, uphold the honor of

the courts and the profession, promote

the

professional

competence

attorneys, increase public understanding

of and respect for the law, and encourage

collegiality among its members. 9

The common theme and language across all

mandatory bars reflect dedication to general

improvement of courts, laws, and lawyers—frequently

denominated as the “administration of justice.” Yet, in

Keller, this Court held that a state bar’s statutory

mandate phrased in broad platitudes such as

“administration of justice” permits too broad an

infringement on individual bar members’ First

Amendment rights because it allows the bar to speak

on such wide-ranging and controversial issues as

9 Louisiana State Bar Association, The Mission of the Louisiana

State Bar Association, https://tinyurl.com/2uapdkey (visited Dec.

7, 2021). See also State Bar of Arizona, Mission, Vision, and Core

Values, https://tinyurl.com/2p8n87km (visited Dec. 7, 2021);

Hawaii

State

Bar

Association,

Mission,

https://tinyurl.com/4xux8ub2 (visited Dec. 7, 2021) (“The Mission

of the Hawaii State Bar Association is to unite and inspire

Hawaii's lawyers to promote justice, serve the public and

improve the legal profession.”); Idaho State Bar, Mission

Statement, https://tinyurl.com/2yjj8dp5 (visited Dec. 7, 2021)

(mission is “to aid in the advancement of the administration of

justice”);

The

Mississippi

Bar,

Mission,

https://tinyurl.com/4tn82a5a (visited Dec. 7, 2021). As noted in

the Petition, almost all these state bar associations are the

subject of First Amendment challenges by individual bar

members.

polygraph tests for state and local agency employees,

possession of armor-piercing handgun ammunition

and other gun control measures, a federal guestworker program, a victim’s bill of rights, abortion,

public school prayer, and busing. Keller, 496 U.S. at

14–15. Regardless of whether these activities were

legitimately

described

pursuing

the

“administration of justice,” the state’s compulsory

funding of these programs violated objectors’ First

Amendment rights. Id. at 15–16.

Although Keller should have acted as a brake on

political and ideological mandatory bar activities,

many mandatory state bars, including the Oklahoma

State Bar, continue to justify a wide range of activities

focused on a general desire for “improvement of the

law” and “administration of justice.” Pet. App. 5a.

Lower courts continue to grant mandatory bars

expansive power to demand money from unwilling

contributors to fund these activities. See Kingstad v.

State Bar of Wisconsin, 622 F.3d 708, 721 (7th Cir.

2010) (rejecting the First Amendment claim of an

attorney forced to make unwilling subsidies to the

mandatory bar’s public relations campaign); Gardner,

284 F.3d at 1043 (holding that attorneys can be forced

to support mandatory bar’s public relations campaign

to improve public perceptions of lawyers); Liberty

Counsel v. Fla. Bar Bd. of Governors, 12 So. 3d 183,

189 (Fla. 2009) (approving bar’s authorization for a

section to file an amicus brief related to a law

prohibiting homosexuals from adopting children);

Popejoy v. N.M. Bd. of Bar Comm’rs, 887 F. Supp.

1422, 1430–31 (D.N.M. 1995) (approving mandatory

funding for the bar’s lobbying for higher salaries for

government lawyers and staff, court-appointed

representation in child abuse and neglect cases, a task

force to assist military personnel and families, and the

bar’s own litigation expenses). This continued

widespread infringement on attorneys’ individual

First Amendment rights presents an issue of national

scope that this Court should resolve.

COMPULSORY BAR DUES

REQUIRE EXACTING SCRUTINY

Janus held that a state law compelling non-union

members to subsidize a public sector union’s speech

impinged on First Amendment rights to such an

extent that courts must apply “exacting scrutiny” to

determine whether the government can justify it. 138

S. Ct. at 2464–65. Janus defined exacting scrutiny in

the compelled subsidy context as requiring that the

state’s mandate must “serve a compelling state

interest that cannot be achieved through means

significantly less restrictive of associational

freedoms.” Id. This case presents an opportunity both

to require courts to apply exacting scrutiny to

mandatory subsidization of state bar associations and

also to better define the scope and application of

exacting scrutiny.

To date, no lower court has applied exacting

scrutiny to compulsory payment of bar dues. Lower

courts remain obligated to follow Lathrop and Keller,

even as their legal foundation has been entirely

eroded by the evolution in agency fee cases,

culminating in Janus. See Agostini v. Felton, 521 U.S.

203, 237 (1997); see also Jarchow, 140 S. Ct. at 1720

& n.* (Thomas & Gorsuch, JJ., dissenting to denial of

certiorari) (urging the Court to address the “purely

legal question whether Keller should be overruled”

because the overruling of Abood “unavoidably” calls

into question the continued validity of Keller). This

was precisely the concern of the court below. Pet. App.

20a (“Although Janus suggests Keller is vulnerable to

reversal by the Supreme Court, at this time Keller

remains binding precedent on this court.”).

“Exacting scrutiny” lacks a precise definition and

appears to be a type of balancing test that sometimes,

but not always, falls short of strict scrutiny. As a

result, lower courts conflict as to its elements and

application. See R. George Wright, A Hard Look at

Exacting Scrutiny, 85 U.M.K.C. L. Rev. 207, 208, 211–

13 (2016) (noting the standard’s “almost limitless

flexibility” as courts choose among multiple factors to

emphasize in a balancing framework, sometimes

resembling strict scrutiny). For example, in

Washington Post v. McManus, 944 F.3d 506, 520 (4th

Cir. 2019), the court noted in a First Amendment

speech case that “exacting scrutiny” is “more

forgiving” than “strict scrutiny” in that “strict

scrutiny, in practice, is virtually impossible to satisfy,

while exacting scrutiny is merely difficult.” It defined

the test as requiring an “important” interest, id., and

“not necessarily the least restrictive means but . . . a

means narrowly tailored to achieve the desired

objective.” Id. at 521 (citations omitted). The court

later described the “touchstone for exacting scrutiny”

as “whether there is a fit that is not necessarily

perfect, but reasonable.” Id. at 523 (cleaned up).

The Ninth Circuit defines “exacting scrutiny” as

“somewhat less rigorous judicial review . . . which

requires the government to show that the challenged

[speech restrictions] are substantially related to a

sufficiently important government interest.” Nat’l

Ass’n for Gun Rights, Inc. v. Mangan, 933 F.3d 1102,

1112 (9th Cir. 2019). That court also has described

“exacting scrutiny” as a “balancing test” where “the

strength of the governmental interest must reflect the

seriousness of the actual burden on First Amendment

rights.” Mentele v. Inslee, 916 F.3d 783, 790 (9th Cir.

2019). The Eighth Circuit says that exacting scrutiny

requires a “substantial relationship to a sufficiently

important governmental interest” where “the

strength of the asserted governmental interest

reflects the seriousness of the actual burden” on First

Amendment rights. Calzone v. Summers, 942 F.3d

415, 423 (8th Cir. 2019) (en banc) (cleaned up). Much

as the Keller decision downplayed the infringement

caused by a politicized bar, the Second and Ninth

Circuits have enabled speech restrictions to survive

under “exacting scrutiny” by downplaying the burden

of speech restrictions and thus requiring a lesser state

interest to outweigh that burden. See Bailie Mittman,

First Amendment Freedoms Diluted: The Impact of

Disclosure Requirements on Nonprofit Charities, 96

Ind. L.J. Supp. 102, 120 (2021).

This issue cannot percolate below because lower

courts will not even wade into the issues that are

apparently precluded or foreclosed by Lathrop and

Keller. Taylor v. Buchanan, 4 F.4th 406, 408–09 (6th

Cir. 2021) (noting that “Lathrop and Keller are an

insurmountable hurdle if they remain good law” and

“doom” an attorney challenger’s First Amendment

claims), pet. for writ of cert. pending docket no. 21-357

(filed Sept. 1, 2021); File v. Kastner, 469 F. Supp. 3d

883, 889–91 (E.D. Wis. 2020), appeal pending, docket

no. 20-2387 (7th Cir. 2020) (rejecting facial challenge

to mandatory bar membership and dues requirement

because a “lower court may not overrule a Supreme

Court case even if later cases have deeply shaken the

earlier case’s foundation”) (cleaned up). Cf. Boudreaux

v. Louisiana State Bar Ass’n, 3 F.4th 748, 755 (5th Cir.

2021) (Lathrop and Keller “remain controlling law”

although the court “recognize[s] their weakened

foundations, which counsels against expanding their

application.”). In First Amendment speech and

association cases, “exacting scrutiny” warrants a

searching inquiry akin to strict scrutiny.

CONCLUSION

In Janus, this Court forcefully rejected earlier

cases that elevated collective speech over individual

expression. Understandably, the Court did not explore

every possible application of the announced doctrine

in other contexts. But the law now is in disarray.

Public employees enjoy greater First Amendment

protection for their right to speak than others, such as

attorneys, who remain compelled to subsidize the

speech of others, even when they disagree. Only this

Court can ensure consistent First Amendment

jurisprudence across all compelled dues contexts. The

petition should be granted.

DATED: December, 2021.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

DLaFetra@pacificlegal.org

ILYA SHAPIRO

TREVOR BURRUS

Cato Institute

1000 Mass. Ave., NW

Washington, DC 20001

Telephone: (202) 842-0200

ishapiro@cato.org

LAWRENCE S. EBNER

Atlantic Legal Foundation

1701 Pennsylvania Ave., NW

Ste. 200

Washington, DC 20006

Telephone: (202) 729-6337

lawrence.ebner@atlanticlegal.org

MANUEL S. KLAUSNER

Reason Foundation

Law Offices of Manuel S. Klausner

5538 Red Oak Drive

Los Angeles, California 90068

Telephone: (213) 617-0414

MKlausner@klausnerlaw.us

Counsel for Amici Curiae

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