Petition for Writ of Certiorari — Schuyler File, Petitioner v. Margaret Hickey, et al.
Supreme Court briefJul 28, 2022
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No. ________
___________
SCHUYLER FILE,
Petitioner,
v.
KATHLEEN BROST, IN HER OFFICIAL CAPACITY AS
PRESIDENT OF THE STATE BAR OF WISCONSIN, LARRY
MARTIN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF
THE STATE BAR OF WISCONSIN, AND CHIEF JUSTICE
PATIENCE ROGGENSACK AND JUSTICES ANN WALSH
BRADLEY, ANNETTE ZIEGLER, REBECCA BRADLEY,
REBECCA DALLET, BRIAN HAGEDORN, AND JILL
KAROFSKY, IN THEIR OFFICIAL CAPACITIES
AS MEMBERS OF THE WISCONSIN SUPREME COURT,
Respondents.
__________
On Petition for a Writ of Certiorari to the
U.S. Court of Appeals for the Seventh Circuit
__________
PETITION FOR A WRIT OF CERTIORARI
____________
CHRISTOPHER E. MILLS
Spero Law LLC
557 E. Bay St. #22251
Charleston, SC 29413
DANIEL R. SUHR
Counsel of Record
Liberty Justice Center
440 N. Wells Street, Suite
200
cmills@spero.law
Chicago, IL 60654
(312) 637-2280
dsuhr@libertyjustice
center.org
Counsel for Petitioner
ii
QUESTION PRESENTED
A “mandatory” or “integrated” bar is “an
association of attorneys in which membership and
dues are required as a condition of practicing law in a
State.” Keller v. State Bar of California, 496 U.S. 1, 5
(1990). In Keller, this Court held that mandatory bar
dues could be used to “constitutionally fund activities
germane to” the goals of “regulating the legal
profession and improving the quality of legal
services.” Id. at 13–14. Keller built on this Court’s
decision in Lathrop v. Donohue, 367 U.S. 820 (1961),
which held that mandatory bar membership is “no
different from” “union-shop agreements.” Id. at 842
(plurality opinion). Keller thus adopted wholesale the
“germaneness” test of Abood v. Detroit Board of
Education, 431 U.S. 209 (1977), which governed
“whether, consistent with the First Amendment,
agency-shop dues of nonunion public employees could
be used to support political and ideological causes of
the union.” Keller, 496 U.S. at 9.
In Janus v. AFSCME, Council 31, however, this
Court overruled Abood, holding that it “was poorly
reasoned,” had “led to practical problems and abuse,”
and was “inconsistent with other First Amendment
cases.” 138 S. Ct. 2448, 2460 (2018). As Chief Judge
Sykes recognized below, “[w]ith Abood overruled, the
foundations of Keller have been shaken,” and “[t]he
tension between Janus and Keller is hard to miss.”
App. 11.
The question presented is: Whether membership
in a mandatory state bar is subject to heightened
scrutiny under the First Amendment.
iii
LIST OF ALL PROCEEDINGS
United States Court of Appeals for the Seventh
Circuit, No. 20-2387, File v. Brost et al., judgment
entered April 29, 2022.
United States District Court for the Eastern
District of Wisconsin, No. 19-cv-1063, File v. Kastner
et al., judgment entered June 29, 2020.
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED........................................ ii
LIST OF ALL PROCEEDINGS ............................... iii
TABLE OF AUTHORITIES..................................... vi
DECISIONS BELOW .................................................1
STATEMENT OF JURISDICTION...........................1
PERTINENT CONSTITUTIONAL,
STATUTORY, AND REGULATORY
PROVISIONS .............................................................1
INTRODUCTION .......................................................2
STATEMENT .............................................................6
A. Legal framework ..............................................6
B. Facts .................................................................9
C. Proceedings below..........................................13
REASONS FOR GRANTING THE WRIT ...............15
I. This Court’s precedents require
applying at least exacting scrutiny to
mandatory bar membership. .........................15
A. Compelled integrated bar
membership infringes significantly
on First Amendment freedoms. ...............17
B. To the extent that Keller and
Lathrop applied a deferential
standard to compelled membership
claims, they are wrong. ............................21
II. Keller and Lathrop should be
overruled. .......................................................26
v
A. Keller and Lathrop give the wrong
answer to a recurring question of
great importance. .....................................28
B. Keller and Lathrop are not
workable. ..................................................31
C. Keller and Lathrop do not implicate
cognizable reliance interests. ...................32
III.This case is an ideal vehicle. .........................34
CONCLUSION .........................................................35
APPENDIX
Appendix A File v. Martin,
No. 20-2387, Decision
(7th Cir. April 29, 2022) ................. App. 1
Appendix B File v. Kastner,
No. 19-C-1063, Decision and Order
(E.D. Wi. June 29, 2020) ............. App. 14
Appendix C File v. Kastner,
No. 19-C-1063, Complaint
(July 25, 2019) ............................. App. 29
Appendix D SCR Chapter 10,
Regulation of the State Bar ........ App. 39
vi
TABLE OF AUTHORITIES
CASES
Abood v. Detroit Board of Education,
431 U.S. 209 (1977).................................... 3, 7, 8, 15
Americans for Prosperity Found. v. Bonta,
141 S. Ct. 2373 (2021)...................................... 25, 26
Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) .. 19
Bd. of Educ., Island Trees Union Free Sch. Dist. No.
26 v. Pico,
457 U.S. 853 (1982)................................................ 17
Bethune-Hill v. Va. State Bd. of Elections,
137 S. Ct. 788 (2017).............................................. 26
Crowe v. Oregon State Bar,
989 F.3d 714 (9th Cir. 2021) ................................. 24
Harris v. Quinn,
573 U.S. 616 (2014)................................ 9, 18, 20, 22
Holt v. Hobbs,
574 U.S. 352 (2015)................................................ 30
In re Integration of the Bar,
25 N.W.2d 500 (Wis. 1946) .................................... 29
In re Petition for a Rule Change to Create a
Voluntary State Bar of Nebraska,
841 N.W.2d 167 (Neb. 2013).................................. 11
In re State Bar of Wis.,
169 Wis. 2d 21 (1992) ............................................ 29
Janus v. AFSCME, Council 31,
138 S. Ct. 2448 (2018).................................... passim
vii
Jarchow v. State Bar of Wisconsin,
140 S. Ct. 1720 (2020)...................................... 23, 34
Johanns v. Livestock Marketing Ass’n,
544 U.S. 550 (2005)................................................ 23
Keller v. State Bar of California,
496 U.S. 1 (1990)............................................ passim
Kingstad v. State Bar of Wis.,
622 F.3d 708 (7th Cir. 2010) ................................. 31
Knox v. SEIU, Local 1000,
567 U.S. 298 (2012)........................................ passim
Lathrop v. Donohue,
367 U.S. 820 (1961)........................................ passim
McDonald v. Longley,
4 F.4th 229 (5th Cir. 2021) .............................. 19, 25
N.C. State Bd. of Dental Exam’rs v. FTC,
574 U.S. 494 (2015)..................................................5
Nat’l Inst. of Fam. & Life Advocs. v. Becerra,
138 S. Ct. 2361 (2018)..............................................4
Ramos v. Louisiana,
140 S. Ct. 1390 (2020)............................................ 28
Roberts v. United States Jaycees,
468 U.S. 609 (1984)..................................................2
Schell v. Chief Just. & Justs. of Oklahoma Supreme
Ct.,
11 F.4th 1178 (10th Cir. 2021) .............................. 24
Stanley v. Georgia,
394 U.S. 557 (1969)................................................ 17
Taylor v. Buchanan,
4 F.4th 406 (6th Cir. 2021) .................................... 25
viii
United States v. United Foods, Inc.,
533 U.S. 405 (2001)..................................................2
Wooley v. Maynard,
430 U.S. 705 (1977)................................................ 17
STATUTES
28 U.S.C. § 1254 ..........................................................1
28 U.S.C. § 1343 ........................................................ 13
42 U.S.C. § 1983 ........................................................ 13
Wis. Stat. § 757.30 ..................................................... 10
OTHER AUTHORITIES
A Bill for Establishing Religious Freedom, in 2
Papers of Thomas Jefferson 545 (J. Boyd ed. 1950)
................................................................................ 18
In the matter of amending Supreme Court Rules
pertaining to referees and attorney discipline [19–
04] ........................................................................... 13
In the Matter of Petition to Amend Board of Bar
Examiners Rule 6.02 [17–10] ................................ 12
In the Matter of the Petition for Amendment to
Supreme Court Chapter 20 – Rules of Professional
Conduct for Attorneys [04–07] .............................. 13
In the Matter of the Petition to Amend Supreme
Court Rule Chapter 31 and Chapter 10.03 [15–05]
................................................................................ 12
ix
In the Matter to Amend SCR 31.02 and 31.05
Relating to Continuing Legal Education
Requirements [16–06] ........................................... 13
Jill M. Kastner et al., Racial Equity of Black
Americans: It’s Time to Step Up, State Bar of
Wisconsin (2020) .................................................... 11
Lyle Moran, California Split: 1 year after nation’s
largest bar became 2 entities, observers see positive
change, ABA Journal (Feb. 4, 2019) ..................... 33
Racial Equity: It’s Time to Step Up, State Bar of
Wisconsin ............................................................... 12
Transcript of Oral Argument, Friedrichs v. Cal.
Teachers Ass’n, 578 U.S. 1 (2016) (No. 14-915) .... 23
Transcript of Oral Argument, Janus, 138 S. Ct. 2448
(2018) (No. 16-1466) .............................................. 23
Travel and Vacation Discounts, STATE BAR OF
WISCONSIN .............................................................. 10
William Baude & Eugene Volokh, Compelled
Subsidies and the First Amendment, 132 Harv. L.
Rev. 171 (2018). ............................................... 19, 26
Wis. State Bar By-Laws art. I, § 3(a) ....................... 10
RULES
Wis. S. Ct. R. 10.01(1) .................................................9
Wis. S. Ct. R. 10.03(5) ........................................... 9, 10
Wis. S. Ct. R. 21.02 .................................................... 12
Wis. S. Ct. R. 21.09 .................................................... 12
Wis. S. Ct. R. 23.02(1) .................................................9
x
Wis. S. Ct. R. ch. 31 ................................................... 12
Wis. S. Ct. R. Ch. 40 .................................................. 12
CONSTITUTIONAL PROVISIONS
U.S. Const. art. I, § 8, cl. 1 ........................................ 19
DECISIONS BELOW
The Eastern District of Wisconsin’s order granting
the motion to dismiss is reported at 469 F. Supp. 3d
883 (E.D. Wis. 2020), and reprinted in the Appendix
(“App.”) at App. 14-28.
The Seventh Circuit’s opinion affirming is reported
at 33 F.4th 385 (7th Cir. 2022), and reprinted at App.
1-13.
STATEMENT OF JURISDICTION
Petitioner timely files this petition from the
Seventh Circuit’s April 29, 2022, decision. This Court
has jurisdiction under 28 U.S.C. § 1254(a).
PERTINENT CONSTITUTIONAL, STATUTORY,
AND REGULATORY PROVISIONS
The First Amendment to the United States
Constitution provides that “Congress shall make no
law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the
Government for a redress of grievances.”
The relevant statutory and bar provisions are set
out at App. 39-119.
2
INTRODUCTION
The question presented by this case is whether the
government can force individuals to speak and
associate in state-prescribed ways as a condition of
living and working in modern society. This Court has
already answered that question: “Freedom of
association plainly presupposes a freedom not to
associate.” Janus v. AFSCME, Council 31, 138 S. Ct.
2448, 2463 (2018) (quoting Roberts v. United States
Jaycees, 468 U.S. 609, 623 (1984)) (cleaned up). In
Janus, this Court freed non-union public employees
from state-compelled speech and association.
Lawyers, however, can still be subjected to compelled
membership in mandatory state bars, which use
compelled dues and the strength of their (forced)
membership to advance social and political agendas
that many members oppose. This case presents the
Court with an ideal opportunity to make its First
Amendment jurisprudence consistent by imposing
heightened scrutiny on these mandatory associations
too.
As this Court has explained, “First Amendment
values are at serious risk if the government can
compel a particular citizen, or a discrete group of
citizens, to pay special subsidies for speech on the side
that it favors.” United States v. United Foods, Inc., 533
U.S. 405, 411 (2001). Yet this is precisely what the
respondents do to lawyers in Wisconsin: they force
them on pain of fines, suspension, and ultimately the
loss of their livelihood, to join and pay money to the
State Bar of Wisconsin, which uses their affiliation
and dollars to speak on controversial public issues.
Petitioner, a lawyer in Wisconsin, does not wish to
associate with or subsidize the State Bar of Wisconsin.
3
But because he cannot practice his profession
otherwise, he is forced to pay dues and belong to an
organization he does not want to support.
None of this is constitutional, and the Court’s
recent precedents recognize as much. In Janus, this
Court overruled Abood v. Detroit Board of Education,
431 U.S. 209 (1977), which had upheld compelled
union fees for public employees conditioned only on a
malleable and often meaningless requirement that
the union’s activities be “germane” to its goals. The
Court in Janus explained that Abood “was poorly
reasoned,” “led to practical problems and abuse,” and
had “been undermined by more recent decisions.” 138
S. Ct. at 2460.
Abood was the only basis for this Court’s
application of the lax “germaneness” standard to
mandatory bar membership in Keller v. State Bar of
California, 496 U.S. 1, 13–14 (1990). Keller and its
predecessor decision, Lathrop v. Donohue, 367 U.S.
820 (1961), refused to apply heightened First
Amendment scrutiny to mandatory bar membership
as long as compelled dues were used for activities
purportedly “germane” to the bar’s purposes. In
practice, as in the union context, this relaxed
standard had little bite. The subject matter of bar
associations’
activities—the
law
itself—is
substantially related to practically all matters of
public concern, and individual lawyers faced high
hurdles—and little reward—in challenging the use of
their dues. Thus, lawyers in 30-plus states across the
country have been forced to associate with private
organizations that use millions in mandatory dues to
express their own views.
4
This compelled membership violates the First
Amendment. Not only are lawyers like the petitioner
forced to associate with organizations whose views
they disagree with, those organizations use the
strength of their forced membership to add weight to
their ideological speech—deepening the First
Amendment infringements. A strong argument could
be made that Keller and Lathrop do not give
mandatory bars a license to use dues for any political
or ideological speech—“germane” or not—particularly
after Janus, because Keller held that bar associations
should be subject to “the same constitutional rule with
respect to the use of compulsory dues” as the one
governing public unions. Keller, 496 U.S. at 13. But
the courts of appeals have unanimously rejected such
arguments. Below, Chief Judge Sykes, speaking for a
unanimous Seventh Circuit panel, instructed the
petitioner to “seek relief from the Supreme Court” to
address the obvious “tension between Janus and
Keller.” App. 11, 13.
If the lower courts are right about Keller and
Lathrop, then those decisions are wrong. Because
mandatory bar membership compels speech and
association in violation of core First Amendment
rights, it is subject to strict scrutiny. E.g., Nat’l Inst.
of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361,
2371 (2018) (“NIFLA”). At a minimum, mandatory bar
membership must pass the “exacting scrutiny”
“applied in other cases involving significant
impingements on First Amendment rights.” Janus,
138 S. Ct. at 2483. “Under ‘exacting’ scrutiny,” a law
“must serve a compelling state interest that cannot be
achieved through means significantly less restrictive
of associational freedoms.” Id. at 2465 (cleaned up). To
5
be sure, States have an important interest in ensuring
the ethical practice of professions in our society,
including the legal profession. See N.C. State Bd. of
Dental Exam’rs v. FTC, 574 U.S. 494, 512–13 (2015).
But identifying a legitimate interest is only the first
step in heightened scrutiny; it is not a reason to
disregard scrutiny entirely. And this case, which arose
on a motion to dismiss, does not require the Court to
decide whether Wisconsin can satisfy heightened
scrutiny. Instead, the Court can simply hold that
germaneness is a “deferential standard that finds no
support in [this Court’s] free speech cases.” Janus, 138
S. Ct. at 2480. The First Amendment requires the
application of, at minimum, exacting scrutiny to
mandatory bar membership.
To the extent they hold otherwise, Keller and
Lathrop should be overruled. As lower courts have
applied them, they have given the wrong answer to a
question of great practical importance: can a
mandatory bar condition a person’s livelihood on
compelled speech and association? Most mandatory
bars could not satisfy exacting scrutiny, given that
about 20 States have fully regulated the legal
profession without compelling association in a private
organization. Wisconsin’s State Bar does not even
regulate attorneys; it is a pure trade association. Nor
is the germaneness standard workable, as the “line
between chargeable and nonchargeable [bar]
expenditures has proved to be impossible to draw with
precision.” Janus, 138 S. Ct. at 2481. And reliance
interests in Keller and Lathrop are minimal. Not only
have States been on notice for years that mandatory
bar membership is likely unconstitutional, several
6
States have reformed their bar structures accordingly
with relative ease.
“At stake here is the interest of the individual
lawyers of Wisconsin in having full freedom to think
their own thoughts, speak their own minds, support
their own causes and wholeheartedly fight whatever
they are against, as well as the interest of the people
of Wisconsin and, to a lesser extent, the people of the
entire country in maintaining the political
independence of Wisconsin lawyers.” Lathrop, 367
U.S. at 874 (Black, J., dissenting). As long as courts
continue to apply Keller’s germaneness test, this
Court’s precedents will “sanction a device where men
and women in almost any profession or calling can be
at least partially regimented behind causes which
they oppose” and put “into goose-stepping brigades.”
Id. at 884 (Douglas, J., dissenting). “Those brigades
are not compatible with the First Amendment.” Id. at
885. This Court’s review is necessary.
STATEMENT
A. Legal framework
The Wisconsin State Bar has a long history before
this Court. It was the subject of this Court’s first
mandatory bar association case, Lathrop v. Donohue,
367 U.S. 820 (1961). There, the appellant argued “that
he [could not] constitutionally be compelled to join and
give support to an organization which has among its
functions the expression of opinion on legislative
matters and which utilizes its property, funds and
employees for the purposes of influencing legislation
and public opinion toward legislation.” Id. at 827
(plurality opinion). A plurality held that the State Bar
could “require that the costs of improving the
7
profession” “should be shared by the subjects and
beneficiaries of the regulatory program, the lawyers,
even though the organization created to attain the
objective also engages in some legislative activity.” Id.
at 843. The Court considered this only “a question of
compelled financial support of group activities, not
with involuntary membership in any other aspect.” Id.
at 828. And it refused to reach the appellant’s free
speech claim, finding “that on this record [it had] no
sound basis for deciding appellant’s constitutional
claim insofar as it rest[ed] on the assertion that his
rights of free speech [we]re violated by the use of his
money for causes which he oppose[d].” Id. at 845. By
declining to decide that question, the Court permitted
mandatory bar dues to be spent on a range of political
and ideological activities.
Justices Black and Douglas each dissented. Justice
Black said that “the same reasons that led me to
conclude that it violates the First Amendment for a
union to use dues compelled under a union-shop
agreement to advocate views contrary to those
advocated by the workers paying the dues under
protest lead me to the conclusion that an integrated
bar cannot take the money of protesting lawyers and
use it to support causes they are against.” Id. at 871
(dissenting opinion). Justice Douglas agreed,
emphasizing that “the First Amendment applies
strictures designed to keep our society from becoming
moulded into patterns of conformity which satisfy the
majority.” Id. at 885.
About fifteen years later, the Court reached the
compelled speech question in Abood v. Detroit Board
of Education, 431 U.S. 209 (1977), holding that public
employees “may constitutionally prevent [a union’s]
8
spending a part of their required service fees to
contribute to political candidates and to express
political views unrelated to its duties as exclusive
bargaining representative.” Id. at 234. The Court
emphasized that “a government may not require an
individual to relinquish rights guaranteed him by the
First Amendment as a condition of public
employment.” Id. It made no difference “that the
appellants [were] compelled to make, rather than
prohibited from making, contributions for political
purposes”: “at the heart of the First Amendment is the
notion that an individual should be free to believe as
he will, and that in a free society one’s beliefs should
be shaped by his mind and his conscience rather than
coerced by the State.” Id. at 234–35. But the Court
held that funding “the expression of political views, on
behalf of political candidates, or toward the
advancement of other ideological causes” was still
constitutional if “germane” to the union’s “duties as
collective-bargaining representative.” Id. at 235.
Thirty years later, in Keller v. State Bar of
California, 496 U.S. 1 (1990), the Court applied Abood
to mandatory state bars, finding “a substantial
analogy between the relationship of the State Bar and
its members” “and the relationship of employee
unions and their members.” Id. at 12. Thus, the Court
applied “the same constitutional rule with respect to
the use of compulsory dues”: “[t]he State Bar may
therefore constitutionally fund activities germane to”
its interests “in regulating the legal profession and
improving the quality of legal services” “out of the
mandatory dues of all members.” Id. at 13–14. The
Court did not reach petitioners’ claim “that they
[could not] be compelled to associate with an
9
organization that engages in political or ideological
activities beyond those for which mandatory financial
support is justified under the principles of Lathrop
and Abood.” Id. at 17.
Abood has now been overruled. This Court
questioned the opt-out scheme applicable to
mandatory union dues in Knox v. SEIU, Local 1000,
567 U.S. 298, 310–14 (2012). Then this Court
criticized Abood extensively in Harris v. Quinn, 573
U.S. 616 (2014), holding that because of its
“questionable foundations,” Abood would be
“confine[d]” “to full-fledged state employees.” Id. at
645, 647. And in Janus, the Court overruled Abood,
explaining that “the compelled subsidization of
private speech seriously impinges on First
Amendment rights.” 138 S. Ct. at 2464; id. at 2486.
The Court found Abood to be “an ‘anomaly’ in our First
Amendment jurisprudence,” as it “fail[ed] to perform
the ‘exacting scrutiny’ applied in other cases involving
significant impingements on First Amendment
rights.” Id. at 2483. The Court also emphasized that
segregating “chargeable and nonchargeable union
expenditures” does not work in practice. Id. at 2481.
B. Facts
The State Bar of Wisconsin is the mandatory
professional association for lawyers in Wisconsin.
App. 1. Active membership in the State Bar is “a
condition precedent to the right to practice law” in the
State. Wis. S. Ct. R. 10.01(1); see also id. R. 10.03(5)
(establishing the dues requirement); id. R. 23.02(1)
(“No person may engage in the practice of law in
Wisconsin” “unless the person is currently licensed to
practice law in Wisconsin by the Wisconsin Supreme
Court and is an active member of the State Bar of
10
Wisconsin.”). The State Bar provides a narrow and
optional dues deduction for “[e]xpenditures that are
not necessarily or reasonably related to the purposes
of regulating the legal profession or improving the
quality of legal services.” Id. R. 10.03(5)(b).
“Failing to pay bar dues can result in serious
consequences.” App. 3. “Attorneys who fail to pay dues
by the annual due date and remain delinquent after
notice and the expiration of a specified grace period
are automatically suspended.” Id. (citing Wis. State
Bar By-Laws art. I, § 3(a)). “Suspended lawyers
cannot practice law,” and “additional sanctions,”
including “full license suspension,” can follow. App. 3.
And lawyers who engage in the unauthorized practice
of law can be sent to jail and fined. Wis. Stat. § 757.30.
Funded by attorneys’ mandatory dues, the State
Bar undertakes many activities. It sponsors
conferences and continuing education seminars,
advocates for the profession, files amicus briefs, and
publishes books and a monthly magazine. App. 33-35.
It even sponsors cruises. Travel and Vacation
Discounts, STATE BAR OF WISCONSIN.1 And it engages
in extensive discussion of the law, including advocacy
for certain views of the law, advocacy for potential
new laws, and advocacy on public issues connected to
the law. App. 33-35. Often this advocacy involves
controversial issues; the State Bar has published and
given an award to a prominent transgender activist,
for instance. App. 34. “When the State Bar lobbies on
general policy items of importance to the legal
1 https://www.wisbar.org/aboutus/membership/
membershipandbenefits/Pages/Travel-Discounts.aspx (last
visited Aug. 27, 2022)
11
profession, it does so on behalf of the entire
membership, purporting to represent the views of all
members.” App. 33-34 (cleaned up). In a recent
legislative session, the State Bar spent over half a
million dollars lobbying the Wisconsin legislature. Id.
Unsurprisingly, “[a] member satisfaction survey
conducted for the [Wisconsin] bar in 2008 revealed
that a majority of the respondents—57 percent—
would vote for a voluntary association if given the
opportunity to do so.” In re Petition for a Rule Change
to Create a Voluntary State Bar of Nebraska, 841
N.W.2d 167, 172 (Neb. 2013).
As one example of the State Bar’s ideological
activities, its leadership recently issued a statement—
featured prominently on the Bar’s website—stating:
Black Americans suffer from police brutality
and crippling fear caused by systemic racism
and implicit bias that is ingrained in our legal
system, law enforcement institutions, and
countless other facets of American life. This is
unacceptable. Black Lives Matter. . . . As
members of the legal profession and as citizens
striving to create a more just society, we stand
with Black Lives Matter protesters demanding
change in our justice system and in the other
institutions inflicted by systemic racism and
implicit bias.2
In line with these views, the State Bar plans to engage
in advocacy about “legislation related to race equity
2 Jill M. Kastner et al., Racial Equity of Black Americans: It’s
Time to Step Up, State Bar of Wisconsin (2020),
https://www.wisbar.org/NewsPublications/InsideTrack/Pages/Ar
ticle.aspx?Volume=12&Issue=11&ArticleID=27820.
12
and justice for the next legislative session” and seek
to “require[] Wisconsin lawyers [to] receive
elimination of bias/diversity and inclusion training.”3
What the State Bar does not do is act as the formal
regulatory authority over Wisconsin lawyers. App. 15.
It does not administer the bar exam; the Board of Bar
Examiners does that. App. 33 (citing Wis. S. Ct. R. Ch.
40). That Board is also the state agency responsible
for ensuring compliance with the Wisconsin Supreme
Court’s rules for continuing legal education. See Wis.
S. Ct. R. ch. 31. The Office of Lawyer Regulation is the
state agency of the judicial branch responsible for
investigating compliance with the Rules of
Professional Conduct governing attorneys in
Wisconsin. See Wis. S. Ct. R. 21.02. And the Wisconsin
Supreme Court “is the ultimate enforcement
authority for the lawyer regulatory system—including
the licensing rules, bar-membership requirement, and
the ethics code—and imposes discipline for
violations.” App. 3-4 (citing Wis. S. Ct. R. 21.09).
Though the State Bar occasionally proposes
amendments to the ethical codes governing lawyers,
it has no special authority on that front.4 Other
individuals and entities far more often bring petitions
to change the rules governing bar admission or ethical
practices.5 Indeed, the last time the Wisconsin
3 Racial Equity: It’s Time to Step Up, State Bar of Wisconsin,
https://www.wisbar.org/aboutus/diversity/Pages/RacialEquity.aspx (last visited July 13, 2022).
4 E.g., In the Matter of the Petition to Amend Supreme Court
Rule Chapter 31 and Chapter 10.03 [15–05].
5 E.g., In the Matter of Petition to Amend Board of Bar
Examiners Rule 6.02 [17–10] (private attorney); In the matter of
13
Supreme Court ordered a thorough review of the
entirety of the professional code, it entrusted the task
to a specially created committee of its own choosing
rather than to the State Bar.6
C. Proceedings below
Petitioner Schuyler File has been a member of the
State Bar of Wisconsin since December 2017, when he
moved to Wisconsin for a new career opportunity.
App. 31. He previously practiced in Indiana, where he
was not forced to join the state bar. App. 31. Because
of Wisconsin’s rules, he must join the State Bar of
Wisconsin and fund its speech or face suspension from
the practice of law and sanctions. App. 32. When this
suit was filed, his bar dues were $258. Id. Faced with
the coercive effect of Wisconsin law on his speech,
petitioner sought pre-enforcement relief under the
First Amendment and 42 U.S.C. § 1983 against the
officers of the State Bar and the justices of the
Wisconsin Supreme Court. See 28 U.S.C. § 1343.
The district court granted respondents’ motions to
dismiss. First, the district court found that petitioner
had standing and that the Supreme Court justices did
not have immunity. App. 17-22. The district court
explained that “there is no dispute that the plaintiff
has standing to seek declaratory and injunctive relief
against the [State] Bar defendants based on the
amending Supreme Court Rules pertaining to referees and
attorney discipline [19–04] (Office of Lawyer Regulation); In the
Matter to Amend SCR 31.02 and 31.05 Relating to Continuing
Legal Education Requirements [16–06] (Board of Bar
Examiners).
6 See In the Matter of the Petition for Amendment to Supreme
Court Chapter 20 – Rules of Professional Conduct for Attorneys
[04–07].
14
likelihood that he would suffer a future injury.” App.
18. “If the plaintiff stopped paying his mandatory bar
dues, his membership in the State Bar would be
automatically suspended,” and he “would be forbidden
from practicing law.” Id. Rejecting the Supreme Court
respondents’ contention that they did not inflict any
injury, the court held that it was “substantially likely”
that they would “impose discipline” on petitioner if he
“stops paying his dues.” App. 20. The court held that
“a plaintiff does not have to risk arrest or incurring
other forms of harm in order to have standing to
obtain an injunction to prevent that harm from
coming to pass.” Id. The court also held that the
Supreme Court justices do not have immunity from
suit. App. 21-22.
On the merits, the district court found that “[t]he
relevant facts are undisputed.” App. 22. The district
court acknowledged that “the [Supreme] Court’s
reasoning in Janus might in some respects support
the argument that mandatory bar membership is
unconstitutional,” but concluded that Keller required
dismissal because “a lower court is not free to deem
Supreme Court precedent defunct even if a later case
demolishes the intellectual underpinnings of the
earlier case.” App. 26
The Seventh Circuit affirmed. First, it agreed that
petitioner has standing “based on the threat of
injury—suspension of his right to practice law—if he
were to refuse to pay bar dues.” App. 5. Next, it agreed
that the Supreme Court respondents did not have
immunity because they “have been sued in their
enforcement capacity”: “This is a straightforward preenforcement suit seeking prospective relief enjoining
the justices from enforcing the requirements of State
15
Bar membership and payment of compulsory dues.”
App. 8.
On the merits, the Seventh Circuit held that
petitioner’s “claim is squarely foreclosed by the
Supreme Court’s decision in Keller.” App. 10. Yet the
court agreed that “[t]he tension between Janus and
Keller is hard to miss.” App. 11. “Keller rests largely
on Abood v. Detroit Board of Education, 431 U.S. 209,
235–36 (1977), which rejected a First Amendment
challenge to a law requiring public employees to pay
mandatory union dues.” Id. But the Supreme Court
“overruled Abood in Janus, holding that it ‘was poorly
reasoned,’ had ‘led to practical problems and abuse,’
and was ‘inconsistent with other First Amendment
cases and ha[d] been undermined by more recent
decisions.’” Id. (quoting Janus, 138 S. Ct. at 2460).
“With Abood overruled,” the Seventh Circuit said,
“the foundations of Keller have been shaken,” and
“Keller may be difficult to square with the Supreme
Court’s more recent First Amendment caselaw.” App.
2, 11. But the court said it is “not our role to decide
whether [Keller] remains good law.” App. 11-12 “Only
the Supreme Court can answer that question.” App.
12. The court told petitioner that he “must seek relief
from the Supreme Court.” App. 13.
REASONS FOR GRANTING THE WRIT
I. This Court’s precedents require applying at
least exacting scrutiny to mandatory bar
membership.
Mandatory bar membership entails a substantial
infringement of First Amendment rights. Not only is
a lawyer forced to associate with a private
organization and contribute money used to fund that
16
organization’s speech—which the lawyer often finds
contrary to his own views—but also the bar uses
forced membership to give weight and credence to its
ideological messages. In this way, the State “use[s]” a
dissenter as “an instrument for fostering public
adherence to an ideological point of view he finds
unacceptable.” Knox, 567 U.S. at 324 (Sotomayor, J.,
concurring in judgment) (cleaned up). Compelled bar
membership thus violates the individual’s freedom of
speech and association, and distorts society’s
marketplace of ideas—and its role in advancing truth.
Because compelled bar membership is a significant
First Amendment intrusion, heightened scrutiny
must apply. Keller and Lathrop could be read to
prescribe heightened scrutiny for compelled support
for ideological and political bar speech. Those
decisions tie the standard for mandatory bars to
public unions—and Janus now requires heightened
scrutiny for compelled public union subsidies. But
lower courts have rejected that reading, holding that
Keller and Lathrop’s lax “germaneness” standard
continues to govern. See App. 12-13.
If that is correct, Keller and Lathrop are wrong.
Whatever interests mandatory bars purportedly
advance, those interests should be adjudicated in the
context of heightened scrutiny—not as excuses to
decline to apply such scrutiny. The proper level of
scrutiny is the one that applies broadly to core First
Amendment infringements: strict. But at a minimum,
this Court’s jurisprudence requires applying exacting
scrutiny to mandatory bar rules. This Court’s review
is urgently needed to vindicate consistent First
Amendment analysis.
17
A. Compelled integrated bar membership
infringes
significantly
on
First
Amendment freedoms.
“The First Amendment creates ‘an open
marketplace’ in which differing ideas about political,
economic, and social issues can compete freely for
public acceptance without improper government
interference.” Knox, 567 U.S. at 309. “The government
may not prohibit the dissemination of ideas that it
disfavors, nor compel the endorsement of ideas that it
approves.” Id. Thus, this Court has “held time and
again that freedom of speech ‘includes both the right
to speak freely and the right to refrain from speaking
at all.’” Janus, 138 S. Ct. at 2463 (quoting Wooley v.
Maynard, 430 U.S. 705, 714 (1977)). “The right to
eschew association for expressive purposes is likewise
protected.” Id.
When a State compels individuals “to voice ideas
with which they disagree, it undermines” “our
democratic form of government” and “the search for
truth.” Id. at 2464. More, “individuals are coerced into
betraying their convictions.” Id. As this Court has
said, “[f]orcing free and independent individuals to
endorse ideas they find objectionable is always
demeaning.” Id.
Listeners’ rights are harmed too when the
marketplace of ideas is distorted by government
interference. See Stanley v. Georgia, 394 U.S. 557, 564
(1969) (“[T]he Constitution protects the right to
receive information and ideas.”); Bd. of Educ., Island
Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S.
853, 867 (1982) (“[T]he right to receive ideas is a
necessary predicate to the recipient’s meaningful
exercise of his own rights of speech, press, and
18
political freedom.”). When mandatory bars claim to
speak for the entire profession, all of whom are
members, they mislead listeners into thinking all
attorneys agree on often controverted points. f
“[C]ompelled funding of the speech of other private
speakers or groups presents the same dangers as
compelled speech.” Harris, 573 U.S. at 647 (cleaned
up). A “significant impingement on First Amendment
rights occurs when” individuals “are required to
provide financial support for” private organizations
that may advocate for “many positions . . . that have
powerful political and civic consequences.” Janus, 138
S. Ct. at 2464 (cleaned up). As Thomas Jefferson
explained, “to compel a man to furnish contributions
of money for the propagation of opinions which he
disbelieves and abhors is sinful and tyrannical.” Id.
(quoting A Bill for Establishing Religious Freedom, in
2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950)).
Wisconsin’s State Bar is a “compelled association”
that infringes on First Amendment freedoms in all the
above ways. Keller, 496 U.S. at 13. Wisconsin compels
lawyers to join, associate with, and pay dues to the
State Bar, which uses those dues to regularly engage
in politically and ideologically controversial speech
and activities. It lobbies for legislation, funds racially
charged diversity initiatives, sponsors one-sided
CLEs and publications, and requires members to fund
its magazine, among many other activities. See supra
at 10-11. In short, the State Bar uses coerced
membership to both fund and give weight to its own
speech on matters of public concern, even though that
membership has no choice in the matter. Because the
First Amendment protects “[t]he right to eschew
association for expressive purposes,” Janus, 138 S. Ct.
19
at 2463, compelled State Bar membership
significantly burdens petitioner’s rights.
Because this compelled association is more than a
mere exaction, dismissing compelled bar membership
claims as no different from attacks on use of tax
monies misses the mark.7 First, this Court rejected
similar arguments in Janus. Second, both the
Constitution and this Court’s precedents establish a
difference between general taxation and other
government exactions. E.g., U.S. Const. art. I, § 8, cl.
1; Bailey v. Drexel Furniture Co., 259 U.S. 20, 36
(1922). Third, petitioner does not merely write a check
to the government taxing authority; he is forced to join
a private entity and associate with it. See Keller, 496
U.S. at 12-13. The State Bar then uses both his monies
and his forced membership to promote its own agenda.
When a mandatory bar speaks, “part of its expressive
message is that its members stand behind its
expression. The membership is part of the message.”
McDonald v. Longley, 4 F.4th 229, 245–46 (5th Cir.
2021); see App. 33-34 (“the State Bar lobbies . . . ‘on
behalf of the entire membership’”). Fourth, the
implications of this revisionist theory are startling.
The State, for example, could presumably force every
person to join “one of the major political parties”
(Janus, 138 S. Ct. at 2464) as a condition to being
employed, or receiving a tax break, or driving a car.
Or the State could force individuals to “volunteer” at
See generally William Baude & Eugene Volokh, Compelled
Subsidies and the First Amendment, 132 Harv. L. Rev. 171
(2018). To be fair, this article distinguishes between “compelled
contributions” and “compelled speech or compelled membership,”
comparing only subsidies to taxation. Id. at 176. But mandatory
bar dues entail compelled membership and thus compelled
speech too.
7
20
Planned Parenthood as a condition of living in modern
society, for what is time but money—and, on the
revisionist theory, taxation? All this shows the
infirmity of dismissing compelled membership victims
as tax cranks.
Thus, mandatory bar membership implicates core
First Amendment rights because it compels speech
and association. Except in this area, the Court’s
precedents suffer only minor confusion as to how such
compelled speech and association claims are
adjudicated. At a minimum, laws that compel
association are subjected to exacting scrutiny: the
government must establish “a compelling state
interest that cannot be achieved through means
significantly less restrictive of associational
freedoms.” Janus, 138 S. Ct. at 2465 (quoting Knox,
567 U.S. at 310). In Janus, Knox, and Harris, the
Court characterized this as “exacting scrutiny.”
Janus, 138 S. Ct. at 2477, 2483; Harris, 573 U.S. at
651; Knox, 567 U.S. at 310.
Yet, at the same time, the Court has “questioned
whether that test provides sufficient protection for
free speech rights.” Janus, 138 S. Ct. at 2465; see
Harris, 573 U.S. at 648 (“it is arguable that [this]
standard is too permissive”). Indeed, the more
appropriate test is the one that generally applies to
compelled speech laws and other infringements of core
First Amendment rights: strict scrutiny. E.g., NIFLA,
138 S. Ct. at 2371. If anything, strict scrutiny is more
appropriate here than in Janus, since that case
involved public employees, who traditionally have
received less First Amendment protection. See 138 S.
Ct. at 2491–97 (Kagan, J., dissenting).
21
In any event, the relevant level of scrutiny must be
at least “exacting.” Under that standard, the
government must show that its mandatory state bar
requirement “serve[s] a compelling state interest that
cannot be achieved through means significantly less
restrictive of associational freedoms.” Janus, 138 S.
Ct. at 2465.
B. To the extent that Keller and Lathrop
applied a deferential standard to
compelled membership claims, they are
wrong.
Citing this Court’s precedents, the courts below
declined to apply exacting scrutiny to the Wisconsin
State Bar’s mandatory scheme. Those courts refused
even to let petitioner’s claim out of the gate, reasoning
that it was “squarely foreclosed by the Supreme
Court’s decision in Keller,” which “held that an
integrated state bar” may compel membership and
“constitutionally fund activities germane to [the]
goals” of “regulating the legal profession and
improving the quality of legal services.” App. 10. A
careful reading of Keller suggests that it may not have
opened the door for mandatory state bars to use
member dues to fund political and ideological
activities, no matter if they asserted that those
activities were “germane” to the bar’s goals. That
reading is bolstered by Keller’s holding that
mandatory bar associations should be subject to “the
same constitutional rule” as the one governing public
employees and unions. 496 U.S. at 13. The rule for
public unions is now (at least) exacting scrutiny. But
the lower courts have rejected this reading and
refused to apply heightened scrutiny to mandatory
bars, even while acknowledging that Janus
22
eviscerates any reasoned foundation for the relaxed
germaneness inquiry. If they are right, then Keller is
wrong. Only this Court can fix the fundamental
inconsistency in its First Amendment precedents,
which inexplicably offer less protection to private
employees who happen to be lawyers than even to
regulated public employees.
First, a strong argument could be made that
applying exacting scrutiny to mandatory bar
compelled speech and association claims does not
require overruling Keller and Lathrop. Lathrop
declined to “decide whether [a lawyer’s] constitutional
rights of free speech are infringed if his dues money is
used to support the political activities of the State
Bar.” 367 U.S. at 844 (plurality opinion). And Keller,
referring to “the State’s interest in regulating the
legal profession and improving the quality of legal
services,” held that:
The State Bar may therefore constitutionally
fund activities germane to those goals out of the
mandatory dues of all members. It may not,
however, in such manner fund activities of an
ideological nature which fall outside of those
areas of activity.
496 U.S. at 13–14. And Keller carried over “the same
constitutional rule” as the one applied in the union
context. 496 U.S. at 13. Particularly reading Keller in
light of Harris and Janus, “activities of an ideological
nature” “fall outside” Keller’s areas of permissible
activity. Id. at 14. In line with this reading, the Court
in Harris described Keller as holding “that members
of th[e] bar could not be required to pay the portion of
bar dues used for political or ideological purposes.”
573 U.S. at 655; accord Johanns v. Livestock
23
Marketing Ass’n, 544 U.S. 550, 558 (2005) (explaining
that Keller “invalidated the use of the compulsory fees
to fund speech on political matters”).
Despite the plausibility of this understanding,
Justices of this Court have understood Keller to
“h[o]ld” that “the State Bar may constitutionally fund
activities germane to its goals” even if those activities
are political or ideological. Jarchow v. State Bar of
Wisconsin, 140 S. Ct. 1720, 1720 (2020) (Thomas, J.,
dissenting from the denial of certiorari). Accordingly,
they have understood that Janus contradicts Keller.
For instance, at oral argument in Janus, Justice
Sotomayor emphasized that a mandatory bar was “no
different” than a union agency fee, as both “forc[e] the
subsidization of private interests for a government
purpose.” Transcript of Oral Argument at 7, Janus,
138 S. Ct. 2448 (2018) (No. 16-1466). In an earlier
case, Justice Breyer said that overruling Abood
“would require overruling a host of other cases”: “[i]t
would certainly affect the integrated bar.” Transcript
of Oral Argument at 28, Friedrichs v. Cal. Teachers
Ass’n, 578 U.S. 1 (2016) (No. 14-915). Justice Ginsburg
reiterated the question, wondering “if Abood falls,
then so do[es] our decision[] in Keller on mandatory
bar association.” Id. at 35. When one counsel
suggested Keller was distinguishable, Justice Kagan
disagreed, saying that Abood “is the way we look at
mandatory fee cases”: “Those cases start with Abood,”
they “say Abood is the framework,” and they “decide
the questions that they decided specifically within
that framework.” Id. “Now that Abood is no longer
good law, there is effectively nothing left supporting
our decision in Keller.” Jarchow, 140 S. Ct. at 1720
(Thomas, J., dissenting from the denial of certiorari).
24
The lower courts too have universally read Keller
and Lathrop as following Abood and providing a
deferential standard for reviewing mandatory bar
membership. The courts of appeal have spoken in one
voice in asserting that only this Court can fix the
mismatch between Keller/Lathrop and current First
Amendment jurisprudence:
•
“With Abood overruled, the foundations of
Keller have been shaken. But it’s not our
role to decide whether it remains good law.”
App. 11-12 (Sykes, C.J.).
•
“Keller established a germaneness test for
the constitutionality of mandatory bar dues.
Janus did not replace that longstanding test
with exacting scrutiny, and the Supreme
Court has yet to announce the impact of that
decision on its holdings in Keller and
Lathrop.” Schell v. Chief Just. & Justs. of
Oklahoma Supreme Ct., 11 F.4th 1178, 1191
(10th Cir. 2021).
•
“Although Abood’s rationale that Keller
expressly relied on has been clearly
rejected,” “[w]e are a lower court, and we
would be scorning [the Supreme Court’s]
clear directive if we concluded that Keller
now prohibits the very thing it permitted
when decided.” Crowe v. Oregon State Bar,
989 F.3d 714, 725 (9th Cir. 2021) (cleaned
up).
•
“Janus did not overrule Keller’s bar
mandate,” “[a]nd only the Supreme Court
can overrule its previous decisions. Until it
does, we must follow Keller.” Taylor v.
25
Buchanan, 4 F.4th 406, 410 (6th Cir. 2021)
(Thapar, J., concurring).
•
“[D]espite their increasingly wobbly, motheaten foundations, Lathrop and Keller
remain binding.” McDonald v. Longley, 4
F.4th 229, 243 n.14 (5th Cir. 2021) (Smith,
J.) (cleaned up).
On these understandings, this Court must
reconsider Keller and Lathrop. If those decisions
require a deferential standard for claims challenging
mandatory state bar membership and dues, they are
wrong. Keller identified two “legitimate interests”
supposedly justifying a bar’s mandatory nature:
“regulating the legal profession and improving the
quality of legal services.” 496 U.S. at 13. But
identifying asserted interests—even legitimate
ones—is not enough to satisfy exacting scrutiny.
Instead, the government must show that a rule
compelling membership “serve[s] a compelling state
interest that cannot be achieved through means
significantly less restrictive of associational
freedoms.” Janus, 138 S. Ct. at 2465 (cleaned up). And
“the strength of the governmental interest must
reflect the seriousness of the actual burden on First
Amendment rights.” Americans for Prosperity Found.
v. Bonta, 141 S. Ct. 2373, 2383 (2021) (“AFPF”)
(plurality opinion). “[E]ven a ‘legitimate and
substantial’ governmental interest cannot be pursued
by means that broadly stifle fundamental personal
liberties when the end can be more narrowly
achieved.” Id. at 2384 (majority opinion) (cleaned up).
And “speech by the state bar is as likely as speech by
unions to ‘touch fundamental questions of . . . policy,’
and more broadly to ‘have powerful political and civic
26
consequences.’” Baude & Volokh, supra, at 196
(quoting Janus, 138 S. Ct. at 2464, 2476).
Yet rather than apply exacting scrutiny, Keller and
Lathrop applied “a deferential standard that finds no
support in [this Court’s] free speech cases.” Janus, 138
S. Ct. at 2480. Defenses of Keller that focus on the
supposed interests advanced by mandatory bar
membership miss the point. Those defenses skip the
most significant parts of exacting scrutiny: is the
asserted interest sufficiently important given the
burdens on First Amendment rights, and are the
government’s means “narrowly tailored to th[at]
interest”? AFPF, 141 S. Ct. at 2384. As shown below,
the question presented has sustained importance in
part because mandatory bars are unlikely to satisfy
exacting scrutiny. But this case, which arose at the
motion to dismiss stage, does not require the Court to
resolve that question. See, e.g., Bethune-Hill v. Va.
State Bd. of Elections, 137 S. Ct. 788, 800 (2017) (“[I]t
is proper for the District Court to determine in the
first instance whether strict scrutiny is satisfied.”).
Instead, this case merely asks the Court to set the
proper standard, the one that is mandated by its First
Amendment precedents, which adequately protects
core rights of free expression, and which equally
vindicates workers’ rights. The Court should grant
certiorari and hold that compelled integrated bar
membership is subject to, at minimum, exacting
scrutiny.
II. Keller and Lathrop should be overruled.
Because at least exacting scrutiny should be
applied to mandatory integrated bar membership,
Keller and Lathrop were demonstrably erroneous to
27
the extent they held otherwise. Thus, the decision
below relying on those decisions must be reversed,
unless stare decisis requires this Court to continue
permitting States to exact millions of dollars each
year in compelled membership dues. It does not.
“[S]tare decisis is not an inexorable command” and
is “at its weakest when [the Court] interpret[s] the
Constitution.” Janus, 138 S. Ct. at 2478 (cleaned up).
Indeed, it “applies with perhaps least force of all to
decisions that wrongly denied First Amendment
rights.” Id. This Court has identified several factors
relevant to stare decisis, including the quality of the
prior decision’s reasoning, “its consistency with other
related decisions,” “developments since the decision
was handed down,” the decision’s ongoing importance,
“the workability of the rule it established,” and
“reliance on the decision.” Id. at 2478–79.
As shown above, if Keller and Lathrop declined to
apply exacting scrutiny to mandatory bar
membership, their reasoning is wrong and has no
foundation without Abood. Their rule is also
inconsistent
with
subsequent
jurisprudence,
particularly Janus, which explained that a
“deferential” germaneness standard “finds no support
in [the Court’s] free speech cases.” 138 S. Ct. at 2480.
As shown next, failing to apply exacting scrutiny here
also has significant negative outcomes, is not
workable, and does not implicate cognizable reliance
interests. Keller and Lathrop are now “First
Amendment ‘anomal[ies]’” and should be overruled.
Id. at 2484.
28
A. Keller and Lathrop give the wrong answer
to a recurring question of great
importance.
First, Keller’s and Lathrop’s error matters in the
“real-world” because it leads to wrong results—and
massive infringements of First Amendment rights.
Ramos v. Louisiana, 140 S. Ct. 1390, 1415 (2020)
(Kavanaugh, J., concurring in part). As this case
shows, keeping those decisions on the books closes the
courthouse doors to hundreds of thousands of lawyers
who find their ability to earn a livelihood conditioned
on supporting causes they fundamentally disagree
with. Millions (if not billions) of dollars in compelled
membership dues are coerced and spent. If heightened
scrutiny applied, many mandatory bars would likely
have to end their compelled speech and association
practices.
It is “exceedingly rare” for a mandatory association
to pass exacting scrutiny. Knox, 567 U.S. at 310. As
discussed, the State would have to show that its
interest is not just legitimate but “compelling” given
the burdens imposed on speech. Id. And it would have
to show that its interest “cannot be achieved through
means significantly less restrictive of associational
freedoms.” Id. Most mandatory bars like Wisconsin’s
will be unable to make those demanding showings.
As noted, Keller asserted two interests: “regulating
the legal profession and improving the quality of legal
services.” 496 U.S. at 13. The relationship between
mandatory bars and these interests is dubious to
start: “The idea seems to be, contrary to all human
experience, that if power be vested in this” “outside
body, holding themselves aloof from their profession,
they will somehow become inspired with a high
29
professional sentiment or sense of duty and
cooperation and will unselfishly exercise their
majority power for the good of their profession and the
public.” Lathrop, 367 U.S. at 882–83 (Douglas, J.,
dissenting) (cleaned up).
In any event, the State Bar of Wisconsin does not
provide the formal ethics regulatory system for the
State. At most, the State Bar sometimes offers
amendments to the ethical code, but it is one of many
organizations and parties that do so. See supra at 12.
The State Bar plays no role in disciplining bar
members. Those responsibilities lie with the Board of
Bar Examiners (admissions; continuing legal
education) and Office of Lawyer Regulation
(misconduct and grievances). See supra at 11-12.
These alternative regulatory agencies reflect a
conscious choice by the Wisconsin Supreme Court to
“assure the public that lawyer discipline, bar
admission, and regulating competence through
continuing legal education would be conducted for the
benefit of the public, independent of elected bar
officials.” In re State Bar of Wis., 169 Wis. 2d 21, 35–
36 (1992) (Abrahamson, J., dissenting). Thus, it is
doubtful that Keller’s asserted interests apply at all to
integrated bars like Wisconsin’s. Indeed, when the
Wisconsin Supreme Court initially refused to force
lawyers to join a mandatory bar, it explained that
“[t]here is no crisis in any important matter.” In re
Integration of the Bar, 25 N.W.2d 500, 503 (Wis. 1946).
It is even more doubtful that compelling
membership in the Wisconsin State Bar is narrowly
tailored to any interest in the legal profession.
Wisconsin itself assigns most legal profession
regulation to actual state entities. About 20 States do
30
not have a mandatory bar, App. 33, and there is no
evidence that the legal profession in nearly half the
country is subpar. See Leslie C. Levin, The End of
Mandatory State Bars?, 109 Geo. L.J. Online 1, 18–19
(2020). “That so many other” jurisdictions regulate
the legal profession without compelling association
“suggests that the [State] could satisfy its [purported]
concerns through a means less restrictive” of
expressive activity. Holt v. Hobbs, 574 U.S. 352, 368–
69 (2015); accord Janus, 138 S. Ct. at 2466 (noting
voluntary union membership in 28 states as a less
restrictive alternative). These less restrictive means
avoid the problem of forcing lawyers to associate with
ideologically and politically controversial speech.
Further, even if the State Bar regulated lawyers, a
less restrictive means of fulfilling its goals would be to
allow lawyers to opt-in to paying dues for any political
or ideological speech.
Thus, the error of Keller and Lathrop matters
because it forces lawyers en masse to support “hated
views.” Lathrop, 367 U.S. at 875 (Black, J.,
dissenting). As Justice Black explained, “[t]he mere
fact that a lawyer has important responsibilities in
society does not require or even permit the State to
deprive him of those protections of freedom set out in
the Bill of Rights for the precise purpose of insuring
the independence of the individual against the
Government.” Id. at 876. And as long as Keller and
Lathrop remain good law, they remain dangerous to
“men and women in almost any profession or calling,”
who “can be at least partially regimented behind
causes which they oppose.” Id. at 884 (Douglas, J.,
dissenting). Keller and Lathrop should be overruled.
31
B. Keller and Lathrop are not workable.
Second, Keller and Lathrop’s scheme for protecting
attorneys’ First Amendment rights is no more
workable than Abood’s identical scheme for protecting
public-sector employees’ rights. See Janus, 138 S. Ct.
at 2481. As with union expenditures, the line between
germane
and
nongermane
bar
association
expenditures “has proved to be impossible to draw
with precision.” Id.
As noted, the State Bar does not regulate lawyers,
Instead, virtually everything it does takes a position
on the law and therefore on matters of public concern.
The recipients of its awards, the topics and authors it
selects for books and articles, the topics and speakers
it selects for continuing legal education seminars and
conferences—everything about the State Bar requires
it to take positions as it speaks and publishes about
the law. See supra 10-11. And because the legal
profession is connected to so many public policy
issues, nearly all political and ideological speech can
plausibly be described as “germane” to the practice of
law.
Thus, in practice, the germaneness inquiry has
become “not merely generous,” but “meaningless.”
Kingstad v. State Bar of Wis., 622 F.3d 708, 725 (7th
Cir. 2010) (Sykes, J., dissenting from denial of
rehearing en banc); id. at 719 (majority opinion)
(comparing inquiry to rational basis review). To the
extent that abandoning judicial review might be
“workable” in some sense, it also “effectively
eviscerate[s] [any] limitation on the use of compulsory
fees to support [bar associations’] controversial
political activities.” Knox, 567 U.S. at 320.
32
Moreover, forcing individual attorneys to
challenge the germaneness line-drawing does not
workably protect for the First Amendment values at
stake. In Janus, this Court recognized that
“[o]bjecting employees” “face a daunting and
expensive task if they wish to challenge”
“chargeability determinations.” 138 S. Ct. at 2482. In
most cases, an attorney wishing to protect his First
Amendment rights would need to “launch[] a legal
challenge and retain[] the services of attorneys and
accountants” to “determine whether these numbers
are even close to the mark”—all to save a few dollars
on mandatory bar dues. Id. Janus held that this
scheme—the cornerstone of Keller’s dues deduction
process, 496 U.S. at 15–17—was unworkable. 138 S.
Ct. at 2482. It is as unworkable here as it was there.
Indeed, the entire framework for an opt-out system of
dues deductions is dubious after Janus. See id. at 2486
(requiring that “employees clearly and affirmatively
consent before any money is taken from them”).
Thus, Keller and Lathrop do not workably
adjudicate First Amendment claims.
C. Keller and Lathrop do not implicate
cognizable reliance interests.
Finally, no reliance interest justifies maintaining
Keller and Lathrop despite their outlier status and
direct conflict with Janus. First, that “over 20 States
have by now enacted statutes authorizing [mandatory
bar] provisions” “is not a compelling interest for stare
decisis”: “If it were, legislative acts could prevent [the
Court] from overruling [its] own precedents.” Janus,
138 S. Ct. at 2485 n.27 (cleaned up). Second, that
mandatory bars “may view [annual dues] as an
entitlement does not establish the sort of reliance
33
interest that could outweigh the countervailing
interest that [attorneys] share in having their
constitutional rights fully protected.” Id. at 2484
(cleaned up). Third, as discussed, Keller “does not
provide “a clear or easily applicable standard, so
arguments for reliance based on its clarity are
misplaced.” Id. (cleaned up).
In any event, no serious reliance interests are at
stake. If this Court overrules Keller and Lathrop,
“States can keep their [bar] systems exactly as they
are—only they cannot” force attorneys to engage in
compelled speech and association. Janus, 138 S. Ct. at
2485 n.27. “In this way, these States can follow the
model of” many other States, noted above. Id.
Some mandatory-bar States have already
transitioned to a more constitutional framework.
California, for instance, limited its State Bar’s
mission to regulating the legal profession and created
a new voluntary association for other activities.8
California’s voluntary association has 100,000
members, even more than New York’s voluntary bar
membership of 70,000.9 And Nebraska too has split its
bar association into a mandatory component limited
to regulatory activities and a voluntary component
that performs other functions. Its Supreme Court held
that “this separation between mandatory and
voluntary dues can be readily accomplished.” See In re
Petition for a Rule Change, 841 N.W.2d at 179; see id.
8 Lyle Moran, California Split: 1 year after nation’s largest bar
became 2 entities, observers see positive change, ABA Journal
(Feb. 4, 2019), https://bit.ly/3cszMFa; see id. (noting that Janus
“has played a key role in sparking more urgent nationwide
discussions about the long-term future of mandatory state bars”).
9 See id.
34
at 178–79 (“By limiting the use of mandatory
assessments to the arena of regulation of the legal
profession, we ensure that the Bar Association
remains well within the limits of the compelledspeech jurisprudence of the U.S. Supreme Court”).
Thus, notwithstanding the possibility of some
“transition costs in the short term,” any reliance
interests in Keller and Lathrop cannot save them.
Janus, 138 S. Ct. at 2485. These temporary
“disadvantages” cannot compare to “the considerable
windfall that [mandatory bars] have received” for
decades. Id. at 2486. As in Janus, “[i]t is hard to
estimate how many billions of dollars have
been . . . transferred to [mandatory bars] in violation
of the First Amendment.” Id. “Those unconstitutional
exactions cannot be allowed to continue indefinitely.”
Id. Keller and Lathrop should be overruled. Review is
necessary.
III.
This case is an ideal vehicle.
This case presents an ideal vehicle to resolve the
pure legal question about the level of scrutiny
applicable to mandatory state bar membership. Like
Janus, this case is an appeal of a lower court decision
affirming dismissal of a First Amendment claim. The
Court of Appeals rested its decision on this Court’s
failure to reconsider Keller after Janus. No factual
dispute matters. As Justice Thomas has explained,
“any challenge to our precedents will be dismissed for
failure to state a claim, before discovery can take
place,” and a record would provide no “benefit to our
review of the purely legal question whether Keller
should be overruled.” Jarchow, 140 S. Ct. at 1721
(dissenting from the denial of certiorari). More,
Wisconsin’s State Bar started this line of cases in
35
Lathrop after it chose to make its bar mandatory, so
compelled membership in that bar squarely raises the
ongoing validity of this Court’s precedents. Finally,
even if the State wanted to try to satisfy exacting
scrutiny, that argument could be resolved on remand.
Only this Court can clarify the appropriate standard
of review. This Court’s intervention is necessary to
ensure that neutral, consistent principles of law
govern First Amendment jurisprudence.
CONCLUSION
For these reasons, the Court should grant the
petition for a writ of certiorari.
Respectfully submitted,
CHRISTOPHER E. MILLS
Spero Law LLC
557 E. Bay St.
#22251
Charleston, SC 29413
(843) 606-0640
cmills@spero.law
JULY 28, 2022
DANIEL R. SUHR
Counsel of Record
JEFFREY M. SCHWAB
Liberty Justice Center
440 N. Wells Street
Suite 200
Chicago, IL 60654
(312) 637-2280
dsuhr@libertyjustice
center.org
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.