Amicus Curiae Brief — Janus v. Am. Fed'n, 138 S. Ct. 54 (2017) (No. 16-1466)

No. 16-1466

IN THE

Supreme Court of the Muited States

MARK JANUS,

Petitioner,

V.

AMERICAN FEDERATION OF STATE, COUNTY, AND

MUNICIPAL EMPLOYEES, COUNCIL 31, et ul.,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

BRIEF OF 24 PAST PRESIDENTS OF THE

D.C. BAR AS AMICI CURIAE

SUPPORTING RESPONDENTS

JOHN W. NIELDS, JR.

Counsel of Record

PHILIP J. LEVITZ

Covington & Burling LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

jnields@cov.com

January 2018 (202) 662-6000

TABLE OF CONTENTS

Page

TABLE GE ALF TRIE Cam coccceccerccccscvsscosessensecescseese ii

INTEREST OF AMICI CURNIAE . . . 1

SUMMARY OF ARGUMENT. ... 2

7) EEC 5

I, ABOOD IS AT THE HEART OF A WELL-

DEVELOPED BODY OF LAW AND

SHOULD NOT BE OVERRULED................... 5

Il. ACLOSELY RELATED BODY OF CASE

LAW SUPPORTS THE

CONSTITUTIONALITY OF

MANDATORY BAR DU ES. 16

III. OTHER APPLICATIONS OF THE ABOOD

AND KELLER BODY OF CASE LAW .......... 21

IV. PRINCIPLES OF STARE DECISIS

COUNSEL AGAINST OVERRULING

— — —— ů — —' 22

. TT—T—T0TdT0T0T0TTTT 26

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Board of Education,

,

Acevedo-Delgado v. Rivera,

292 F.3d 37 (Ist Cir. 2002)...................

Bd. of Regents of Univ. of Wis. Sys. v.

Southworth, 529 U.S. 217 (2000) .........

BellSouth Adver. & Publ’g Corp. v.

Tenn. Regulatory Auth.,

79 S.W.3d 506 (Tenn. 2002)..................

Chicago Teachers Union, Local No. 1 v.

Hudson, 475 U.S. 292 (1986)................

Ellis v. Brotherhood of Railway, Airline &

Steamship Clerks, 466 U.S. 435 (1984)

Fleck u. Wetch,

868 F.3d 652 (8th Cir. 2017)................

Friedrichs u. California Teachers Ass'n,

aan

Gardner v. State Bar of Nev.,

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

Gerawan Farming, Inc. v. Kawamura,

90 P.3d 1179, 1185 (Cal. 2004).............

Glickman v. Wileman Bros. & Elliott,

| em = eg,

* *

Harris v. Quinn,

! ee ay er passim

Int'l Ass'n of Machinists v. Street,

, ...... 6, 7

Keller v. State Bar of California,

, . passim

Kimble v. Marvel Entmt, LLC,

! 22... 22

Kingstad v. State Bar of Wis.,

623 F.3d 706 (7th Cir. BO10)............ccccccocccccccccseeee 23

Lathrop v. Donohue,

, anic ccc secceuimneanecenness 6, 17, 18

Lehnert u. Ferris Faculty Ass n,

ee... passim

Locke v. Karass,

, eeemiinioen 12

Moragne v. States Marines Lines, Inc,,

e e 23

Morrow v. State Bar of Cal.,

188 F.3d 1174 en Cir. 1900). . eee 23

Payne v. Tennessee,

e ce ceadunesbetnnans 23

Petition of the RI. Bar Ass n,

. I: SO iciccnconcendenasicsnopsncenecsinsstn 23

.

R.J. Reynolds Tobacco Co. b. Shewry,

423 F.3d 906 (9th Cir. 2005).

Railway Employees’ Department v.

Hanson, 351 U.S. 225 (1956)

United States v. United Foods, Inc.,

1

Vasquez v. Hille: y,

„ i ieicctcncectmesevseneseesevniomnes

Walton v. Arizona,

— I EE . ———

Other Authorities

David G. Branchflower & Alex Bryson,

What Effect Do Unions Have on

Wages Now and Would Freeman and

Medoff Be Surprised?, in WHAT DO

UNIONS Do? A TWENTY-YEAR

PERSPECTIVE (James T. Bennett &

Bruce E. Kaufman eds. 2007)...................

Ben Casselman, Closer Look at Union

vs. Nonunion Workers’ Wages, WALL

1

FRANK MANZO ET AL., THE STATE OF THE

UNIONS 2016: A PROFILE OF

UNIONIZATION IN CHICAGO, IN

ILLINOIS, AND IN AMERICA (2016) .............

iv

Petition for a Writ of Certiorari, Eugster

v. Wash. State Bar Ass nu, No. 16-

e Paice cntscciccnessencicoscccccsecocted

Petition for a Writ of Ceriorari, Fleck v.

Wetch, No. 17-866 (U.S. Dec. 15,

RA RR A See SI SE SY aS aD eA ween Re rao

INTEREST OF AMICI CURIAE'

Amici curiae are 24 former Presidents of the

District of Columbia Bar.?“ We submit this brief

because Petitioner has asked the Court to overrule

Abood v. Detroit Board of Education, 431 U.S. 209

(1977), a case that provides support for integrated

bars such as the D.C. Bar. See Keller v. State Bar of

California, 496 U.S. 1, 12 (1990).

Petitioner premises his argument for

overruling Abood on the contention that Abood is

some sort of outlier. But Abood is no such thing. For

more than four decades, Abood has stood at the heart

of a well-developed body of law rooted in a simple

proposition: where a state establishes a legal

entitlement to a benefit, it may compel those receiving

the benefit to pay their fair share of the cost. Abood’s

' Pursuant to this Court's Rule 37.6, amici curiae affirm that no

counsel for any party authored this brief in whole or in part, that

no party or counsel for a party made a monetary contribution

intended to fund the preparation or submission of this brief, and

that no person other than amici or their counsel made a

monetary contribution intended to fund the preparation or

submission of this brief. Letters from the parties consenting to

the filing of amicus curiae briefs are on file with the Clerk.

The signatories to this brief are Brigida Benitez, John C.

Cruden, Andrea C. Ferster, Jamie S. Gorelick, Shirley Ann

Higuchi, George W. Jones, Jr., Kim Michelle Keenan, John C.

Keeney, Jr., Philip A. Lacovara, Carolyn B. Lamm, Myles V.

Lynk, Andrew H. Marks, Darrell G. Mottley, Stephen J. Pollak,

Daniel A. Rezneck, James Robertson, Pauline A. Schneider, Joan

H. Strand, Marna 8. Tucker, Mark II. Tuohey III, Timothy K.

Webster, Robert N. Weiner, Melvin White, and Charles R. Work.

Amici are acting in their personal capacities and not as

representatives of any organizations with which they are

affiliated. Amici former D.C. Bar Presidents also filed briefs in

Harris v. Quinn, 134 8. Ct. 2618 (2014), and Friedrichs v.

California Teachers Ass'n, 136 S8. Ct. 1083 (2016).

““

reasoning has been applied by this Court not only to

union shops, but also to integrated bars, public

universities, and agricultural cooperatives.

The Abood/Keller line of cases represents a

body of law upon which not only states and unions but

also integrated bars, including the D.C. Bar, have long

relied in structuring their activities. Overruling

Abood would have a profoundly destabilizing impact

on bars all over the country. We ask this Court to

leave Abood undisturbed.

SUMMARY OF ARGUMENT

The body of law at issue in this case holds that

dissenting members of a collective bargaining unit

may properly be required to pay their fair share of the

costs of a union’s core collective-bargaining-related

services, but not of the union’s unrelated political or

ideological activities. Similarly, this body of law holds

that members of “integrated” or “mandatory” bars

may properly be required to pay their fair share of the

core functions of the bar, but not of the bar’s unrelated

political activities or policy initiatives. The Court has

reasoned that where an entity such as a union or an

integrated bar has a statutory duty to perform

services for the benefit of a defined group of people,

members of that group may properly be required to

pay for the costs of those services. Abood, 431 U.S. at

221-22; Keller, 496 U.S. at 12.

Petitioner has attacked Abood and its principal

rationale — that individuals who benefit from services

may properly be required to pay their fair share of the

costs — as “an anomaly.” Petitioner's Brief at 3

(internal citation omitted). But the “fair share”

rationale is no anomaly; it has been applied and

yr

refined in numerous opinions of this Court in the

union, integrated bar, and other contexts for over half

a century.

In explaining Abood’s fair-share rationale,

Justice Scalia elaborated:

Where the state imposes upon the union

a duty to deliver services, it may permit

the union to demand reimbursement for

them; or, looked at from the other end,

where the state creates in the

nonmembers a legal entitlement from

the union, it may compel them to pay the

cost.... In the context of bargaining, a

union must seek to further the interests

of non-members; it cannot, for example,

negotiate particularly high wage

increases for its members in exchange for

accepting no increases for others.

Lehnert v. Ferris Faculty Ass n, 500 U.S. 507, 556

(1991) (Scalia, J. concurring in part and dissenting in

part).

The premise underly‘ng all of this Court's

union shop cases is that the non-union members of the

relevant bargaining unit receive a tangible benefit

from the union’s services in the form of higher wages,

among other things. Petitioner does not challenge

this premise. The Complaint contains no allegation

that the union failed to confer a tangible monetary

benefit upon Petitioner; and in any event no factual

record has been developed in this case. Petitioner is

thus asking this Court to overrule Abood without

regard to whether the union’s services benefited him

financially through higher wages.

Petitioner's request that this Court overrule

Abood should be rejected. Abood is part of a soundly

reasoned and stable body of law to which bars

throughout the country have conformed their

behavior. A decision overruling Abood would, at a

minimum, create substantial uncertainty and

instability injurious to integrated bars.

The risk to mandatory bars is a concrete one.

An organization known as the Goldwater Institute

already has pursued a lawsuit on behalf of a dissident

member of the North Dakota Bar based on the hope

that this Court will overrule Abood. The Goldwater

Institute joined an amicus brief filed in this case,

urging that the Court overrule Abood; and it has filed

a petition for certiorari in the North Dakota case

asking that the Court next overrule Keller, the case

applying Abood to support the constitutionality of

mandatory bar dues.

If this Court were to overrule Abood, it would

very likely spawn additional time-consuming and

expensive lawsuits by bar members who do not want

to pay their bar dues. Such lawsuits would severely

distract this country’s thirty-two integrated bars from

their critical work servlingl the ‘State’s interest in

regulating the legal profession and improving the

quality of legal services.” Harris, 134 S. Ct. at 2644

(quoting Keller, 496 U.S. at 14).

ARGUMENT

J. ABOOD IS AT THE HEART OF A WELL-

DEVELOPED BODY OF LAW AND

SHOULD NOT BE OVERRULED.

A. Abood’s Predecessors

The line of precedent at issue in this case begins

with the Court's unanimous decision in Railway

Employees’ Department v. Hanson, 351 U.S. 225

(1956). Hanson arose out of the Railway Labor Act

(“RLA”), a federal statute that permitted railroads

and unions to enter into collective bargaining

agreements that provided for “union shops.” See id.

at 231-32. Under such agreements, employees in a

collective bargaining unit who do not wish to join the

union are nonetheless required to pay their fair share

of the costs of the unions’ collective bargaining

services. See id. at 236-38. In Hanson, several

employees claimed that this mandatory dues

requirement violated their First Amendment rights of

free association. See id. at 236-38.

The Hanson Court rejected the employees’ First

Amendment claim. Id. at 238. The Court took note of

the concern that motivated Congress in enacting the

RLA: “[w]hile non-union members got the benefits of

the collective bargaining of the unions, they bore ‘no

share of the cost of obtaining such benefits.” Id. at

231 (quoting H.R. Rep. No. 81-2811, at 4 (1950)). The

Court then held that “the requirement for financial

support of the collective-bargaining agency by all who

receive the benefits of its work ... does not violate

either the First or the Fifth Amendments.” /d. at 238

(emphasis added).

The Court also stated, on the subject of

mandatory bar dues:

On the present record, there is no more

an infringement or impairment of First

Amendment rights than there would be

in the case of a lawyer who by state law

is required to be a member of an

integrated bar.

Id.“

Five years later, the Court answered a question

not reached in Hanson: whether non-union employees

could lawfully be required to fund political activities

unrelated to collective bargaining. See Int I Ass’n of

Machinists v. Street, 367 U.S. 740, 768-69 (1961). The

Court concluded that non-union members could not be

required to fund such activities.

In so doing, the Court also reaffirmed its

opinion in Hansen. See id. at 746-49. As Justice

Douglas explained further in his concurring opinion,

“all the members of the laboring force” are

beneficiaries of the union’s collective bargaining

services, and it is “permissible for the legislature to

require all who gain from collective bargaining to

contribute to its cost. Id. at 776 (Douglas, J.,

concurring) (emphasis added).

The concurring opinion elaborated:

The collection of dues for paying the costs

of collective bargaining of which each

The Court addressed directly, and reaffirmed, the

constitutionality of bar dues over a First Amendment objection

soon after in Lathrop v. Donohue, 367 U.S. 820 (1961). See infra

Part ILA.

.

member is a beneficiary is one thing. If,

however, dues are used . . . to promote [a

variety of unrelated political or

ideological causes] then the group

compels an individual to support with

his money causes beyond what gave rise

to the need for group action.

Id. at 777.4

B. Abood

The court addressed union shops in the context

of public employment for the first time in Abood v.

Detroit Board of Education, 431 U.S. 209 (1977).

Declining to distinguish between the public employees

in Abood and the private employees in Hanson and

Street, id. at 226, 229, the Court stated that the

plaintiffs’ claims in Hanson failed, not because there

was no governmental action, but because there was no

First Amendment violation.” Id. at 226 (emphasis

added). Accordingly, the Court held that all public

employees in the bargaining unit could

constitutionally be required to pay their fair share of

the union’s services related to “collective bargaining,

contract administration, and grievance adjustment,”

but that objecting non-members could not

constitutionally be required to contribute funds for

‘In Street, the Court construed the Railway Labor Act to forbid

a requirement that non-union members fund the union's political

and ideological causes, and it therefore did not reach the question

of whether its holding would have been the same under the

United States Constitution. However, the desire to avoid First

Amendment issues strongly influenced the Court's construction

of the RLA. 367 U.S. at 749-50.

se.

the unions’ unrelated political activities. Id. at 225-

26, 232, 234.

The Abood Court began by reaffirming Hanson

and Street and elaborating on the Court’s fair share

rationale. The Court explained that having a single

exclusive union representative for a given category of

employees was a central principle of congressional

labor policy. Multiple unions — each one negotiating

a different contract, with different terms, for different

employees — would create massive confusion and

undermine the advantages of collective bargaining.

This congressional policy thus necessarily brings a

group of employees together for the purpose of

negotiating a single collective bargaining agreement

covering all employees in the group. See id. at 220-21.

The Cour then explained that a union elected

to be the single exclusive representative of a group of

employees had “great” and “continuing”

responsibilities under the law that included the legal

duty “fairly and equitably to represent all employees

union and non-union’ within the relevant unit.”

Id. at 221 (citation omitted) (emphasis added). As a

result, the Court explained:

A union-shop arrangement has been

thought to distribute fairly the cost of

these activities among those who benefit,

and it counteracts the incentive that

employees might otherwise have to

become “free riders” to refuse to

contribute to the union while obtaining

benefits of union representation that

necessarily accrue to all employees.

Id. at 221-22 (emphasis added).

6.

The Court concluded that fals long as [the

union] act[s] to promote the cause which justified

bringing the group together, the individual cannot

withdraw his financial support merely because he

disagrees with the group’s strategy.” Id. at 223

(emphasis added) (quoting Street, 367 U.S. at 778

(Douglas, J., concurring)). However, a union may not

“spend[] a part of [objecting employees’] required

service fees to contribute to political candidates and to

express political views unrelated to its duties as

exclusive bargaining representative.” Id. at 234

(emphasis added).

C. Abood Refined and Reaffirmed

In a series of cases following Abood, the Court

repeatedly reaffirmed Abood’s holding and the fair-

share rationale underlying it, while refining the lines

drawn in Abood and Street between costs that are

properly included in the fee that objecting employees

have to pay and those that are not.

In Ellis v. Brotherhood of Railway, Airline &

Steamship Clerks, 466 U.S. 435 (1984), the Court

explained, wle remain convinced that Congress’

essential justification for authorizing the union shop

was the desire to eliminate free riders — employees in

the bargaining unit on whose behalf the union was

obliged to perform its statutory functions, but who

refused to contribute to the cost thereof.” Id. at 447

(emphasis added). Applying the Abood/Street test, the

Court concluded that certain of the challenged

activities were chargeable and that others were not.

See id. at 448-57.

In Chicago Teachers Union, Local No. 1 v.

Hudson, 475 U.S. 292 (1986), the Court addressed the

9

internal procedures that must be developed by unions

to prevent the improper charging to objecting

employees of non-chargeable expenditures. The Court

found certain procedures in place at the defendant

union inadequate under Abeod, id. at 304-11, while

reiterating that, in Abood, “[wle .. . rejected the claim

that it was unconstitutional . to require nonunion

employees, as a condition of employment, to pay a fair

share of the union's cost of negotiating and

administering a collective-bargaining agreement,” id.

at 301-02 (emphasis added).

In Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507

(1991), the majority held that, in order to be

chargeable to dissenting employees, the expenditures

must 1) be germane to collective bargaining activity;

2) be justified by the government's interest in labor

peace and avoiding “free riders“; and 3) not add

significantly to the burdening of free speech inherent

in a union shop. Id. at 519.

Although the concurring and dissenting

opinion of Justice Scalia joined by Justices O’Connor,

Souter and, as to the portion quoted below, Kennedy)

offered a somewhat different test for identifying

chargeable expenses, the opinion gave emphatic

support to the principle that objecting members of a

bargaining group may be required to pay their fair

share of the cost of the union's core collective

bargaining services. Thus, Justice Scalia, hewing

closely to the language and holdings in the Abood line

of decisions, stated:

Our First Amendment jurisprudence

.. . recognizes a correlation between the

rights and the duties of the union, on the

one hand, and the nonunion members of

-10-

the bargaining unit, on the other. Where

the state imposes upon the union a duty

to deliver services, it may permit the

union to demand reimbursement for

them; or, looked at from the other end,

where the state creates in the

nonmembers a legal entitlement from

the union, it may compel them to pay the

cost.

Id. at 556 (Scalia, J., concurring in the judgment in

part and dissenting in part).

Justice Scalia emphasized the point that

“nonunion members of the union’s own bargaining

unit” are people “whom the law requires the union to

carry — indeed, requires the union to go out of its way

to benefit, even at the expense of its other interests.”

Id. “In the context of bargaining,” Justice Scalia

explained, “a union must seek to further the interests

of its nonmembers; it cannot, for example, negotiate

particularly high wage increases for its members in

exchange for accepting no increases for others.” 1d

(emphasis added).

Thus, while “private speech often furthers the

interests of nonspeakers, and that does not alone

empower the state to compel the speech to be paid for,”

“(t]he ‘compelling state interest that justifies this

constitutional rule is not simply elimination of the

inequity arising from the fact that some union activity

redounds to the benefit of ‘free-riding’ nonmembers,”

but rather that such benefits are required by law. Id.

(emphasis added). “[T]}he free ridership (if it were left

to be that) would be not incidental but calculated, not

.

imposed by circumstances but mandated by

government decree.” Id.“

In Locke v. Karass, 555 U.S. 207 (2009), the

Court again unanimously reaffirmed Abood and its

fair-share/prevention-of-free-riding rationale, in

holding that a local union’s pro rata share of core

litigation expenses incurred by the national union was

properly chargeable to the local’s dissenting non-

members. /d. at 213.

D. Harris

This Court addressed Abood again in Harris v.

Quinn, 134 S. Ct. 2618 (2014). Harris involved home

healthcare workers who were paid by the State of

Illinois, but who were in many respects employees of

the persons in whose homes they worked. However,

they were, under state law, members of a collective

bargaining unit represented by a union and they were

required to pay a fee to the union for its collective

bargaining services.

A group of home healthcare workers objected to

the fee on First Amendment grounds. They argued

first that Abood should be overruled, and second that

Abood did not apply to them because they were not

truly employees of the State of Illinois. The Court did

Amici take no position on the question whether this Court

should adopt Justice Scalias test set forth above that

contributions to a public sector union “can be compelled only for

the costs of performing the union's statutory duties as exclusive

bargaining agent Lehnert, 500 U.S. at 550 (Scalia, J.

concurring in the judgment in part and dissenting in part); see

Brief for Amici Curiae Charles Fried and Robert C. Post in

Support of Neither Party, at 2, Janus v. Am. Fran of State,

County & Municipal Emps. Council 31, No. 16-1466 (U.S. Dec. 6,

2017).

12

not accept the first argument and did not overrule

Abood. It did accept the second argument and stated

that it declined “to approve a very substantial

expansion of Abood’s reach.” Id. at 2634.

The Court in Harris termed some points of the

Abood Court's analysis “questionable.” Id. at 2632.

However, the Court did not question Abood's fair-

share rationale: namely that, where a state creates in

the non-members a legal entitlement from the union,

it may compel them to pay their fair share of the cost.

Instead, the Court reaffirmed that the fair-

share/free-rider rationale for Abood “is the fact that

the State compels the union to promote and protect

the interests of nonmembers,” specifically, the

union must not discriminate between members and

nonmembers” in representing their interests. /d. at

2636 (quoting Lehnert, 500 U.S. at 556 (Scalia, J.,

concurring in the judgment in part and dissenting in

part)). The Court then said that this fair-share

rationale did not apply in the unique circumstances of

home healthcare workers. See id. at 2637. Abood's

fair-share/free-rider rationale remains undisturbed

by Harris.

The Harris Court also reaffirmed Keller and its

fair-share rationale for integrated bars. See id. at

2644. The Court emphasized the states’ special

“interest in regulating the legal profession and

improving the quality of legal services,” and the

states’ “strong interest in allocating to the members of

the bar, rather than the general public, the expense of

18

ensuring that attorneys adhere to ethical practices.”

/d. (internal quotation marks omitted).®

. * + * *

The above decisions constitute a long line of

holdings that non-union employees may be required

— in line with First Amendment principles — to pay

their fair sliare of fees to the union for costs of

collective-bargaining-related services that benefit

them. These decisions rest on the common-sense

proposition that those who benefit from services

required by law to be performed for them may

properly be required to pay their fair share of the

costs.

The premise underlying each of these cases is

that the non-union members of the bargaining unit do,

indeed, receive a benefit from the services provided by

the unions. The benefit is a very tangible one. It

consists first and foremost of higher wages that the

unions are, by statute, duty bound to seek on the non-

members’ behalf. The data strongly support the

conclusion that the unions are successful in obtaining

increased wages for non-union members in amounts

significantly greater than the size of the agency fee.’

When this Court was asked again to overrule Abood in

Friedrichs u. California Teachers Ass'n, 136 S. Ct. 1083 (2016), it

again declined to do so. The Friedrichs Court affirmed by an

equally divided Court the Ninth Circuit's judgment upholding

Abood. Id.

’ Thus, the data show that wages of public sector employees

represented by unions are on average approximately 15% higher

than wages of employees not so represented. See, e.g., David G.

Branchflower & Alex Bryson, What Effect Do Unions Have on

Wages Now and Would Freeman and Medoff Be Surprised?, in

.

Petitioner Janus does not challenge this

premise. His Complaint does not allege that he

receives no monetary benefit from the union’s services

in this case.“ And there is, in any event, no record at

all in this case, and thus no record that could

substantiate any such claim. In other words,

Petitioner does not dispute that the union's services

put more money in his pocket. Nor does he allege that

he would like to be represented by a bargaining

representative that would not seek higher wages on

his behalf.“

Petitioner is thus asking this Court to overrule

Abood, and the long line of cases of which it is a part,

without regard to the question whether the

Respondent union’s services put money in his and

other non-members’ pockets, greatly exceeding the

size of their agency fees. And we submit that to throw

out the entire Abood line of cases, under these

circumstances, would constitute a radical departure

WHAT DO UNIONS DO? A TWENTY-YEAR PERSPECTIVE 86-88

(James T. Bennett & Bruce E. Kaufman eds. 2007) (15% wage

premium for public sector unions); see also FRANK MANZO ET Al.,

THE STATE OF THE UNIONS 2016; A PROFILE OF UNIONIZATION IN

CHICAGO, IN ILLINOIS, AND IN AMERICA 14-15 (2016) (17% wage

premium for unions as a whole), https://ler.illinois.edu/wp-

content/uploads/20 1 6/06/State-of-the-U nions-2016-FI NAL. pdf.

By contrast, agency fees average about 2% of wages. See Ben

Casselman, Closer Look at Union vs. Nonunion Workers’ Wages,

WALL Sr. J., Dee. 17, 2012, https://blogs.waj.com/economics/

2012/12/17/closer-look-at-union-vs-nonunion-workers-wages/.

See Petition for a Writ of Certiorari at 8A-27A, Janus v. Am.

Fed n of State, County & Municipal Emps. Council 31, No. 16-

1466 (U.S. June 6, 2017) (Second Amended Complaint).

See id. Janus does, to be sure, object to “many of the public

policy positions” of the unions. But he does not object to receiving

higher wages. Id. at 18A (Second Amended Complaint © 42).

- 1§-

from normal principles of stare decisis. See infra Part

IV. Abood should not be overruled.

II. ACLOSELY RELATED BODY OF CASE

LAW SUPPORTS THE

CONSTITUTIONALITY OF

MANDATORY BAR DUES.

This Court's decisions supporting the

constitutionality of compulsory “fair share” fees for a

union’s collective-bargaining- related services have

developed hand-in-hand with its decisions upholding

the constitutionality of the common state-law

requirement that all attorneys licensed to practice law

in a state must pay dues representing their “fair

share” of the cost of an integrated bar’s services.

Some thirty-one states and the District of

Columbia have opted to create what are known as

“integrated” or “mandatory” bars. An integrated bar

is “an association of attorneys in which membership

and dues are required as a condition of practicing law

in a State.” Keller, 496 U.S. at 5. n general,

integrated bars are charged by the courts or the

legislatures with responsibilities for regulating

lawyers licensed to practice in particular states and

for improving the administration of justice.

This Court has twice been presented with

challenges — on First Amendment freedom of

association grounds — to a state bar’s mandatory dues

requirement. Each case was brought by bar members

who objected to the use of their dues for what they

claimed to be political or ideological activities with

which they disagreed. Each time, this Court drew on

its union-shop decisions and applied a rule for bars

analogous to the one adopted for unions. And each

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time, the Court relied heavily on its “fair share”

rationale repeated so often in the union-shop cases.

Thus, these decisions establish that objecting

bar members may constitutionally be required to pay

dues representing their fair share of the cost of a bar's

services in regulating the profession and improving

the administration of justice, but not to fund a bar's

unrelated political activities.

A. Lathrop

This Court first addressed the subject of

mandatory bar dues in Lathrop v. Donohue, 367 U.S.

820 (1961).'"° The Supreme Court of Wisconsin,

exercising authority provided by the Wisconsin

legislature, had created an integrated bar: i.e., it had

required everyone licensed to practice law in

Wisconsin to join the State Bar and to pay prescribed

annual dues to it.

A member of the State Bar objected to the

mandatory dues requirement, on freedom of

association grounds, claiming that the Bar engaged in

political activities that he opposed. Because there was

no factual basis for the claim that the Bar had used

the challenger’s funds for political activities, this

Court treated the case as a facial challenge to the

requirement that all licensed lawyers pay mandatory

dues. See id. at 847-48.

The opinion for a four-member plurality

rejected the constitutional claim, explaining “[i]n our

view the case presents a claim of impingement upon

' As noted above, the Court had assumed in Hanson that

mandatory bar dues, generally, were consistent with the

requirements of the First Amendment. See supra p. 6.

.

freedom of association no different from that which we

decided in Railway Employees’ Dep’t v. Hanson.” Id.

at 842. The plurality noted that “the bulk of State Bar

activities serve the function . of elevating the

educational and ethical standards of the Bar to the

end of improving the quality of the legal service

available to the people of the State,” which, “[iJt

cannot be denied is a legitimate end of state

policy.” Id. at 843.

The plurality concluded that the Supreme

Court of Wisconsin “may constitutionally require that

the costs of improving the profession in this fashion

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. (emphasis

added).

In an opinion authored by Justice Harlan and

joined in by Justice Frankfurter, these two additional

justices concurred, explaining that “[t]he Hanson case

. surely lays at rest all doubt that a State may

Constitutionally condition the right to practice law

upon membership in an integrated bar association, a

condition fully as justified by state needs as the union

shop is by federal needs.” Id. at 849 (Harlan, J.,

concurring in the judgment).

B. Keller

The Court addressed mandatory bar dues again

in Keller. In Keller, members of the California

integrated bar challenged the State Bar's use of their

dues on freedom of association grounds, claiming that

the bar had used thc e dues to finance certain

ideological activities to which they were opposed. A

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unanimous Court, drawing heavily on its opinion in

Abood, held that the meimbers’ dues could be used over

their objection in furtherance of the bars core

purposes, but that they could not be used for

unrelated ideological or political activities.

The Court found that the Bar had been given

the responsibility by the state to examine applicants

for admission to the bar; to formulate rules of

professional conduct; to discipline bar members for

misconduct; to prevent the unlawful practice of law;

and to engage in the study of and recommend

improvements in procedural law and the

administration of justice. 496 U.S. at 5. The Court

pointed out that the California Legislature wanted

recommendations concerning “admissions,”

“discipline,” “codes of conduct, and the like,” “to be

made to the courts or the legislature by the organized

bar.” Id. at 12 (emphasis added).

Turning to the constitutional issue, the Court

reiterated a theme it had sounded since Hanson:

“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.” Id. The Court

explained:

The reason behind the legislative

enactment of “agency-shop” laws is to

prevent “free-riders” — those who

receive the benefit of union negotiation

with their employers, but who do not

choose to join the union and pay dues —

from avoiding their fair share of the cost

of a process from which they benefit.

2

Id. (emphasis added).

The Court noted that attorneys, like union

members, benefit from participating in integrated

bars, particularly because they generally “prefer a

large measure of self-regulation to regulation

conducted by a government body which has little or no

connection with the profession.” Id. The Court then

explained that “[ijt is entirely appropriate that all of

the lawyers who derive benefit from the unique status

of being among those admitted to practice before the

courts should be called upon to pay a fair share of the

cost of the professional involvement in this effort.” Id.

(emphasis added).

The Court next turned to the claim that the

State Bar had expended dues-paid funds on a variety

of political activities unrelated to the Bar's core

functions. The Court explained that

Abood held that a union could not expend

a dissenting individual’s dues for

ideological activities not “germane” to

the purpose for which compelled

association was justified: collective

bargaining. Here the compelled

association and integrated bar are

justified by the State’s interest in

regulating the legal profession and

improving the quality of legal services.

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.

20

Id. at 13-14.

The Court added that, although “[pjrecisely

where the line falls will not always be easy to

discern,” “the extreme ends of the spectrum are clear

Compulsory dues may not be expended

to endorse or advance a gun control or

nuclear weapons freeze initiative; at the

other end of the spectrum petitioners

have no valid constitutional objection to

their compulsory dues being spent for

activities connected with disciplining

members of the Bar or proposing ethical

codes for the profession.

Id. at 15-16.

While there are differences between mandatory

bars and unions and the relevant state interests may

vary, the bottom line is that each is part and parcel of

the same body of First Amendment law, and each is

governed by the same sound fair-share principles, the

overruling of which in the union context would create

uncertainty for and cause harm to both.

III. OTHER APPLICATIONS OF THE ABOOD

AND KELLER BODY OF CASE LAW

This Court also has repeatedly looked to Abood

and Keller to guide its First Amendment analysis in

compulsory-funding cases outside the union and bar-

association contexts. The Court has relied in part on

Abood and Keller to hold that a public university may

“require[] its students to pay fees to support the

extracurricular speech of other students,” Bd. of

Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S.

217, 233 (2000), even though “[i]t is all but inevitable

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that the fees will result in subsidies to speech which

some students find objectionable and offensive to their

personal beliefs,” id. at 232; see also id. at 230-34. And

the Court has applied Abood and Keller to delineate

the circumstances in which the First Amendment

permits the government to require participants in an

industry to contribute financially to advertising that

supports the industry as a whole. See United States

v. United Foods, Inc., 533 U.S. 405 (2001); Glickman

v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997).

A decision overruling Abood would thus disturb the

settled doctrine on which a wide variety of social and

economic arrangements depend.

IV. PRINCIPLES OF STARE DECISIS

COUNSEL AGAINST OVERRULING

ABOOD.

By maintaining “the idea that today’s Court

should stand by yesterday's decisions,” stare decisis

operates as “a foundation stone of the rule of law.”

Kimble u. Marvel Entmt, LLC, 135 S. Ct. 2401, 2409

(2015). It “contributes to the actual and perceived

'! Notably, many federal and state courts also have come to view

Abood and Keller as representing closely related lines of

authority and have applied them in a variety of contexts. See,

e.g., Southworth, 529 U.S. at 230 (“The Abood and Keller cases,

then, provide the beginning point for our analysis.”); Acevedo-

Delgado v. Rivera, 292 F.3d 37, 42 (Ist Cir. 2002) (referring to

“the Abood/ Keller line of cases"); H. J. Reynolds Tobacco Co. v.

Shewry, 423 F.3d 906, 917 (9th Cir. 2005) (discussing “the

rationale of the Abood and Keller line of cases”); Gerawan

Farming, Inc. v. Kawamura, 90 P.3d 1179, 1185 (Cal. 2004)

(‘Abood and Keller are the cornerstones of United States

Supreme Court jurisprudence regarding government-compelled

funding of private speech.) BellSouth Adver. & Publ’g Corp. v.

Tenn. Regulatory Auth., 79 S.W.3d 506, 518 (Tenn. 2002)

(discussing “the Abood-Keller standards’ ).

22

integrity of the judicial process.” Payne v. Tennessee,

501 U.S. 808, 827 (1991). It buttresses confidence that

judicial decisions are “founded in the law rather than

in the proclivities of individuals.” Vasquez v. Hillery,

474 U.S. 254, 265 (1986).

As the Framers understood, tjo avoid an

arbitrary discretion in the courts, it is indispensable

that they should be bound down by strict rules and

precedents.” The Federalist No. 78 (Alexander

Hamilton). This has always been the best way to

“protect[] the expectations of individuals and

institutions that have acted in reliance on existing

rules,” Walton v. Arizona, 497 U.S. 639, 673 (1990)

(Scalia, J., concurring), and to ensure “public faith in

the judiciary as a source of impersonal and reasoned

judgments,” Moragne v. States Marines Lines, Inc.,

398 U.S. 375, 403 (1970).

Overruling Abood would fly in the face of these

settled principles, creating problems well beyond the

realm of unions. Notably, bars across the country

have taken numerous steps over the past several

decades to bring their practices into compliance with

the substantive and procedural requirements of

Keller, which are largely taken from Abood.'2 The

overruling of Abood would inevitably inject

'2 See, e.g., Fleck v. Wetch, 868 F.3d 652, 654-55 (8th Cir. 2017);

Kingstad v. State Bar of Wis., 622 F.3d 708, 709 (7th Cir. 2010);

Gardner v. State Bar of Nev., 284 F.3d 1040, 1043 (9th Cir. 2002);

Morrow v. State Bar of Cal., 188 F.3d 1174, 1175 (9th Cir. 1999);

Petition of the R. IJ. Bar Ass n, 650 A.2d 1235, 1237 (R.1. 1994) (per

curiam).

- 23.

substantial uncertainty and instability into a body of

law that has been stable for over fifty years.

Amicus curiae Goldwater Institute proves the

point. Goldwater joined amicus briefs in support of

the petitioners at the certiorari and merits stage in

this case.!“ Goldwater explained that it is interested

in this case because “the Goldwater Institute

currently represents a member of the South Dakota

State Bar in a challenge to the constitutionality of

compulsory member dues in that state.“

Moreover, Goldwater already filed a petition for

certiorari in its bar dues challenge. See Petition for a

Writ of Certiorari, Fleck v. Wetch, No. 17-866 (U.S.

Dec. 15, 2017). In its petition, Goldwater asserts that

its “case involves compelled association and compelled

speech in ways that are similar to Janus.” Id. at i.

Accordingly, Goldwater's petition says that, first,

Abood should be overruled in Janus, and then Keller

can be overruled because it rests “in the same

dangerous [jurisprudential] territory as Abood.” See

id. at 18-19.

Though there is in reality nothing “dangerous”

about this Court's long-settled and recently-

reaffirmed Keller jurisprudence, overruling Abood

would inevitably fuel more organizations and more

dissenting bar members to challenge Kelter. Indeed,

even while Abood remains intact, Goldwater is not

grief Amicus Curiae of Pacific Legal Foundation, et al. in

Support of Petitioner, at 2, No. 16-1466 (U.S. Dec. 2017); Brief

Amicus Curiae of Pacific Legal Foundation, et al. in Support of

Petitioner, at 2, No. 16-1466 (U.S. July 2017).

Id. Goldwater's case actually challenges the North Dakota

Bars dues, not the South Dakota Bar's. See Fleck, 868 F.3d 652.

.

alone in initiating such distracting and expensive

litigation. For instance, this Court recently denied

another petition for certiorari, from a dissenting

member of the Washington State Bar, seeking to

overrule Lathrop and, by extension, Keller. See

Petition for a Writ of Certiorari, Eugster v. Wash.

State Bar Ass'n, No. 16-1388 (U.S. May 17, 2017). The

petitioner relied heavily (though mistakenly) on

Harris to argue that mandatory bar dues compel

speech and association in violation of the First

Amendment. See id. at 11-14; 134 S8. Ct. at 2644. This

is just the kind of disruption and instability that stare

decisis is intended to avoid.

* * „ * *

In short, overruling Abood would put a stable

body of law rooted in the common-sense notion that a

state should not be subjected to “mandated free-

ridership” on a slippery slope. Lehnert, 500 U.S. at

556 (Scalia, J., concurring in the judgment in part and

dissenting in part). First union shops would fall; then

integrated bars and other institutions across the

country that have long relied on the sound principles

of Abood would be under attack.

We urge the Court to reject Petitioners’

invitation to permit such disturbance of bars’ vital

work “regulating the legal profession and improving

the quality of legal services.” Harris, 134 S. Ct. at

2644 (quoting Keller, 496 U.S. at 14).

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CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

JOHN W. NIELDS, JR.

Counsel of Record

PHILIP J. LEVITZ

Covington & Burling LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

jn elds@cov.com

January 2018 (202) 662-6000

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