There are a great many rights that we enjoy as human beings. The foundations of this country recognized that those rights exist simply because we exist ("all men are created equal, that they are endowed by their creator with certain inalienable Rights"). For those reasons, there were founders who did not perceive a necessity for a bill of rights. These Federalists thought that the government would be limited, and therefore the people would retain authority and power. With such retention of power, the "Bill of Rights" was seen as unnecessary.
The fallacy of limited government has long been exposed. The "A-Z Index of U.S. Government Department and Agencies" (there are no listings currently for "Q," "X," "Y," or "Z," but give us time) at USA.Gov bears witness to that. Aside from listing each state as a "department" or "agency" (states are neither federal departments or agencies, and in fact have their own powers and rights, according to the U.S. Constitution), this listing includes over 600 departments and agencies. In fact, the U.S. government is the largest employer in the country, but according to the Belleville News-Democrat, Walmart is closing in. Some would argue that whatever our government is, it is not "limited." And, thus, the adoption of the Bill of Rights may arguably be one of the founders' greatest ideas.
The topic of rights came to me recently (this is the point in the post where some curmudgeon has begun to mutter under her or his breath "What does this have to do with workers' comp?"). The discussion is relevant to many lawyers, and perhaps more so to judges. It is not therefore strictly a workers' compensation topic, but certainly both a legal and adjudicatory topic. The current context has to do with the First Amendment to the United States Constitution:
"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."
There, we see explicit protections both "of" and "from" religion, freedom of press, speech, and assembly. In a short paragraph, the First Amendment addresses much.
What it does not address specifically is the right to freedom of association. Protection of that right has been implied, however. It is implied, according to courts and scholars, by the stated freedom to assemble, and the right to substantive due process ("liberty") that is encompassed by the Fifth and Fourteenth Amendments. And, inherent in the right to associate is, to some extent, a right not to associate, as discussed in this interesting piece published by the University of Missouri Kansas City (UMKC). It is possible that "association" may be, similarly to religion, characterized as both a freedom "of" and "from."
Freedom of Association was newsworthy in June 2018 when the Supreme Court of the United States (SCOTUS) rendered Janus v. AFSCME, ____ U.S. ____; 138 S.Ct. 2448, No. 16-1466 (2018). The SCOTUS essentially concluded that a public employee could not be forced to pay dues or fees to a public sector union. The decision reversed forty years of precedent, by which various employees have been forced to support organizations from which they perhaps enjoyed a benefit(s), but with which the employee perhaps had philosophical differences. That long history was clarified in Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235–236 (1977).
While Janus recedes from Abood, There have also been various cases that interpreted the Constitution as protecting the right both to associate and to choose not to (similarly, the right to free speech certainly likewise protects the right not to). Some of those are discussed in the UMKC piece. Those are cases of organizations choosing not to associate with particular individuals, that is in their selective membership, with mixed success. However, the analysis of association based on the choices of the individual is somewhat distinct.
Janus is now encouraging litigation in the individual association context, specifically as regards attorneys. As reported by the Wall Street Journal (Friday, December 21, 2018) Lawyers Have Rights Too (subscription service). This details a North Dakota attorney, Arnold Fleck, who has filed suit against the North Dakota Bar Association (through its president, Mr. Wetch). In order to practice law in North Dakota, he is required both to be a member of that association and to pay dues to it. His complaint centers on his personal support for a legislative amendment in 2014, which his bar association opposed. Thus, his mandated dues support an organization with which he has philosophical differences.
Mr. Fleck did not prevail. The Eighth Circuit Court of Appeal denied his freedom of association claims. Fleck v. Wetch, 868 652 (8th Cir. 2017). Mr. Fleck then sought review by the SCOTUS. His petition is worthy reading regarding his contention that the Court's decision in Janus supports revisiting prior authority regarding compulsory membership in state bar associations. The defendant's response is likewise worthy of reading. The SCOTUS did not address the merits of either argument, but in early December 2018, the Court remanded the case to the Eighth Circuit with instructions that it reconsider the case in light of the recent Janus decision.
The Wall Street Journal reports that more recently an Oregon attorney, Daniel Crowe, has filed a similar lawsuit regarding the mandate that he belong to the Oregon State Bar. The authors note that there are various states in which attorneys are forced to be members in order to practice law. These are called "integrated bars." According to the article 18 states utilize this methodology. Thus, it appears that mandatory bar membership is a minority of states, however a significant minority. The article's authors contend this method violates both freedom of speech and of association. They contend that because such state bar associations elect to engage in political influence and even lobby positions, those associations express views and affect public policy.
The debate is not new to Florida. In 1986, the Eleventh Circuit Court rendered Gibson v. The Florida Bar, 906 F.2d 624 (11th Cir. 1986). In part relying upon Abood, the Court rejected a "pure rebate approach" (for dues) but accepted the necessity for some "readily available alternatives" in instances in which the Bar takes political positions. The SCOTUS initially granted certiorari review of Gibson, 499 U.S. 918 (1991), but the petition for review was later "dismissed as improvidently granted." 502 U.S. 104 (1991).
During the pendency of that litigation, The Florida Bar adopted a policy, in Rule 2-9.3 regarding member objections to dues expended on legislative activities. That provision remains in force today. It essentially requires the Bar to publish its intent to take legislative positions and affords each member time to object. Thereafter, The Florida Bar Board of Governors may choose whether to refund an attorney's pro-rata share of dues expended on that particular legislative position. If it elects not to refund that dues portion, the bar member may arbitrate entitlement to the refund.
Thus, there is a methodology for someone to seek reimbursement of dues that contribute to the promotion of a position or policy with which she or he does not agree, or at least does not support. It is not, however, necessarily a simple or rapid process. It requires monitoring of The Florida Bar News to understand any positions that the bar might adopt, is primarily dependent upon the grace of the Board which has approved the position or policy in the first instance, and may require ultimately arbitration. And, it merely allows the recoup member to recoup money.
Is there a greater interest than the money, the dues, involved? When a person is a member of any organization, does that membership evidence or at least suggest support for any and all of its values? Recently, a jurist's membership in the Knights of Columbus was questioned in that vein. Is it fair to assume that every member of Rotary is behind its every aspiration and goals? Is association in Sertoma an unmitigated endorsement of its mission? Is it fair to conclude that attorney membership in a local bar association, Inns of Court, or other organization is equally adoptive of each of that organization's espoused positions or interests? Is that assumption or inference any different from state bar membership?
When an organization takes an action or position, that speaks for the organization but may also speak for its individual members. It is probable that many such positions will include differing perceptions, discussion, or even controversy. It is hard to imagine the counter-argument to supporting causes championed by Rotary, Sertoma, and others, such as children's hospitals, food banks, college scholarships, and a variety of other community causes. But, if one disagrees with the decision, position, or affiliation of a Rotary, Sertoma, or even a local bar association, one may simply elect to no longer be a member. That is a choice. A choice of "association" in which the individual decides with whom one will be associated (and whose goals or positions one will financially support).
Whether a state bar member's dues are refunded in pro-rata amount to recompense for what was spent espousing an idea, a member of The Florida Bar (and those similarly integrated in other states) is nonetheless a member of an organization that is publicly espousing an idea or position. If that idea is great or not, does that idea itself become the member's by association? Does each position of the majority thus become assigned to the minority, forced by law to belong?
The issue may be even more complex for judges. Lawyers in Florida are governed by the Rules Regulating The Florida Bar. All judges must be "a member of the bar of Florida." Florida Constitution, Article V. Section 8. As attorneys, Judges are therefore likewise subject to those bar rules. However, Judges are also held to a standard beyond those rules, the Florida Code of Judicial Conduct. The Code clearly allows judges to participate and even advocate on matters of "the improvement of the law, the legal system, or the administration of justice." Canon Canon 5C(2).
However, judges are prohibited from a variety of activities that fall without these specific goals. Thus, if The Florida Bar undertook a legislative position that was capable of being interpreted as beyond "the law, the legal system, or the administration of justice," that is on an issue of social, moral, or other broad import, might it perhaps become incumbent upon each judge of the state to seek to invoke Rule 2-9.3? Does it matter that state money may be used to pay the Bar dues of various judges?
Finally, does the potential exist for such other affiliations to influence an attorney's analysis of invocation of Rule 2-9.3? In Burwell v. Hobby Lobby, 13-354 (2014), the SCOTUS concluded that a closely held corporation could not be compelled to provide certain contraceptives or contraceptive services as part of a government mandate to provide health insurance for employees. These businesses were allowed exemption from that mandate by the Religious Freedom Restoration Act of 1993. If an integrated state bar were to take a legislative position in support or opposition regarding some social issue, might in-house counsel for such a corporate entity, or association, be encouraged or even ordered by that employer to seek dues reimbursement under such a rule?
Would that analysis be any different if the issue did not involve some core company value as in Hobby Lobby? Would that analysis be any different if the business itself paid The Florida Bar dues of the lawyers employed? Some may argue that the right to "association" of that attorney is being impaired similarly in that regard, with the values of an employer being imposed. However, others will perhaps argue that, unlike membership in the bar, the employment relationship is entirely voluntary. They will perhaps contend that the freedom of, or from, that association lies in retaining or rejecting that employment?
Interesting times perhaps lie ahead as Mr. Fleck and Mr. Crowe proceed with their challenges to the mandated association of integrated bar membership. This will be of interest to the eighteen states that mandate bar membership as a condition to practice law, and to thousands of lawyers who are members. And the outcome might profoundly change either the structure of those states' lawyer governance, or limit the activities of those integrated bars. While a variety of outcomes are possible, it may well be that the answer is distinct for lawyers and judges in some ways.
