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Fleck v. Wetch

United States Court of Appeals for the Eighth Circuit

June 13, 2019, Submitted; August 30, 2019, Filed

No. 16-1564


 [*1113]  LOKEN, Circuit Judge.

To practice law in North Dakota, every resident lawyer must maintain membership in and pay annual dues to the State Bar Association of North Dakota (SBAND). See N.D.C.C. §§ 27-11-22; 27-12-02, -04. When attorney Arnold Fleck learned that SBAND was using his compulsory dues to oppose a state ballot measure he supported, Fleck commenced this action against SBAND and various state officials in their official capacities, asserting First Amendment claims. The district  [*1114]  court1 granted summary judgment for the defendants. Fleck appealed; we affirmed. Fleck v. Wetch, 868 F.3d 652 (8th Cir. 2017). Almost one year later, the Supreme Court issued its decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018). The Court then granted Fleck's petition for a writ of certiorari, summarily vacated our decision, and remanded "for further consideration in light of Janus." 139 S. Ct. 590, 202 L. Ed. 2d 423 (2018). We reopened the case and directed the parties [**3]  to submit supplemental briefs addressing the issues on remand. Having considered the supplemental briefs, the record on appeal, and the Supreme Court's decision in Janus, we again affirm the decision of the district court.

I. Framing the Issues on Remand.

A. In Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), the Supreme Court held that public-sector unions may collect compulsory "agency fees" from non-members within the bargaining unit to fund activities germane to collective bargaining, but may not use those fees to fund non-germane political or ideological activities that a nonmember employee opposes. In Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 303, 106 S. Ct. 1066, 89 L. Ed. 2d 232 (1986), the Court held that the procedure a union adopts to implement this distinction must "be carefully tailored to minimize the infringement" of a nonmember's First Amendment rights. This includes, the Court declared, "an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending." Id. at 310.

In Keller v. State Bar of California, 496 U.S. 1, 13-15, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990), the Court held that an integrated bar such as SBAND can, consistent with the First Amendment, use a member's compulsory fees to fund activities germane to "regulating the legal profession and improving [**4]  the quality of legal services," but not to fund "activities having political or ideological coloration which are not reasonably related to the advancement of such goals" that the member opposes (non-germane activities). Lacking an adequate record to address procedural alternatives in detail, the Court stated that "an integrated bar could certainly meet its Abood obligation by adopting the sort of procedures described in Hudson." Id. at 17.

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937 F.3d 1112 *; 2019 U.S. App. LEXIS 26456 **; 2019 WL 4126356

Arnold V. Fleck, Plaintiff - Appellant v. Joe Wetch, President of the State Bar Association of North Dakota, et al., Defendants - Appellees;Pacific Legal Foundation, Amicus on Behalf of Appellant State Bar of California; The Missouri Bar; State Bar of Alaska; State Bar of Arizona; State Bar of Kentucky; State Bar of Michigan; State Bar of South Dakota; State Bar of Wyoming, Amici on Behalf of Appellees

Subsequent History: US Supreme Court certiorari denied by Fleck v. Wetch, 2020 U.S. LEXIS 1582 (U.S., Mar. 9, 2020)

Prior History:  [**1] Appeal from United States District Court for the District of North Dakota - Bismarck.

Fleck v. Wetch, 139 S. Ct. 590, 202 L. Ed. 2d 423, 2018 U.S. LEXIS 7092 (U.S., Dec. 3, 2018)


district court, mandatory, membership, nonmembers, revised, non-germane, notice, summary judgment, bar association, public-sector, subsidize, license, rights, annual dues, first time, non-chargeable

Business & Corporate Compliance, Collective Bargaining & Labor Relations, Labor & Employment Law, Collective Bargaining & Labor Relations, Constitutional Law, Bill of Rights, Fundamental Freedoms, Freedom of Association, Governments, Courts, Judicial Precedent, Civil Procedure, Appeals, Reviewability of Lower Court Decisions, Preservation for Review