It was fourth and long for the 8th Circuit. It had previously ruled that North Dakota’s mandatory bar association rules passed constitutional scrutiny despite a First Amendment challenge by Arnold Fleck. But Fleck appealed that decision to the U. S. Supreme Court. SCOTUS directed the 8th Circuit to re-review its previous decision in light of the SCOTUS decision in Janus.
As previously discussed, Janus held that public sector unions could not, under state statute, deduct union fees from nonmember public employees unless those employees clearly and affirmatively waived their First Amendment freedom of association rights. Those rights include the ability to object to paying fees used for union activities that were political in nature.
Fleck challenged North Dakota’s mandatory bar association rules and fees on a comparable basis. Fleck argued that to practice law in North Dakota, he had to pay state bar association dues, dues that he believed ultimately went to fund political activities of the bar association.
Based on similar arguments, lawyers in Texas, Oklahoma, Oregon, and Wisconsin have also challenged mandatory bar association fees since the fees go to fund such “political” activities as access to justice and, of all things, diversity programs. Fleck was the first case to be decided post Janus and lawyers and state bar associations were closely watching it.
The 8th Circuit did what appellate courts frequently do when they have a chance: it punted
But rather than addressing the issues head-on, the 8th Circuit did what appellate courts frequently do when they have a chance: it punted. It held that Fleck’s most controversial and impactful challenge–that mandatory bar fees violate his First Amendment freedom of association rights–had been waived by Fleck by statements in briefs before the district court. There, Fleck stated that pre-Janus law in effect foreclosed the freedom