Fleck v. Wetch

December 20, 2019 • Legal Briefs
By Deborah J. La Fetra, Martin S. Kaufman, Ilya Shapiro, & Trevor Burrus

Arnold Fleck is an attorney practicing family law in North Dakota. In 2014, Fleck supported a ballot measure called Measure 6, which would have changed the state law governing custody disputes. He contributed $1,000 to the committee supporting Measure 6 and participated in the campaign, even appearing on television and radio to advocate for the measure. Shortly before the election, Fleck learned that the State Bar Association of North Dakota, of which he was required to be a dues‐​paying member, was officially against Measure 6 and was spending money to oppose it. In fact, the bar association gave $50,000—money made up of compelled member dues—to a committee that opposed Measure 6, which was defeated.

Like every state, attorneys in North Dakota must join the state bar association and pay dues. While bar associations have many functions relating to regulating the legal profession, they are also involved in many political issues, such as opposing Measure 6. Fleck paid his dues while he was campaigning for Measure 6 and received no notice that his dues were being used for political speech he opposed. Fleck sued, arguing that the mandatory dues violated his First Amendment right to be free from compelled speech and compelled association.

Fleck lost in the district court and at the Eighth Circuit and then petitioned the Supreme Court. The Court then decided Janus v. AFSCME, holding that the First Amendment prohibited mandatory public‐​sector union fees for non‐​member employees. The Court then sent Fleck’s case back to the Eighth Circuit to be reconsidered in light of the Janus decision. But the Eighth Circuit reaffirmed its earlier decision, essentially holding that Janus didn’t change Fleck’s case at all.

Fleck is again asking the Supreme Court to hear the case, arguing that the Eighth Circuit ignored and even undermined the Janus decision. Cato has joined the Pacific Legal Foundation and the Atlantic Legal Foundation on a brief supporting Fleck’s petition. We argue that bar associations across the country routinely engage in blatantly political activities, including taking positions on gun control, environmentalism, abortion, and much more. Using mandatory dues to fund those activities implicates deep First Amendment concerns. Moreover, while many bar associations allow members to opt‐​out of funding some political activities, even that concession implicates the First Amendment. Bar associations should not be allowed to presume that its members support the association’s political activities unless the members affirmatively opt‐​out.

Janus was an important decision about compelled speech, and its logic applies equally to ideologically driven bar associations. The Court should take Fleck’s case and reaffirm the principles of Janus.

About the Authors
Deborah J. La Fetra
Martin S. Kaufman
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.

Trevor Burrus

Research Fellow, Robert A. Levy Center for Constitutional Studies