On Friday, August 30, 2019, the United States Court of Appeals for the Eighth Circuit rejected lawyer Arnold Fleck’s challenge to the State Bar Association of North Dakota’s collection of mandatory bar association dues. Fleck v. Wetch, No. 16-4564 (8th Cir. 2019), was remanded to the Eighth Circuit from the United States Supreme Court in light of the Supreme Court’s June 2018 ruling in Janus v. American Federation of State, County, and Municipal Employees, 585 U.S. ___ (2018), holding that public-sector unions may not collect mandatory fees from nonmember employees unless the employees waive their First Amendment rights.
On remand, the Eight Circuit considered Fleck’s two remaining First Amendment claims, as Fleck’s first claim was settled in November of 2015. On the first remaining claim, whether the State Bar Association of North Dakota’s procedures for collecting and spending mandatory dues “violate [Fleck’s] right to ‘affirmatively consent’ before subsidizing non-germane expenditures,” the Eighth Circuit disagreed with Fleck’s arguments. In contrast to Janus, the State Bar Association of North Dakota “collects dues from members who are licensed attorneys.” The court further found that the State Bar Association of North Dakota’s revised fee statement and procedures, which now includes a Keller deduction option and two-page insert, provide clear and and adequate notice of a North Dakota lawyer’s constitutional right to take the Keller deduction.
The Eighth Circuit noted that Fleck’s brief on remand focused heavily on his second remaining claim, whether mandatory membership in the State Bar Association of North Dakota as a condition of practicing law in North Dakota “violates [Fleck’s] right to freedom of association and to avoid subsidizing speech with which he disagrees.” Fleck, however, chose not to pursue this claim in the district court because the claim was “presently foreclosed by Keller.” Further, on appeal to the Eighth Circuit, Fleck conceded that his “alternative claim challenging the constitutionality of mandatory bar association membership is foreclosed by Keller and Lathrop.” Fleck argued that he presented the argument as he did in order to preserve the argument for the United States Supreme Court. The Eighth Circuit declined to consider Fleck’s constitutional challenge to mandatory bar association membership because the claim “must still be decided on an evidentiary record.”
As such, on remand, Fleck argued the constitutionality of mandatory bar association membership to the Eighth Circuit for the first time “on a district court summary judgment record that did not address this issue, an issue a majority of the Court treated as highly fact-intensive in Lathrop.” The Eight Circuit generally does not consider arguments raised for the first time on appeal as a basis for reversal. The court did not find Fleck’s case to be a good case to invoke an exception to the general rule because, by Fleck’s own admission that he was preserving the issue for argument at the United States Supreme Court, proper resolution of the issue is not “beyond any doubt.” Further, because Fleck admitted that the issue is not “purely legal,” the Eight Circuit declined to invoke an exception to the general rule.
8th Circuit rejects lawyer’s challenge to mandatory bar dues, ABA Journal (September 3, 2019)
Arnold Fleck v. Joe Wetch, et al., No. 16-1564 (8th Cir. 2019)
Arnold Fleck v. Joe Wetch, et al., No. 16-1564 (8th Cir. 2017) [United States Supreme Court Docket Report]
Arnold Fleck v. Joe Wetch, et al., No. 16-1564 (8th Cir. 2017)