In a few paragraphs in a Monday decision about certain public unions, the U.S. Supreme Court essentially left a precedent untouched that spells out a mandatory bar association’s ability to collect and use dues, experts say.
In other words, not much may change for the Wisconsin State Bar.
The court, in its 5-4 decision in Harris v. Quinn, essentially left Keller v. State Bar of California (1990) untouched, according to Marquette Law School Professor Paul Secunda. Keller dealt with political speech by mandatory bars and an attorney’s ability to not pay for the speech if he or she disagrees.
In deciding Harris, the court wrote that “[Keller] fits comfortably within the framework applied in the present case.” According to the opinion:
“Licensed attorneys are subject to detailed ethics rules, and the bar rule requiring the payment of dues was part of this regulatory scheme. The portion of the rule that we upheld served the ‘State’s interest in regulating the legal profession and improving the quality of legal services.’ … States also have a strong interest in allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices. Thus, our decision in this case is wholly consistent with our holding in Keller.”
The full Harris ruling, authored by Justice Samuel Alito, dealt a blow to public sector unions, however. The court ruled that thousands of home health care workers in Illinois cannot be required to pay fees that help cover a union’s costs of collective bargaining. The justices said the practice violates the First Amendment Rights of nonmembers who disagree with the positions that unions take.
Still, Monday’s ruling was being closely watched by the Wisconsin bar. Executive Director George Brown told the Board of Governors on Wednesday that, depending on how the court ruled, it could have an effect.
But court watchers said Monday that the justices’ decision only further defined what public employees could unionize, and did not rule on the issue of public unions themselves. And Secunda, when relating it to bar association, said he read this as the court saying “Keller is completely still good law.”
He said he reads this as the court’s way of comparing the way a mandatory bar association uses its money to the way a public union uses it. While ethics and regulation are not overtly political, Secunda said, a public union’s collective bargaining is political, since it is decided by lawmakers.
He added that he did not think, “Alito believes that you can make a distinction between what is political and what is not political” when talking about public unions.
Bar President Patrick Fiedler said he had not yet read the ruling but anticipated bar leadership discussing it and deciding what action, if any, the bar needs to take.
BOG member Steve Levine, a frequent critic of the bar and its spending, said “it’s too early to tell” if the ruling would have any effect on the Wisconsin bar. He did, however, say the ruling seemed to indicate that the justices believe Keller dues only should be used for lawyer regulation. In Wisconsin, that duty falls to the state Supreme Court-governed Office of Lawyer Regulation.
Nola Hitchcock Cross, a labor law attorney at Cross Law Firm SC, Milwaukee, noted that Monday’s ruling was very narrow, so it is hard to say what effect it will have on future cases, including those that challenge bar associations.
“It was much more limited,” she said, “to the peculiar nature of these employees.”
The Associated Press also contributed to this report.