Free speech and free association relief for lawyers may be on the way. On February 26, 2018, the U.S. Supreme Court will hear Janus v American Federation of State, County and Municipal Employees (AFSCME), a case that revisits the issue raised last year by Friedrichs v. California Teachers Associattion, “Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.”
Public workers are challenging an Illinois law that requires them to pay union fees even if they don’t belong to the union. The Illinois Public Labor Relations Act authorizes public employee unions to collect “fair share” or “agency shop” fees from non-member employees. Commentators expect the Court to overrule a 1977 precedent set by Abood that affects these workers. But attorneys fighting to emancipate themselves from mandatory membership associations believe Janus will also help them.
Abood underpins Keller v. State Bar of Cal., 496 U.S. 1 (1990). Keller affirmed the constitutionality of mandatory bar associations but only insofar as the bar’s use of compulsory dues are limited to expenditures “necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services.” In other words, under Keller lawyers cannot be compelled to fund a state bar’s lobbying activities unrelated to regulating the practice of law. Just the same, state bars like Arizona’s nonetheless use compulsory member dues to not only regulate the practice of law — but to engage in other activities such as lobbying and advocating for ideological and political causes not all members agree with.
For more information about “Janus v. American Federation of State, County, and Municipal Employees, Council 31” go to: https://www.oyez.org/cases/2017/16-1466#!