Back in February I noted that the Michigan supreme court had created a task force to examine whether the state bar was using mandatory dues for partisan political activities in violation of the U.S. Supreme Court’s holding in Keller v. State Bar of California. The task force released its report this week, including more than a hundred pages of appendices.
All in all, it’s not bad. The task force stopped short of recommending that bar membership become optional, but it did propose stricter procedures and rules governing the state bar’s political advocacy. Specifically, the task force recommended a “strict interpretation” of Keller, public notice about advocacy, and changes to bar governance.
According to the report, however, some Michigan lawyers apparently don’t agree that Keller should restrict their ability to promote their political views using mandatory dues. The report stated:
At times, the State Bar is precluded from taking actions favored by a majority of its members that it would be free to take but for its mandatory status. The member input received by the Task Force indicates that this distinction is not fully appreciated by the membership. As a mandatory bar, the State Bar is neither a trade association nor a union, and it is not free to act solely, or even primarily, in the self-interest of its members. We urge the Court to use this moment of heightened attention to clarify the role of the State Bar by emphasizing that its primary role is to serve the public good. [emphasis added]
To that end, the report recommended a rigorous public vetting process for any advocacy by the state bar. In situations where optional-membership sections of the state bar engage in advocacy that ostensibly wouldn’t violate Keller, the report recommended that each section be required to make clear that it does not speak for the whole bar, lest it be confused for representing the views of the mandatory bar.
The report also provided several recent examples of positions that the state bar has taken in violation of Keller, presumably promoting its own financial interests:
Representative examples include: opposing legislation allowing a trial court to award costs and actual attorney fees to a party who prevails in an action against the Department of Environmental Quality (2007); supporting a bill to provide compensation of up to $60,000 per year for each year a person wrongfully convicted of a crime is imprisoned (2013); opposing in principle that the circuit court family divisions notify the secretary of state about truancy dispositions (2005); and opposing a constitutional amendment that would prohibit a trial court’s granting of bail to a person charged with a felony who is in the United States illegally (2008). In some instances, the State Bar has promoted legislation based on an “historic” position rather than on a reasoned Keller analysis, while in others, it took positions based on attenuated, speculative reasoning. The reasoning that a position is permissible because it would increase or diminish public confidence in the court system appears to be the rationale for the most dubiously Keller-permissible positions.
This last, vague sentence probably alludes to the state bar’s advocacy against anonymous speech in judicial elections, a cause du jour for many on the left, along with many other examples listed in the report. As they show, concerns about the political capture of state bars are well founded. The full report is worth reading by every lawyer, if for no other reason than to see what shenanigans your own state bar may be up to.
I can’t resist one more quote:
Concern for members’ First Amendment rights should be at the forefront of the State Bar’s decisionmaking even when the use of mandatory dues are not at issue. This is a moment to make clear to State Bar members, to legislators, and to the public that there are boundaries to the State Bar’s advocacy, and that the State Bar does not have, nor can it have, a political agenda.
Let’s hope that Missouri, Oklahoma, and other states follow Michigan’s example and respect their members’ freedom of association.