by Robert Franklin Esq
In one of my blog posts on Measure 6 the North Dakota initiative that would establish a presumption of equal parenting in the state I pointed out that any monetary support given to the opposition (or proponents) by the State Bar Association of North Dakota (SBAND) would violate the holding of the United States Supreme Court in Keller vs. State Bar of California. Keller holds that a mandatory state bar associations activities are limited to those directly related to the regulation of the legal profession in the state. To do otherwise would be to violate the free speech rights of members who are required to pay dues but disagree with the position taken by the state bar. Justice Rehnquist outlined to what expenditures mandatory bar associations (like that of North Dakota) were limited:
Thus the guiding standard must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of the legal service available to the people of the State.
Needless to say equally shared parenting by divorced parents in North Dakota has nothing whatever to do with regulating the behavior and education of attorneys in the state. About that there can be no serious dispute.
But Ive had some email correspondence with Tony Weiler Executive Director of the North Dakota Bar and he claimed that the bar complies with Supreme Court rulings. It doesnt. In the case of Teachers vs. Hudson the U.S. Supreme Court held that mandatory dues paid to a labor union were improperly used for a non-union purpose but that the union could establish procedural safeguards to protect members First Amendment rights of free speech. A unanimous Court stated:
The objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Unions ability to require every employee to contribute to the cost of collective-bargaining activities.
The same is true when the dues collecting entity is a state bar association. So what is the North Dakota Bar required to do in order to not violate the free speech rights of dissenting members? First its procedural safeguards must be narrowly tailored so as to avoid impinging members First Amendment rights.
Second the bar member the individual whose First Amendment rights are being affected must have a fair opportunity to identify the impact of the bars action on his interests and to assert a meritorious First Amendment claim.
The North Dakota Bar fails both tests and does so obviously. What procedural safeguards does it afford its members? Executive Director Tony Weiler outlined them in one of his emails to me.
If any member is interested in a Keller Refund they should contact me and Ill address it with them individually after consulting with my Board.
Yes thats it. Nowhere does the SBAND inform its members of their right to a refund; nor does it afford them the type of impartial decision-making process so clearly required by the Teachers case. Where is the impartial decision maker? Wheres the due process of law? Weilers notion of the first is him and his Board and the second is individuals contacting him on an ad hoc basis. To say that those dont comply with U.S. Supreme Court rulings is about as controversial as saying the earth isnt flat.
Dont believe me? Read what the unanimous court in Teachers said on the subject:
A pure rebate approach 475 U.S. 292 304 is inadequate." We explained that under such an approach in which the union refunds to the non-union employee any money to which the union was not entitled the union obtains an involuntary loan for purposes to which the employee objects."
A pure rebate" approach of course is precisely what Weiler is offering his members.
First as in Ellis a remedy which merely offers dissenters the possibility of a rebate does not avoid the risk that dissenters funds may be used temporarily for an improper purpose. The Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used even temporarily to finance ideological activities unrelated to collective bargaining."... A forced exaction followed by a rebate equal to the amount improperly 475 U.S. 292 306 expended is thus not a permissible response to the nonunion employees objections.
The Court could have been speaking directly to Weiler and the SBAND.
Then theres that little matter of an impartial decision maker that happens to be required by Supreme Court precedent.
Finally the original Union procedure was also defective because it did not provide for a reasonably prompt decision by an impartial decisionmaker. Although we have not so specified in the past 19 we now conclude that such a requirement is necessary. The nonunion employee whose First Amendment rights are affected by the agency shop itself and who bears the burden of objecting is entitled to have his objections addressed in an expeditious fair and objective manner.20 475 U.S. 292 308
The Unions procedure does not meet this requirement. As the Seventh Circuit observed the most conspicuous feature of the procedure is that from start to finish it is entirely controlled by the union which is an interested party since it is the recipient of the agency fees paid by the dissenting employees.
Somehow according to the Executive Director of the State Bar Association of North Dakota a members objection to his dues being shanghaied by the Bar to oppose a measure he supports is adequately addressed by
If any member is interested in a Keller Refund they should contact me and Ill address it with them individually after consulting with my Board."
Has anyone at the North Dakota Bar even read the cases governing its behavior? Youd think they would have but if Tony Weiler is any evidence they certainly dont understand the plain English of those precedents. But whatever the case if my sources on the matter are correct theyll soon get to prove it in court. Ive been informed that a lawsuit will be filed seeking to enjoin SBAND from future expenditures of bar funds for activities so clearly unrelated to regulating the legal profession in the state.
But again dont take my word for it. A law review article analyzed state bars efforts to comply with Keller; the verdict on North Dakota wasnt flattering:
The North Dakota procedure is deficient in almost every respect. First it does not provide an adequate explanation of the basis for the fee by categorizing items as chargeable or nonchargeable and it expressly places an unconstitutional burden on the dissenting member to identify the challenged legislative policy. The procedure does not provide a reasonably prompt opportunity to challenge the determination of amount of dues devoted to nongermane activities nor does it provide payment of interest on any amount refunded from the date the dues are paid. Finally the policy does not provide for a hearing before an impartial decisionmaker or for an escrow for the amount reasonably in dispute while the challenges are pending.
A court in North Dakota should immediately issue a restraining order against the State Bar Association of North Dakota prohibiting it from further expenditure of members dues for a purpose utterly unrelated to the regulation of the legal profession and under procedures that are entirely insufficient according to Supreme Court precedent. The SBAND is acting outside the law when it uses members dues to oppose Measure 6 that would establish a presumption of equal parenting in North Dakota.
Of course as I suggested in yesterdays post if the SBAND didnt oppose the measure who would?
Reposted from National Parents Organization
by Robert Franklin Esq
In one of my blog posts on Measure 6 the North Dakota initiative that would establish a presumption of equal parenting in the state I pointed out that any monetary support given to the opposition (or proponents) by the State Bar Association of North Dakota (SBAND) would violate the holding of the United States Supreme Court in Keller vs. State Bar of California. Keller holds that a mandatory state bar associations activities are limited to those directly related to the regulation of the legal profession in the state. To do otherwise would be to violate the free speech rights of members who are required to pay dues but disagree with the position taken by the state bar. Justice Rehnquist outlined to what expenditures mandatory bar associations (like that of North Dakota) were limited:
Thus the guiding standard must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of the legal service available to the people of the State.
Needless to say equally shared parenting by divorced parents in North Dakota has nothing whatever to do with regulating the behavior and education of attorneys in the state. About that there can be no serious dispute.
But Ive had some email correspondence with Tony Weiler Executive Director of the North Dakota Bar and he claimed that the bar complies with Supreme Court rulings. It doesnt. In the case of Teachers vs. Hudson the U.S. Supreme Court held that mandatory dues paid to a labor union were improperly used for a non-union purpose but that the union could establish procedural safeguards to protect members First Amendment rights of free speech. A unanimous Court stated:
The objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Unions ability to require every employee to contribute to the cost of collective-bargaining activities.
The same is true when the dues collecting entity is a state bar association. So what is the North Dakota Bar required to do in order to not violate the free speech rights of dissenting members? First its procedural safeguards must be narrowly tailored so as to avoid impinging members First Amendment rights.
Second the bar member the individual whose First Amendment rights are being affected must have a fair opportunity to identify the impact of the bars action on his interests and to assert a meritorious First Amendment claim.
The North Dakota Bar fails both tests and does so obviously. What procedural safeguards does it afford its members? Executive Director Tony Weiler outlined them in one of his emails to me.
If any member is interested in a Keller Refund they should contact me and Ill address it with them individually after consulting with my Board.
Yes thats it. Nowhere does the SBAND inform its members of their right to a refund; nor does it afford them the type of impartial decision-making process so clearly required by the Teachers case. Where is the impartial decision maker? Wheres the due process of law? Weilers notion of the first is him and his Board and the second is individuals contacting him on an ad hoc basis. To say that those dont comply with U.S. Supreme Court rulings is about as controversial as saying the earth isnt flat.
Dont believe me? Read what the unanimous court in Teachers said on the subject:
A pure rebate approach 475 U.S. 292 304 is inadequate." We explained that under such an approach in which the union refunds to the non-union employee any money to which the union was not entitled the union obtains an involuntary loan for purposes to which the employee objects."
A pure rebate" approach of course is precisely what Weiler is offering his members.
First as in Ellis a remedy which merely offers dissenters the possibility of a rebate does not avoid the risk that dissenters funds may be used temporarily for an improper purpose. The Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used even temporarily to finance ideological activities unrelated to collective bargaining."... A forced exaction followed by a rebate equal to the amount improperly 475 U.S. 292 306 expended is thus not a permissible response to the nonunion employees objections.
The Court could have been speaking directly to Weiler and the SBAND.
Then theres that little matter of an impartial decision maker that happens to be required by Supreme Court precedent.
Finally the original Union procedure was also defective because it did not provide for a reasonably prompt decision by an impartial decisionmaker. Although we have not so specified in the past 19 we now conclude that such a requirement is necessary. The nonunion employee whose First Amendment rights are affected by the agency shop itself and who bears the burden of objecting is entitled to have his objections addressed in an expeditious fair and objective manner.20 475 U.S. 292 308
The Unions procedure does not meet this requirement. As the Seventh Circuit observed the most conspicuous feature of the procedure is that from start to finish it is entirely controlled by the union which is an interested party since it is the recipient of the agency fees paid by the dissenting employees.
Somehow according to the Executive Director of the State Bar Association of North Dakota a members objection to his dues being shanghaied by the Bar to oppose a measure he supports is adequately addressed by
If any member is interested in a Keller Refund they should contact me and Ill address it with them individually after consulting with my Board."
Has anyone at the North Dakota Bar even read the cases governing its behavior? Youd think they would have but if Tony Weiler is any evidence they certainly dont understand the plain English of those precedents. But whatever the case if my sources on the matter are correct theyll soon get to prove it in court. Ive been informed that a lawsuit will be filed seeking to enjoin SBAND from future expenditures of bar funds for activities so clearly unrelated to regulating the legal profession in the state.
But again dont take my word for it. A law review article analyzed state bars efforts to comply with Keller; the verdict on North Dakota wasnt flattering:
The North Dakota procedure is deficient in almost every respect. First it does not provide an adequate explanation of the basis for the fee by categorizing items as chargeable or nonchargeable and it expressly places an unconstitutional burden on the dissenting member to identify the challenged legislative policy. The procedure does not provide a reasonably prompt opportunity to challenge the determination of amount of dues devoted to nongermane activities nor does it provide payment of interest on any amount refunded from the date the dues are paid. Finally the policy does not provide for a hearing before an impartial decisionmaker or for an escrow for the amount reasonably in dispute while the challenges are pending.
A court in North Dakota should immediately issue a restraining order against the State Bar Association of North Dakota prohibiting it from further expenditure of members dues for a purpose utterly unrelated to the regulation of the legal profession and under procedures that are entirely insufficient according to Supreme Court precedent. The SBAND is acting outside the law when it uses members dues to oppose Measure 6 that would establish a presumption of equal parenting in North Dakota.
Of course as I suggested in yesterdays post if the SBAND didnt oppose the measure who would?
Reposted from National Parents Organization