Federal suit aims to make Michigan a right-to-work state for attorneys

Jonathan Oosting
The Detroit News

Lansing — A new lawsuit seeks to make Michigan a right-to-work state for lawyers by striking down mandatory State Bar dues. 

The complaint filed this week in federal court contends that requiring attorneys to pay dues to practice law in Michigan violates their free speech and association rights guaranteed under the U.S. Constitution, building on a recent U.S. Supreme Court decision striking down mandatory union fees for public-sector workers.

The Star Bar of Michigan is headquartered in Lansing.

The suit was filed on behalf of Lucille Taylor, a longtime attorney who served as legal counsel to Republican former Michigan Gov. John Engler and in various roles for the state Attorney General’s office and Legislature.

She has been a dues-paying member of the State Bar of Michigan since 1972, when she and her husband, former Michigan Supreme Court Justice Cliff Taylor, moved to the Lansing area.

“I was sort of surprised that in addition to passing the bar examination and the character and fitness committee, that one had to pay dues to the bar association as a condition of being able to practice law in this state,” Taylor told The Detroit News.

“I never have liked the idea even of having to belong to an organization to earn my livelihood.”

Michigan attorneys are currently required to pay $315 a year to the State Bar, including $180 for membership and other fees to support discipline activities and a child protection fund.

The complaint argues the state law making dues mandatory requires Taylor to pay for and associate herself with speech by the State Bar, which takes positions on public policy that she does not necessarily agree with.

“When an organization speaks for you without permission, that’s forced speech,” she said.

The Michigan suit is among a spate of recent complaints in at least six states spurred by the Supreme Court’s landmark 2018 decision in Janus v. AFSCME. In a 5-4 ruling, the justices held that public-sector workers cannot be forced to pay union dues or fees without giving their affirmative consent.

Michigan’s Republican-led Legislature and former Gov. Rick Snyder enacted a right-to-work law in 2013 that prohibits contracts requiring union dues or fees as a condition of employment in most private and public sectors. The Janus decision expanded the opt-out right to police officers and firefighters who had been exempt from the state law.

“So the Bar is kind of the last holdout,” Taylor said.

Lucille Taylor is a Michigan lawyer and former special assistant state attorney general who is suing so she doesn't have to pay the portion of her mandated State Bar of Michigan dues that goes toward political activity with which she disagrees.

But attempting to equate the organization with a union is “fundamentally wrong,” the State Bar of Michigan said in a statement responding to the suit. “Michigan, along with most other states, has chosen to integrate the bar into the regulation of the profession in order to better serve the public and save taxpayer dollars.”

The Bar said it "strictly follows the rules established by the Michigan Supreme Court to protect the First Amendment rights of licensed Michigan lawyers” and “will respond to the pending legal action accordingly.”

Michigan is among a majority of states with “integrated” bars established through law to regulate the legal profession. They oversee functions such as attorney licensing, character and fitness recommendations and providing administrative support for the discipline process.

Current state Supreme Court rules authorize the Michigan Bar to use member dues to provide “content-neutral technical assistance to legislators” and allow the organization to support or oppose legislation only after a two-thirds vote by the board of commissioners or representative assembly.

State Bar sections funded by voluntary member dues — rather than mandatory fees — are not subject to speech limitations and can engage in ideological activities on their own behalf.

“Integrated bars speak to advance the shared ethical obligations of all lawyers, as officers of the court, to improve the quality of legal services and regulate the profession, not to advance the interests of members,” former Michigan Solicitor General John Bursch, a well-known conservative attorney, wrote in a recent brief defending dues in a similar case out of North Dakota.

“This is in sharp contrast to unions, whose primary purpose is advocating better employment terms for members.”

The U.S. Court of Appeals for the Eighth Circuit initially ruled against attorneys challenging the mandatory due system in North Dakota. But the U.S. Supreme Court has ordered reconsideration in light of its Janus ruling.

“There’s a good chance that this will end up back in the Supreme Court, which would apply nationwide,” said Derk Wilcox, lead attorney on the Michigan case for the Mackinac Center Legal Foundation.

While Michigan is one of 31 states with an integrated bar, “the majority of lawyers in this country” are not required to pay dues to practice law “because the most populous states don’t require it,” Wilcox said.

“California, for instance, just switched over to a voluntary bar because of a lot of things going on with the way they were spending their money."

The suit argues attorneys should have the same right to opt out of dues as public-sector workers because the State Bar of Michigan is a public body corporate formed under state law.

Many professions in Michigan are regulated by the Department of Licensing and Regulatory Affairs, Taylor said, noting doctors don’t need to be members of the Michigan State Medical Society to practice as a physician here.

“I continue to pay my dues,” Taylor said, suggesting the annual  fee is “not that significant” to her and not her main concern.

“I’m not hostile to the bar. But I just feel that I now have a constitutional right under the First Amendment to not have to associate unless I choose to do so.”

The federal lawsuit is the latest front in a battle against mandatory State Bar dues. Former Michigan Senate Majority Leader Arlan Meekhof, R-West Olive, introduced legislation in 2014 that would have made the dues voluntary.

The proposal was backed by the conservative Michigan Freedom Fund, which had pushed for the state’s new right-to-work law two years earlier, but was shelved after a task force convened by the Michigan Supreme Court recommended the dues remain mandatory.

“Through a long-established infrastructure of volunteer-attorney driven programs, the State Bar delivers a variety of services to the public at no cost to taxpayers and provides benefits to its members that would not be available on the same scale or quality, if at all, through a voluntary bar,” the task force said in its report to the court.