My name is Alexander Volokh, and I am an associate professor at Emory Law School. I teach various courses, including Constitutional Law, and I have published law review articles on various issues, including free speech and industry self-regulation. I am writing to support the Goldwater Institute’s proposal, filed on January 10, 2024, to amend Rule 32 of the Rules of the Supreme Court of Arizona, governing the organization of the State Bar of Arizona, and to oppose the alternative amendments to Rule 32 proposed by the Supreme Court of Arizona on August 22, 2024.
These comments make two points: (1) The State Bar should be limited in its ability to conduct activities that are germane to improving the quality of legal services; and (2) an opt-out procedure is constitutionally inadequate to protect Arizona lawyers’ rights.
I. THE STATE BAR SHOULD BE LIMITED IN ITS ABILITY TO CONDUCT ACTIVITIES THAT ARE GERMANE TO IMPROVING THE QUALITY OF LEGAL SERVICES.
In Keller v. State Bar of California, 496 U.S. 1 (1990), the U.S. Supreme Court wrote that “the compelled association and integrated bar is justified by the State’s interest in regulating the legal profession and improving the quality of legal services.” Id. at 13. “The State Bar,” it continued, “may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.” Id. at 14. Defining the category of non-germane, ideological activities may be a “difficult question,” id., but the Court had no problem defining one “extreme end[] of the spectrum”: “compulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative.” Id. at 16.
It seems clear that the Arizona Bar has overstepped these bounds, for instance in its news release in response to the killing of George Floyd or in its movie theater advertising campaign to “raise awareness of the State Bar of Arizona.” Similarly, its filing of amicus briefs in other jurisdictions cannot be considered germane to regulating the legal profession or improving the quality of legal services in Arizona.
What about attorney arts competitions, trivia competitions, sharing legal memes, or promoting wellness? In principle, some of these activities might be considered “germane” to “improving the quality of legal services.” But everything depends on how broadly one interprets germane. The Fifth Circuit considered this question in Boudreaux v. Louisiana State Bar Ass’n, 86 F.4th 620 (5th Cir. 2023). Wellness programs, it held, are not germane enough:
"[S]tatements [touting the health benefits of walnuts or urging lawyers to work out] fail the germaneness test . . . because they do not sufficiently relate to legal practice or the legal profession. Even assuming healthier lawyers are generally more effective lawyers, the [State Bar] is not an all-encompassing wellness service that may comment on every facet of lawyers' health and fitness. We generally give bar associations leeway in determining how best to improve legal services, as is appropriate given their expertise in regulating the legal profession. But if bar associations may opine, advise, and inform on anything that they deem is generally conducive to attorney health and wellness, there is no limiting principle."
Id. at 632 (citation omitted). The Fifth Circuit suggested a stricter standard for germaneness: “The germaneness standard therefore requires inherent connection to the practice of law and not mere connection to a personal matter that might impact a person who is practicing law.”
This approach is appropriate. Because constitutional rights are at stake—in this case, compelled association, and the free-speech harms that arise when one is forced to subsidize an organization that speaks in ways one doesn’t like—the line should be drawn in a way that minimizes the potential constitutional harm. One could allow for speech that is germane to improving the quality of legal services, but insist on a strict interpretation of germaneness—but it is clear that, so far, the State Bar has been interpreting germaneness loosely. A more restrictive approach is called for, and so an amendment limiting the State Bar’s expenditures to actual regulatory activities would be welcome.
II. AN OPT-OUT PROCEDURE IS CONSTITUTIONALLY INADEQUATE TO PROTECT ARIZONA LAWYERS’ RIGHTS.
It is insufficient to protect dissenting lawyers’ First Amendment rights with an opt-out procedure.
As far back as Ellis v. Brotherhood of Railway Employees, 466 U.S. 435 (1984), the Court wrote:
"[T]he pure rebate approach is inadequate. By exacting and using full dues, then refunding months later the portion that it was not allowed to exact in the first place, the union effectively charges the employees for activities that are outside the scope of the statutory authorization. The cost to the employee is, of course, much less than if the money was never returned, but this is a difference of degree only. The harm would be reduced were the union to pay interest on the amount refunded, but respondents did not do so. Even then, the union obtains an involuntary loan for purposes to which the employee objects."
Id. at 443–44.
Later, in Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), the Court reaffirmed this:
"[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. . . . A forced exaction followed by a rebate equal to the amount improperly expended is thus not a permissible response to the nonunion employees' objections."
Id. at 305–06.
Most recently, in Janus v. AFSCME, 585 U.S. 878 (2018), the Court wrote:
"Neither an agency fee nor any other payment to the union may be deducted from a nonmember's wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by clear and compelling evidence. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met."
Id. at 930 (citations and internal quotation marks omitted).
These cases were all in the context of public-sector unions. But as the Court held in Keller, there is “a substantial analogy between the relationship of the State Bar and its members, on the one hand, and the relation of the employee unions and their members, on the other,” 496 U.S. at 12—which is what justified importing the analysis from Abood v. Detroit Board of Education, 431 U.S. 209 (1977). The same reasons that make opt-outs constitutionally insufficient in the Ellis/Hudson/Janus union context also make them insufficient in this state bar context.
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I thus urge the Supreme Court of Arizona to adopt the Goldwater Institute’s proposed amendments.
Alexander Volokh
Associate Professor
Emory Law School
1301 Clifton Rd. NE
Atlanta, GA 30322
[email protected] 626-354-4581