Michigan’s Mandatory Bar Membership Permissible, 6th Cir. Says

A Michigan lawyer lost her bid to revive a lawsuit claiming that compulsory state bar membership violated her First Amendment rights, after the Sixth Circuit said it was bound by undermined but not yet overruled Supreme Court precedent.

Although the high court’s decision in Janus v. AFSCME called governing case law into question, the court can’t “disregard Supreme Court precedent unless and until it has been overruled by the court itself,” Judge Karen Nelson Moore wrote for the U.S. Court of Appeals for the Sixth Circuit.

Lucille S. Taylor argued that requiring her to join the State Bar of Michigan violates her freedom of association and that its use of mandatory membership dues for certain advocacy activities violated her freedom of speech. But controlling Supreme Court precedent—Lathrope v. Donohue and Keller v. State Bar of California—foreclosed her claims, the court said.

In Lathrope, the Supreme Court held that mandatory membership in the Wisconsin Bar didn’t violate freedom-of-association principles. In Keller, the court concluded that the California bar could use membership dues to fund activities “germane” to its purpose, namely to regulate and ensure the quality of legal services, without violating freedom of speech.

Although the case Keller relied upon, Abood v. Detroit Bd. of Educ., was overruled by Janus, implicitly undermining Keller’s holding, the Supreme Court hasn’t explicitly said that Keller no longer holds, so the courts of appeals are still bound by it, Moore said Thursday.

Janus dealt with union dues, holding that First Amendment challenges to similar union laws are to be analyzed under a heightened “exacting scrutiny” standard.

Judges Eugene Edward Siler, Jr. and Amul Thapar joined the decision.

Thapar wrote a separate concurrence, suggesting that Janus should on its face permit Taylor’s freedom-of-speech claim, but can’t, because despite the doubt Janus casts on the holding in Keller, “only the Supreme Court can overrule its previous decisions.”

“Until it does, we must follow Keller,” Thapar said.

Taylor is represented by Mackinac Center Legal Foundation. The state bar is represented by Warner Norcross & Judd LLP and Bursch Law PLLC.

The case is Taylor v. Buchanan, 6th Cir., No. 20-2002, 7/15/21.