July 7, 2015
Stephen K. Eugster v. Washington State Bar Association & Justices of State Supreme Court
U.S. District Court, Western District of Washington, At Seattle,Case No. 2:15-cv-00375-JLR, Judge James L. Robart
Washington State Bar Association: Violations of Lawyer Constitutional Rights of Association and Speech
Stephen K. Eugster, a Spokane lawyer, has filed an action in the U.S. District Court in Seattle against the Washington State Bar Association (WSBA) and Justices of the Washington Supreme Court. The complaint makes claims under the Civil Rights Act, the Federal Declaratory Judgments Act, and the First and Fourteenth Amendments to the U.S. Constitution.
The case raises two issues:
- Does the WSBA violate a lawyer’s First Amendment right not to associate by compelling a lawyer’s WSBA membership?
- Does the WSBA violate a lawyer’s First Amendment rights of freedom of speech by forcing payment of dues for bar activities the lawyer does not consent to?
Eugster v. WSBA has its origin in changes taking place concerning two decisions of the Supreme Court, Lathrop v. Donohue, 367 U. S. 820 (1961), and Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
Courts say this about Lathrop, the “Supreme Court has held that a state may constitutionally condition the right of its attorneys to practice law upon the payment of membership dues to an integrated bar.” O’Connor v. State of Nev., 27 F.3d 357, 361 (9th Cir. 1994). This is not true; Lathrop was a plurality decision. The compelled membership issue was not decided. Justice Alito said the matter was not a foregone conclusion.
Writing the majority opinion in Harris v. Quinn, 134 S.Ct. 2618 (2014), Justice Samuel Alito, questioned whether Lathrop actually held that compelled membership in an integrated bar was constitutional. Lathrop was a plurality decision which had as its basis in dicta found in Railway Employees v. Hanson, 351 U. S. 225 (1956) (Hanson):
On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar. 351 U. S. at 238.
This statement was not true. Yet, the court in Hanson said it. The statement was worse than dicta, is was speculative, and based on nothing other than an arbitrary statement about a point of view. Moreover, the statement was not a necessary aspect of the Hanson decision.
Also, whenever fundamental first amendment rights are being infringed, a Strict Scrutiny Test must be applied. The test was not applied in Hanson, and it is nowhere to be found in Lathrop. Under Strict Scrutiny, what is being imposed on the lawyer, must be the least restrictive means of achieving a compelling state interest. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
The test cannot be met. The chief function of the compelled membership is bar regulation, discipline and lawyer sanctions. These functions do not have to be performed by an association of lawyers. They can be provided by a discipline apparatus created, as in many states, by the state supreme court. See, e.g, The State Bar Court of California.
The second issue in the case, compelled fees for bar speech, has to do with changes rapidly taking place concerning the Court’s holding in Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and the decision of the Nebraska Supreme Court in In re Petition For Rule Change To Create Voluntary State Bar 0f Nebraska, 286 Neb. 1018 (2013). Abood was an “agency shop” arrangement between the employer and union. The court held that nonunion employees had to pay the union for the “free-rider” benefits the nonunion members gained from the union’s collective-bargaining efforts. Abood was applied across the gamut of activities engaged in by the bar. Lawyers were the ultimate free riders the court supposed and could be forced to pay dues for activities for regulating the legal profession and improving the quality of legal services. (Except for political or ideological efforts regarding non-germane purposes.)
The Abood case has come under scrutiny by the Supreme Court in recent years, especially in Harris v. Quinn. Most recently, on June 30, 2015, (one year exactly from the decision in Harris v. Quinn), the court granted a writ of certiorari in Friedrichs v. California Teachers Association, a case questioning whether Abood should be reversed.
Abood was part of the Court’s decision in Keller v. State Bar of California, 496 U.S. 1 (1990). The court said, yes, a lawyer bar member could be compelled to pay for activities consisting of “State’s interest in regulating the legal profession and improving the quality of legal services.” It used the case of Abood v. Detroit School Teachers Assoc. as the basis for this decision.
Despite this, the issue of freedom of speech, like that of freedom not to associate, must come under the Strict Scrutiny Test.
Applying Strict Scrutiny, the first question is: are the payments for activities of compelling importance to the state? That is, he purposes of the bar association “improvement of the quality of legal services.” It is doubtful the purposes are of compelling state interest. The services are important but not compelling. Further, services are not compelling, not necessary, because they are provided by numerous private organizations and voluntary associations.
The Nebraska Supreme Court in In re Petition For Rule Change To Create Voluntary State Bar 0f Nebraska, 286 Neb. 1018 (2013), resolved the issue of compelled dues for bar activities by making the Nebraska Bar voluntary as to bar activities, other than regulatory activities.
July 7, 2015
s/ Steve Eugster
Stephen K. Eugster
 B.A 1966, University of Denver, J.D. 1969, University of Washington School of Law; Washington Law Review member, and Managing Editor; Order of the Coif. Practicing lawyer since 1970. Eugster Law Office PSC.
 Civil Rights Act of 1871, specifically 42 U.S.C. § 1983.
 Federal Declaratory Judgements Act (1934), specifically 28 U.S.C. §§ 2201 and 2202.
 First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
 “[S]peculative dicta in one footnote of one opinion cannot plausibly be construed as setting out a rule of law.” BL Harbert Intern., LLC v. Hercules Steel Co., 441 F. 3d 905, 913 (11th Cir. 2006).
 Lukas v. McPeak, 730 F.3d 635, 639 (6th Cir. 9-19-2013) citing United States v. McMurray, 653 F.3d 367, 375 (6th Cir.2011) “(holding that a statement is non-binding dicta when it is not necessary to the outcome of a case).”
California is the only state in the nation with independent professional judges dedicated to ruling on attorney discipline cases.
The State Bar of California investigates complaints of attorney misconduct. If the State Bar determines that an attorney’s actions involve probable misconduct, formal charges are filed with the State Bar Court by the bar’s prosecutors (Office of Chief Trial Counsel).
The independent State Bar Court hears the charges and has the power to recommend that the California Supreme Court suspend or disbar attorneys found to have committed acts of professional misconduct or convicted of serious crimes. Id.