Constitutionality of the Washington State Bar Association of the Washington Supreme Court

An outline of a Civil Rights Case

  1. General Rule 12.2 (entitled “Washington State Bar Association: Purposes, Authorized Activities, and Prohibited Activities”) was amended by the Washington Supreme Court on September 1, 2017.
  2. The WSBA, as a result of GR 12.2 and other court rules, is under total control by the Washington Supreme Court. Bar dues fund the purposes, and authorized activities of the WSBA (and the Court) set out in GR 12.2.
  3. The court is the final arbiter of what amount of dues WSBA members must pay each year. GR 12.2(b)(22).
  4. A WSBA lawyer has a right to assert his or her fundamental constitutional rights of freedom of association, freedom of speech, and freedom from subsidizing the speech of others, all of which are protected under the First and Fourteenth Amendments to the United States Constitution.
  5. The Washington State Bar Association (“WSBA”) is an association of lawyers, limited practice officers, and limited license legal technicians. A lawyer is compelled to be a member of the WSBA and is compelled to pay dues to the WSBA to be permitted to practice law in the state of Washington.
  6. Today’s First Amendment jurisprudence requires such infringements of fundamental rights must be tested under the rubric of exacting or strict scrutiny (“strict scrutiny”). The Supreme Court in Knox v. Service Employees Intern. Union, 567 US 298, 132 S. Ct. 2277, 2289, 183 L. Ed. 2d 281 (2012) spelled out the strict scrutiny test.

We made it clear that compulsory subsidies for private speech are subject to exacting First Amendment scrutiny and cannot be sustained unless two criteria are met. First, there must be a comprehensive regulatory scheme involving a “mandated association” among those who are required to pay the subsidy. [United States v. United Foods, Inc.], at 414, 121 S.Ct. 2334. Such situations are exceedingly rare because, as we have stated elsewhere, mandatory associations are permissible only when they serve a “compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts, supra, at 623, 104 S.Ct. 3244. Second, even in the rare case where a mandatory association can be justified, compulsory fees can be levied only insofar as they are a “necessary incident” of the “larger regulatory purpose which justified the required association.” United Foods, supra, at 414, 121 S.Ct. 2334. Id., 132 S. Ct. at 2289 (footnotes omitted). Knox, 132 S.Ct. at 2289.

  1. General Rule 12.2 (entitled “Washington State Bar Association: Purposes, Authorized Activities, and Prohibited Activities”) was amended by the Washington Supreme Court on September 1, 2017.
  2. The WSBA, as a result of GR 12.2 and other court rules, is under total control by the Washington Supreme Court. Bar dues fund the purposes, and authorized activities of the WSBA (and the Court) set out in GR 12.2.
  3. The court is the final arbiter of what amount of dues WSBA members must pay each year. GR 12.2(b)(22).
  4. A WSBA lawyer has a right to assert his or her fundamental constitutional rights of freedom of association, freedom of speech, and freedom from subsidizing the speech of others, all of which are protected under the First and Fourteenth Amendments to the United States Constitution.
  5. The Washington State Bar Association (“WSBA”) is an association of lawyers, limited practice officers, and limited license legal technicians. A lawyer is compelled to be a member of the WSBA and is compelled to pay dues to the WSBA to be permitted to practice law in the state of Washington.
  6. Today’s First Amendment jurisprudence requires such infringements of fundamental rights must be tested under the rubric of exacting or strict scrutiny (“strict scrutiny”). The Supreme Court in Knox v. Service Employees Intern. Union, 567 US 298, 132 S. Ct. 2277, 2289, 183 L. Ed. 2d 281 (2012) spelled out the strict scrutiny test.

We made it clear that compulsory subsidies for private speech are subject to exacting First Amendment scrutiny and cannot be sustained unless two criteria are met. First, there must be a comprehensive regulatory scheme involving a “mandated association” among those who are required to pay the subsidy. [United States v. United Foods, Inc.], at 414, 121 S.Ct. 2334. Such situations are exceedingly rare because, as we have stated elsewhere, mandatory associations are permissible only when they serve a “compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts, supra, at 623, 104 S.Ct. 3244. Second, even in the rare case where a mandatory association can be justified, compulsory fees can be levied only insofar as they are a “necessary incident” of the “larger regulatory purpose which justified the required association.” United Foods, supra, at 414, 121 S.Ct. 2334. Id., 132 S. Ct. at 2289 (footnotes omitted).

Knox, 132 S.Ct. at 2289.

  1. The Washington Supreme Court and WSBA integrated association of lawyers, limited practice officers, and limited license legal technicians will not pass strict scrutiny.
  2. The rational scrutiny test used in Lathrop v. Donohue (the bar there was an integrated bar association of lawyers only)  will not be used, or so one might think in error.

Last Updated on: March 20th, 2018 at 6:41 pm, by Stephen Eugster