Supreme Court Workgroup and Fleck v. Wetch

Posted On Dec 7 2018 by

Members of the Spokane County Bar Association, December 7, 2018, from Steve Eugster*

The Washington Supreme Court recently created the Supreme Court Workgroup to Review WSBA Structure.[1] The duration of the workgroup is six to eight weeks with meetings every three to four weeks.  The first meeting will be in January 2019. It will be held at WSBA offices in Seattle and will be open to the public.

The workgroup will undertake a “comprehensive review of the structure of the bar in light of recent case law of the First Amendment and antitrust implications for bar associations.”  Id.

Recent case law is Fleck v. Wetch, a Petition for Writ of  Certiorari to the United States Supreme Court.  Mr. Fleck contends it is a violation of his rights under First and Fourteenth Amendments to be forced to pay dues to the North Dakota Bar Association unless he opted in, (consented) to pay.

He filed his petition on December 21, 2017.  On June 27, 2018, Janus v. AFSCME was decided.

Mr. Fleck’s petition was granted on December 3, 2018. When it was, the first act of the United States Supreme Court was to vacate the lower court judgment and remand the case to the 8th Circuit for “further consideration in light of Janus v. State, County, and Municipal  Employees, 585 U. S. ___ (2018).”

Janus held a person could not be forced to pay money to the state, or a union contracting with the state, to secure a right to work. The practice violated the worker’s rights under the First and Fourteenth Amendments.

Fleck v. Wetch is not the only case the Supreme Court Workgroup will have to consider.  I too have a case; it is  Eugster v. WSBA and Justices of the Washington Supreme Court, No. 2:17-cv-000392-TOR, Eastern District of Washington. Appeal Pleadings.

Unlike the bar association in Fleck, the “bar association  (WSBA) is an integrated association of lawyers and others. The case is now before the 9th Circuit. It seeks to have the court apply the ruling in Janus to the facts of the case.

Soon Fleck v.Wetch will be considered by the 8th Circuit.  Additional briefing may be called for by the court.  Eugster v. WSBA and Justices is now before 9th Circuit.  The briefs have been filed. Appeal Pleadings. There will be a setting of the hearing in the next several weeks. The two cases will likely be decided near in time to the other.

Janus v. AFSCME will have a significant impact on integrated or unified bar associations.  When applied to such associations it is likely that the court will also overturn Lathrop v. Donohue and Keller v. State Bar of California. Why? Because of Janus, and because Janus overruled Abood v. Detroit Teachers Association, the mainstay of Keller which operates as support of the result in Lathrop.

Janus will also have a significant impact on the WSBA as it is today, that is, no longer an integrated bar association of just lawyers. A circumstance which brings into play the First Amendment jurisprudence of today.  Infringements of lawyer’s rights under the First and Fourteenth Amendments will not be allowed unless they pass exact or strict constitutional scrutiny.

Thoughts about the future:  (1) The Washington lawyer discipline system will be independent of the WSBA and the Washington Supreme Court.  (2)  The WSBA will become a voluntary association of lawyers only. (3)  Lawyers will be able to practice their profession without being compelled to belong to and pay dues to the WSBA.

Steve Eugster

WSBA # 2003



* Practicing lawyer Spokane, Washington.  B.A. University of Denver 1966; J.D. University of Washington School of Law 1969.  Admitted to the Bar of the Washington Supreme Court, January 31, 1970.  Order of The Coif; Washington Law Review 1967-69, Managing Editor 1968-69.


Last Updated on: December 7th, 2018 at 7:36 pm, by Stephen Eugster

Written by Stephen Eugster