May 6, 2022 – The U.S. Supreme Court’s decision in Keller v. State Bar of Cal., 496 U.S. 1 (1990), in which the Court upheld a challenge to a mandatory state bar association, remains good law, the U.S. Court of Appeals for the Seventh Circuit has held.
In File v. Martin et al, No. 20-2387 (April 29, 2022), a three-judge panel ruled that “File’s claim is squarely foreclosed by the Supreme Court’s decision in Keller,” and that only the U.S. Supreme Court has the authority to declare that Keller has been overruled.
First Amendment Challenge
Schuyler File, a State Bar of Wisconsin member, filed a federal lawsuit challenging the State Bar’s mandatory status. File named, as defendants, the executive director, the State Bar president, and the seven justices of the Wisconsin Supreme Court.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
File claimed that requiring him to join the State Bar as a condition of practicing law in Wisconsin violated his free-speech and associational rights under the First Amendment to the U.S. Constitution.
In the 1990 case of Keller, the U.S. Supreme Court upheld the mandatory status of the State Bar of California against a similar challenge. But File argued that U.S. Supreme Court decisions issued since 1990 implicitly overruled Keller.
The U.S. District Court for the Eastern District of Wisconsin dismissed File’s lawsuit for failure to state a claim. File appealed.
The Issue of Justiciability
In an opinion written by Chief Judge Diane Sykes – a former Wisconsin Supreme Court justice – the appellate panel first addressed the issue of justiciability.
The panel noted that Article III of the U.S. Constitution limits a federal court’s judicial power to cases and controversies in which a plaintiff has shown that he or she has suffered a concrete, particularized, and actual or imminent injury.
But pre-enforcement challenges like the one brought by File are within a federal court’s Article III power, Judge Sykes explained.
“A person need not violate the law and risk prosecution to bring a pre-enforcement challenge,” Sykes wrote.
All that was required, Judge Sykes noted, was a credible threat of prosecution.
Purely Hypothetical Threat?
The Wisconsin Supreme Court justices argued that File lacked standing because the threat of disciplinary action against him was purely hypothetical.
In support of that argument, the justices relied upon Crosetto v. State Bar of Wisconsin, 12 F.3d 1396 (7th Cir.1993), a previous challenge to the state’s mandatory bar.
In Crosetto, the Seventh Circuit Court of Appeals affirmed a district’s court dismissal of the supreme court justices from the lawsuit. But the court in Crosetto didn’t mention the automatic administrative suspension, Judge Sykes explained.
Moreover, Sykes noted, Crosetto was decided before Seventh Circuit and U.S. Supreme Court decisions holding that pre-enforcement challenges were justiciable.
Effect of Janus on Keller
Judge Sykes pointed out that the Supreme Court Rules governing the State Bar follow Keller “precisely” by specifying that expenditures not necessarily or reasonably related to regulating the legal profession or improving the quality of legal services may not be funded by compulsory dues.
Judge Sykes acknowledged that a line of U.S. Supreme Court cases culminating in Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), appears to call into question the reasoning in Keller.
In particular, Sykes noted, in Janus the U.S. Supreme Court overruled Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the decision the Supreme Court applied when handing down Keller.
In Abood, the Supreme Court upheld a Michigan law that allowed agreements under which every public employee represented by a union must pay union dues, even if he or she was not a member of the union.
But the Supreme Court in Janus held that Abood was “‘poorly reasoned,’” “‘led to practical problems and abuse,’” and was “‘inconsistent with other First Amendment cases and ha[d] been undermined by more recent decisions.’”
Issue Fundamentally Different
In its brief, the State Bar pointed out that every federal court to have considered a challenge to a mandatory bar association mounted since Janus has relied upon Keller to rule against the plaintiffs. That continues to be the case, the Seventh Circuit noted.
Furthermore, the State Bar argued, the issue in Janus – whether a state law that requires non-union public employees to pay agency fees to a union that represents them violates the First Amendment – is wholly different from the issue of whether a state may choose to regulate the legal profession by creating an mandatory bar association.
The state has a unique interest in regulating the legal profession, the State Bar argued – an interest missing from the public employee union context at issue in Janus.
The State Bar also pointed out that the plaintiffs in Jarchow v. State Bar of Wis., No. 19-831 (Dec. 31, 2019), a prior challenge to the state’s mandatory bar, also argued that Janus had implicitly overruled Keller but had been denied certiorari by the Supreme Court.
Whatever the effect of the Janus decision on Keller, “it’s not our role to decide whether it remains good law,” Judge Sykes wrote. “Only the Supreme Court can answer that question.”
U.S. Supreme Court Must Decide
A 1988 Seventh Circuit Court of Appeals decision suggested that a lower court might be free to declare that the Supreme Court had implicitly overruled one of its prior decisions, Judge Sykes noted.
But in a 1997 decision, Sykes wrote, the Supreme Court made it clear that if a precedent directly applies to a case but appears to be based on reasons rejected in a separate line of decisions, “‘the Court of Appeals should follow the case [that] directly controls, leaving to this Court the prerogative of overruling its own decisions.’”
Judge Sykes pointed out that in Jarchow v. State Bar of Wis., the Seventh Circuit relied upon a similar rationale to decline an invitation to hold that Janus had implicitly overruled Keller.
Judge Sykes also noted that the Supreme Court declined to review Jarchow, with Justice Thomas and Justice Gorsuch dissenting. Jarchow v. State Bar of Wis., 140 S. Ct. 1720 (2020). Additionally, Sykes pointed out, five other U.S. Courts of Appeal have refused to hold that the Janus decision implicitly overruled Keller.
On April 4, the Supreme Court denied certiorari to cases challenging the mandatory bar associations in Michigan, Oklahoma, and Texas, without further comment
