Case: 19-3444

Document: 4

Filed: 12/16/2019

Pages: 33

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
ADAM JARCHOW AND
MICHAEL DEAN,
Plaintiffs–Appellants,

Case No. 19-3444

v.
STATE BAR OF WISCONSIN, et
al.,
Defendants–Appellees.
MOTION FOR SUMMARY AFFIRMANCE

RICHARD M. ESENBERG
WISCONSIN INSTITUTE FOR
LAW & LIBERTY
330 East Kilbourn Ave.
Suite 725
Milwaukee, WI 53202
(414) 727-9455 (phone)
(414) 727-6385 (fax)
rick@will-law.org

DAVID B. RIVKIN, JR.
ANDREW M. GROSSMAN
BAKER & HOSTETLER LLP
1050 Connecticut Ave., N.W.
Washington, DC 20036
(202) 861-1697 (phone)
(202) 861-1783 (fax)
agrossman@bakerlaw.com

Attorneys for Plaintiffs–Appellants

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APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
19-3444
Appellate Court No: _______________
Jarchow, et al. v. State Bar of Wisconsin, et al.
Short Caption: _________________________________________________________________________________________

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party, amicus curiae,
intervener or a private attorney representing a government party, must furnish a disclosure statement providing the following information
in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statements be filed immediately following docketing; but, the disclosure statement must be filed
within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are
required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be
included in the front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use
N/A for any information that is not applicable if this form is used.
[

(1)

]

PLEASE CHECK HERE IS ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND
INDICATE WHICH INFORMATION IS NEW OR REVISED.

The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure
information required by Fed. R. App. P. 26.1 by completing item #3):
Adam Jarchow, Michael Dean
________________________________________________________________________________________________________
________________________________________________________________________________________________________

(2)

The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or
before an administrative agency) or are expected to appear for the party in this court:
Baker & Hostetler LLP, Wisconsin Institute for Law & Liberty
________________________________________________________________________________________________________
________________________________________________________________________________________________________

(3)

If the party, amicus or intervener is a corporation:
i)

Identify all its parent corporations, if any; and
n/a
________________________________________________________________________________________________

ii)

list any publicly held company that owns 10% or more of the party’s, amicus’ or intervener’s stock:
n/a
________________________________________________________________________________________________

(4)

Provide information required by FRAP 26.1(b) – Organizational Victims in Criminal Cases:
n/a
________________________________________________________________________________________________________

(5)

Provide Debtor information required by FRAP 26.1 (c) 1 & 2:
n/a
________________________________________________________________________________________________________

Attorney’s Signature: ________________________________________
Date: 12/16/2019
________________________________________
/s/ Andrew M. Grossman
Andrew M. Grossman
Attorney’s Printed Name: __________________________________________________________________________________
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d).

✔

Yes _____ No _____

1050 Connecticut Avenue, NW
Address: ______________________________________________________________________________________________
Washington, DC 20036
________________________________________________________________________________________________________
202-861-1783
202-861-1697
Phone Number: ________________________________________
Fax Number: ______________________________________
E-Mail Address: agrossman@bakerlaw.com
__________________________________________________________________________________________________

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APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
19-3444
Appellate Court No: _______________
Jarchow, et al. v. State Bar of Wisconsin, et al.
Short Caption: _________________________________________________________________________________________

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party, amicus curiae,
intervener or a private attorney representing a government party, must furnish a disclosure statement providing the following information
in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statements be filed immediately following docketing; but, the disclosure statement must be filed
within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are
required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be
included in the front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use
N/A for any information that is not applicable if this form is used.
[

(1)

]

PLEASE CHECK HERE IS ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND
INDICATE WHICH INFORMATION IS NEW OR REVISED.

The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure
information required by Fed. R. App. P. 26.1 by completing item #3):
Adam Jarchow, Michael Dean
________________________________________________________________________________________________________
________________________________________________________________________________________________________

(2)

The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or
before an administrative agency) or are expected to appear for the party in this court:
Baker & Hostetler LLP, Wisconsin Institute for Law & Liberty
________________________________________________________________________________________________________
________________________________________________________________________________________________________

(3)

If the party, amicus or intervener is a corporation:
i)

Identify all its parent corporations, if any; and
n/a
________________________________________________________________________________________________

ii)

list any publicly held company that owns 10% or more of the party’s, amicus’ or intervener’s stock:
n/a
________________________________________________________________________________________________

(4)

Provide information required by FRAP 26.1(b) – Organizational Victims in Criminal Cases:
n/a
________________________________________________________________________________________________________

(5)

Provide Debtor information required by FRAP 26.1 (c) 1 & 2:
n/a
________________________________________________________________________________________________________

Attorney’s Signature: ________________________________________
Date: 12/16/2019
________________________________________
/s/ David B. Rivkin
David B. Rivkin
Attorney’s Printed Name: __________________________________________________________________________________
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d).

✔
Yes _____ No _____

1050 Connecticut Avenue, NW
Address: ______________________________________________________________________________________________
Washington, DC 20036
________________________________________________________________________________________________________
202-861-1783
202-861-1731
Phone Number: ________________________________________
Fax Number: ______________________________________
E-Mail Address: drivkin@bakerlaw.com
__________________________________________________________________________________________________

rev. 12/19 AK

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Pages: 33

APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
19-3444
Appellate Court No: _______________
Jarchow, et al. v. State Bar of Wisconsin, et al.
Short Caption: _________________________________________________________________________________________

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party, amicus curiae,
intervener or a private attorney representing a government party, must furnish a disclosure statement providing the following information
in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statements be filed immediately following docketing; but, the disclosure statement must be filed
within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are
required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be
included in the front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use
N/A for any information that is not applicable if this form is used.
[

(1)

]

PLEASE CHECK HERE IS ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND
INDICATE WHICH INFORMATION IS NEW OR REVISED.

The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure
information required by Fed. R. App. P. 26.1 by completing item #3):
Adam Jarchow, Michael Dean
________________________________________________________________________________________________________
________________________________________________________________________________________________________

(2)

The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or
before an administrative agency) or are expected to appear for the party in this court:
Baker & Hostetler LLP, Wisconsin Institute for Law & Liberty
________________________________________________________________________________________________________
________________________________________________________________________________________________________

(3)

If the party, amicus or intervener is a corporation:
i)

Identify all its parent corporations, if any; and
n/a
________________________________________________________________________________________________

ii)

list any publicly held company that owns 10% or more of the party’s, amicus’ or intervener’s stock:
n/a
________________________________________________________________________________________________

(4)

Provide information required by FRAP 26.1(b) – Organizational Victims in Criminal Cases:
n/a
________________________________________________________________________________________________________

(5)

Provide Debtor information required by FRAP 26.1 (c) 1 & 2:
n/a
________________________________________________________________________________________________________

Attorney’s Signature: ________________________________________
Date: 12/16/2019
________________________________________
/s/ Richard M. Esenberg
Richard M. Esenberg
Attorney’s Printed Name: __________________________________________________________________________________
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d).

✔
Yes _____ No _____

300 East Kilbourn Avenue, Suite 725
Address: ______________________________________________________________________________________________
Milwaukee, WI 54202-2828
________________________________________________________________________________________________________
414-727-6385
414-727-9455
Phone Number: ________________________________________
Fax Number: ______________________________________
E-Mail Address: rick@will-law.org
__________________________________________________________________________________________________

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TABLE OF CONTENTS
Motion for Summary Affirmance .................................................................. 1
Background ................................................................................................... 1
Argument...................................................................................................... 4
I.

II.

Requiring Plaintiffs to Join and Fund the State Bar Severely
Burdens Their Speech and Association Rights ............................. 5
A.

Compelled Dues Payments Violate the First Amendment ... 5

B.

Compelled Membership Violates the First Amendment .... 10

Wisconsin’s Compulsory Dues and Membership Requirement
Fail Any Potentially Applicable Standard of Review.................. 13

Conclusion .................................................................................................. 20

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MOTION FOR SUMMARY AFFIRMANCE
Supreme Court precedent, including Keller v. State Bar of California, 496
U.S. 1 (1990), controls the issues presented by this appeal and therefore
requires affirmance of the district court’s dismissal of the Plaintiffs’ complaint.
Plaintiffs filed this case to overturn that binding precedent, but they
acknowledge that this Court is not able to afford them that relief. The most
sensible step now is therefore to summarily affirm the district court.
Accordingly, Plaintiffs hereby move this Court to confirm that Supreme Court
precedent forecloses their appeal and to affirm the decision of the district court.
This will allow Plaintiffs the opportunity to petition the Supreme Court for
review of the issues presented.
Background
Wisconsin is one of about 32 states that have an “integrated bar,”
meaning it requires membership in an expressive association, the Wisconsin
State Bar, as a condition for practicing law in the state. See Wis. Sup. Ct. R.
(“SCR”) 10.01(1). Wisconsin law allows only a bar member in good standing
to “practice law in [the] state or in any manner purported to be authorized or
qualified to practice law.”1 SCR 10.03(4). The Wisconsin State Bar is also
empowered to compel payment of dues from members, SCR 10.03(5)(a)—a
power it has aggressively exercised. See Compl., ECF No. 1, ¶ 23 (alleging that
Wisconsin also permits out-of-state attorneys to participate pro hac vice
individual cases if certain conditions are satisfied. Attorneys like the Plaintiffs,
who are Wisconsin residents and practice regularly in Wisconsin, do not
qualify for this exception.
1

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the State Bar’s “2019 budget of $11.5 million will be funded with $5.2 million
in membership dues.”). Failure to pay dues results in automatic suspension of
membership and, with it, the right to practice law. SCR ch. 10 app., art. I,
§ 3(a)–(b); SCR 10.03(6).
The State Bar, in turn, expresses views on a broad range of matters
subject to intense public interest. These matters include the death penalty,
gender identity, gun rights and regulation, criminal justice initiatives, policies
towards suspected sex offenders, President Trump’s tweets, immigration
policies, and public education. See Compl. ¶¶ 26–38. As is inevitable, many
members (including Plaintiffs), disagree with the State Bar’s positions and
speech but are nonetheless forced to associate with it and fund its speech.
This scheme of mandatory payments to fund expressive speech and
association was upheld by the Supreme Court in Lathrop v. Donohue, 367 U.S.
820 (1961), and Keller v. State Bar of California, 496 U.S. 1 (1990). Lathrop
upheld compelled membership in an integrated bar, relying principally on
decisions authorizing “union shop” agreements. 367 U.S. at 842–43. And
Keller upheld compelled funding of the bar’s speech, also relying on labor-law
precedents. 496 U.S. at 12. Keller analogized an integrated bar to a state-law
mandate for public employees to tender “fair share” payments to public-sector
labor unions, as then allowed by the Supreme Court’s decision in Abood v.
Detroit Bd. of Ed., 431 U.S. 209, 236 (1977).
But, in 2018, the Supreme Court overruled Abood and held that
compelled subsidization of labor-union speech, even speech connected to
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collective bargaining, violates the First Amendment. Janus v. AFSCME, Council
31, 138 S. Ct. 2448, 2464 (2018). That case, however, only addressed
compelled subsidization of labor-union speech; it left undecided the import of
its holding in the integrated-bar context, and the majority opinion did not cite
Keller, see ECF No. 35, MTD Order 2 (noting this fact).
The Plaintiffs here are two attorneys who have been required to join and
pay dues to the Wisconsin State Bar. They filed this case in April 2019,
contending that Janus rejects Keller’s First Amendment reasoning and that its
holding must fall with holding of Abood. The Defendants, the State Bar and its
officers named in their official capacities, moved to dismiss.
In response, Plaintiffs conceded that the district court was “powerless to
afford them relief in the face of contrary Supreme Court precedent.” ECF No.
25 at 27. Plaintiffs briefed their position on why this binding precedent should
be overturned to preserve the issue and their arguments for appeal. But they
requested that the district court promptly decide the motion to dismiss in the
Defendants’ favor to allow “Plaintiffs to pursue relief in a forum with the
authority to align the law in this area with the principles articulated in Janus.”
Id. at 2.
The district court followed suit on December 11, 2019, by granting the
motion to dismiss. ECF No. 35. It observed that “[i]t may be…that the Court’s
decision in Janus has eroded the foundation of Keller,” but rightly concluded
that “both sides agree that Keller still binds this court, and that only the

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Supreme Court can say otherwise.” Id. at 3. Plaintiffs filed a timely notice of
appeal.
Argument
Wisconsin’s requirements that attorneys like Plaintiffs join the State Bar
and fund its speech and expressive association are ongoing violations of their
First Amendment rights. But, unfortunately, this Court is no more an
appropriate forum than the district court to afford relief.
The proper path forward in this circumstance is for the lower courts to
rule against the plaintiffs to open the path for review in the Supreme Court. As
the Supreme Court has explained, if one of its precedents “has direct
application in in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own decisions.”
Agostini v. Felton, 521 U.S. 203, 237 (1997) (citation omitted).
The district court correctly applied that doctrine to this case. ECF No. 35
at 3. Keller and Lathrop have a “direct application” here, but their reasoning has
been undermined by Janus. This Court’s role is to follow Keller and Lathrop and
rule against Plaintiffs to allow them to seek review in the Supreme Court. It
should do so promptly, without briefing or argument.
Nevertheless, in order to foreclose any possible argument that they have
forfeited their positions, Plaintiffs will briefly set forth their reasons for
contending that Keller and Lathrop should be overruled. These arguments
demonstrate that Plaintiffs are suffering an ongoing “loss of First Amendment
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freedoms,” and, “even for minimal periods of time,” this “unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976)
(plurality); see also Korte v. Sebelius, 735 F.3d 654, 666 (7th Cir. 2013). The
Court should act promptly to allow Plaintiffs to seek expeditious relief in the
Supreme Court.
I.

Requiring Plaintiffs to Join and Fund the State Bar Severely Burdens
Their Speech and Association Rights
Wisconsin’s integrated bar violates the First Amendment in two separate

ways. First, attorneys in Wisconsin are unable to practice law without funding
the State Bar’s speech and thereby joining into an expressive association with
it—the very constitutional injury condemned in Janus. Second, attorneys
licensed in Wisconsin are compelled to join the State Bar as full-fledged
members to practice law, and that requirement would not survive even under a
pre-Janus precedent, which recognized that this form of compelled association
violates First Amendment rights.
A.

Compelled Dues Payments Violate the First Amendment

The Supreme Court has expressly recognized that the First Amendment
prohibits “compelled subsid[ies],” whereby “an individual is required by the
government to subsidize a message he disagrees with, expressed by a private
entity.” Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005). The most
recent application of that rule was the Supreme Court’s Janus decision, which
struck down required “agency fees,” exactions of dues from public employees

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for remittance to labor unions. See 138 S. Ct. at 2478. Wisconsin’s integratedbar scheme is no different from the agency-fee regime Janus condemned.
First and most importantly, the State Bar engages in core protected
speech on matters of intense public concern. Using members’ funds and
claiming to represent their views, the State Bar has spoken and continues to
speak on opposing capital punishment, shielding suspected sex offenders,
restoring felon voting rights, promoting diversity, condemning the President’s
political speech, gun rights and regulation, immigration policies, and more.
The State Bar’s speech is no different from the speech recognized as core
First Amendment speech in Janus. There, the Supreme Court concluded that
the line drawn in Abood between chargeable and non-chargeable speech was
unworkable because “the union speech at issue in this case is overwhelmingly
of substantial public concern.” Janus, 138 S. Ct. at 2477. It concluded that even
the supposedly non-political subjects of collective bargaining were still matters
of public concern because collective bargaining impacts the public fisc, and the
more controversial speech from the unions—such as on climate change, sexual
orientation and gender identity, and minority religions—were undoubtedly
matters of profound public interest. Id. at 2476. The Wisconsin Bar’s speech is
identical with that latter category—indeed, it has spoken on some of the exact
same issues. And this case presents even clearer matters of core public concern
because, whereas the union in Janus could colorably claim that collectivebargaining speech is not “expressive” given its functional purpose of obtaining
financial benefits for its members, the Wisconsin Bar does not engage in any
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speech that even arguably confers a direct financial or material benefit on
Wisconsin attorneys.
Second, that speech is funded by the dues of attorneys who are forced
into its ranks as members, and this differs in no material respect from the
agency-fee arrangement Janus condemned. The labor law challenged in Janus
enabled public employers and unions to agree to deduct payments from nonconsenting employees’ paychecks to fund union speech. 138 S. Ct. at 2460.
The Supreme Court held that forcing compelled subsidization of private speech
violates fundamental First Amendment rights. Id. The challenged action
here—forcing the subsidization of speech by the State Bar—is no different. The
State Bar forces members to pay an annual membership fee, including $129 for
inactive members and $258 for full dues-paying members. Compl. ¶ 20. And,
just as the labor law Janus invalidated conditioned employment on payment of
agency fees, Wisconsin conditions attorneys’ livelihoods on the payment of bar
dues.
Third, there is a close parallel between labor unions and integrated bar
associations. Keller acknowledged as much. See 496 U.S. at 12 (concluding that
there is “a substantial analogy between the relationship of the State Bar and its
members, on the one hand, and the relationship of employee unions and their
members, on the other.”). This is because, like a union, a state bar is funded
primarily from its members’ funds; like a union, a state bar is restricted to a
particular profession; and, like a union, a state bar purports to represent
members’ interest in their capacity as members of that profession. See id. at 11–
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13. Keller therefore rejected the view, expressed by the California Supreme
Court in the case under review, that a state bar is a government agency for
First Amendment purposes. The right analogy, Keller held, is with a labor
union. In articulating First Amendment principles applicable to labor unions,
Janus also articulated the principles applicable to this case.
Fourth, the line that Janus concluded is impossible to draw in the laborunion context between political and non-political speech is equally untenable
in this context. Keller, after concluding that integrated bars are no different
from labor unions for First Amendment purposes, attempted to distinguish
between “ideological” and “non-ideological” speech, just as the Court had
previously done in Abood, 431 U.S. at 236—the case Janus overruled. From the
start, Abood recognized that there would “be difficult problems in drawing lines
between collective-bargaining activities, for which contributions may be
compelled, and ideological activities unrelated to collective bargaining, for
which such compulsion is prohibited.” Id. Keller similarly recognized that:
[p]recisely where the line falls between those State Bar
activities in which the officials and members of the Bar
are acting essentially as professional advisers to those
ultimately charged with the regulation of the legal
profession, on the one hand, and those activities having
political or ideological coloration which are not
reasonably related to the advancement of such goals, on
the other, will not always be easy to discern.
496 U.S. at 15. Janus provided a simple response to both Abood and Keller: the
line seems murky because it does not exist. All public-sector labor-union
speech is core speech protected under the First Amendment because it all
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concerns matters of intense public concern, the operation of government. As
shown above, that is equally true of the Wisconsin Bar’s speech. Abood’s rules
governing unions have been overruled; Keller’s governing state bars must be as
well.
Fifth, Keller erred in failing to consider the possibility that Abood sold
citizens’ First Amendment rights short. Instead, it took Abood as a given and
applied its principles as settled law. Though erroneous, this was
understandable, since Abood’s vitality as constitutional law was not challenged
in Keller. See 496 U.S. at 16–17. Quite the opposite, Keller addressed the far
more aggressive proposition, which the California Supreme Court adopted,
that no First Amendment restrictions apply to state bars’ ability to speak with
funding from non-consenting members. The Keller Court therefore approached
the problem from the other direction, considering whether to apply Abood’s
restrictive First Amendment regime or no First Amendment principles at all. It
did not consider the third possibility that Janus identified as the right answer:
that no distinction between “ideological” and “non-ideological” speech is
tenable and that compelled dues payments should be subject to heightened
scrutiny.
Keller also extended the superficial and antiquated reasoning of Lathrop v.
Donohue, 367 U.S. 820 (1961), which upheld compelled dues payments to and
membership in Wisconsin’s integrated bar. But, like Abood, that case predated
much of the Court’s modern First Amendment jurisprudence and contained
very little analysis. Instead, it cited an off-hand statement in a labor case,
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Railway Employment Department v. Hanson, 351 U.S. 225, 238 (1956), that
compelled financial support for unions is no more unconstitutional than a state
law forcing a lawyer “to be a member of an integrated bar.” Lathrop, 367 U.S.
at 843 (quoting Hanson, 351 U.S. at 238). But, because Janus held that
compelled financial support for unions is unconstitutional, Lathrop provides no
better basis for Keller’s holding than does Abood.
Sixth, Janus directly refutes any contention that the Wisconsin Bar
mitigates or eliminates the mandatory-dues scheme’s burden on First
Amendment rights by allowing members a reduction for dues payments. Janus
held that no agency fee is constitutional “unless the employee affirmatively
consents to pay.” 138 S. Ct. at 2486. That holding brought the agency-fee
scheme into alignment with ordinary First Amendment principles. After all, no
one would seriously contend that Wisconsin may pass a law diverting portions
of its citizens’ paychecks to a political party with the citizens’ only having the
ability to opt out of subsidizing portions, but not all, of the political party’s
speech—and then receiving only half a reduction in the compulsory
subsidization. The same principle controls here.
B.

Compelled Membership Violates the First Amendment

If anything, Wisconsin’s integrated-bar arrangement imposes a greater
burden on First Amendment rights than the agency-fee arrangement Janus
condemned because it imposes a mandatory duty to belong to the State Bar as
a formal member, whereas the public-sector workers in Janus already had a
recognized right not to join the union.
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An integrated state bar is an expressive association like a church,
fraternal organization, civic association, or advocacy group. See Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 573 (1995). Allowing
state-compelled membership in an expressive association is a striking
constitutional anomaly because it has been clear for decades that forced union
membership as a condition of public employment is unconstitutional, Abood,
431 U.S. at 235, and it has been clear since at least Elrod v. Burns, 427 U.S. 347,
357 (1976), that no type of membership can be commanded as a condition of
state-sanctioned livelihood. Wisconsin nevertheless persists in demanding that
attorneys join the State Bar as members and thereby consent to its speech on
their behalf. That is an independent First Amendment violation, apart from the
compelled exaction of dues. Yet the Supreme Court, with scant reasoning,
upheld such compelled membership in Lathrop. 367 U.S. at 843.
The Wisconsin State Bar is an expressive association. It speaks on a wide
range of matters subject to substantial public interest, including opposing
capital punishment, shielding suspected sex offenders, restoring felon voting
rights, promoting diversity, condemning the President’s political speech, gun
rights and regulation, and immigration policies—all subjects protected as core
First Amendment speech. And, when it speaks on such subjects, it typically
takes one side irrespective of the fact that some among its members may
disagree. Consequently, the element that distinguishes a parade from a mere
walk “to reach a destination” is present here: the purpose to “mak[e] some sort
of collective point, not just to each other but to bystanders along the way.”
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Hurley, 515 U.S. at 568. After all, the State Bar speaks loudly on some of the
most hot-button issues of the day, which it does specifically to make a political
point on behalf of a group—i.e., a collective point.
And that would be fine, except that Wisconsin law requires all attorneys
to join—not only to fund the Bar’s speech, but to call themselves members and
suffer the Bar to speak for them. There is zero difference between that
arrangement and mandatory membership in any other advocacy organization.
And the violation of First Amendment principles is so plain that even Abood
rejected that as a constitutionally permissible scenario. There, the Court wrote
that “[o]ur decisions establish with unmistakable clarity that the freedom of an
individual to associate for the purpose of advancing beliefs and ideas is
protected by the First and Fourteenth Amendments” and it was “[e]qually
clear…that a government may not require an individual to relinquish rights
guaranteed him by the First Amendment as a condition of public
employment.” 431 U.S. at 234. Likewise, the lead Janus dissenting opinion
also recognized that a formal-membership requirement would violate the
Constitution. See Janus, 138 S. Ct. at 2487–90 (Kagan, J., dissenting)
(describing the proper “balance” as protecting citizens’ rights not to join a
labor union).
Yet Wisconsin law demands actual membership in the State Bar. This
underscores further the errors of Keller and Lathrop. Although Abood recognized
a unique harm from compelled membership—a harm elaborated in far greater
detail in more recent associational case law—Lathrop inexplicably treated the
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dignitary harm of forced association as having no independent meaning apart
from compelled funding (which it concluded, from Hansen, is constitutional).
The Court concluded that, because a bar member “is free to attend or not
attend [the bar’s] meetings or vote in its elections,” it was “confronted…only
with a question of compelled financial support of group activities, not with
involuntary membership in any other aspect.” 367 U.S. at 828. It is hard to
imagine a ruling more at odds with subsequent precedent, which treats the
“freedom not to associate” as a constitutional right independent of any
financial obligation. Jaycees, 468 U.S. at 623.
But rather than re-assess Lathrop’s reasoning in light of the Court’s more
recent expressive-association precedent, Keller compounded its errors,
extending its holding to sanction compelled subsidization of speech. See 496
U.S. at 9. Both should be revisited and overruled.
II.

Wisconsin’s Compulsory Dues and Membership Requirements Fail
Any Potentially Applicable Standard of Review
Because Wisconsin’s integrated bar scheme imposes a substantial burden

on First Amendment rights—by both mandating dues and forcing membership
itself—it must be subject to constitutional scrutiny. Whether that level is
“strict” or “exacting” scrutiny remains unclear because Janus expressly left the
question open. See Janus, 138 S. Ct. at 2465. It did so because the agency-fee
arrangement it addressed would fail either test. So too does Wisconsin’s
integrated bar scheme.

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Although the result would be the same under either standard, Supreme
Court precedent indicates that strict scrutiny should apply. Like Illinois’s
unconstitutional agency-fee scheme, Wisconsin’s statutory scheme for the
State Bar similarly constitutes “the compelled subsidization of private speech,”
which “seriously impinges on First Amendment rights.” Id. at 2464. A statute
compelling the subsidization of private speech is not analogous to a
commercial-speech regulation. See Harris v. Quinn, 134 S. Ct. 2618, 2639 (2014)
(“[I]t is apparent that the speech compelled in this case is not commercial
speech.”). It is, rather, a content-based restriction because a statutory scheme
that selects a certain speaker and then requires members of a profession to
financially support and associate with that speaker necessarily restricts the
content of the speech, allowing the speaker to exercise government-granted
discretion over the message. That is not materially different from a statutory
codification of favored and disfavored speech. Such compelled subsidies also
amount to compelled speech. Under either view, strict scrutiny is the
appropriate level of review for that inherently suspect arrangement, and strict
scrutiny requires proof of a “compelling necessity” and a statutory
arrangement that is “precisely tailored.” Riley v. Nat’l Fed’n of the Blind of N.C.,
Inc., 487 U.S. 781, 800 (1988).
In all events, the integrated-bar arrangement fails any applicable level of
scrutiny. Under exacting scrutiny, the more government-friendly standard, “a
compelled subsidy must ‘serve a compelling state interest that cannot be
achieved through means significantly less restrictive of associational
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freedoms.’” Janus, 138 S. Ct. at 2465 (quoting Knox, 567 U.S. at 310). As
noted, Wisconsin’s statutory scheme compelling licensed attorneys to join and
fund the State Bar is materially indistinguishable from Illinois’s statutory
scheme compelling public employees to fund labor unions. And the principal
justification offered to support agency-fee arrangements—the interest of “labor
peace”—is obviously inapplicable in this context.
The possible justifications here fare no better. Keller recognized only two
possible justifications for an integrated bar: (1) improving the quality of legal
services and (2) regulating the legal profession. Keller, 496 U.S. at 13. Both
purported interests fail to justify the burdens on speech and association rights.
Quality of Legal Services. The first interest fails because it is not a
compelling governmental interest. A state may legitimately seek to advance
almost any particular public interest—kindness and compassion among its
citizens, the provision of services to the poor, economic growth, etc.—but
simply naming such an interest does not suffice to justify impingement of First
Amendment rights. The Supreme Court’s jurisprudence recognizes that the
First Amendment does not permit government to “substitute its judgment as to
how best to speak for that of speakers and listeners” or to “sacrifice speech for
efficiency.” Riley, 487 U.S. at 791, 795. That is the general rule, fully
applicable here.
At best, an asserted interest in improving the quality of legal services is
merely another way of articulating the “free rider” argument Janus rejected—
i.e., that labor unions’ bargaining efforts benefit an entire unit and forced
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funding of that effort prevents unit employees from benefiting from those
efforts without paying their fair share. The assumption behind an interest in
“improving the quality of legal services” is, by the same token, that
improvement of the profession benefits all attorneys and should be funded by
all attorneys. See Keller, 496 U.S. at 8 (quoting Lathrop, 367 U.S. at 842–43
(plurality opinion)), for the proposition that “the costs of improving the
profession…should be shared by the subjects and beneficiaries of the regulatory
program….”). But “free-rider arguments are generally insufficient to overcome
First Amendment objections.” Janus, 138 S. Ct. at 2466 (quoting Knox, 567
U.S. at 311) (alterations omitted). As Janus observed:
To hold otherwise across the board would have
startling consequences. Many private groups speak out
with the objective of obtaining government action that
will have the effect of benefiting nonmembers. May all
those who are thought to benefit from such efforts be
compelled to subsidize this speech?
Suppose that a particular group lobbies or speaks out on
behalf of what it thinks are the needs of senior citizens
or veterans or physicians, to take just a few examples.
Could the government require that all seniors, veterans,
or doctors pay for that service even if they object? It has
never been thought that this is permissible.
Id. Yet that appears to be all the improvement-of-the-profession argument
means, that the State Bar lobbies or speaks for the purpose of advancing the
interests of the legal profession. The argument fares no better here than in
Janus. There is no compelling interest in making lawyers pay for the State Bar’s
speech expressing its view of what is and is not good for the profession.

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Finally, even if that interest were considered compelling in some respect,
compelling attorneys to join the bar and subsidize its speech is not tailored to
achieve it, because that same end could be achieved through means
significantly less restrictive of associational freedoms. It is not apparent, to say
the least, what compulsory membership in an advocacy organization has to do
with improving the quality of legal services. As for subsidies, the state could
fund any program that it believes necessary to improve the quality of legal
services out of tax revenues, in the same way that it seeks to advance almost
every other interest. Given the state’s unchallenged power to tax and spend, it
has no need to impinge attorneys’ First Amendment rights.
Regulating the Legal Profession. The second interest, in regulating the
legal profession, is not compelling for the same reason as the “quality of legal
services” rationale: the government’s convenience in carrying out its functions
is no basis to impinge core First Amendment rights.
In any instance, the government’s regulatory interest (as well as its
interest in improving the quality of legal services) does not justify the
integrated-bar regime because Wisconsin does not need an integrated bar to
regulate lawyers. Compelled speech and association are permissible only when
they “serve a compelling state interest that cannot be achieved through means
significantly less restrictive of associational freedoms.” Janus, 138 S. Ct. at
2465. It is therefore dispositive that at least 18 states do not have integrated
bars and therefore do not wed the bar’s regulatory and expressive activities. In
re Petition for a Rule Change to Create a Voluntary State Bar of Nebraska, 841
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N.W.2d 167, 171 (Neb. 2013) (listing the following states as having nonintegrated bars: Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana,
Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, New Jersey,
New York, Ohio, Pennsylvania, Tennessee, and Vermont). That 18 states
regulate the legal profession without an integrated bar demonstrates that
significantly less restrictive means exist for accomplishing that interest.
Equally unavailing is the argument that an integrated bar is necessary for
funding the activities of a state bar. First, the State of Wisconsin has the power
to tax, which generally impinges no First Amendment right. And second, this
argument is circular: there is only a compelling interest in funding the activities
of the bar if those activities justify burdens on First Amendment rights.
Certainly, the Republican Party or the Catholic Church might view
compulsory funding by state coercion as helpful to fund their activities, but
that is, of course, irrelevant to whether those activities justify the First
Amendment burden of compulsory dues. See Janus at 2485–86 (rejecting the
argument that termination of agency fees “may cause unions to experience
unpleasant transition costs in the short term and may require unions to make
adjustments in order to attract and retain members”).
A related argument is that integrated bars are more effective at raising
funds than voluntary bar associations. But any organization—the ACLU, the
Libertarian Party, the Mennonite Church, and everyone else—could plausibly
claim that donations would increase if membership were mandatory, and no
one could seriously contend that the government would have a compelling
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interest in forcing membership. See Janus, at 2486 (referring to compulsory fees
to labor unions as a “windfall” that “cannot be allowed to continue
indefinitely”).
Finally, if it were not obvious enough that the role of regulating lawyers
could be delegated to a state agency that does not engage in extensive, often
entirely irrelevant, advocacy, it bears emphasizing that, in Wisconsin, the State
Bar does not in fact hold ultimate responsibility for regulating lawyers: that
prerogative is vested in the Wisconsin Supreme Court and its Office of Lawyer
Regulation (“OLR”). SCR 21.01(1) (providing components of the lawyer
regulation system); SCR 21.02 (providing the OLR “responds to [attorneyrelated]…grievances…and, when appropriate, investigates allegations of
attorney misconduct”); SCR 21.09 (“The supreme court determines attorney
misconduct and medical incapacity and imposes discipline or directs other
action in attorney misconduct and medical incapacity proceedings filed with
the court.”); see also Supreme Court Offices: Office of Lawyer Regulation,
Wisconsin Court System (OLR “is an agency of the Wisconsin Supreme
Court. OLR receives grievances relating to lawyer misconduct, conducts
investigations, and prosecutes violations of lawyer ethics rules.”).
It is plain that there are less restrictive means than an integrated bar to
achieve state interests in this area when the State Bar itself is not principally
responsible for vindicating those interests. Because the State of Wisconsin
could regulate lawyers in any number of ways without forcing speech and

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expressive association, its present system of compelling attorneys to join and
fund the State Bar fails any level heightened scrutiny.
Conclusion
The Court should grant Plaintiffs’ motion and summarily affirm the
district court’s judgment. It should do so quickly to allow Plaintiffs a prompt
opportunity to seek relief from their “loss of First Amendment freedoms” and
“irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality).

December 16, 2019

Respectfully submitted,

RICHARD M. ESENBERG
WISCONSIN INSTITUTE FOR
LAW & LIBERTY
330 East Kilbourn Ave.
Suite 725
Milwaukee, WI 53202
(414) 727-9455 (phone)
(414) 727-6385 (fax)
rick@will-law.org

/s/ Andrew M. Grossman
DAVID B. RIVKIN, JR.
ANDREW M. GROSSMAN
BAKER & HOSTETLER LLP
1050 Connecticut Ave., N.W.
Washington, DC 20036
(202) 861-1697 (phone)
(202) 861-1783 (fax)
agrossman@bakerlaw.com

Attorneys for Plaintiffs–Appellants

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CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing complies with the length limitations of
Fed. R. App. P. 27(d)(2) because it is 4953 words. It complies with the
typeface and type-style requirements of Rule 32(a)(5) and Rule 32(a)(6)
because it is printed in 14-point Calisto MT font, a proportionally spaced
typeface with serifs.
/s/ Andrew M. Grossman
Andrew M. Grossman
BAKER & HOSTETLER LLP
1050 Connecticut Ave., N.W.
Washington, DC 20036
(202) 861-1697 (phone)
(202) 861-1783 (fax)
agrossman@bakerlaw.com

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CERTIFICATE OF SERVICE
I hereby certify that on December 16, 2019, a true and correct copy of
the foregoing was filed via the Court’s CM/ECF system and served via
electronic filing upon all counsel of record in this case. I also certify that a copy
of the foregoing was sent via first-class mail, postage prepaid, to:
Roberta F. Howell
Foley & Lardner LLP
150 E. Gilman Street
Suite 5000
Madison, WI 53703-1482
Attorney for Defendants-Appellees

/s/ Andrew M. Grossman
Andrew M. Grossman
BAKER & HOSTETLER LLP
1050 Connecticut Ave., N.W.
Washington, DC 20036
(202) 861-1697 (phone)
(202) 861-1783 (fax)
agrossman@bakerlaw.com

 Case: 19-3444 Document: 4 Filed: 12/16/2019 Pages: 33

Attachment A

Case: 3:19-cv-00266-bbc Document #: 35 Filed: 12/11/19 Page 1 of 4
Case: 19-3444
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - ADAM JARCHOW AND MICHAEL D. DEAN,
OPINION AND ORDER
Plaintiff,
19-cv-266-bbc
v.
STATE BAR OF WISCONSIN, STATE BAR
OF WISCONSIN BOARD OF GOVERNORS,
CHRISTOPHER E. ROGERS, JILL M. KASTNER,
STARLYN R. TOURTILLOTT,
KATHLEEN A. BROST, ERIC L. ANDREWS
AND KORI L. ASHLEY,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - Lawyers who are licensed to practice law in Wisconsin must join the State Bar of
Wisconsin and pay mandatory annual dues. Wis. S. Ct. R. (SCR) 10.01(1); 10.03. The
State Bar uses compulsory member dues to fund various activities. Plaintiffs Adam Jarchow
and Michael D. Dean are lawyers licensed in Wisconsin who disagree with the State Bar’s
activities and oppose being compelled to support it financially with their membership dues.
They contend that being compelled to join the State Bar and pay dues violates their rights
under the First Amendment to the United States Constitution. In support of their claims,
plaintiffs rely primarily on Janus v. American Federation of State, County and Municipal
Employees, Council 31, 138 S. Ct. 2448, 2486 (2018), in which the Supreme Court held
that public sector unions may not deduct agency fees from nonconsenting employees.
Defendants have moved to dismiss plaintiffs’ complaint on various grounds, including
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that all of plaintiffs’ claims are barred by Keller v. State Bar of California, 496 U.S. 1
(1990). Dkt. #15. In Keller, the Court held that an integrated bar, such as the State Bar
of Wisconsin, may, consistent with the First Amendment, use a member’s compulsory fees
to fund activities germane to “regulating the legal profession and improving the quality of
legal services,” but not to fund “activities of an ideological nature” that are not reasonably
related to the advancement of such goals. Id. at 13-15. The Supreme Court reached its
conclusion in Keller after applying its decision in Abood v. Detroit Board of Education, 431
U.S. 209, 235-36 (1977), in which it held that public-sector unions could collect compulsory
“agency fees” from nonmembers within the bargaining unit to fund activities germane to
collective bargaining, but could not use those fees to fund non-germane political or
ideological activities that a nonmember employee opposed.
The parties in this case agree that under Keller, the State Bar of Wisconsin can
compel lawyers to join the State Bar and pay mandatory dues without running afoul of the
First Amendment. Plts.’ Br., dkt. #25, at 3, 10; Dfts.’ Br., dkt. #16, at 8. However,
plaintiffs contend that the Supreme Court’s 2018 decision in Janus undermined the
reasoning and holding of Keller. In Janus, the Supreme Court overruled Abood, and held
that public-sector unions may not deduct agency fees or “any other payment to the union”
from the wages of nonmember employees unless the employees waive their First Amendment
rights by “clearly and affirmatively consent[ing] before any money is taken from them.” Id.
at 138 S. Ct. at 2486. The majority in Janus did not discuss Keller nor respond to the
dissent’s citation to Keller. Id. at 138 S. Ct. at 2498 (Kagan, J., dissenting).

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It may be, as plaintiffs contend, that the Court’s decision in Janus has eroded the
foundation of Keller. However, both sides agree that Keller still binds this court, and that
only the Supreme Court can say otherwise. Plts.’ Br., dkt. #25, at 3, 10; Dfts.’ Br., dkt.
#16, at 8. The Supreme Court has made it clear that “if a precedent of this Court has direct
application in a case [here, Keller], yet appears to rest on reasons rejected in some other line
of decisions, [lower courts] should follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237
(1997). See also Price v. City of Chicago, 915 F.3d 1107, 1119 (7th Cir. 2019) (applying
Agostini). Because this court is bound by Keller, and because the parties agree that
plaintiffs’ challenges fail under Keller, plaintiffs’ claims fail in this court. Therefore, I will
grant defendants’ motion to dismiss plaintiffs’ claims. Plaintiffs must seek relief in a higher
court.
Because I am dismissing plaintiffs’ claims as barred by Keller, I do not need to resolve
the other arguments for dismissal raised by defendants.

ORDER
IT IS ORDERED that the motion to dismiss filed by defendants State Bar of
Wisconsin, State Bar of Wisconsin Board of Governors, Christopher E. Rogers, Jill M.
Kastner, Starlyn R. Tourtillott, Kathleen A. Brost, Eric L. Andrews and Kori L. Ashley, dkt.

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#15, is GRANTED. The clerk of court is directed to enter judgment and close this case.
Entered this 11th day of December, 2019.
BY THE COURT:
/s/
________________________
BARBARA B. CRABB
District Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ADAM JARCHOW and MICHAEL D. DEAN,
Plaintiffs,

Case No. 19-cv-266-bbc

v.
STATE BAR OF WISCONSIN, STATE BAR
OF WISCONSIN BOARD OF GOVERNORS,
CHRISTOPHER E. ROGERS, JILL M. KASTNER,
STARLYN R. TOURTILLOTT,
KATHLEEN A. BROST, ERIC L. ANDREWS
and KORI L. ASHLEY,
Defendants.
JUDGMENT IN A CIVIL CASE

IT IS ORDERED AND ADJUDGED that judgment is entered in favor of
defendants State Bar of Wisconsin, State Bar of Wisconsin Board of Governors,
Christopher E. Rogers, Jill M. Kastner, Starlyn R. Tourtillott, Kathleen A. Brost, Eric L.
Andrews and Kori L. Ashley against plaintiffs Adam Jarchow and Michael D. Dean
dismissing this case.

s/ A. Wiseman, Deputy Clerk
______________________________________
Peter Oppeneer, Clerk of Court

12/13/2019
_______________________
Date