Should the State Bar of Michigan continue as a mandatory bar, which attorneys must join in order to practice law in Michigan? That is among the issues a newly created task force will consider, taking into account attorneys’ First Amendment rights and the need to regulate the legal profession.
The Michigan Supreme Court announced the task force’s creation today in an order, noting that the State Bar “requested that the Michigan Supreme Court facilitate this important discussion.” Under article 6, section 5 of the Michigan Constitution, the Court has the constitutional responsibility for setting legal “practice and procedure” in Michigan courts.
The Supreme Court announcement comes in the wake of Sen. Arlan Meekof (R-West Olive) introduction of SB 743, which would allow attorneys to practice law in Michigan without joining the State Bar.
Falk v State Bar of Michigan, 411 Mich 63 (1981) and the U.S. Supreme Court’s decision in Keller v State Bar of California, 496 US 1 (1990). Keller upheld mandatory bar membership in the interests of regulating the practice of law and protecting the public, but added that mandatory bars may not use members’ dues to fund ideological activities that fall outside those interests. In Falk, a plurality opinion written by then-Justice James L. Ryan stated that, to comply with the First Amendment, the State Bar would have to show that mandatory membership and dues served a “paramount” interest to the state, and that there was no less restrictive means to advance that compelling state interest.
The new task force’s assignment: Determine whether the State Bar’s duties and functions can “be accomplished by means less intrusive upon the First Amendment rights of objecting individual attorneys,” consistent with Keller and Falk, the Supreme Court’s order instructs. “At the same time, the Task Force should keep in mind the importance of protecting the public through regulating the legal profession, and how this goal can be balanced with attorneys’ First Amendment rights.”
Justice Bridget McCormack will serve as the Court’s liaison to the task force and Supreme Court Commissioner Nelson Leavitt will serve as the task force’s reporter. Hon. Alfred Butzbaugh, trustee of the Michigan State Bar Foundation, a past president of the State Bar, and former chief judge of the Berrien County Trial Court, will chair the task force. A report is expected in June 2014.
State Bar Commissioner Tim Burns had a mixed reaction when hearing of this announcement. “I am pleased the Supreme Court is evaluating the validity of the Legislature tinkering with the State Bar of Michigan, but am concerned that this task force may still ultimately hush a reputable non-partisan organization from being able to publicly speak out against political corruption of our judicial system and legal profession,” noted Burns. “I haven’t received one single complaint from an attorney about the State Bar speaking out against setting standards for judicial elections or expressing concern about the Legislature’s fast tracked alterations to the Court of Claims. The only people who I’ve heard complaints from are a politician, who is not an attorney, and a Republican Party political action committee, both of whom have stated that their actions to eliminate a mandatory Bar are in retaliation for the SBM taking public positions contrary to actions supported by them.”
The assault on the State Bar as a mandatory association for the legal profession in Michigan began after a special interest group called The Michigan Freedom Fund was angered by SBM’s taking a position against undisclosed campaign contributions in judicial elections. The SBM’s Board of Commissioners & Representative Assembly, who are attorneys elected by the licensed members of the State’s legal profession to direct the SBM, voted to take a position to address this topic out of concern that excessive money in these elections could create biases for the judges the money is provided to and diminish public respect for the judicial system who may believe those elected are beholden to undisclosed donors who helped them win their seats on the bench. The State Bar to address this concern requested the Michigan Secretary of State require the disclosure of donors to special interest groups that get involved in judicial elections. Secretary of State Ruth Johnson responded by taking an administrative action to require all donors to special interest groups be disclosed in all issue ads that run during an election. Sen. Meekof quickly moved to stop that action by sponsoring and passing legislation that took away the Secretary of State’s authority to enact her administrative order. The Senator than took aim at the State Bar with his current legislation at the urging of the special interest group The Michigan Freedom Fund.
“I don’t believe the State Bar of Michigan should be engaging in partisan political behavior and I don’t believe it has,” added Burns. “On the other hand, the State Bar shouldn’t be prohibited from taking action to speak out and oppose partisan political acts that corrupt the integrity of our Courts, negatively impact the legal profession, and hurt our State’s residents ability to have access to a fair and impartial judiciary. The State Bar of Michigan’s Representative Assembly and Board of Commissioners are made up of a mix of Republican, Democratic, and Independent minded attorneys elected by their peers and I haven’t witnessed any behavior that places political interests before good public policy.”
“My comments on this issue are my own opinion and aren’t to be represented as statements or communications from the State Bar of Michigan,” Burns added in concluding his remarks. “For official commentary or positions on this issue from the State Bar of Michigan please contact the SBM’s Executive Director Janet Welch.”