Brief and Manifesto Against A Mandatory State Bar

I.   Forced Organizational Associations Are Contrary to Human Nature and Natural Right

    A.   Introduction

Integrated bar organizations of attorneys like the State Bar of Michigan have been around for a long time, roughly a hundred years in the United States.¹ An integrated bar has nothing to do with racial integration. An integrated bar is an organization in which membership is mandatory as a matter of law in order for an attorney to practice law and earn a living. To practice law, an attorney must “join.” If the attorney refuses to join, he or she is forbidden to practice law. Given the length of time lawyers across America have had to acclimate to the idea of mandatory bar membership, one might think it strange that every few years brings another round of fresh legal challenges to the idea. Yet, even though the U.S. Supreme Court has weighed in on this issue numerous times, why hasn’t this issue gone away?

The answer is basic – forced associations with organizations are contrary to human nature. No one wants to be compelled to “join” or “associate” with an organization against their will.² No one should be compelled to join a church, marriage partner, attend a school, join a labor union, the military or any bar or legal organization. Forced associations are reserved exclusively for prisons. Spending holidays with unpleasant family members does not count. People seek to be free, and to exercise their own freedom of choice to join or not to join, to attend or not to attend. Yet, the idea of making people associate against their will “for their own good,” “for the good of society,” or for the good of the legal profession persists.

In Michigan the idea of forced association with the State Bar’s organization is purportedly justified because it is necessary to promote “improvements in the administration of justice,” “advance jurisprudence,” “improve relations between the legal profession and the public,” and promote “the interests of the legal profession.” The State Bar has translated these broad organizational objectives into five core values and four institutional goals.³ It is not immediately important to take a position on whether this mission, goals and values are like unto manna from heaven or the doctrines of demons. What is important is to determine why a lawyer’s compulsory association with this particular bar organization is required to further this mission and goals and to promote these values?

What is considered organizationally good is not more important than the natural right animating personal choice – specifically, the choice whether or not to “join” a professional organization. First, whether or not to join a bar organization is not merely a matter of personal preference – it is a matter of natural right. Nor is it merely a fundamental right. Second, since this right comes from the Creator according to the law of nature and of nature’s God, there is no governmental interest which can ever “outweigh” it. Governments cannot set aside what God has established. Third, every natural right is unalienable and cannot be infringed. The fact that states have been utterly disregarding this natural right for a century does not validate the injury.

    B.   All Persons Are Born Free, Even Lawyers

To aid in understanding our rights, consider John Locke and his First Treatise on Government (1680).⁴ Locke wrote his treatise to refute the arguments made by unlimited government advocate Sir Robert Filmer (an apologist for King Charles I of England), to advance the ideas we know today as the divine right of kings. According to Locke, Filmer’s thesis was, “That all government is absolute monarchy.” And the legal justification for this position is “That no man is born free.”⁵ Locke’s core principle, on the other hand, was that all men are born free. Today, we are sorry to observe, the core principles in America appear to be that whether or not people are born free, they must be made subservient when choosing a legal career.

Locke did not just make this up. Locke analyzed the Bible and found in Genesis that God created human beings, male and female and charged them with immediate self-governance. They were free to work and labor. They were free to earn a living. God mandated it. Mankind was obligated to obey. No one had the right to interfere, license or impose conditions on how a person could obey what God commanded.

Almost 5,800 year later, when the Declaration of Independence was written, its likewise observed the same facts. It stated that all men are created equal and endowed by their Creator with certain unalienable rights. This is not a sophomoric statement about gender or religion. It is affirming that a creation legal principle is part of American law – that people are born free according to the will of their Maker, they have certain unalienable rights arising from that free state including the natural right of choice in associating. This choice includes the freedom to associate or not associate with this or that organization. It is declaring that every civil government to be created after 1776 must respect this legal proposition and right including the State of Michigan, its judicial branch, Supreme Court and its state established organizations like the State Bar.⁶

As we shall see, this principle of freedom to associate leads to the following moral and legal arguments against a mandatory bar organization association: 1) true principles of associational law and freedom of association deny there is any such thing as an involuntary association; 2) were this right merely fundamental, the licensing authority actually asserts no compelling interest whatsoever for either: a) creating a relationship between each lawyer and the state, or b) forcing each lawyer into an association with every other lawyer; 3) arguendo, assuming state compulsion is justified, not merely some, but all activities of the State Bar are ideologically driven, so infringement of the free speech rights of bar members is inevitable, 4) speech activities by an integrated bar impermissibly trade on the reputation and rights of its members; 5) the state bar is tantamount to an unconstitutional establishment of religion as well as an offenses against freedom of the mind; and 6) the bar is an odious monopoly unworthy to further the ends of justice.

II.   Freedom of Association Includes the Right to Choose Association

    A.   There Is No Such Thing As An “Involuntary Association”

As was recently recounted in Janus v. AFSCME, 585 U.S. ___ (2018):

We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” (Citations omitted). The right to eschew association for expressive purposes is likewise protected. (Citations omitted). (“Freedom of association . . . plainly presupposes a freedom not to associate”); (citations omitted). (“[F]orced associations that burden protected speech are impermissible”). As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” (Citations omitted).

These are unambiguous grand pronouncements of constitutionally elevated legal principles. What prevents their application here? “Freedom of association . . . plainly presupposes a freedom not to associate.” Clearly these words, when written, were not intended to be understood in some kind of Orwellian double-speak to mean just the opposite.

Especially to the founders, the compulsory oversight asserted by modern-day bar organizations would vividly remind them of: 1) a pernicious state establishment of religion; and 2) press-gangs who “recruited” unwilling “volunteers” to become seamen for the British Navy. Both of which examples, in the mindset of the founders justified revolution and legal rejection. In the words of Thomas Jefferson:

Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishment, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the [Creator], who, being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do.⁷

The whole basis of Jefferson’s assertion is that because the human mind was created by God, each person’s accountability for the use of their mind ran solely to God (from where it came), and not to any other person. It is unfashionable now, but in Jefferson’s day this right came from God, and therefore was inalienable. Not merely fundamental, not subject to any form of judicial balancing, and definitely not subject to any judicially manufactured so-called compelling state interest test. Things which come from God ought not to be tinkered with by professional organizations.

This right of the freedom of the mind carried with it all the liberties which naturally flow from it: freedom of religion, freedom of speech, freedom of the press, and freedom of association. The right to keep and bear arms for defense was the necessary means to secure these should government systematically fail. It is not limited to its most famous application the disestablishment of Virginia’s state established church. All are God-given, unalienable rights. Jefferson did not assert freedom of the mind originating with the Creator as a religious proposition. He asserted it as a legal position in a legislative bill. If Jefferson could assert the principle and right as a legal matter, perhaps this court could do likewise?

Some relationships a person is born into: as an individual, as the member of a family, and initially as the member of a nation. All other relationships are, by the design of the laws of nature and nature’s God (this nation’s most fundamental laws and overriding legal context), entered into volitionally. This is what it means to be a free people. That is what it means to be born free. Tyrants stand in the opposite corner of freedom. As the Declaration of Independence affirms, “A Prince [or government body], whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free People.”

Consequently, there is no such thing as an involuntary association under the foundational laws of our nation. To use the term “association,” whose definition includes the necessary element of volitional joining, in respect of either an integrated or mandatory bar, is improper. To call the State Bar of Michigan a bar association is misleading, at best. In reality, it is a closed shop, where clients (employers) only hire members of the union, and all lawyers must remain members of the union in order to be employed in their chosen occupation. Janus clearly applies. We, therefore, refer to the State Bar as a “bar organization,” not an association which is presumptuous.

    B.   The Only Way a Person Can Be Deprived of Their Liberty Is by Way of Forfeiture for a Wrong Committed

It was the universal standard at the common law, both in England and America, that a person could only be deprived of life, liberty, or property as a forfeiture for the commission of a wrong act.

Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.⁸ (Emphasis added).

Resolved, N.C.D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.

Resolved, N.C.D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.⁹

We have already established that freedom of association is a natural right of liberty, endowed by the Creator as an unalienable right. In the present context, the right includes the liberty of choosing one’s own organization for business or professional purposes, and the liberty of contributing money solely to those organizations one chooses to support voluntarily. This right can only be deprived upon the commission of some act amounting to forfeiture.

Nonetheless, at present it is the law of the land that lawyers may be compelled to be members of a bar organization without their consent. Logically, then, it must be concluded that lawyers, either upon choosing a career, or perhaps upon seeking licensure, have committed a wrong which now entitles the state to deprive them of their associational liberty.

If that is not the nature of the wrong which has been committed, then it is incumbent to specify the act of forfeiture committed by all licensed attorneys which entitles the state to deprive them of their associational liberty. On the other hand, if there is no such universal wrong committed by all lawyers merely upon entering the profession, then affirmation of that view of liberty which animated the common law and our forefathers is warranted.

Accordingly, forced association with the State Bar of Michigan violates the natural right to elect or decline to associate with that organization. Moreover, an attorney’s associational right is not subject to abridgment through compulsory bar association because there is no conduct constituting a forfeiture of that natural right.

III.   A Compelling Interest to Force Association with a Bar Organization Is Absent

    A.   All Compelling Interests of the State Can Be Met Without Forming an Integrated Bar

We do not suggest that the State of Michigan has no compelling interests in licensing and regulating attorneys. What we do suggest is that those interests, upon examination, can all be handled – and in fact are already handled – within the scope of the operations of the Michigan Supreme Court. Whatever justifications may exist for the licensing of attorneys, it is completely unnecessary that all attorneys should also be forced into a professional relationship with each other via a separate State Bar organization.

What is the purpose of an integrated bar? As the U.S. Supreme Court observed in Keller v. State Bar of California, back when California still had an integrated bar, “the compelled association and integrated bar are justified by the State’s interest in regulating the legal profession and improving the quality of legal services.”¹⁰ According to the Court, the “guiding standard” of determining the legitimacy of the state bar’s activities and expenditures “must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of the legal service available to the people of the State.'” (Id., at 14.)

Ah, but what the Court said shortly thereafter is the most telling of all, namely, that “the officials and members of the Bar are acting essentially as professional advisers to those ultimately charged with the regulation of the legal profession.” (Id., at 15.) (Emphasis added.)

How does the purpose of the State Bar of Michigan compare? According to MCL §600.901, the State Bar is a public body corporate, consisting of all licensed lawyers in the state. But it does not actually license or regulate Michigan lawyers. MCL §600.904 provides,

The supreme court has the power to provide for the organization, government, and membership of the state bar of Michigan, and to adopt rules and regulations concerning the conduct and activities of the state bar of Michigan and its members, the schedule of membership dues therein, the discipline, suspension, and disbarment of its members for misconduct, and the investigation and examination of applicants for admission to the bar.

So the Michigan Supreme Court actually regulates the legal profession in the state. The Michigan Rules of Professional Conduct are adopted by the Court. All attorney discipline is handled by the Attorney Grievance Commission and Attorney Discipline Board, which are separate from the State Bar of Michigan and report directly to the Court. The same holds true with the Judicial Tenure Commission. What does the State Bar actually do? It advises the Court. It also advises the legislature on legislative bills. It hunts for violations of the unauthorized practice of law statute. But in fact the State Bar regulates no one, disciplines no one, and prosecutes no one.

Michigan judicial opinions have long recognized there is a compelling state interest in having a State Bar. “The regulation of the practice of law, the maintenance of high standards in the legal profession, and the discharge of the profession’s duty to protect and inform the public are purposes in which the State of Michigan has a compelling interest.”¹¹ Yes, but in making this claim, the Michigan Supreme Court has gone well beyond both applicable statutory language and even what the State Bar claims about itself.

The State Bar describes its own mission on its website at https://www.michbar.org/ as follows:

The State Bar of Michigan shall aid in promoting improvements in the administration of justice and advancements in jurisprudence, in improving relations between the legal profession and the public, and in promoting the interests of the legal profession in this state. (Emphasis added).

There it is again – the role of the State Bar is not to regulate, but to aid and advise, just as the Court in Keller observed. And, heaven help us, to improve relations between the legal profession and the public. In other words, the State Bar is a marketing tool of the state judiciary. So the real issue is not whether the State Bar can compel its members to pay bar dues to express ideas the members do not agree with. It isn’t even the question of whether the Michigan Supreme Court can or ought to have an advisory organization to assist it. The real issue is what possible interest can the State of Michigan have in compelling all licensed lawyers in the state to be members of a non-regulatory and merely advisory organization which primarily functions as a public relations firm?

If the Court wants to have an advisory group, fine. But surely, the Court doesn’t actually desire to be advised by each individual Michigan lawyer. All the Court will ever get is the advice furnished by the leaders and willing contributors to the State Bar. Consequently, the advisory function of the State Bar will be performed exactly the same whether or not all of the non-contributing and unwilling lawyers are members. Compelling lawyers who contribute nothing to the State Bar’s committees, leadership, publications or functions, adds absolutely nothing to the nature or quality of the advice provided by the Bar. So what possible interest does the state have in compelling membership?

The answer can only be – money. Those unwilling and non-contributing lawyers are there to fund the State Bar, and for no other reason. If having a State Bar is such a compelling state interest, then let it be funded out of the public treasury. But this interest is unrelated to any interest in forcible association with the organization. No, the State Bar is integrated for only one reason: to bypass the state budget and provide the leadership of the bar a measure of autonomy. Even this is a private interest, not a public interest, and not a state interest – much less a compelling one as other state voluntary bar organizations attest.

    B.   The State Does Not Force Other Licensed Professionals Into an “Association” With Each Other

In the case of Taylor v Barnes, Appeal No. 20-2002 (6th Cir. Ct. of Appeals, 2020) the Plaintiffs/Appellants argued in their initial Motion and Brief in Support for Summary Judgment:

[I]n Michigan, other professions are not subject to this mandatory requirement. Other professionals, including physicians, are licensed, but are not compelled to join or support a professional organization as a requirement for that license. If the state interest in making sure that physicians are competent does not require that they join and fund a membership organization, then it is not necessary for attorneys. (Footnote omitted.)

This fact suggests that within the State’s licensing scheme of occupations and professions, lawyers are exceptional. The question is, exceptionally what? Exceptionally prone to commit professional misdeeds, in spite of only admitting those persons to the practice of law who have shown “good moral character”? Exceptionally incapable of self-government, in spite of the fact their sole job is to represent the interests of others? Exceptionally qualified to be part of an advisory group because their job is to regularly give advice? Well, we know that isn’t true, because the State Bar doesn’t actually want the advice of those lawyers who don’t want to be members.

What is the reason, exactly, which requires all lawyers to be professionally bound not just to the state itself, but organizationally to every other lawyer in the state?

Many predict the downfall of justice itself if the State Bar were disestablished. Nonsense. The use of force and coercion against Michigan attorneys is not consonant with justice. A diversity of private voluntary bar organizations is a surer guide to advancing justice and protecting the public, than a single mandatory bar organization can ever be. The Supreme Court has power enough to police the practice of law. It does not need or rely upon a system of coercion which suppresses the right to associate freely, or compels financial support, to exercise that regulatory power.

The State Bar pretends to know what is best for justice. Good for it. Now let it persuade others of the merits of its claim. Let it persuade others by volition. Let it persuade others to join in funding it voluntarily to advance its views. But by the same token, do not take from any one the ability to contribute to another organization which persuades them that a better path to justice or to protecting the community exists. Do not take from any one the comfortable liberty to refuse providing financial support, believing that the path to justice is otherwise obtained. The simple truth is this: coercion in funding is not necessary to advance just legislation, ensure the quality of legal services, the protection of the public, or for the provision of advisory services or technical expertise to the legislature or courts.

Accordingly, an attorney’s forced association with the State Bar of Michigan violates the natural right to elect or decline to associate with that organization. Moreover, an attorney’s fundamental associational right is not subject to abridgment through compulsory bar association because there is no legitimate state interest in compelling every lawyer in the state to associate with each other, above and beyond their current regulation by the Michigan Supreme Court.