United States District Court, W.D. Wisconsin
ADAM JARCHOW AND MICHAEL D. DEAN, Plaintiff,
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.
OPINION AND ORDER
BARBARA B. CRABB, DISTRICT JUDGE.
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.
have moved to dismiss plaintiffs' complaint on various
grounds, including 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.
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).
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
I am dismissing plaintiffs' claims as barred by
Keller, I do not need to resolve the other arguments
for dismissal raised by defendants.
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. #15, is ...