Bill Text: AZ HCM2002 | 2016 | Fifty-second Legislature 2nd Regular | Engrossed

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Bill Title: State bar; rules; first amendment

Spectrum: Partisan Bill (Republican 6-0)

Status: (Engrossed - Dead) 2016-05-07 - Senate third reading FAILED voting: (13-15-2-0) [HCM2002 Detail]

Download: Arizona-2016-HCM2002-Engrossed.html

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House Engrossed

 

 

 

State of Arizona

House of Representatives

Fifty-second Legislature

Second Regular Session

2016

 

 

HOUSE CONCURRENT MEMORIAL 2002

 

 

 

A CONCURRENT MEMORIAL

 

urging the Arizona Supreme Court to modify its rules related to the State Bar of Arizona to ensure the protection of First Amendment freedoms.

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 

To the Arizona Supreme Court:

Your memorialist respectfully represents:

Whereas, the United States Supreme Court has long recognized that the First Amendment protects the right not to be associated with certain beliefs. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Wooley v. Maynard, 430 U.S. 705 (1977); and

Whereas, in Keller v. State Bar of California, 496 U.S. 1 (1990), the United States Supreme Court upheld a claim by California mandatory bar members that the use of compulsory dues to finance political and ideological activities with which the members disagree violates the members' First Amendment rights. The Court further found that compulsory dues could not be used for activities that are not germane to the purpose for which compelled association was justified. In the case of the mandatory bar, the Court found compelled association justified only by the state's interest in regulating the legal profession and improving the quality of legal services. Furthermore, only if challenged expenditures were "necessarily or reasonably incurred" for those limited purposes could they be funded with compulsory dues; and

Whereas, the Court in Keller also saw "a substantial analogy between the relationship of the State Bar and its members . . . and the relationship of employee unions and their members"; and

Whereas, "[c]ompulsory subsidies for private speech are . . . subject to exacting First Amendment scrutiny and [are rarely] sustained . . . ." Knox v. Serv. Employees Int'l Union, Local 1000, 132 S. Ct. 2277, 2282 (2012); see also Harris v. Quinn, 134 S. Ct. 2618, 2639 (2014).  In Knox, the Supreme Court also said that "in the rare case where a mandatory association can be justified, compulsory fees can be levied only insofar as they are a "necessary incident" of the "larger regulatory purpose which justified the required association"; and

Whereas, any time a mandatory bar association exercises political influence, takes policy positions or otherwise acts as a trade association, it puts the First Amendment freedoms of its members at risk and creates the potential for future litigation; and

Whereas, mandatory bar associations continue to violate Keller by using members' dues to engage in political or ideological activities that are not reasonably related to the regulation of the legal profession or improving the quality of legal services, thereby forcing their members to subsidize those activities whether or not they agree with them; and

Whereas, despite Keller's narrow boundaries of regulating the legal profession and improving the quality of legal services, the State Bar of Arizona has adopted Article XIII of its bylaws to set its own criteria of political or ideological permissibility.  Thereby, it has unilaterally deemed itself "Keller-pure" to consequently fund political speech, including lobbying and electioneering, and ideological activities with compulsory member dues so long as it alone says the expenditures are "reasonably related" to, among others, "matters relating to the improvement of the functioning of the justice system" or to "increasing the availability of legal services to the public" or "any other activity authorized by law"; and

Whereas, the State Bar of Arizona admittedly spends its members' dues on political speech, including lobbying and electioneering; and

Whereas, the State Bar of Arizona recently lobbied against a recent legislative measure to replace Arizona's integrated bar association with a regulatory-only bar run by the Arizona Supreme Court; and

Whereas, the State Bar of Arizona maintains a web page supporting Arizona's judicial merit selection system and has taken a variety of controversial public positions regarding merit selection; and

Whereas, the State Bar of Arizona takes other political positions with which some of its members may disagree and uses the mandatory fees of these members to do so; and

Whereas, the process to determine how the State Bar of Arizona spends member dues in reference to political activity lacks transparency; and

Whereas, to the extent provided by the Constitution of Arizona, all regulatory functions relating to the practice of law, including the regulation of attorneys in this state, are within the authority of the Arizona Supreme Court.

Wherefore your memorialist, the House of Representatives of the State of Arizona, the Senate concurring, prays:

1.  That the Arizona Supreme Court modify its rules related to the State Bar of Arizona to ensure compliance with Keller and the protection of the First Amendment freedoms of Arizona attorneys.

2.  That the Arizona Supreme Court establish improved transparency measures with respect to the practices and policies of the State Bar of Arizona in spending member dues.

3.  That the Secretary of State transmit copies of this Memorial to each justice of the Arizona Supreme Court.