ND Bar Association Using Mandatory Lawyer Fees To Fight Shared Parenting

Measure 6 on the November ballot is the shared parenting measure which seeks to create a presumption of equal custody in divorce cases. Proponents say the status quo is biased against fathers. Opponents say the law will only confuse an already confusing area of the law and create more litigation.

But beyond the debate over the measure itself is another: Is it ok for the State Bar Association of North Dakota to spend the mandatory dues payments made to them by lawyers on this sort of political activity?

I wrote about it at Watchdog today. Bar association executive director Tony Weiler says what they’re doing is kosher, because they’re a private organization. But they’re not, really. State law requires a yearly payment to the bar association from attorneys wishing to practice in ND, and it is out of these funds that the political spending is coming:

Opposition to the measure is being funded exclusively by the State Bar Association of North Dakota. According to disclosure reports filed with the North Dakota Secretary of State’s office, the Keeping Kids First committee has received $60,000 in contributions from the association. Executive director Tony Weiler says that figure doesn’t include another $10,000 his organization contributed that hasn’t been disclosed yet.

So far, the North Dakota Shared Parenting Initiative committee that supports Measure 6 has reported $6,825 in contributions, all from individuals.

Measure 6 proponents say using dues required by state law to fund political activities isn’t right.

“It is illegal what they are doing,” Mitchell Sanderson, spokesman for the North Dakota Shared Parenting Initiative, told Watchdog. “No doubt about it. They’re a mandatory association so they cannot use any funds to lobby against a measure like this.”

Weiler disagrees.

“We are a private association of attorneys,” he said. “We do work in conjunction with the state on discipline and licensing.” …

Weiler admitted North Dakota law requires attorneys operating in the state to pay a $380 per-year licensing fee to the bar association, and that the funds spent on opposing Measure 6 are drawn from those dues.

Weiler says that the governing board of the bar association has determined that Measure 6 is not political but rather social policy, but that’s hard to square with how state law defines politics:

But Weiler also said the bar association’s governing board has determined this ballot measure isn’t a political issue. “This is a social policy issue rather than a political issue,” he said.

The North Dakota Century Code doesn’t make that distinction, however. Under Chapter 16.1 of the code, a “corrupt practice” is defined as the use of public resources for a”political purpose,” which includes “any activity undertaken in support of or in opposition to a statewide initiated or referred measure.”

Weiler also argued that the courts have found that this sort of spending from so-called “unified” bar associations (private entities that also fulfill the government function of regulating the legal industry) is legal as long as the political activities in question relate to the regulation of the practice of law. Weiler also said that case law pertaining to the political spending of union dues applies here.

The courts say that sort of spending is kosher if the union (or in this case the bar association) is willing to refund dues payments to those members who disagree:

A second Supreme Court ruling, Abood vs. Detroit Board of Education, found that labor unions could spend dues money on political activities, but only dues from members who agree with the activities.

Weiler said that in light of Abood, any attorney in North Dakota who objects to the bar association’s spending against Measure 6 can get a refund of their dues prorated for the amount of money the bar association has spent on opposing Measure 6.

But a former attorney who sits on the board of directors of the National Parents Organization says the ND bar association has it wrong, and that their political activities could land them in hot water like their counterparts in Nebraska:

Robert Franklin, a former attorney and executive editor of the Houston Law Review, is now a board member for the National Parents Organization, which promotes shared parenting laws. He argued the bar association isn’t using their funds legally and litigation may be forthcoming. He said the Nebraska Supreme Court recently reigned in the political activities of that state’s bar association.

In September 2014, the Nebraska State Bar Association settled a lawsuit filed by a state lawmaker who claimed his dues were being illegally used for political activities. According to the Associated Press, mandatory membership dues in that state dropped from over $300 per year to under $100 after the courts restricted the use of those funds to “only those activities needed to regulate the legal profession, such as maintaining records, mandating continuing education for lawyers, and enforcing the ethical rules of attorneys.”

“My belief is that the North Dakota association will shortly learn that lesson as well,” Franklin told Watchdog.

Read the whole article at Watchdog.

I don’t have a problem with the lawyers opposing Measure 6. It’s a free country, they have a point of view, and they can and should share it.

But I think it is problematic when you start using dues payments mandated by law for political purposes. Arguing that opposing Measure 6 isn’t really “politics” doesn’t quite cut the mustard (politics is the means by which we development and establish all public policy), nor does the idea that they’ll rebate dues payments to those lawyers who dislike this political activity.

I think we need to separate regulation of the legal industry from from political activism by lawyers. If the lawyers want to fight Measure 6, let them form a separate entity, donate money specifically for political purposes, and have at it.

Speech should be free. Speech should also be voluntary. I’m not sure using mandatory fees for poltiical purposes, even if you can get a rebate if you disagree, meets that standard.