1. _U.S. ___, 201 L. Ed. 2d 924, 138 S. Ct. 2448 (2018).
2. Janus, 138 S. Ct. at 2463.
3. Id. at 2464.
4. Maxine Bernstein, Two Oregon lawyers sue state
bar over mandatory dues in wake of Janus ruling, The Oregonian, Aug. 30, 2018, https://www.
6. Gruber v. Or. State Bar, No. 3:18-cv-01591-
MO (D. Or.).
7. RCW 2. 48.021, .130.
8. RCW 2. 48.170.
9. Keller v. State Bar of California., 496 U.S. 1,
110 L. Ed. 2d 1, 110 S. Ct. 2228 (1990).
10. Janus, 138 S. Ct. at 2487 (Kagan, J., dissenting).
DANIEL A. HIMEBAUGH is
a member of the NWLawyer
Editorial Advisory Committee and
serves as senior staff counsel
to the Washington State Senate
Republican Caucus. He can be
reached at firstname.lastname@example.org. The
views and opinions expressed in this article belong
solely to the author and do not necessarily reflect
the views or opinions of any member, officer, or
employee of the Washington State Senate.
The WSBA provides many valuable services to its members; it also
engages in some activities that could
be characterized as speech on matters
of public concern. To be sure, those
services and activities may be customary, desirable, or longstanding, but the
question after Janus is whether they
are compatible with a mandatory membership system.
WHAT ABOUT THE KELLER
The WSBA is no stranger to constitution-
al questions about compelled speech.
Indeed, since 1990 the WSBA has been
required to offer a Keller deduction—
named for the U.S. Supreme Court case
of Keller v. State Bar of California—to
members who object to a portion of their
license fee being used for political or
ideological activities. 9
But Janus is a different case that
raises fresh questions. The Keller deduction rests on the premise that a bar
association can distinguish between
activities for which compulsory fees
may be used and activities for which
such fees may not be used. The Janus
Court, on the other hand, rejected the
union’s division of fees into chargeable and nonchargeable expenses as
unworkable and insufficiently protective of nonmembers’ First Amendment
rights. And the dissenting justices in
Janus questioned whether the Court’s
decision to overrule agency fee prec-
edent would undermine other cases
“involving compelled speech subsidies
outside the labor sphere,” such as Keller. 10
Janus is a landmark Supreme Court
opinion that will probably influence
the development of First Amend-
ment jurisprudence for years to come.
Whether it covers mandatory membership laws for bar associations, as asserted in the ongoing Gruber litigation
in Oregon, is an important question for
the WSBA and its members.
Editor’s note: As this issue was going
to press, the U.S. Supreme Court grant-
ed certiorari and vacated the judgment
in Fleck v. Wetch, 868 F.2d 652 (8th Cir.
2017)(a bar membership case origi-
nating in North Dakota), remanding
the case to the 8th Circuit for further
consideration in light of Janus.
FORCING FREE AND INDEPENDENT
INDIVIDUALS TO ENDORSE IDEAS THEY
FIND OBJECTIONABLE IS ALWAYS
DEMEANING,” THE JANUS COURT SAID,
BECAUSE IT “[COERCES THEM] INTO
BETRAYING THEIR CONVICTIONS.”
Bar Membership After Janus