June 3, 2015
By Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
A tentative settlement has been announced in the case of Arnold Fleck vs. State Bar Association of North Dakota (SBAND). Last fall, shared parenting advocates placed Measure 6 on the ballot in the state. Measure 6 was an initiative that would have established a presumption of equal parenting when parents separate.
As National Parents Organization reported here and here, the State Bar illegally used members’ dues to publicly oppose the measure. That violated United States Supreme Court precedents in multiple cases, most notably, Keller vs. State Bar of California. That line of cases holds that mandatory organizations, such as labor unions and mandatory bar associations are prohibited from using members’ dues to lobby for or against any measure or proposed legislation. Doing so violates the free speech rights of members who disagree with the organization’s position on the bill or measure.
SBAND contributed about $60,000 to an organization that was established only two months before the election and whose sole purpose was to defeat the bill.
Arnold Fleck is an attorney in North Dakota who objected to his dues being used to oppose a measure that he himself supported. With the help of the Goldwater Institute, he filed suit earlier this year against SBAND. Now a settlement of that suit seems imminent. This article describes the proceedings (Dickinson Press, 5/27/15).
The Goldwater Institute sought a preliminary injunction to block the bar from spending member dues on politics, but a hearing on that motion in U.S. District Court in Bismarck was canceled Wednesday after a settlement conference.
Goldwater Institute attorney Jared Blanchard said the bar has agreed to bring a proposal by late August with procedures that will comply with U.S. Supreme Court requirements that protect the right of member attorneys to not have their mandatory dues spent on political speech they disagree with.
If the institute agrees with the new procedures, the lawsuit will be dismissed, he said. If not, the case seeks to make the bar a voluntary association.
“We’re optimistic because the bar has agreed that it does need to change its procedures,” he said.
Bar Associations in many states have lobbied against shared parenting bills. The Nebraska State Bar met a similar fate 18 months ago to the one faced by SBAND now.