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Fleck v. Wetch

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Fleck v. Wetch
Case number: 19-670
Status: Closed
Important dates
Filed: February 3, 2015
District court decision:
Jan. 28, 2016
Appeals court decision:
Aug. 30, 2019
Supreme Court decision
May 4, 2020
District court outcome
The State Bar Association of North Dakota membership and fee requirements are constitutional.
Appeals court outcome
The Eighth Circuit affirmed the district court's ruling.
Supreme Court outcome
Certiorari denied.

This case is one of over a hundred public-sector union lawsuits Ballotpedia tracked following the U.S. Supreme Court's 2018 decision in Janus v. AFSCME. These pages were updated through February 2023 and may not reflect subsequent case developments. For more information about Ballotpedia's coverage of public-sector union policy in the United States, click here. Contact our team to suggest an update.

Fleck v. Wetch was decided by a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit on August 30, 2019. The appellate panel unanimously affirmed the U.S. District Court for the District of North Dakota's January 2016 decision, which held that State Bar Association of North Dakota (SBAND) membership agreements did not violate the U.S. Constitution. The plaintiff had filed an initial claim that challenged the constitutionality of the State Bar Association of North Dakota membership and fee requirements and requested an injunction against enforcement of those requirements, as well as costs, attorney’s fees, and other expenses. Although initially decided in 2017, before the U.S. Supreme Court's 2018 ruling in Janus v. AFSCME, the case was re-examined in light of that decision, with the district court decision being upheld a second time.[1][2][3][4][5][6]

HIGHLIGHTS
  • The parties to the suit: The plaintiff was Arnold Fleck. The defendants were President of the State Bar Association of North Dakota Joe Wetch, Secretary and Treasurer of the State Bar Association of North Dakota Aubrey Fiebelkorn-Zuger, Executive Director of the State Bar Association of North Dakota Tony Weiler, and Secretary-Treasurer of the State Board of Law Examiners Penny Miller.
  • The issue: In light of Janus v AFSCME, do the State Bar Association of North Dakota membership and fee requirements violate First and Fourteenth Amendment rights and are they therefore unconstitutional?
  • The presiding judges: A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit was convened to consider the case. The panel comprised Judges James Loken, Steven Colloton and Jane Kelly.
  • The outcome: The State Bar Association of North Dakota membership and fee requirements do not violate the U.S. Constitution.

    • Procedural history

    The plaintiff was Arnold Fleck, represented by counsel from the Goldwater Institute and the Center for Constitutional Government. The defendants were President of the State Bar Association of North Dakota Joe Wetch, Secretary and Treasurer of the State Bar Association of North Dakota Aubrey Fiebelkorn-Zuger, Executive Director of the State Bar Association of North Dakota Tony Weiler, and Secretary-Treasurer of the State Board of Law Examiners Penny Miller. Wetch, Fiebelkorn-Zuger, and Weiler were represented by counsel from Smith and Bakke.[1][2][3] Miller was represented by counsel from the office of the North Dakota Attorney General. Below is a brief procedural history of the lawsuit:[1][2][3][4][5][6][7][8]

    • February 3, 2015: The plaintiff first filed the lawsuit on February 3, 2015, in the U.S. District Court for the District of North Dakota. The plaintiff filed an initial claim that challenged the constitutionality of the SBAND membership and fee requirements and requested an injunction against enforcement of those requirements, as well as costs, attorney’s fees, and other expenses. He challenged the above-mentioned requirements on the grounds that they violated his First and Fourteenth Amendment rights and that there were not sufficient safeguards in place to ensure the SBAND did not use collected fees to fund political speech with which members disagree.
    • November 2015: The lawsuit was partially resolved through a settlement in which the SBAND agreed to revise its license fees statement.
    • January 28, 2016: The district court issued an order in favor of the defendants, dismissing the plaintiff’s claim.
    • August 17, 2017: The appellate court upheld the district court decision.
    • December 15, 2017: A petition for a writ of certiorari was filed with the U.S. Supreme Court.
    • December 3, 2018: The petition was granted and the case was remanded to the U.S. Court of Appeals for the Eight Circuit in light of the 2018 decision in Janus v. AFSCME.
    • August 30, 2019: The appellate court upheld the district court decision a second time, ruling in favor of the defendants.
    • November 21, 2019: The plaintiff appealed to the U.S. Supreme Court.
    • May 4, 2020: The Supreme Court denied review of the case.

    For a list of available case documents, click here.


    Decision

    District court decision

    On January 28, 2016, the court issued an order in favor of the defendants, dismissing the plaintiff’s claim.

    Appellate court decision

    On August 30, 2019, Judges James Loken, Steven Colloton and Jane Kelly upheld the district court decision.[5] Judge Loken wrote the following in the court's opinion:[5]

    “

    The Supreme Court has never decided whether a public-sector union shop would violate employees’ First Amendment associational rights. If the Court upheld a mandatory membership requirement, the dues subsidy issue would be analogous to the issue in this case under Keller and Hudson. We have little doubt the Court would impose a requirement that the union adopt procedures “carefully tailored to minimize the infringement” of a dissenting member’s First Amendment rights. Hudson, 475 U.S. at 303. But because of the practical differences when an organization deals with members and nonmembers, we do not assume that the “Hudson notice” requirements would be the same in every detail. Therefore, as Janus did not overrule Keller and did not question use of the Hudson procedures when it is appropriate to do so, we conclude after further consideration that Janus does not alter our prior decision explaining why the district court did not err in granting summary judgment dismissing Fleck’s second claim.[9]

    		”

    The initial 2017 order, decided by the same judges, stated the following:[4]

    “

    Fleck admits the revised license fee Statement adequately discloses a member’s option not to fund non-germane expenditures, the issue resolved by the settlement and dismissal of his first claim. Before submitting an annual license fee payment, each member calculates the amount owing on the revised Statement. If he selects the Keller deduction, he writes a check for the lower amount that excludes payment for SBAND’s non-germane expenditures. If he does not choose the Keller deduction, he “opts-in” to subsidizing non-germane expenses by the affirmative act of writing a check for the greater amount. Thus, the opt-out issue debated but not decided in Knox is irrelevant to whether SBAND’s revised license fee procedures comply with the mandates of Keller and Hudson.

    The judgment of the district court is affirmed.[9]

    		”

    Loken was appointed by President George H.W. Bush (R). Colloton was appointed by President (George W. Bush]] (R). Kelly was appointed by President Barack Obama (D).

    Legal context

    Janus v. AFSCME (2018)

    See also: Janus v. AFSCME

    On June 27, 2018, the Supreme Court of the United States issued a 5-4 decision in Janus v. American Federation of State, County, and Municipal Employees (Janus v. AFSCME), ruling that public-sector unions cannot compel non-member employees to pay fees to cover the costs of non-political union activities.[10]

    This decision overturned precedent established in Abood v. Detroit Board of Education in 1977. In Abood, the high court held that it was not a violation of employees' free-speech and associational rights to require them to pay fees to support union activities from which they benefited (e.g., collective bargaining, contract administration, etc.). These fees were commonly referred to as agency fees or fair-share fees.[10]

    Justice Samuel Alito authored the opinion for the court majority in Janus, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch. Alito wrote, "Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled."[10]

    Related litigation

    To view a complete list of the public-sector labor lawsuits Ballotpedia tracked between 2019 and 2023, click here.

    Number of federal lawsuits by circuit

    Between 2019 and 2023, Ballotpedia tracked 191 federal lawsuits related to public-sector labor laws. The chart below depicts the number of suits per federal judicial circuit (i.e., the jurisdictions in which the suits originated).

    Public-sector labor lawsuits on Ballotpedia

    See also: Public-sector union policy in the United States, 2018-2023

    Click show to view a list of cases with links to our in-depth coverage.

    v • e
    Public-sector labor lawsuits
    Federal lawsuits

    Adams v. Teamsters Union Local 429 • Akers v. Maryland State Education Association • Aliser v. SEIU California • Allen v. Ohio Civil Service Employees Association • Allen v. Santa Clara County Correctional • Anderson v. SEIU Local 503 • Babb v. California Teachers Association • Baisley v. International Association of Machinists and Aerospace Workers • Belgau v. Inslee • Bennett v. AFSCME • Bermudez v. SEIU Local 521 • Bierman v. Dayton • Boudreaux v. Louisiana State Bar • Boyle v. SEIU California • Brice v. California Faculty Association • California v. Azar • Campos v. Fresno Deputy Sheriff’s Association • Carey v. Inslee • Casanova v. IAM Local 701 • Chandavong et al. v. Fresno Deputy Sheriff's Association et al. • Cook v. Brown • Cooley v. California Statewide Law Enforcement Association • Crowe v. Oregon State Bar • Cruz v. Union Independiente Autentica de Empleados de la Autoridad de Acueductos y Alcantarillados • Danielson v. Inslee • Diamond v. Pennsylvania State Education Association • Doughty v. State Employees Association of New Hampshire, SEIU, Local 1984 • Durst v. OEA • Few v. United Teachers Los Angeles • File v. Hickey • Fischer v. Murphy • Fisk v. Inslee • Fizer v. Ohio Association of Public School Employees • Fleck v. Wetch • Grega v. Council of New Jersey State College Locals • Grossman v. Hawaii Government Employees Association • Gruber v. Oregon State Bar • Guppy v. City of Los Angeles • Halloran v. AFSCME Council 5 • Hamidi v. SEIU • Hannay v. Kent State • Hartnett v. Penn. State Education Association • Hendrickson v. AFSCME Council 18 • Hernandez v. AFSCME California • Hoekman v. Education Minnesota • Hough v. SEIU Local 521 • Imhoff v. California Teachers Association • Jackson v. Napolitano • James v. SEIU Local 688 • Janus v. AFSCME • Jarchow v. Wisconsin • Kabler v. United Food and Commercial Workers Union, Local 1776 Keystone State • Wenzig v. SEIU Local 668 • Kopie v. International Federation of Professional and Technical Employees • Kurk v. Los Rios Classified Employees Association • Lamberty et al. v. Connecticut State Police Union et al. • LaSpina v. SEIU Pennsylvania State Council • Lee v. Ohio Education Association • Leitch v. AFSCME • Littler v. Ohio Association of Public School Employees • Loescher v. Teamsters Local 320 • Lutter v. JNESO • Mandel v. SEIU Local 73 • Marsh v. AFSCME Local 3299 • Martin v. California Teachers Association • Masuo v. AFSCME AFL-CIO • Matthews v. United Teachers of Los Angeles • Mattos v. AFSCME Council 3 • Mayer v. Wallingford-Swathmore School District • McCain v. Ventura County Federation of College Teachers, AFT Local 1828 • McCollum v. NEA-Alaska • McCutcheon v. CWA Local 7076 • McDonald v. Firth • Mendez v. CTA • Miller v. Inslee • Misja v. PSEA • Molina v. SEIU Local 668 • Mooney v. Illinois Education Association • Nearman v. SEIU Local 503 • Neely v. AFSCME Council 13 • Nguyen v. Admin. and Residual Employees Union • Nichols v. Home Care Providers Union • O'Callaghan v. Drake • Ochoa v. Public Consulting Group • Ocol v. Chicago Teachers Union • Ogle v. Ohio Civil Service Employees Association, AFSCME, Local 11 • Oliver v. SEIU Local 668 • Pellegrino v. New York State United Teachers • Penning v. SEIU Local 1021 • Polk v. Yee • Popp v. ALPAI • Piekarski v. AFSCME Council 5 • Quirarte v. UDW AFSCME Local 3930 • Reisman v. Associated Faculties of the University of Maine • Rizzo-Rupon v. International Association of Machinists and Aerospace Workers, District Lodge 141 • Routh v. Inslee • Schaszberger v. AFSCME Council 13 • Schell v. Oklahoma Supreme Court Justices • Schumaker v. Inslee • Seager v. UTLA • Seidemann v. Professional Staff Congress • Smith v. AFSCME Council No. 8 • Smith v. New Jersey Education Association • Smith v. Bieker • Solomon v. AFSCME District Council 37 • Stroeder v. Service Employees International Union, Local 503 • Sweeney v. Raoul • Sweet v. California Association of Psychiatric Technicians • Taylor v. Heath • Thompson v. AFSCME Council 89, Local 4013 • Thompson v. Marietta Education Association • Thulen v. AFSCME • Uradnik v. Inter Faculty Org. • Utke v. University of Connecticut American Association of University Professors • Weyandt v. PSCOA • Wholean v. CSEA SEIU Local 2001 • Wilford v. National Education Association • Williams v. PSEA • Wolf v. University Professional & Technical Employees • Yates v. Hillsboro Unified School District • Yohn v. California Teachers Association

    See also

    External links

    Case documents

    Supreme Court

    Appeals court

    Trial court

    Footnotes

    1. ↑ 1.0 1.1 1.2 PacerMonitor, “Fleck v. McDonald et al,” accessed June 4, 2020
    2. ↑ 2.0 2.1 2.2 PacerMonitor, “Fleck v. McDonald et al,” accessed June 4, 2020
    3. ↑ 3.0 3.1 3.2 Goldwater Institute, “Fleck v. McDonald et al: Civil Rights Complaint for Declaratory and Injunctive Relief,” February 3, 2015
    4. ↑ 4.0 4.1 4.2 PacerMonitor, “Fleck v. McDonald et al: Opinion,” August 17, 2017
    5. ↑ 5.0 5.1 5.2 5.3 PacerMonitor, “Fleck v. McDonald et al: Opinion,” August 30, 2019
    6. ↑ 6.0 6.1 Supreme Court of the United States, “Arnold Fleck, Petitioner v. Joe Wetch, et al.,” accessed June 15, 2020
    7. ↑ Supreme Court of the United States, "Petition for a writ of certiorari," November 21, 2019
    8. ↑ Supreme Court of the United States, "Order list: 590 U.S.," May 4, 2020
    9. ↑ 9.0 9.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    10. ↑ 10.0 10.1 10.2 Supreme Court of the United States, Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., June 27, 2018
    v • e
    Public-sector union policy in the United States
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