The Arizona Supreme Court has been asked by the Goldwater Institute “to protect attorneys’ rights, preserve citizens’ power to vindicate themselves in court, and to bring more transparency to the judicial system” y eliminating the state’s mandatory bar membership requirement.
According to the Goldwater Institute, the state’s mandatory bar membership requirement violates attorneys’ free-speech rights.
Arizona, like 31 other states, forces attorneys to pass the state’s bar exam and join the state bar association in order to practice law, noted the Institute in a press release. While the Institute believes the examination requirement is legitimate, the bar association requirement violates constitutional rights to freedom of speech and association, as well as Arizona’s right to work law which declares that no person may be “denied the opportunity to obtain or retain employment because of non-membership in a labor organization.”
The Goldwater Institute outlined what they are asking the Arizona Supreme Court to do:
Limit penalties that deter public-interest litigation. Rule 68 of the Arizona Rules of Civil Procedure provides that in cases where a defendant offers to settle a lawsuit and the plaintiff fails to respond with written objections, and later doesn’t win as much as he asked for, he must pay twice the “costs” of the plaintiff and expert witness fees. Arizona’s harsh rules dissuade citizens from seeking to vindicate their rights in court. The Institute is asking the court to modify this rule so that it doesn’t apply to public-interest lawsuits that don’t involve money damages.
Bring more transparency to discussions of active cases. The only way for the public to access documents regarding cases that the state Supreme Court has been asked to decide is via a single public computer terminal in the court clerk’s Phoenix office. This makes it difficult for Arizonans to learn about what the court has been asked to rule on, or to offer their own views on these important legal questions. The Institute is asking the court to post these documents on its website, thereby giving the public a greater opportunity to make their voices heard.
The Institute’s petition regarding mandatory bar association membership follows a U.S. Supreme Court ruling last year that states could not force public employees to participate in public-sector unions, because compelling people to subsidize political organizations against their will violates the First Amendment. Similarly, mandatory bar dues often go toward political activities and speech that some attorneys oppose. The petition also asks for an independent audit of the Arizona bar association’s expenditures, so that the bar’s activities are more transparent to its members.
“Bar associations have a disproportionately strong influence in our democracy—and indeed, they’re usually the entities filing such rule petitions, which has served to make the legal process more insular. But as a public-interest organization, we ought to challenge this influence when necessary to ensure the public’s rights are protected,” said Goldwater Institute Vice President for Litigation Timothy Sandefur. “By filing these rule petitions, we’re seeking to make the system more open and more fair for everyone involved.”
The Institute argues that forcing lawyers to join a bar association isn’t necessary. The Goldwater Institute is currently litigating two cases seeking to preserve attorneys’ free-speech rights—one in North Dakota and one in Oregon.