# Lathrop v. Donohue/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Whittaker
* Dissenting Opinions Black Douglas
United States Supreme Court
367 U.S. 820
Lathrop v. Donohue
Argued: Jan. 18, 1961. --- Decided: June 19, 1961
Mr. Justice BLACK, dissenting.
I do not believe that either the bench, the bar or the litigants will know what has been decided in this case-certainly I do not. Two members of the Court, saying that 'the Constitutional issue is inescapably before us,' vote to affirm the holding of the Wisconsin Supreme Court that a State can, without violating the Federal Constitution, compel lawyers over their protest to pay dues to be used in part for the support of legislation and causes they detest. Another member, apparently agreeing that the constitutional question is properly here, votes to affirm the holding of the Wisconsin Supreme Court because he believes that a State may constitutionally require a lawyer to pay a fee to its 'designee' as a condition to granting him the 'special privilege' of practicing law, even though that 'designee,' over the lawyer's protest, uses part of the fee to support causes the lawyer detests. Two other members of the Court vote to reverse the judgment of the Wisconsin court on the ground that the constitutional question is properly here and the powers conferred on the Wisconsin State Bar by the laws of that State violate the First and Fourteenth Amendments. Finally, four members of the Court vote to affirm on the ground that the constitutional question is actually not here for decision at all. Thus the only proposition in this case for which there is a majority is that the constitutional question is properly here, and the five members of the Court who make up that majority express their views on this constitutional question. Yet a minority of four refuses to pass on the question and it is therefore left completely up in the air-the Court decides nothing. If ever there were two cases that should be set over for reargument in order for the Court to decide-or at least to make an orderly attempt to decide-the basic constitutional question involved in both of them, it is this case and the companion case of International Association of Machinists v. Street. In this state of affairs, I find it nc essary to set out my views on the questions which I think are properly presented and argued by the parties.
In my judgment, this Court cannot properly avoid decision of the single, sharply defined constitutional issue which this case presents. The appellant filed a complaint in a Wisconsin Circuit Court, charging that he is being compelled by the State of Wisconsin, as a prerequisite to maintaining his status as a lawyer in good standing, to be a member of an association known as the State Bar of Wisconsin and to pay dues to that association; that he has paid these dues only under protest; that the State Bar of Wisconsin is using his money along with the moneys it has collected from other Wisconsin lawyers to engage in activities of a political and propagandistic nature in favor of objectives to which he is opposed and against objectives which he favors; and that, as a consequence of this compelled financial support of political views to which he is personally antagonistic, he is being deprived of rights guaranteed to him by the First and Fourteenth Amendments of the Federal Constitution. Upon demurrer to this complaint, the Circuit Court held that it must be dismissed without leave to amend because, in the opinion of that court, 'it would be impossible to frame a complaint so as to state facts sufficient to constitute a cause of action against either the State Bar of Wisconsin or the defendant Donohue.'
On appeal, the Supreme Court of Wisconsin, relying upon its powers of judicial notice, found as a fact that the State Bar does expend some of the moneys it collects as dues to further and oppose legislation and that court also accepted, at its full face value, the allegation of the complaint that many of these expenditures furthered views directly contrary to those held by the appellant. The Wisconsin Supreme Court nevertheless affirmed the judgment of the trial court on the ground that the public interest in having 'public expression of the views of a majority of the lawyers of the state, with respect to legislation affecting the administration of justice and the practice of law * * * far outweighs the slight inconvenience to,' and hence any abridgment of the constitutional rights of, those who disagree with the views advocated by the State Bar.
The plurality decision to affirm the judgment of the Wisconsin courts on the ground that the issue in the case is not 'shaped * * * as leanly and as sharply as judicial judgment upon an exercise of * * * (state) power requires' is, in my judgment, wrong on at least two grounds. First of all, it completely denies the appellant an opportunity to amend his complaint so as to 'shape' the issue in a manner that would be acceptable to this Court. Appellant's complaint was dismissed by the Wisconsin courts, without giving him a chance to amend it and before he had an opportunity to bring out the facts in the case, solely because those courts believed that it would be impossible for him to allege any facts sufficient to entitle him to relief. The plurality now suggests, by implication, that the Wisconsin courts were wrong on this point and that appellant could possibly make out a case under his complaint. Why then is the case not remanded to the Wisconsin courts in order that the appellant will have at least one opportunity to meet this Court's fastidious pleading demands? The opinions of the Wisconsin courts in this case indicate that the laws of that State-as do the laws in most civilized jurisdictions permit amendments and clarifications of complaints where defects exist in the original complaint which can be cured. And even if Wisconsin law were to the contrary, it is settled by the decisions of this Court that a federal right cannot be defeated merely on the ground that the original complaint contained a curable defect. On this point, the judgment of the Court affirming the dismissal of appellant's suit, insofar as that judgment rests upon the plurality opinion, seems to me to be totally without justification, either in reason, in precedent or in justice.
My second ground of disagreement with the plurality opinion is that I think we should consider and decide now the constitutional issue raised in this case. No one has suggested that this is a contrived or hypothetical lawsuit. Indeed, we have it on no less authority than that of the Supreme Court of Wisconsin that the Wisconsin State Bar does in fact use money extracted from this appellant under color of law to engage in activities intended to influence legislation. The appellant has alleged, in a complaint sworn to under oath, that many of these activities are in opposition to the adoption of legislation which he favors. In such a situation, it seems to me to be nothing more than the emptiest formalism to suggest that the case cannot be decided because the appellant failed to alleged, as precisely as four members of this Court think he should, what it is that the Bar does with which he disagrees. And it certainly seems unjust for the appellant to be thrown out of court completely without being given a chance to amend his complaint and for a judgment against him to be affirmed without consideration of the merits of his cause even though that judgment may later be held to constitute a complete bar to assertion of his First Amendment rights. Even if the complaint in this case had been drawn in rigid conformity to the meticulous requirementso f the plurality, we would be presented with nothing but the very same question now before us: Can a State, consistently with the First and Fourteenth Amendments, force a person to support financially the activities of an organization in support of view to which he is opposed? Thus, the best, if not the only, reason I can think of for not resolving that question now is that a decision on the constitutional question in this case would make it impossible for the Court to rely upon the doctrine of avoidance with respect to that same constitutional question to justify its strained interpretation of the Railway Labor Act in the Street case.
On the merits, the question posed in this case is, in my judgment, identical to that posed to but avoided by the Court in the Street case. Thus, the same reasons that led me to conclude that it violates the First Amendment for a union to use dues compelled under a union-shop agreement to advocate views contrary to those advocated by the workers paying the dues under protest lead me to the conclusion that an integrated bar cannot take the money of protesting lawyers and use it to support causes they are against. What I have said in the Street case would be enough for me to dispose of the issues in this case were it not for the contention which has been urged by the appellee throughout this case that there are distinguishing features that would justify the affirmance of this case even if the statute in the Street case were struck down as unconstitutional.
The appellee's contention in this respect rests upon two different arguments. The first of these is that the use of compelled dues by an integrated bar to further legislative ends contrary to the wishes of some of its members can be upheld under the so-called 'balancing test,' which permits abridgment of First Amendment rights so long as that abridgment furthers some legitimate purpose of the State. Under this theory, the appellee contends, abridgments of speech 'incidental' to an integrated bar must be upheld because the integrated bar performs many valuable services for the public. As pointed out above, the Wisconsin Supreme Court embraced this theory in express terms. And the concurring opinion of Mr. Justice HARLAN, though not purporting to distinguish the Street case, also adopts the case-by-case 'balancing' approach under which such a distinction as, indeed, any desired distinction is possible.
The 'balancing' argument here is identical to that which has recently produced a long line of liberty-stifling decisions in the name of 'self-preservation.' The interest of the State in having 'public expression of the views of a majority of the lawyers' by compelling dissenters to pay money against their will to advocate views they detest is magnified to the point where it assumes overpowering proportions and appears to become almost as necessary a part of the fabric of our society as the need for 'self-preservation.' On the other side of the 'scales,' the interest of lawyers in being free from such state compulsion is first fragmentized into abstract, imaginary parts, then minimized part by part almost to the point of extinction, and finally characterizd as being of a purely 'chimerical nature.' As is too often the case, when the cherished freedoms of the First Amendment emerge from this process, they are too weightless to have any substantial effect upon the constitutional scales and must therefore be sacrificed in order not to disturb what are conceived to be the more important interests of society.
I cannot agree that a contention arising from the abridgment of First Amendment freedoms which results from compelled support of detested views can properly be characterized as of a 'chimerical nature' or, in the words of the Wisconsin Supreme Court, as involving nothing more than a 'slight inconvenience.' Quite the contrary, I can think of few plainer, more direct abridgments of the freedoms of the First Amendment than to compel persons to support candidates, parties, ideologies or causes that they are against. And, as stated many times before, I do not subscribe to the theory that abridgments of First Amendment freedoms can ever be permitted on a 'balancing' basis. I reiterate my belief that the unequivocal language of the First Amendment was intended to mean and does mean that the Framers of the Bill of Rights did all of the 'balancing' that was to be done in this area. It is my firm belief that, in the long run, the continued existence of liberty in this country depends upon the abandonment of the constitutional doctrine that permits this Court to reweigh the values weighed by the Framers and thus to weaken the protections of the Bill of Rights. This case reaffirms that belief for it shows that the balancing test cannot be and will not be contained to apply only to those 'hard' cases which at least some members of this Court have regarded as involving the question of the power of this country to preserve itself. For I assume that no one would argue that the power at stake here is necessary to that end.
Moreover, if I felt that I had the power to reweigh the 'competing' values involved, I would have no difficulty reaching the conclusion that the loss inflicted upon our free way of life by invasion of First Amendment freedoms brought about by the powers conferred upon the Wisconsin integrated bar far outweighs any state interest served by the exercise of those powers by that association. At stake here is the interest of the individual lawyers of Wisconsin in having full freedom to think their own thoughts, speak their own minds, support their own causes and wholeheartedly fight whatever they are against, as well as the interest of the people of Wisconsin and, to a lesser extent, the people of the entire country in maintaining the political independence of Wisconsi lawyers. How is it possible that such formidable interests so vital to our free way of life can be said to be outweighed by any interest-much less the wholly imaginary interest urged here by the State which would have us believe that it will never know what its lawyers think about certain political questions if it cannot compel them to pay their money to support views they abhor? Certainly, I feel entirely confident in saying that the Framers of the First Amendment would never have struck the balance against freedom on the basis of such a demonstrably specious expediency.
In saying all this, I do not mean to suggest that the Wisconsin State Bar does not provide many useful and entirely lawful services. Quite the contrary, the record indicates that this integrated bar association, like other bar associations both integrated and voluntary, does provide such services. But I think it clear that these aspects of the Wisconsin State Bar are quite beside the point so far as this case is concerned. For a State can certainly insure that the members of its bar will provide any useful and proper services it desires without creating an association with power to compel members of the bar to pay money to support views to which they are opposed or to fight views they favor. Thus, the power of a bar association to advocate legislation at the expense of those who oppose such legislation is wholly separable from any legitimate function of an involuntary bar association and, therefore, even for those who subscribe to the balancing test, there is nothing to balance against this invasion of constitutionally protected rights.
The second ground upon which the appellee would have us distinguish compelled support of hated views as practiced by an integrated bar from compelled support of such views as practiced by the unions involved in the Street case is that lawyers are somehow different from other people. This argument, though phrased in various ways, amounts to nothing more than the contention that the practice of law is a high office in our society which is conferred by the State as a privilege and that the State can, in return for this privilege, impose obligations upon lawyers that it could not impose upon those not given 'so high a privilege.' Were it not for this Court's recent decision in Cohen v. Hurley, I would regard this contention as utterly frivolous. But, it is true that the Court did hold in the Cohen case that lawyers could be treated differently from other people, at least insofar as a constitutional privilege against self-incrimination is concerned. As I pointed out in my dissenting opinion in that case, it is a short step from that position to the position now urged in the concurring opinion of Mr. Justice WHITTAKER-that lawyers must also give up their constitutional rights under the First Amendment in return for the 'privilege' that the State has conferred upon them.
I do not believe that the practice of law is a 'privilege' which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government. What I said in the Cohen case is, in my judgment, equally applicable here:
'* * * (O)ne of the great purposes underlying the grant of those freedoms was to give independence to those who must discharge important public responsibilities. The legal profession, with responsibilities as great as those placed upon any group in our society, must have that independence. If it is denied them, they are likely to become nothing more than parrots of the views of whatever group weilds governmental power at the moment. Wherever that has happened in the world, the lawyer, as properly so called and respected, has ceased to perform the highest duty of his calling and has lost the affection and even the respect of the people.'
As I see it, the single, sharply defined constitutional issue presented in this case does not raise a difficult problem. This appellant is not denying the power of the State of Wisconsin to provide that its bar shall engage in non-political and non-controversial activities or even the power of the State to provide that all lawyers shall pay a fee to support such activities. What he does argue, and properly I think, is that the State cannot compel him to pay his money to further the views of a majority or any other controlling percentage of the Wisconsin State Bar when that controlling group is trying to pass laws or advance political causes that he is against. If the 'privilege' of being a lawyer renders that argument unsound, it is certainly one of the more burdensome privileges Government can confer upon one of its citizens. And lawyers might be well advised to reconsider the wisdom of encouraging the use of a slogan which, though high-sounding and noble in its outward appearance, apparently imposes heavy burdens upon their First Amendment freedoms.
I would reverse this case and direct the Supreme Court of Wisconsin to require refund of the dues exacted under protest from the appellant in order to permit the Wisconsin State Bar to advocate measures he is against and to oppose measures he favors. I think it plain that lawyers have at least as much protection from such compulsion under the Constitution as the Court is holding railroad workers have under the Railway Labor Act.

## Notes

* ↑ 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141.
* ↑ The Circuit Court also found jurisdictional difficulties with appellant's complaint but it expressly declined to rest its decision upon the jurisdictional defects alone.
* ↑ 'This court takes judicial notice of the activities of the State Bar in the legislative field since its creation by this court in 1956. In every instance the legislative measures advocated or opposed have dealt with the administration of justice, court reform, and legal practice.' Lathrop v. Donohue, 10 Wis.2d 230, 239, 102 N.W.2d 404, 409. The scope of this finding is shown by the court's further statement in answer to appellant's contention that the State Bar also took positions on strictly substantive legislation: 'We do not deem that the State Bar should be compelled to refrain from taking a stand on a measure which does substantially deal with legal practice and the administration of justice merely because it also makes some changes in substantive law.' Ibid.
* ↑ Thus, the Wisconsin court correctly stated the issue in this case: 'The only challenged interference with his liberty is the exaction of annual dues to the State Bar * * * part of which is used to advocate causes to which he is opposed.' Id., 10 Wis.2d 230, 242, 102 N.W.2d 404, 411.
* ↑ Ibid. The Wisconsin Supreme Court agreed with the Circuit Court that there were jurisdictional difficulties with the suit as it was brought. But the Supreme Court, like the Circuit Court, did not rest its decision on these jurisdictional grounds. Even though it agreed that the Circuit Court did not properly have jurisdiction, it expressly affirmed the judgment of the Circuit Court which, as pointed out b ove, dismissed the complaint without leave to amend on the ground that no amendment would cure the defects in the merits of appellant's case.
* ↑ See, e.g., Brown v. Western R. of Alabama, 338 U.S. 294, especially at page 296, 70 S.Ct. 105, at page 106, 94 L.Ed. 100.
* ↑ The authorities relied upon by the plurality opinion certainly do not support its position. The concurring opinion in United States v. C.I.O., 335 U.S. 106, 124-129, 68 S.Ct. 1349. 1358-1360, 92 L.Ed. 1849, does not suggest that a litigant who fails properly to 'shape' constitutional issues should be thrown out of court completely for his failure. And the decision of the Court in United States v. International Union, U.A.W.-C.I.O., 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 763, plainly cannot be taken to justify such a disposition since that case was remanded for further proceedings.
* ↑ As I have indicated in my dissenting opinion in that case, I also think the Court went to extravagant lengths to avoid the constitutional issue in that case. Ante, 367 U.S. at pages 784 786, 81 S.Ct. at pages 1807-1808. And I think it clear that the Court would have no choice but to meet and decide the constitutional issue in Street if a decision on that issue were made in this case. See id., 367 U.S. at page 785, 81 S.Ct. at page 1808.
* ↑ A complete statement of the arguments underlying the 'balancing test' is set out in American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, in which this Court held that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment are outweighed by the power of Congress to regulate interstate commerce.
* ↑ See, e.g., Dennis v. United States, 341 U.S. 494, 509 511, 71 S.Ct. 857, 867-868, 95 L.Ed. 1137; Barenblatt v. United States, 360 U.S. 109, 127-128, 79 S.Ct. 1081, 1093, 3 L.Ed.2d 1115; Wilkinson v. United States, 365 U.S. 399, 411, 81 S.Ct. 567, 574, 5 L.Ed.2d 633.
* ↑ 10 Wis.2d at page 242, 102 N.W.2d at page 411.
* ↑ See, e.g., Scales v. United States, 367 U.S. 203, 259, 81 S.Ct. 1469, 1501, 6 L.Ed.2d 782 (dissenting opinion); Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 137, 81 S.Ct. 1357, 1431, 6 L.Ed.2d 625 (dissenting opinion); In re Anastaplo, 366 U.S. 82, 110-112, 81 S.Ct. 978, 993-994, 6 L.Ed.2d 135 (dissenting opinion); Konigsberg v. State Bar of California, 366 U.S. 36, 62-71, 81 S.Ct. 997, 1013, 1017, 6 L.Ed.2d 105 (dissenting opinion); Braden v. United States, 365 U.S. 431, 441 446, 81 S.Ct. 584, 590-593, 5 L.Ed.2d 653 (dissenting opinion); Wilkinson v. United States, 365 U.S. 399, 422-423, 81 S.Ct. 567, 580, 5 L.Ed.2d 633 (dissenting opinion); Uphaus v. Wyman, 364 U.S. 388, 392-393, 81 S.Ct. 153, 159-160, 5 L.Ed.2d 148 (dissenting opinion); Barenblatt v. United States, 360 U.S. 109, 140-144, 79 S.Ct. 1081, 1100-1102, 3 L.Ed.2d 1115 (dissenting opinion); American Communications Ass'n v. Douds, 339 U.S. 382, 445-453, 70 S.Ct. 674, 707-711, 94 L.Ed. 925 (dissenting opinion).
* ↑ Cf. Cohen v. Hurley, 366 U.S. 117, 138-150, 81 S.Ct. 954, 966-972, 6 L.Ed.2d 156 (dissenting opinion); In re Anastaplo, 366 U.S. 82, 114-116, 81 S.Ct. 978, 995-996, 6 L.Ed.2d 135 (dissenting opinion); Konigsberg v. State Bar of California, 366 U.S. 36, 73 74, 77-80, 81 S.Ct. 997, 1019, 1021-1022, 6 L.Ed.2d 105 (dissenting opinion).
* ↑ 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. The decision of the New York Court of Appeals in that case was expressly rested in part upon the notion that the practice of law is a 'special privilege.' See id., 366 U.S. at pages 132-133, 81 S.Ct. at pages 963-964 (dissenting opinion). And I thought then, as I think now, that the decision of this Court upholding the judgment of the New York court placed 'the stamp of approval upon a doctrine that, if permitted to grow, as doctrines have a habit of doing, can go far toward destroying the independence of the legal profession and thus toward rendering that profession largely incapable of performing the very kinds of services for the public that most justify its existence.' Id., 366U .S. at page 135, 81 S.Ct. at page 965 (dissenting opinion).
* ↑ Id., 366 U.S. at pages 142-143, 81 S.Ct. at page 969 (dissenting opinion).
* ↑ Id., 366 U.S. at pages 138-139, 81 S.Ct. at page 966 (dissenting opinion).
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