Past and present Texas Bar presidents trade letters over ‘unprecedented’ voter ‘suppression’

By David Yates | Feb 13, 2019


AUSTIN – A former Texas Bar president is asking the current to withdraw an opinion request made to Attorney General Ken Paxton, who has been called upon to determine if 76,000 “senior” lawyers around the state have the right to vote on the election of Texas Young Lawyers Association officials.

Joe Longley, president of the State Bar of Texas, made the request late last month, seeking to clarify if the exclusion is constitutional.

Apparently, Longley’s actions have drawn the attention, and criticism, of a past SBOT and TYLA president – William Whitehurst, Jr.

On Feb. 11, Whitehurst sent a letter to Longley, accusing him of circumventing the State Bar Board of Directors by making the request right after the board voted unanimously (with Longley abstaining) to reject his “radical proposal” to change how TYLA officers are elected.     


Longley  

All State Bar members who are 36 years old and younger, or who have been licensed for less than five years, are automatically members of TYLA. And while TYLA members may vote for the positions of TYLA president and State Bar president, the reverse is not true.

“This was the first time this issue has been raised before the Board since the adoption of the State Bar Act in 1939,” Whitehurst writes. “I cannot imagine why you, as president, have latched onto it as a basis for attacking the SBOT and TYLA.

“Nevertheless, the purpose of this letter is not to further debate its merits one-way or the other. Rather, the purpose is to address the manner in which you have chosen to handle it.”

Longley replied to the letter the following day, writing that the board’s sudden decision to exclude active members from bar elections without further study is “unprecedented in the Bar’s 80 year history.”

“My decision to seek an opinion from the Texas Attorney General was not made until January 19th – the day after the Board had taken its unprecedented action of voter suppression,” Longley’s letter states. “Stated simply, this issue is ripe for determination, not through my actions, but rather through the actions taken by the Board Members calling for a vote on a matter which could have been avoided.

“The further irony is that usually it is the Board of Directors that seeks to postpone, study, and create committees and task forces that sometimes seem never ending. Not this time.” 

Longley’s opinion request asks if it’s unconstitutional to deny equal voting rights on the basis of age and licensure.

According to the request, State Bar members, who must pay mandatory dues that support TYLA and legislative programs, began raising concerns in light of the recent U.S. Supreme Court’s decisions in Janus v. AFSCME and Fleck v. Wetch.

In the case of Janus v. AFSCME, the high court found in favor of Mark Janus, a child support specialist, returning First Amendment rights to public sector workers and essentially finding that millions of public servants no longer have to pay a government union as a condition of employment.

Fleck v. Wetch challenged the mandatory fees attorneys pay to state bars. The case was recently remanded to the Eighth Circuit Court of Appeals for reconsideration because of the Janus ruling. The Eight Circuit had previously found it constitutional for bar associations to charge dues to members.

“Is it constitutional to require Bar members to pay compulsory Bar dues to support TYLA, but to deny active non-TYLA members the right to vote on TYLA officers who sit on the State Bar’s governing Board of Directors?” asks Longley in his opinion request.

In his letter, Whitehurst asks Longley to withdraw his opinion request. And if he’s unwilling to do so, to at least withdraw the portion seeking guidance on when the Bar may legally and constitutionally collect compulsory dues under the Janus and Fleck rulings until they are fully resolved.

Whitehurst further asks Longley to respect and comply with the board’s decision on the TYLA issue, or step down as president and pursue the matter as a regular member.

“To your credit, working with the executive director and staff, you accomplished your goal of making the budget and administration more open and transparent,” Whitehurst writes. “Unfortunately, your goals apparently did not extend to the president. I fear your recent actions have destroyed the credibility you had built up with the Board, staff and membership.

“They have certainly done so for me.” 

Toward the end of his letter, Longley rejected Whitehurst’s requests and had something to say about the Supreme Court rulings.

“Finally, the issues regarding Fleck and Janus relating to mandatory versus voluntary use of Bar dues are placed into clear focus based upon the actions of the Board voting on matters so clearly questionable under the United States Constitution, the State Bar Act, and the State Bar Rules,” Longley writes.

“All state bar members are entitled to answers—and I am proud to seek them... February 20 is the deadline to submit briefs to the Attorney General, and I encourage all interested members of the Bar and public to submit their views.”

Longley told the Record he’d like all Texas Bar members to read his letter to Whitehurst.

Whitehurst did not return a request for comment.

Request No. 0265-KP

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