Texas AG: State Bar violates rights of members by collecting dues for political activities

By David Yates | Apr 29, 2019

AUSTIN – Attorney General Ken Paxton has filed a brief in support of several Texas attorneys who contend paying dues to the State Bar of Texas violates their First Amendment rights. 

The plaintiff attorneys filed their suit on March 6 against the State Bar Board of Directors, a lengthy list of individuals that includes Bar President Joe Longley.

Two months before that, Longley submitted an opinion request to the Texas Attorney General’s Office, tasking the AG to determine if 76,000 “senior” lawyers around the state have the right to vote on the election of Texas Young Lawyers Association officials.

The opinion request also questioned the constitutionality of collecting mandatory dues from Bar members in light of two recent U.S. Supreme Court decisions, Janus v. AFSCME and Fleck v. Wetch.


Paxton  

In Janus, the high court returned First Amendment rights to public sector workers, essentially finding that millions of public servants no longer have to pay a government union as a condition of employment.

The plaintiff attorneys contend that, under Janus, it violates the First Amendment to compel attorneys to financially support the Bar in order for them to engage in their chosen profession.

They assert that the Bar engages in activities beyond its regulatory functions that are inherently political or ideological, such as funding diversity initiatives and operating a legislative program.

On April 26, Paxton filed a brief in support of the plaintiffs, arguing that the Bar violates the First Amendment rights of members by compelling financial support for ideological and political activities without their affirmative consent.

“There is no such justification for the State Bar's current practice of forcing all licensed Texas attorneys to fund a host of ideological and political activities through mandatory membership dues,” the brief states. “The State Bar of Texas can perform its core activities of ‘regulating the legal profession and improving the quality of legal services’ in Texas without sacrificing the First Amendment rights of its members.”

Paxton argues that at the very least, the State Bar may not use dues to fund ideological and political activities unless the Bar first obtains each member's fully-informed consent.

“Anything less tramples on the core associational and free speech rights of Texas attorneys,” the brief states.

Paxton isn’t the only one who has come out in support of the attorneys.

On April 25, the Goldwater Institute, a conservative think tank, also filed a brief, arguing that, aside from whether activities the Bar spends the plaintiffs’ dues on are “offensive,” the fact that they are required to be members of the Bar is itself a distinct constitutional injury.

“There is no need, therefore, for this Court to address the question of whether and to what degree the Bar engages in political activities, let alone to evaluate the merits of those activities,” the brief states.

“The freedom of association question at issue here is simple and straightforward. The state bears the burden of proving that it cannot regulate the practice of law in a way significantly less restrictive of the Plaintiffs’ associational freedoms than compulsory membership in the Bar.”

The plaintiffs in the suit are Tony McDonald, Joshua Hammer and Mark Pulliam.

They are represented by Cameron Norris, William Consovoy, Jeffrey Harris, Cameron Norris and Samuel Adkisson, attorneys for the Arlington law firm Consovoy McCarthy Park.

The Goldwater Institute is represented in part by Matthew Miller.

Filed in the Western District of Texas, case No. 1:19-cv-00219

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