NEW ORLEANS – Texas law requires all attorneys to join the State Bar of Texas even though it engages in “extensive” political and ideological activities – an unconstitutional "scheme” according to three Texas attorneys who have turned to the U.S. Court of Appeals for the Fifth Circuit in their push to end mandatory dues in the Lone Star State.
On May 29, a final judgment was entered granting the Texas Bar Board of Directors summary judgment in a lawsuit alleging that forced funding of its “diversity” initiatives and legislative programs is unconstitutional.
Last March, attorneys Tony McDonald, Joshua Hammer and Mark Pulliam filed suit against the Bar’s directors, alleging First Amendment rights violations under Janus v. AFSCME – a 2018 Supreme Court decision that found that millions of public servants no longer have to pay a government union as a condition of employment.
In their suit, the plaintiffs argue that 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 numerous activities beyond its regulatory functions, such as engaging in “diversity” initiatives based on attorneys’ race, gender, and sexual orientation; as well as operating a legislative program that drafts and advocates for the passage of legislation.
Court records show U.S. District Judge Lee Yeakel granted the board’s motion for summary judgment while denying the plaintiffs’ motion for partial summary judgment on liability, finding that the Bar provides notice of proposed expenditures and opportunity to object.
The plaintiff attorneys appealed and on June 30 filed an opening brief arguing that Judge Yeakel erred.
“First, compelling attorneys to join and associate with an integrated bar association that engages in extensive political and ideological activities violates the First Amendment,” the brief states. “The Bar puts its imprimatur on numerous controversial issues involving legislation, access to justice programs, race- and gender-based initiatives, ideologically driven programming, and many others. Yet Appellants have no choice but to join and associate with this organization in order to practice their chosen profession.
“This scheme fails any level of First Amendment scrutiny, most obviously because there are a number of less restrictive alternatives that could advance the state’s interests in regulating and improving the legal profession while imposing a much less severe burden on Appellants’ First Amendment rights.”
All attorneys licensed to practice law in Texas must pay dues to the Bar, even inactive members. In the year ending on May 31, 2017, the Bar collected more than $22 million in mandatory dues, plus another $25 million in revenue from its other activities.
“Under Supreme Court precedent, compelled bar dues can be used only for carefully limited purposes such as ‘proposing ethical codes and disciplining bar members,’” the brief states. “But the Bar does not limit its spending to this narrow category. Instead, it uses coerced dues for extensive political and ideological activities that extend far beyond any regulatory functions.”
The attorneys are asking the Fifth Circuit to reverse Judge Yeakel and grant their summary judgment motion on liability.
They are represented by Consovoy McCarthy attorneys William Consovoy, Jeffrey Harris, Cameron Norris and Tiffany Bates.
Western District of Texas case No. 1:19-cv-00219
Fifth Circuit case No. 20-50448