NEW ORLEANS – Attorney General Ken Paxton has thrown his support behind a trio of attorneys seeking to end mandatory dues imposed by the State Bar of Texas – dues that go toward funding the Bar’s “divisive ideological agenda,” according to the AG.
The legal fight to end forced funding has been waged for more than a year now. The case is currently before the U.S. Court of Appeals for the Fifth Circuit.
In March 2019, attorneys Tony McDonald, Joshua Hammer and Mark Pulliam sued the Bar’s Board of 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.
Texas law requires all attorneys to join the Bar and pay dues, even inactive members.
The attorneys argue they shouldn’t be forced to fund the Bar in order to work in their chosen profession, especially when considering that the Bar goes beyond its regulatory function by engaging in “extensive political and ideological activities,” such as diversity initiatives and legislative programs.
A federal judge, however, didn’t see it that way and on May 29 a final judgment was entered granting the Board summary judgment. The plaintiff attorneys appealed and on June 30 filed an opening brief arguing that the trial court erred.
On July 7, Paxton filed an amicus brief in support of the attorneys, contending the Bar has “no legitimate interest” in forcing lawyers to financially support its “divisive ideological agenda.”
“Appellants argue that an arm of the State of Texas violates their First Amendment rights by forcing them to subsidize political and ideological activities they do not wish to support,” the brief states. “That claim implicates the State’s duty to protect its residents’ constitutional rights while effectively regulating the legal profession.
“Over a third of the States regulate the legal profession without requiring attorneys to financially support political causes they disfavor, and there is no reason Texas cannot do the same.”
Paxton argues that the Bar cannot overcome exacting scrutiny since its means are not narrowly tailored to advance its interests.
“Because the Bar’s compelled financial support for ideological and political activities cannot survive exacting scrutiny, it is unconstitutional,” the brief states. “The Bar may continue to extract financial support only with affirmative, voluntary opt-in.
“If the Bar wishes to continue to fund its ideological and political activities with attorney dues, it must collect those dues only after obtaining the clear, free, and affirmative consent the First Amendment requires.”
The attorneys are asking the Fifth Circuit to reverse the trial court and grant their summary judgment motion on liability.
Bar of Texas President Larry P. McDougal submitted the following comment: "We look forward to presenting our case to the 5th Circuit. Almost six decades of U.S. Supreme Court precedent supports the constitutionality of the unified bar structure, which was reinforced by the recent decisions of the court to deny the plaintiffs’ petitions for certiorari in Fleck v. Wetch and Jarchow v. State Bar of Wisconsin challenging mandatory membership in the state bars of North Dakota and Wisconsin. The State Bar of Texas is carrying out its statutory obligations by regulating the legal profession and improving the quality of legal services in Texas.”
The attorneys 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