Fifth Circuit: Texas Lawyers Don’t Have to Join State Bar and Pay Dues

(CN) --- Three Texas attorneys filed a federal civil rights lawsuit against the president of the State Bar and its board members in March 2019, claiming it had overstepped its core regulatory functions by helping undocumented immigrants affected by then-President Donald Trump’s anti-immigration policies, and lobbying for passage of a bill that would amend the Texas Constitution to recognize same-sex marriages.

They argued that compelling them to join the bar, a requirement to practice law in the state, and to subsidize those activities, violated their First Amendment rights.

They appealed to the Fifth Circuit after U.S. District Judge Lee Yeakel, a George W. Bush appointee, granted summary judgment to the State Bar.

A three-judge panel of the New Orleans-based appellate court sided with the challengers Friday.

Federal courts have grappled with these issues for decades as shown by the panel’s reliance on the Supreme Court’s 1961 ruling in Lathrop v. Donohue.

In that case, an attorney argued mandatory membership in the Wisconsin State Bar violated his First Amendment right to freedom of association because that bar was using its funds and employees to influence legislation.

He had paid his mandatory $15 annual dues under protest and sued for a refund.

The Supreme Court found no First Amendment violation because the Wisconsin bar had limited its lobbying to legislation involving the state court system and attorney compensation.

Texas is one of 31 states with mandatory bars.

A public corporation and administrative agency controlled by the Texas Supreme Court, the Texas State Bar has more than 120,000 members who pay mandatory annual dues ranging from $68 to $235, with those on inactive status paying $50.

It also charges some attorneys a $65 legal services fee, which go to the state comptroller.

Writing for the three-judge panel, U.S. Circuit Judge Jerry Smith, a Ronald Reagan appointee, distilled the appeal to this question: Can lawyers be constitutionally mandated to join a bar association that engages in activities not germane to regulating the legal profession and improving the quality of legal services?

Joined by U.S. Circuit Judges Don Willett and Kyle Duncan, both Trump appointees, Smith found the Texas State Bar had strayed from its core functions by lobbying for passage of bills in the Texas Legislature’s 2019 session relating to substantive Texas law, and wholly disconnected from the court system.

“For example, the Bar’s lobbying to amend the Texas Constitution’s definition of marriage and create civil unions is obviously non-germane,” Smith wrote in a 34-page order.

Therefore, Smith found, Texas had violated the challengers’ First Amendment rights of freedom of association and freedom of speech.

Smith, however, found most of the State Bar’s activities are germane to its mission, including the more than $1 million it spends annually on a program that connects pro bono volunteers to clients in need of legal aid on matters of immigration, veterans’ affairs and landlord-tenant disputes.

The panel rejected the plaintiffs’ claims that the bar’s facilitation of representation for undocumented immigrants is an ideological activity.

“There is no reason to believe that facilitating lawyers’ representation of aliens in navigating immigration laws constitutes an endorsement of any particular viewpoint about those statutes,” Smith wrote.

The State Bar also spends $500,000 per year on an Office of Minority Affairs whose goal is to enhance legal employment opportunities for minorities, women and LGBTQ attorneys.

And the panel rejected the plaintiffs’ claims these diversity initiatives are highly ideological.

But it did find the State Bar’s system of refunding dues is unconstitutional.

Attorneys can lodge complaints about spending decisions at the bar’s annual hearing on its proposed budget and with bar committees, but the decision on giving them a refund is left up to the bar’s executive director.

“In the event a refund is denied the objecting attorney is out of luck,” the ruling states.

The panel granted the challengers a preliminary injunction blocking the State Bar from requiring them to join it and pay dues, granted them summary judgment on their First Amendment freedom-of-association claims and remanded the case to Yeakel to decide the full scope of relief they are entitled to.

Despite the setback, the State Bar was upbeat about the ruling.

Its executive director, Trey Apfell, said its directors are gratified the panel upheld the constitutionality of its continuing legal education classes, its diversity initiatives and the bulk of the activities of an “Access to Justice Commission” that helps poor Texans access legal services.

“We continue to believe the State Bar’s legislative program and all of its access to justice initiatives are germane to regulating the legal profession and improving the quality of legal services, and respectfully disagree with the panel’s contrary conclusion. We are assessing the bar’s next steps in light of the panel’s opinion,” he said in an emailed statement.

The lead plaintiff is Tony McDonald, general counsel for Empower Texas, an Austin-based conservative group that says the Lone Star State should eliminate property taxes and limit government spending.

McDonald’s two co-plaintiffs are Mark Pulliam and Joshua Hammer. The trio’s counsel with Consovoy McCarthy PLLC of Arlington, Virginia did not respond Friday evening to requests for comment on the order.  

Follow @cam_langford

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