State Bar of Texas defendants who are fighting a lawsuit that challenges mandatory bar dues being spent for alleged political and ideological purposes are arguing that the plaintiffs are using erroneous legal arguments and have sued the wrong people.
The defendants made a bevy of filings in the case, McDonald v. Longley, in which three attorneys have claimed that the bar is violating their First Amendment rights. They claim the bar forces them to join and pay mandatory dues, which it then spends on activities the plaintiffs disagree with, such as LGBT continuing legal education, legal aid for undocumented immigrants, diversity efforts, legal aid programs and legislative affairs efforts.
“We believe the State Bar is fulfilling all of its statutory and constitutional obligations. The plaintiffs’ efforts to change decades of law is without merit,” bar executive director Trey Apffel said in a statement.
Consovoy McCarthy Park partner Jeff Harris of Arlington, Virginia, who represents the plaintiffs, declined to comment.
The McDonald case is similar to legal challenges that lawyers have filed against mandatory bar associations in Oklahoma, Oregon and North Dakota. In all the cases, the plaintiffs rely on a 2018 U.S. Supreme Court ruling in Janus v. AFSCME, which ruled that public sector nonunion workers cannot be required to pay union dues as a condition of employment.
The defendants filed a motion to dismiss the lawsuit, arguing the court doesn’t have jurisdiction over the dispute because of sovereign immunity. They argued they have no power to address the alleged injury of the plaintiffs.
“Defendants neither imposed nor enforce the requirements that plaintiffs enroll and maintain membership in the state bar and pay the legal services fee,” the motion said.
Instead, the Texas Legislature passed the State Bar Act, which governs the bar’s operations, and also imposes the requirement for lawyers to join the bar and pay dues. Similarly, the defendants can’t control a $65 legal services fee that the plaintiffs complained about because the legislature set that fee and lawyers pay it to the Texas Supreme Court.
In a response to the plaintiffs’ motion for summary judgment, the Texas bar is arguing that Janus should not apply to mandatory bar associations.
According to the response, Lathrop v. Donohue in 1961 said the mandatory bar doesn’t violate lawyers’ right to freedom of association. Then Keller v. State Bar of California in 1990 held that mandatory dues don’t violate free speech rights if fees pay for regulating the profession or improving the quality of legal services.
The plaintiffs argue that Janus overruled Keller and Lathrop, said the response. However, a judge in Oregon rejected that argument in Gruber v. Oregon State Bar, a case that’s challenging the mandatory bar in Oregon. In fact, a justice dissented from the Janus ruling and emphasized that the majority wasn’t questioning the Keller ruling, said the response.
“Janus’s reassessment of whether the state’s interests in maintaining labor peace and avoiding nonmember free riding on unions’ collective-bargaining efforts justify compelled payments from nonmembers does not undermine the Supreme Court’s endorsement of the very different state interests in professional regulation and legal-service quality served by integrated bars,” the response said. “Plaintiffs’ scattershot, undeveloped challenges to particular bar programs are meritless.”
The response also said the bar has safeguards within its policy manual that ensure all its activities meet its core functions, including the specific programs the plaintiffs have challenged. The defendants are asking the court to deny the plaintiffs’ summary judgment motion.
They raised many of the same legal arguments in a cross-motion for summary judgment.
“Plaintiffs’ claims fail as a matter of law, such that there is no need for the court to resolve any material factual disputes,” the cross-motion said.
The defendants filed opposition to the plaintiffs’ motion for a preliminary injunction, arguing the plaintiffs don’t meet requirements to receive the extraordinary remedy of a preliminary injunction. They argue plaintiffs can’t show they’re likely to succeed on the merits of their claims. Their motion in opposition argues that if the court did issue a preliminary injunction, it would interfere with the bar’s collection of dues and jeopardize the bar’s operations to regulate the profession and improve legal services.
Read the defendants’ cross-motion for summary judgment: