Three Texas lawyers are seeking to unwind mandatory dues for their state bar, claiming in a lawsuit that their “coerced” membership helps support programs for minority, immigrant and disadvantaged communities that they do not endorse.
It is one of at least four lawsuits filed nationally challenging mandatory bar membership in the wake of two U.S. Supreme Court decisions last year impacting states’ ability to require union or professional dues as a condition of employment.
The federal lawsuit filed Wednesday in Texas’ Western District pointed to the Janus v. AFSCME ruling in challenging that state’s requirements of bar membership to hold a law license.
Janus overturned decades of precedent in June after the justices ruled that public-sector non-union workers cannot be required to pay union dues as a condition of employment. In December, the justices cited Janus in remanding a decision upholding the authority of North Dakota to require bar membership back to the U.S. Court of Appeals for the Eighth Circuit.
Filed on behalf of two active Texas bar members and one on inactive status, the Texas complaint said that being required to join the bar and pay dues violates their First Amendment rights “for several independent reasons.”
First, it said, there is no compelling state interests in forcing lawyers to join the bar. It noted that “19 states regulate attorneys directly without forcing them to join a state bar, and there is no indication that attorneys are insufficiently regulated in those jurisdictions.”
Even if there are legitimate regulatory interests in requiring bar membership, the Texas Bar “engages in numerous activities” that are “inherently political or ideological,” it said.
Among those activities are “diversity” initiatives “based on attorneys’ race, gender, and sexual orientation” and the promotion of programs seeking to “prevent the deportation of individuals who entered the United States without authorization through the southern border,” it said.
It also takes issue with the bar’s lobbying program that “drafts and advocates for the passage of legislation,” and assails a $65 “legal services fee” assessed on most lawyers in private practice to support legal aid programs.
State Bar of Texas annual dues start at $68 for lawyers licensed three years or less; it rises to $148 for those licensed for four to five years, and tops out at $235 for all other active members. The legal services fee is added for lawyers below the age of 70 and those who do not work in local, state or federal government; are employed by certain nonprofits; or are out-of-state residents who don’t practice in Texas, it said.
Inactive members must pay $50 a year.
The complaint, filed on behalf of Tony McDonald, Joshua Hammer and Mark Pulliam, names Bar President Joe Longley and dozens of co-defendants who are officers or bar board members as defendants, and was filed by William Consovoy, Jeffrey Harris, Cameron Norris and Samuel Adkisson of Consovoy McCarthy Park.
They did not immediately respond to requests for comment Thursday.
The Consovoy law firm is also involved in the Harvard admission policies litigation, and name partner Michael Park is currently a nominee for the U.S. Court of Appeals for the Second Circuit. His nomination advanced to the Senate floor Thursday.
Longley himself has questioned how the Janus decision might impact bar operations. On Jan. 22, he sent a letter to Texas Attorney General Ken Paxton asking for guidance after some members voiced concerns over how elections for board members representing the Texas Young Lawyers Association might be impacted by the decision, and raising some of the same issues listed in the complaint.
Some members “have objected to the Bar charging mandatory dues that support other activities and programs (e.g., various legislative programs and programs funded by the Bar) that the objecting members assert violate their First Amendment rights, including free-speech and associational rights,” Longley wrote.
“Thus, I request guidance from the you, as our state’s Chief Legal Officer, as to when the Bar may legally and constitutionally collect compulsory dues from Bar members under Janus” and prior rulings.
In response to queries, the bar provided a statement saying: “The State Bar of Texas is confident it is fulfilling all statutory responsibilities as the administrative arm of the Texas Supreme Court consistent with the Court’s authority to regulate the legal profession. The pending legal action will be addressed accordingly.”
Paxton’s office did not respond to requests for comment.
Two other actions challenging mandatory bar membership are pending in Oregon.