Three lawyers seeking to eliminate the mandatory bar in Texas have made new filings arguing for a judge to decide the matter fast, claiming the facts are undisputed and the Constitution is on their side.
The plaintiffs, Tony McDonald, Joshua Hammer and Mark Pulliam, sued the State Bar of Texas’ officers and board members, claiming that forcing them to join the bar violates their First Amendment rights. The Texas Bar engages in political or ideological activities, like its diversity initiatives, a program to help lawyers volunteer to prevent deportation of undocumented immigrants, educational programming on LGBTQ issues, lobbying and legal aid initiatives. The defendants are bar president Joe Longley and dozens of co-defendants who are officers or bar board members.
McDonald v. Longley is one of at least four lawsuits filed nationally challenging mandatory bar membership in the wake of two U.S. Supreme Court decisions. It cites the June 2018 Janus v. AFSCME, which overturned decades of precedent by ruling 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 another case regarding whether North Dakota has authority to require bar membership, remanding it back to the U.S. Court of Appeals for the Eighth Circuit.
“The bar treats Texas attorneys as little more than a piggy bank to fund a wide range of programs, services, initiatives, lobbying and other activities that sweep far beyond any regulatory or disciplinary functions,” the McDonald plaintiffs alleged in a March 25 motion for preliminary injunction.
The plaintiffs argue that the Texas bar could stop engaging in the alleged political and ideological activities, or continue them but stop compelling attorneys to join the bar. A third option would be splitting the Texas bar in two: a compulsory section to regulate attorneys, and a voluntary foundation for other activities. At a minimum, they’re asking the court to find the bar can’t coerce them into supporting activities beyond regulation and discipline.
The motion is asking the court for a quick ruling, noting that attorneys must pay dues again by June 1, with the threat of late penalties and suspension of their law licenses by Sept. 1. While the suit progresses, the plaintiffs are asking the court to issue a preliminary injunction to stop the defendants from taking any action against them for failing to associate with the bar or pay bar dues or fees.
According to the plaintiffs, the facts that support their claims are all public record, coming from the bar’s own statements and documents, said a March 25 motion for partial summary judgment on liability. They argue that the Janus case shows that compelled bar membership is an unconstitutional violation of the First Amendment.
One or the other side is entitled to a judgment as a matter of law, they say, because the case depends on three fundamental questions: whether the state can compel lawyers to associate with a bar that engages in political and ideological activities; whether the state can compel lawyers to support bar activities beyond regulation and legal services; and whether using an opt-out, rather than opt-in, policy is permissible to charge for political and ideological activities.
Plaintiffs lawyer Cameron Norris of Consovoy McCarthy Park in Arlington, Virginia, didn’t immediately respond to a call or email seeking comment.
Longley declined to comment.
He said, “Our lawyer will be dealing with it.”