Three lawyers who oppose mandatory membership in the State Bar of Texas have made their way to the U.S. Supreme Court, even as a lower federal court judge issued a “final judgment” that may give the State Bar a window to continue certain activities aimed at improving the legal profession.
Tony McDonald, Joshua Hammer and Mark Pulliam are plaintiffs in a cert petition filed at the Supreme Court on November 24, framing the issue with this question: “Does the First Amendment prohibit a state from compelling attorneys to join and fund a state bar association that engages in extensive political and ideological activities?” Jeffrey Harris, a partner at Consovoy McCarthy, the Virginia law firm representing the Texas plaintiffs. Harris said he had no comment.
On December 2, the State Bar filed a routine waiver with the Supreme Court stating it would not respond to the McDonald petition unless the Supreme Court requests a response. If the Supreme Court does so, that would signal that the case, captioned McDonald v. Firth, could be docketed for argument.
So far, similar efforts to get the Supreme Court’s attention have not succeeded. The justices did not ask for a response before denying cert in Crowe v. Oregon State Bar and Gruber v. Oregon State Bar earlier this year. The justices in 2020 denied cert in Jarchow v. State Bar of Wisconsin and Fleck v. Wetch, a North Dakota case. Only justices Clarence Thomas and Neil Gorsuch indicated interest in taking any of the cases.
The Texas petition flows from the July 2 ruling of the U.S. Court of Appeals for the Fifth Circuit, which found that the State Bar of Texas violated the First Amendment rights of some of its members by using mandatory dues to support politically controversial efforts unrelated to the regulation of the legal profession.
But the plaintiff lawyers viewed the Fifth Circuit decision as only a partial win, because the panel also ruled that some activities by the Texas bar, such as diversity efforts, are germane to the purpose of the organization and can be part of mandatory membership dues.
The cert petition filed by the plaintiffs asks that the Supreme Court go further than the Fifth Circuit: “This Court should grant certiorari and hold that members of a mandatory bar cannot be compelled to finance any political or ideological activities, and cannot be compelled to join a bar that engages in such activities.”
The petition also states that the plaintiffs do not support what they called the Texas State Bar’s “extensive array of highly ideological and controversial activities, including lobbying for legislation; promoting identity-based programming and affinity groups; and supporting legal aid and pro bono initiatives that often touch on controversial matters such as immigration policy. Petitioners do not support these activities yet are compelled to associate with the Bar and fund its activities if they wish to continue continuing practicing law in Texas.”
Vinson & Elkins partner Tom Leatherbury, who represents the State Bar, argues that most of the bar’s activities that were challenged are constitutionally permissible and the plaintiffs’ goal is to attack the unified bar as “unconstitutional in its entirety.”
Another development in the litigation over the mandatory membership broke on December 2. In the July Fifth Circuit decision, the case was remanded to U.S. District Court Judge Lee Yeakel to determine “the full scope of relief to which plaintiffs are entitled.” Yeakel sided with the State Bar at the early stage of the litigation.
Yeakel’s judgment, released on December 2, permanently enjoined the State Bar from using plaintiffs’ mandatory dues to support lobbying or legislative activities except those that relate to “regulating the legal profession or improving the quality of legal services.”
In an interview with Texas Lawbook, Leatherbury applauded Yeakel’s judgment and said the State Bar “will be moving forward in service of its members and in its efforts to improve both access to justice and the efficient administration of the legal system.”