U.S. Judge Lee Yeakel late Friday tossed out a case challenging the constitutionality of mandatory bar dues charged by the State Bar of Texas.
In ordering a summary judgment sought by the State Bar, Judge Yeakel ruled that both the mandatory dues and the activities they pay for are well within the official responsibilities authorized by the Texas Legislature in 1939 when the state bar was declared “an administrative agency of the Judicial Department of the State.”
Texas attorneys Tony K. McDonald and Joshua B. Hammer, along with non-practicing attorney Mark Pulliam, filed suit in 2019 charging that the mandatory dues violated their rights to freedom of speech and association. They argued that the mandatory bar fees, which must be paid to be licensed to practice in the state, forced them, in effect, to approve and support bar activities that reach beyond the organization’s regulatory functions.
Under terms of The State Bar Act, the state’s bar association is not only obliged to aid in the administration of justice and help police its ethical and professional standards, but also to “advance the quality of legal services to the public.”
The State Bar of Texas was defended by Thomas Leatherbury and Patrick Mizell, both of Vinson & Elkins.
Chad Baruch of Dallas-based Johnston, Tobey Baruch, filed an amicus brief on behalf of 18 past presidents of the State Bar of Texas. He described the judge’s ruling as “a clean sweep across the board.”
“It’s great for the State Bar, great for Texas lawyers and, quite honestly, great for the cause of justice in Texas,” Baruch said.
The case was filed last March and motions filed by both sides asking for summary judgment were heard on August 1.
As if to punctuate the Yeakel’s decision, on Monday, the U.S. Supreme Court denied certiorari in a similar case challenging mandatory bar dues in Wisconsin.
In Judge Yeakel’s 18-page opinion, he noted that the plaintiffs had conceded that the U.S. Supreme Court has upheld mandatory bar dues as constitutional. However, they had argued that the court had not addressed whether bar membership could be compelled when the bar “engages in political or ideological activities” in a so-called “integrated bar” — a bar association that has the elements of both a volunteer organization and the compulsory membership of an agency of the state.
In his opinion, Judge Yeakel said that in almost any organization there is bound to be expenditures for purposes that could be interpreted as ideological or political, but that as long as expenditures for activities are “necessarily or reasonably incurred for the purpose of regulating the profession or ‘improving the quality of legal service available to the people of the State.’ “
But despite the defeat, the lawsuit itself bears several tangibly political elements that suggest the plaintiffs may in the litigation for the longer haul.
First, the suit was filed by Consovoy McCarthy, a controversial law firm in Northern Virginia, which is best known for its representation of Donald Trump in his fight to defend against any form of public exposure of his personal finances. Moreover, the Texas lawsuit is one of several filed against mandatory state bar organizations across the country, including: North Dakota, Wisconsin, Oregon, Oklahoma, Michigan and Louisiana.
Finally, the plaintiffs include three lawyers with unabashed political backgrounds:
- McDonald, an Austin lawyer, is general counsel of Empower Texans a high-profile lobbying organization for conservative political causes.
- Hammer is a former clerk at the U.S. Fifth Circuit for Judge James Ho and is of counsel at the Plano-based First Liberty Institute. Hammer is also the Opinion Editor at Newsweek and a frequent commentator on conservative political issues.
- The third lawyer, Mark Pulliam is a Big Law retiree and conservative activist, described in the lawsuit as “currently inactive” but “required to associate with, and pay dues to, the State Bar in order to preserve his ability to practice law in Texas in the future.”
Amicus briefs were filed in favor of the plaintiffs by the Goldwater Institute and Texas Attorney General Ken Paxton.