Leaders of the State Bar of Texas decided Monday that they will not appeal a recent federal appeals court decision that held some of the organization’s lobbying efforts violate the First Amendment rights of its members whose mandatory dues go to fund some of those initiatives.
The State Bar’s board of directors voted unanimously against asking the full U.S. Court of Appeals for the Fifth Circuit to reverse the decision of a three-judge panel earlier this year. Instead, the bar will focus on efforts to bring the bar association into compliance when the litigation is returned to the U.S. District Court in Austin.
“We are pleased that the Fifth Circuit panel upheld the constitutionality of nearly all of the State Bar of Texas programs and activities challenged by the plaintiffs,” State Bar President Sylvia Borunda Firth said in a written statement. “Today the State Bar will inform the 5th Circuit Court of Appeals it will not be filing a petition for panel rehearing or a petition for rehearing en banc.
“We look forward to getting back to the trial court to bring this litigation to a conclusion,” Firth said.
The plaintiffs – three members of the State Bar – also have the right to appeal but have not announced if they will do so.
The three-judge panel of the Fifth Circuit ruled earlier this month that the State Bar violated the free speech rights of those three members when it used their mandatory membership dues to support legislation that redefined marriage and financed efforts to make state laws more favorable to low-income Texans.
The appellate court, however, did not declare that the State Bar’s mandatory membership or mandatory dues are generally speaking illegal, but that its “opt-out procedures” for those members who object “are constitutionally inadequate.”
The three appellate judges also fell far short of agreeing with the plaintiffs’ argument that the State Bar should not be able to require mandatory dues at all or should be ordered to stop participating in any political or ideological activities.
But the appellate court also rejected arguments by the State Bar that all of its activities are “germane to its interests in regulating the legal profession and improving the quality of legal services.”
“In sum, the bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights,” Judge Jerry Smith wrote. “There are multiple other constitutional options: The bar can cease engaging in nongermane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s.
“But it may not continue mandating membership in the bar as currently structured or engaging in its current activities,” Judge Smith wrote. “The scope of the bar’s legislative program belies its contention that every single bill it has lobbied for is germane to regulating the legal profession or improving the quality of legal services.”