The battle over mandatory membership in the State Bar of Texas – and other state bar associations — resumes April 1 at the U.S. Supreme Court.
That is when the justices, at their routine private conference, are scheduled to consider whether McDonald v. Firth, the Texas state bar case, and similar cases from Michigan and Oklahoma, should be granted review and docketed for argument, most likely in the fall.
The fact that the Texas petition has been lumped together with Michigan’s Taylor v. Buchanan case and Oklahoma’s Schell v. Oklahoma, suggests that the high court may have decided to tackle, once and for all, the extent to which state bars can compel lawyers to pay dues that may finance activities with which they disagree.
Before now, only Justices Clarence Thomas and Neil Gorsuch have shown interest in taking on the knotty First Amendment mandatory-membership issue. By tradition, the high court grants review of cases like these only if four of the nine justices want to.
The three Texas lawyers who launched the Texas litigation, Tony McDonald, Joshua Hammer and Mark Pulliam, filed the petition 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, a Virginia law firm, represents the Texas plaintiffs.
Harris wrote that the Texas bar “uses their coerced funds to support an 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.”
Last July, the U.S. Court of Appeals for the Fifth Circuit, agreed with the plaintiffs in part, ruling that the State Bar of Texas violated the First Amendment rights of members by using mandatory dues to support certain politically controversial efforts. But the Fifth Circuit panel ruled that, based on high court precedent, the Texas bar could require dues for some activities such as diversity programs, if they are germane to regulating the legal profession and improving the quality of legal services.
The plaintiffs’ cert petition 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 State Bar, represented by Vinson & Elkins partner Tom Leatherbury, countered the plaintiffs with its own petition, Firth v. McDonald. Leatherbury wrote, “Dismantling the mandatory Texas State Bar after its over eight decades of service to the people of Texas would be a wrenching change that would jeopardize the smooth functioning of Texas’s legal system and likely ‘require an extensive legislative response.’”
He added, “This Court has recently, and repeatedly, denied certiorari petitions raising similar First Amendment arguments against integrated bars as the plaintiffs assert here. The Court should follow the same approach in this case.”
The Michigan and Oklahoma cases that will be considered April 1 have echoed arguments similar to those in the Texas case.
“No one should be forced to financially support an organization whose positions they may not support as a condition of employment,” said Derk Wilcox, senior attorney for the Mackinac Center Legal Foundation and counsel of record for the Michigan lawyer plaintiffs. “The U.S. Supreme Court Janus v. AFSCME decision upheld this right, but unfortunately attorneys in 30 states are not granted the same First Amendment protections given to public employees. … We will continue to fight for the First Amendment protections of attorneys in Michigan and across the United States.”