Texas Attorney General Ken Paxton joins fight targeting Texas State Bar
The lawsuit has the potential to upend the structure of the entity responsible for regulating Texas’ legal profession. Critics suggest that Paxton’s involvement may be politically motivated.
Originally Published; May 1, 2019 | LIT Republished; April 18, 2020
Texas Attorney General Ken Paxton has quietly waded into a lawsuit that could upend the State Bar of Texas, siding in a new legal brief with three conservative lawyers who argue the current structure of the state entity that regulates the legal profession violates their First Amendment rights.
Like similar organizations in dozens of other states, the Texas Bar collects mandatory membership dues — just one revenue stream of many for the quasi-governmental entity, which adjudicates grievances against attorneys and puts on educational seminars. In March, three Texas lawyers — Tony McDonald, Josh Hammer and Mark Pulliam — sued, pointing to the bar’s legislative and diversity initiatives and arguing that their compulsory dues cannot be spent on political activities they do not endorse.
Their lawsuit was one of a handful filed in the wake of Janus vs. American Federation of State, County, and Municipal Employees, a 2018 U.S. Supreme Court case that decreed that mandatory public union dues may not be used for political activities without consent. The lawsuit, an existential threat to the state bar, could force the organization to splinter into a mandatory organization that would handle disciplinary disputes and a voluntary organization that could put on educational programming and other events — or even force regulation of the legal profession into the Legislature’s hands.
Similar court battles are being fought in Oregon, North Dakota and Oklahoma. But Paxton, bar leadership said, is so far the only state attorney general to come out against his own state bar, and to blast a state law as unconstitutional — an unusual move given that his agency is tasked with defending Texas law.
“Were we surprised by that? Absolutely,” said Laura Gibson, who chairs the bar’s board of directors. “The Texas Constitution charges the attorney general, the state of Texas’ top lawyer, with defending our state laws and our state constitution. He’s charged with representing the state in litigation that challenges state laws or in lawsuits against state agencies or state employees.”
“In our view, the state Constitution doesn’t allow the attorney general to pick and choose which laws he is willing to defend,” she added.
Puzzled by what they consider a highly unusual legal maneuver, skeptics have looked to Paxton’s ties to the plaintiffs in the suit.
One of them, McDonald, works as general counsel for the hardline conservative group Empower Texans, whose PAC has donated hundreds of thousands of dollars to the political campaigns of Paxton and his wife, state Sen. Angela Paxton.
Pulliam, another plaintiff, has donated thousands of dollars to that PAC, according to state campaign finance records, and he has also contributed to its affiliated website, Texas Scorecard.
And Hammer, the third plaintiff, works with the First Liberty Institute, a Plano-based law firm dedicated to religious liberty issues that often finds itself allied with Paxton in legal matters, and which has seen several of its staff land posts in the attorney general’s office.
“To me, what this is is a purely political attack,” said David Chamberlain, a former chair of the state bar who said he was speaking only on his own behalf. “I’m very, very concerned that [Paxton] is doing this at the behest of Empower Texans.”
The attorney general’s office did not respond to questions about any ties to the plaintiffs. But experts pointed out that the friend-of-the-court brief was filed noticeably early, before the state bar has even filed its formal response to the lawsuit. Paxton himself is a member of the bar.
Paxton has also declined to defend the Texas Ethics Commission against past litigation from Empower Texans. Declining to represent a state agency is a relatively rare move, but in the case of the ethics commission, Paxton was following the example of his predecessor, Gov. Greg Abbott, who also declined to represent the agency.
Asked about how Paxton’s involvement came about, Hammer said only that he knows “Paxton and his team to be comprised of dedicated and principled constitutionalists.”
“I was pleased to see their excellent amicus brief supporting our important First Amendment challenge, and I hope that it proves to be persuasive,” he told The Texas Tribune.
McDonald and Pulliam both deferred to their Virginia-based attorney, William Consovoy, who also declined to answer questions about how the three plaintiffs — who told Texas Lawyer last month they do not know each other well — came together to file the lawsuit. Consovoy, a prominent beltway attorney and a member of the conservative legal group the Federalist Society, works as a personal attorney to President Donald Trump, fighting to keep Trump’s tax returns private from Congress.
In the amicus brief, filed Friday with no fanfare from his office, Paxton asked a federal judge to put a halt to the state bar’s “current practice of forcing all licensed Texas attorneys to fund a host of ideological and political activities through mandatory membership dues.”
Specifically, the three conservative lawyers who launched the lawsuit object “to being compelled to subsidize activities unrelated to the Bar’s regulatory functions, such as its ‘diversity’ initiatives, its legislative program, and its advocacy of pro bono and ‘access to justice’ programs,” according to the lawsuit.
The plaintiffs contend, for example, that the bar “aligned itself in support of migrants and against the federal government” by facilitating “efforts to obtain attorneys for non-citizens who illegally entered the United States through the southern border.”
Joe Longley, the president of the bar, wrote on the bar website in June 2018 that “Your State Bar of Texas exists, in part, to aid the courts in carrying on and improving the administration of justice and to advance the quality of legal services to the public.”
“This is not about politics,” he added at the time, laying out a list of volunteer resources. “It’s about access to justice.”
At the very least, Paxton argued, the bar should have to obtain members’ consent before spending dues on political or ideological programs.
“Anything less tramples on the core associational and free speech rights of Texas attorneys,” Paxton wrote.
Mandatory bar membership dues are scaled based on how long a lawyer has been practicing; for the first few years of an attorney’s career, the annual fee is $68; it peaks at $235; and after age 70, practicing lawyers no longer have to pay the fee.
The bar hasn’t raised its dues since 1991 — in part, Gibson said, because its non-mandatory activities, like putting on continuing legal education seminars and hosting diversity-focused events, raise revenue that help defray the cost of membership. Gibson said if the lawsuit succeeds, dues will likely skyrocket for the more than 100,000 Texas attorneys who are active members of the bar.
“$235 is going to look like a really good deal if the bar is deregulated — watch out what you wish for,” Gibson said.
The new friend-of-the-court brief was not Paxton’s first brush with the legal issues presented in the case. In January, Longley requested a formal legal opinion from Paxton, asking: “Is it constitutional to require Bar members to pay compulsory Bar dues, including to support Bar programs … that Bar members object to on First Amendment grounds (e.g., free speech, freedom of association), inclμding programs that are not within the regulatory functions of the State Bar?” With litigation underway, Paxton hasn’t provided a formal answer.
And in March, shortly after the lawsuit was filed, the attorney general’s office called the bar, asking whether it expected the attorney general to provide representation, according to a bar official. The attorney general’s office did not respond to questions about the call. The bar opted to continue working with a private law firm, Vinson & Elkins. Attorneys from that firm had defended the bar in the past, including when a white attorney sued for discrimination, challenging a requirement that some seats on the bar’s board of directors be set aside for women or ethnic minorities. After a change in the requirement, a federal judge dismissed the lawsuit. Consovoy, who is challenging the state bar in this First Amendment fight, led that charge against the bar as well.
In early April, Gibson said, the bar’s attorneys first heard from the attorney general’s office that Paxton was considering inveighing against the bar’s structure.
“The State Bar Act of Texas is a law which I would think the attorney general would defend,” Gibson said.
Disclosure: The State Bar of Texas and Vinson & Elkins have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
|TONY K. MCDONALD, JOSHUA B. HAMMER, and MARK S. PULLIAM,
RANDALL O. SORRELS, et al.,
Civil Action No. 1:19-cv-00219-LY
NOTICE OF SUPPLEMENTAL AUTHORITIES
In support of their motion for partial summary judgment on liability (ECF No. 6), Plaintiffs argue that Keller v. State Bar of California, 496 U.S. 1 (1990), and Lathrop v. Donohue, 367 U.S. 820 (1961), “do not foreclose Plaintiffs’ challenge to compelled bar membership in light of the Bar’s extensive political and ideological activities” because “[n]othing in either Keller or Lathrop holds that a state can compel bar membership when a bar engages in political and ideological activities.” Pls.’ Reply in Supp. Mot. for Summ. J. 2-3 (May 31, 2019), ECF No. 63 (emphasis in original). On January 13, 2020, the U.S. District Court for the Eastern District of Louisiana rejected that exact argument in a case involving the Louisiana State Bar Association. See Boudreaux v. La. State Bar Ass’n, No. 2:19-cv-11962, slip op. at 53-56 (E.D. La. Jan. 13, 2020).1
1 The plaintiff’s argument in Boudreaux is nearly identical to the Plaintiffs’ argument in this case. Compare Pl.’s Opp’n to Defs.’ Mot. Dismiss at 2, Boudreaux v. La. State Bar Ass’n, No. 2:19-cv- 11962 (E.D. La. Oct. 25, 2019), ECF. No. 20 (“In Keller v. State Bar of California, 496 U.S. 1, 17 (1990), the Court expressly declined to address whether attorneys may ‘be compelled to associate with an organization that engages in political or ideological activities beyond those for which mandatory financial support is justified under the principles of Lathrop [v. Donohue, 367 U.S. 820 (1961)] and Abood [v. Detroit Board of Education, 431 U.S. 209 (1977)].’”), with Pls.’ Reply in Supp. Mot. Summ. J. 3 (“[T]he Supreme Court reserved that very question in Keller, declining to address ‘in the first instance’ whether an individual can ‘be compelled to associate with an organization that engages in political or ideological activities beyond those for which mandatory
In Boudreaux, the district court granted the defendants’ motion to dismiss, holding that the plaintiff’s claim that mandatory membership in the Louisiana Bar violated his First and Fourteenth Amendment rights to free association and free speech was “foreclosed by the Supreme Court’s decisions in Lathrop and Keller,” and that Janus v. American Federation of State, County, & Municipal Employees, 138 S. Ct. 2448 (2018), did not overrule those decisions. Slip op. at 54-56. In so holding, the court concluded that the Supreme Court “has already answered the question . . . whether states can condition the right to practice law in the state on membership in the state bar association and the payment of dues . . . in the affirmative.” Id. at 55. The court’s opinion is attached to this notice.
There have been several additional developments in other cases challenging integrated state bars since the Court held oral argument in this case on August 1, 2019.2 First, after the Eighth Circuit once again affirmed the district court’s grant of summary judgment in favor of the State Bar Association of North Dakota in Fleck v. Wetch, 937 F.3d 1112 (8th Cir. 2019), the plaintiff filed a petition for a writ of certiorari with the U.S. Supreme Court on November 21, 2019. See Fleck v. Wetch, No. 19-670 (U.S.). The certiorari petition is attached. The defendants’ response is currently due by February 3, 2020.
LIT COMMENT (18 Apr., 2020) ; Fleck Petition Denied by the Supreme Court. Currently circulating for a Rehearing which will most likely be denied.
Second, on December 11, 2019, the U.S. District Court for the Western District of Wisconsin dismissed a similar case against the State Bar of Wisconsin, concluding that the
financial support is justified under the principles of Lathrop and Abood.’” (quoting Keller, 496 U.S. at 17)).
2 The developments discussed here are not exhaustive. Other cases involving the state bar associations of Oklahoma, Oregon, and Michigan, and Wisconsin also remain pending in federal trial or appellate courts. See Schell v. Williams, No. 5:19-cv-00281-HE (W.D. Okla.); Crowe v. Or. State Bar, No. 19-35463 (9th Cir.); Gruber v. Or. State Bar, No. 19-35470 (9th Cir.); Taylor v. State Bar of Mich., No. 1:19-cv-00670-RJJ-PJG (W.D. Mich.); File v. Kastner, No. 2:19-cv- 01063-LA (E.D. Wis.).
plaintiffs’ First Amendment claims were barred by Keller. See Jarchow v. State Bar of Wis., No. 19-CV-266-BBC, 2019 WL 6728258, at **1-2 (W.D. Wis. Dec. 11, 2019). On December 23, the
Seventh Circuit summarily affirmed the district court’s decision, holding that the district court “correctly held that the [plaintiffs’] claims are foreclosed by Keller.” Jarchow v. State Bar of Wis., No. 19-3444, slip op. at 1 (7th Cir. Dec. 23, 2019). On December 31, the plaintiffs filed a petition for a writ of certiorari with the Supreme Court. See Jarchow v. State Bar of Wis., No. 19-831 (U.S.). The defendants’ response is currently due by February 3, 2020. The opinions of the district court and the Seventh Circuit, as well as the certiorari petition, are attached.
|Dated: January 15, 2020||Respectfully submitted,|
|/s/ Thomas S. Leatherbury|
|Joshua S. Johnson (admitted pro hac vice)||Thomas S. Leatherbury|
|State Bar No. 24070002||State Bar No. 12095275|
|Morgan A. Kelley (admitted pro hac vice)||VINSON & ELKINS LLP|
|State Bar No. 1617261||2001 Ross Avenue|
|VINSON & ELKINS LLP||Suite 3900|
|2200 Pennsylvania Avenue NW||Dallas, TX 75201|
|Suite 500 West||Tel: (214) 220-7792|
|Washington, DC 20037||Fax: (214) 999-7792|
|Tel: (202) email@example.com|
|Fax: (202) 879-8934|
|firstname.lastname@example.org||Patrick W. Mizell|
|email@example.com||State Bar No. 14233980|
|VINSON & ELKINS LLP|
|1001 Fannin Street|
|Houston, TX 77002|
|Tel: (713) 758-2932|
|Fax: (713) 615-5912|
|Counsel for Defendants|
CERTIFICATE OF SERVICE
I certify that on January 15, 2020, I electronically filed the foregoing Notice of Supplemental Authorities with the Clerk of the Court for the U.S. District Court for the Western District of Texas by using the Court’s CM/ECF system, which will send notification of such filing to the following:
|William S. Consovoy Jeffrey M. Harris Cameron T. Norris
Consovoy McCarthy Park PLLC 3033 Wilson Blvd., Suite 700
Arlington, VA 22201
Tel: (703) 243-9423
Fax: (703) 243-9423
Counsel for Plaintiffs Tony K. McDonald, Joshua B. Hammer, and Mark S. Pulliam
Cynthia A. Morales
Office of the Attorney General
P.O. Box 12548, Mail Code 009 Austin, TX 78711
Tel: (512) 936-1414
Counsel for Amicus Curiae Texas Attorney General Ken Paxton
Matthew R. Miller Goldwater Institute 500 E. Coronado Rd.
Phoenix, AZ 85004-1543
Tel: (602) 462-500
firstname.lastname@example.org Counsel for Amicus Curiae Goldwater Institute
|Jason M. Panzer Lauren B. Ross Herring & Panzer, LLP
1411 West Avenue, Suite 100
Austin, TX 78701
Tel: (512) 320-0665
Fax: (512) 519-7580
Counsel for Amicus Curiae Texas Legal Ethics Counsel
Charles “Chad” Baruch Randy Johnston
Johnston Tobey Baruch, P.C.
P.O. Box 215 Addison, TX 75001 Tel: (214) 741-6260 Fax: (214) 741-6248 email@example.com
Counsel for Amici Curiae Former Presidents of the State Bar of Texas et al.
Counsel for Amici Curiae Concerned Lawyers of Color
Macey Reasoner Stokes
J. Mark Little
910 Louisiana Street
Houston, TX 77002
Tel: (713) 229-1369
Fax: (713) 229-7869
Counsel for Amicus Curiae Texas Access to Justice Commission
/s/ Thomas S. Leatherbury Thomas S. Leatherbury Counsel for Defendants