McDonald v. Longley

4 F.4th 229

Tony K. MCDONALD; Joshua B. Hammer; Mark S. Pulliam, Plaintiffs—Appellants,

v.Joe K. LONGLEY, Immediate Past President of the State Bar of Texas; Randall O. Sorrels, President of the State Bar of Texas; Laura Gibson, Member of the State Bar Board of Directors and Chair of the Board; Jerry C. Alexander, Member of the State Bar Board of Directors; Alison W. Colvin, Member of the State Bar Board of Directors, Defendants—Appellees.

No. 20-50448

United States Court of Appeals, Fifth Circuit.

FILED July 2, 2021

Jeffrey Matthew Harris, Tiffany Bates, William S. Consovoy, Cameron Thomas Norris, Consovoy McCarthy, P.L.L.C., Arlington, VA, for Plaintiff-Appellants.

Thomas S. Leatherbury, Esq., Vinson & Elkins, L.L.P., Dallas, TX, Joshua Stephen Johnson, Morgan A. Kelley, Vinson & Elkins, L.L.P., Washington, DC, Patrick W. Mizell, Vinson & Elkins, L.L.P., Houston, TX, for Defendants-Appellees.

Judd Edward Stone, II, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for State of Texas.

Jason M. Panzer, Herring & Panzer, L.L.P., Austin, TX, for Amicus Curiae Texas Legal Ethics Counsel.

Macey Reasoner Stokes, Jonathan Mark Little, Baker Botts, L.L.P., Houston, TX, Madeleine Rose Dwertman, Esq., Baker Botts, L.L.P., Austin, TX, for Amici Curiae Texas Access to Justice Commission and Texas Access to Justice Foundation.

Dylan Owen Drummond, Esq., James Allen Moseley, Esq., Gray Reed & McGraw, L.L.P., Dallas, TX, for Amici Curiae Former Presidents of the State Bar of Texas, Former Chairs of the Texas Bar College, and Former Chairs of the Texas Bar Council of Chairs.

Jasmine Wynton, Mackenzie Salenger, Thompson Coburn, L.L.P., Dallas, TX, for Amicus Curiae Concerned Lawyers of Color.

Before Smith, Willett, and Duncan, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Three Texas attorneys sued officers and directors of the State Bar of Texas under 42 U.S.C. § 1983. They allege that the Bar is engaged in political and ideological activities that are not germane to its interests in regulating the legal profession and improving the quality of legal services and that therefore, compelling them to join the Bar and subsidize those activities violates their First Amendment rights. We vacate in part, render in part, and remand.

I.

A.

State bar associations are of two types: (1) "mandatory" and (2) "voluntary." Mandatory bars, also known as "integrated" bars, require that attorneys join and pay compulsory dues "as a condition of practicing law in a State." Keller v. State Bar of Cal. , 496 U.S. 1, 5, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). Voluntary bars do not. See Jarchow v. State Bar of Wis. , ––– U.S. ––––, 140 S. Ct. 1720, 1720, 207 L.Ed.2d 166 (2020) (Thomas, J., dissenting from denial of certiorari). Thirty-one states and the District of Columbia have mandatory bars, while most of the others have voluntary bars.¹

The State Bar of Texas is mandatory. See TEX. GOV ’ T CODE § 81.051(b). All licensed Texas attorneys, more than 120,000 as of May 2019, must join the Bar, which "is a public corporation and an administrative agency" controlled by the Supreme Court of Texas. Id. § 81.011(a), (c). The Bar serves the following statutorily enumerated purposes:

(1) to aid the courts in carrying on and improving the administration of justice;

(2) to advance the quality of legal services to the public and to foster the role of the legal profession in serving the public;

(3) to foster and maintain on the part of those engaged in the practice of law high ideals and integrity, learning, competence in public service, and high standards of conduct;

(4) to provide proper professional services to the members of the state bar;

(5) to encourage the formation of and activities of local bar associations;

(6) to provide forums for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform, and the relationship of the state bar to the public; and

(7) to publish information relating to the subjects listed in Subdivision (6).

Id . § 81.012.

In addition to being required to join the Bar, Texas attorneys are mandated to pay membership fees.² The Bar, which is entirely self-funded, relies on membership fees for nearly half of its budget.³ The Supreme Court of Texas, in collaboration with the Bar, sets the membership fee schedule. See id . § 81.054(a). The current annual dues for active attorneys range from $68 to $235, depending on how many years the attorney has been licensed. Those on inactive status pay $50.

Texas law does not give the Bar carte blanche to spend the membership fees however it pleases. The dues may "be used only for administering the public purposes" outlined above. Id . § 81.054(d). The State Bar Act forbids the Bar from using funds to "influenc[e] the passage or defeat of any legislative measure unless the measure relates to the regulation of the legal profession, improving the quality of legal services, or the administration of justice." Id . § 81.034. And the Bar's Policy Manual recognizes that "[t]he expenditure of funds by the State Bar of Texas is limited ... as set forth ... in Keller ,"⁴ a case that we discuss at length infra .

In addition to their required membership in the general Bar Association, Texas attorneys have the option to join a number of subject-matter "sections" that the Bar maintains. Those sections are funded in part by dues paid by attorneys who voluntarily join them⁵ and in part by money allocated from the Bar's general fund.⁶

Finally, on top of the membership fees, Texas imposes a $65 "legal services fee" on certain attorneys.⁷ Those funds are collected by the Supreme Court of Texas and remitted to the Comptroller. Id. § 81.054(c). They are allocated to pay for legal services for the indigent—half for civil services and half for criminal defense. Id.

B.

In carrying out its statutorily enumerated purposes, the Bar undertakes a plethora of initiatives. The plaintiffs object to a number of them, alleging that they are "political and ideological activities that extend far beyond any regulatory functions." We outline the objected-to activities here.

1.

The Bar has a legislative program, through which it lobbies for "bills drafted by sections of the State Bar." The Bar's Policy Manual forbids the Bar from taking a position on proposed legislation unless strict criteria are met. See Policy Manual § 8.01.03. Among those criteria are that the proposed legislation (1) "falls within the purposes, expressed or implied, of the State Bar as provided in the State Bar Act," (2) "does not carry the potential of deep philosophical or emotional division among a substantial segment of the membership of the bar," (3) "is in the public interest," and (4) "cannot be construed to advocate political or ideological positions." Policy Manual § 8.01.03(A), (C)–(D), (G).

In 2019, the Bar lobbied for forty-seven bills, on subjects ranging from LGBT rights to trusts and estates, that it supposedly determined to have met those criteria. Those measures included efforts to, among other things, (1) amend the Texas Constitution's definition of marriage (SJR 9); (2) create civil unions "as an alternative to marriage" (HB 978); (3) alter the procedures grandparents must use to obtain access to their grandchildren over parental objections (HB 575); (4) substantively amend Texas trust law (HB 2782); and (5) impose new notification requirements on parents who wish to take summer weekend possession of a child under a court order (HB 553).

The voluntary sections, as distinguished from the Bar as a whole, write and lobby for the bills included in the legislative program. But the Bar, using mandatory dues, supports those efforts in a number of ways. First, the legislative program must be approved by the Bar's board, placing the entire Bar's imprimatur on it. Second, the voluntary sections are funded in part by the Bar's general fund. And third, the Bar funds a Government Relations Department ("GRD"), which "manages and coordinates the State Bar's legislative program."⁸

2.

The record reflects that the Bar houses an Office of Minority Affairs ("OMA"), whose goals include "serv[ing] minority, women, and LGBT attorneys and legal organizations in Texas" and "enhanc[ing] employment and economic opportunities ... in the legal profession" for members of those groups. OMA sponsors "ongoing forums, projects, programs, and publications"—called "Minority Initiatives"—"dedicated to [its] diversity efforts." Though the programming is focused on furthering diversity relative to certain groups, all Texas attorneys are encouraged to participate. All told, the Bar spends about $500,000 per year on minority affairs.

3.

The Bar engages in, or financially supports, numerous activities aimed at making legal services available to the needy. First, it spends more than $1 million annually to support its Legal Access Division ("LAD"), which facilitates pro bono efforts in a wide variety of activities in the legal arena, including immigration, veterans’ affairs, and landlord-tenant disputes. It "offers support, training, publications, resource materials, and more to legal services programs and pro bono volunteers."

Second, in support of its pro bono efforts, the Bar maintains a directory of "volunteer and resource opportunities."⁹

The webpage appears to direct lawyers to various resources depending on the Bar's perceived needs of the time. For example, as of April 2021, it directed lawyers to volunteering for legal needs related to the COVID-19 pandemic (e.g. evictions, unemployment, and domestic problems). For a time in 2019, it directed lawyers to organizations representing asylum-seekers and illegal aliens.

Third, the Bar funds the Texas Supreme Court's Access to Justice Commission ("AJC"), which "focuses on cutting-edge initiatives and pilot projects that promote access to justice in Texas." Among other things, it aims to "increase resources and funding for access to justice," "develop and implement initiatives designed to...