Here is the U.S. Supreme Court docket of the case where the original petition can be downloaded.
In this blog I am publishing copied, pasted and reformatted petition (it is a public record) for easier readability.
I think the general public will be very interested to learn which activities the bar association in a "red" (Republican) state is financing with MANDATORY licensing fees of ALL its attorneys - whether they support such political and ideological positions or not.
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INTRODUCTION
The “freedom of speech ‘includes both the right to speak
freely and the right to refrain from speaking at all,’” and compelled
subsidization of speech “seriously impinges on First Amendment rights.” Janus v. Am. Fed. of State,
Cty., & Mun. Employees, Council 31, 138 S. Ct. 2448, 2463-64 (2018).
This Court recently held in Janus that the First Amendment fully protects public
employees’ freedom to decline to associate with or subsidize the activities of
a labor union.
This case implicates the same types of First Amendment
harms that were at issue in Janus. Petitioners are three Texas attorneys who
are compelled to join and financially support the State Bar of Texas in order
to practice their chosen profession. The 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. Petitioners do not support
these activities yet are compelled to associate with the Bar and fund its
activities if they wish to continuing practicing law in Texas.
In the decision below, the Fifth Circuit correctly held
that Petitioners could not be compelled to support the Bar’s lobbying and
political advocacy regarding matters unrelated to the legal profession.
But the court found itself constrained by this Court’s
precedent to reject Petitioners’ First Amendment challenges to all of the other
activities at issue. The Fifth Circuit acknowledged that many of these activities—such
as identity-based programming based on race, gender, and sexual
orientation—were “highly ideologically charged.” App. 29. Yet the Court found
Petitioners’ First Amendment challenges to these activities to be barred by
this Court’s precedent because they were “germane” to “regulating the legal profession”
or “improving the quality of legal services.” Keller v. State Bar of California, 496 U.S. 1, 13 (1990).
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.
That rule flows directly from this Court’s existing precedent, which makes
clear that members of a mandatory bar “could not be required to pay the portion
of bar dues used for political or ideological purposes but that they could be
required to pay the portion of the dues used for activities connected with proposing
ethical codes and disciplining bar members.” Harris v. Quinn, 573 U.S. 616, 655 (2014) (emphasis
added). Although Keller did contemplate a limited role for a mandatory bar
whose activities are carefully circumscribed, nothing in Keller gives bar associations
a blank check to use coerced dues to support highly controversial and
ideologically charged activities such as those challenged here.
This Court’s intervention is imperative.
Mandatory bars across the country have become increasingly
embroiled in advocacy and programming on hot-button and politically charged
issues such as immigration, identity-based programming, and legal aid for
controversial causes. Yet countless bar members, including Petitioners, do not
support those activities and would prefer to support and associate with
organizations and causes of their own choosing.
Given that this case implicates “First Amendment rights
of association which must be carefully guarded against infringement,” Elrod v. Burns, 427 U.S. 347, 373
(1976), certiorari is plainly warranted.
In the alternative, if Keller and Lathrop actually do authorize the use of coerced
dues for the broad array of ideological and controversial activities challenged
here, then those decisions should be overruled. Janus recognized the hopeless ambiguity of attempting
to use a “germaneness” test to determine what types of activities a union
member could be compelled to support. And this Court expressly recognized in Keller that there is a
“substantial analogy” between compelled support for a union and compelled
support for a bar association. Keller, 496 U.S. at 12. Given that Keller relied
on the same legal doctrines that this Court since repudiated in Janus, it is
untenable to give less First Amendment protection to attorneys forced to join a
bar association than to government employees forced to support a union. Ifthis
Court’s precedents authorize the Bar to compel Petitioners to support the
highly ideological activities challenged here, then those decisions should be reconsidered
and overruled.
The First Amendment question underlying this petition
has been raised in a few other recent petitions, one of which garnered two
votes for certiorari. See Jarchow v. State Bar of Wisconsin, 140 S. Ct. 1720,
1720-21 (2020) (Thomas, J., joined by Gorsuch, J., dissenting from the denial
of certiorari).
Unlike those earlier petitions, however, this petition
does not argue that the Court must overrule prior precedent; Petitioners’
primary argument is that this Court’s full body of First Amendment precedent already
bans states from compelling membership in and funding of a bar that engages in
political or ideological activities. Unlike the earlier cases, moreover, the
decision below actually evaluated whether each of the Bar’s activities was
germane to the legal profession and found that many were not.
This case was also decided at summary judgment where
the First Amendment issues were fully litigated based on an extensive record.
Cf. Jarchow, 140 S. Ct. at 1721 (pleadings stage); Crowe v. Oregon State Bar, 989 F.3d 714 (9th Cir.
2021) (pleadings stage and a key First Amendment claim left unresolved),
cert. denied, No. 20-1678, 2021 WL 4507678 (Oct. 4, 2021); Fleck v. Wetch, 937
F.3d 1112, 1115-17 (8th Cir. 2019) (plaintiff forfeited key First Amendment
claim), cert. denied, 140 S. Ct. 1294 (2020). This case accordingly presents an
ideal vehicle for the Court to address the important First Amendment issues
arising out of mandatory bar membership.
OPINIONS BELOW
The Fifth Circuit’s opinion is reported at 4 F.4th
229 and is reproduced at App. 1-43. The district court’s order on cross-motions
for summary judgment is available at 2020 WL 3261061 and is reproduced at App.
44-65.
JURISDICTION
The Fifth Circuit issued its opinion on July 2, 2021.
Because its decision was issued before July 19, 2021, the deadline for filing
this petition was automatically extended to 150 days from the date of the lower
court’s decision, or November 29, 2021. This Court has jurisdiction under 28
U.S.C. §1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The First Amendment, as incorporated against the
states by the Fourteenth, provides: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.”
STATEMENT OF THE CASE
A. Overview of mandatory and voluntary bar associations.
An “integrated” bar association (also called a “unified” or “mandatory” bar) is
“an official state organization requiring membership and financial support of
all attorneys admitted to practice in that jurisdiction.” The Integrated Bar
Ass’n, 30 Fordham L. Rev. 477, 477 (1962). These mandatory associations are
described as “integrated” because they both regulate the legal profession and
engage in other activities such as lobbying, promoting “access to justice” and
pro bono work, organizing conferences and continuing legal education programs,
holding public forums, publishing reports, and promoting diversity initiatives.
A mandatory bar association differs from a voluntary
bar association in that it is an “official organization by authority of the
state” and has “compulsory membership.” Id.; see also Jarchow, 140 S. Ct. at
1720 (Thomas, J., dissenting from denial of cert.) (“Unlike voluntary bar
associations, integrated or mandatory bars require attorneys to join a state
bar and pay compulsory dues as a condition of practicing law in the State.”).
As this Court has recognized, mandatory bars can burden the First Amendment rights
of those who are compelled to join in a manner “substantial[ly] analog[ous]” to
the way that mandatory “agency shop” arrangements can burden the rights of
union members. Keller, 496 U.S. at 12.
Although a majority of states currently have mandatory
bar associations, they are by no means necessary to ensure adequate regulation
and supervision of the legal profession. Nearly twenty states—including large
legal markets such as New York, Illinois, Massachusetts, Ohio, and Pennsylva[1]nia—regulate
the legal profession directly without compulsory bar membership. See In re
Petition for a Rule Change to Create a Voluntary State Bar, 841 N.W.2d 167, 171
(Neb. 2013).
Voluntary bar associations devoted to improvement of
the law and the legal profession have continued to flourish in those
jurisdictions even in the absence of government coercion. For example, the New
York State Bar Association—which is supported solely by voluntary membership
and contributions—has over 70,000 members, more than 125 employees, and more
than $20 million in annual revenue. See About NYSBA, History and Structure of
the Ass’n, archive.nysba.org/history/; 2020 Operating Budget, bit.ly/3l5VyjB.
Voluntary bar associations such as the NYSBA typically
conduct the same types of activities that members of mandatory bars are coerced
to support, e.g., lobbying, legal advocacy, diversity programs, legal aid
projects, conferences, CLE programs and other similar initiatives. Because they
are private, voluntary organizations supported solely by their members, these
groups are free to support or oppose any causes of their choosing without
limitation.
B. Texas law requires all attorneys to join and fund
the Bar as a condition of practicing their chosen profession.
The State Bar of Texas is a mandatory bar association.
The Bar is a public corporation and an administrative agency of the judicial department,
operating under the administrative control of the Supreme Court of Texas. See
Tex. Gov’t Code § 81.011. Individuals
who wish to practice law in Texas are compelled to join the Bar in order to
engage in their profession. See Tex. Gov’t Code § 81.051(b) (“Each person
licensed to practice law in this state shall, not later than the 10th day after
the person’s admission to practice, enroll in the state bar by registering with
the clerk of the supreme court.”).
Failure to join the Bar makes an individual ineligible
to practice law in Texas. An attorney who is eligible to practice law in Texas
but is not currently practicing may move to “inactive” status. See Tex. Gov’t
Code §§ 81.052, 81.053. Inactive members must remain members of the Bar, and
continue to pay dues, in order to preserve their eligibility to return to
active status in the future.
All attorneys licensed to practice law in Texas must
pay dues to the Bar. See Tex. Gov’t Code § 81.054. Those dues are currently $68
for attorneys licensed 0 to 3 years, $148 for attorneys licensed 4 to 5 years,
and $235 for attorneys licensed more than 5 years. ROA.3749.1 Dues for inactive
members are currently $50 per year. ROA.3761. In the year ending on May 31,
2017, the Bar collected more than $22 million in mandatory dues, plus another
$25 million in revenue from its other activities. ROA.3775.
Texas law also imposes an additional $65 “legal services
fee” on certain attorneys as a condition of their practicing law. Tex. Gov’t
Code § 81.054(j). This fee is imposed only on certain attorneys in active private
practice in Texas. It is not imposed on attorneys over 70 years old or on
inactive status; those who work in state, federal, or local government; those who
work for certain non-profit organizations; or those who reside out of state and
do not practice law in Texas. Id. § 81.054(k).
1 “ROA” refers to the Record on Appeal before the
Fifth Cir[1]cuit.
C. The Bar’s use of compelled dues for ideological and
political activities. Under this Court’s
precedent, compelled bar dues may be used only for carefully limited purposes
such as “proposing ethical codes and disciplining bar members.” Harris, 573
U.S. at 655. But the Bar does not limit its spending to this narrow category.
Instead, it uses coerced dues for extensive political and ideological
activities that extend far beyond regulatory and disciplinary functions.
Legislative Program. It is difficult to imagine a more
quintessentially “political” activity than advocating for the passage of
legislation. Yet the Bar uses compelled dues to do just that. The Bar maintains
a Governmental Relations department that “serves as the State Bar’s liaison to
the Texas Legislature and other state and federal governmental entities.”
ROA.3752. This department “reviews thousands of bills each legislative session
for their potential impact on the State Bar and the legal profession,” and
“manages and coordinates” the Bar’s legislative advocacy for certain bills. Id.
The Bar’s 2019 legislative program included proposed legislation on
wide-ranging matters including construction law, family law, LGBT law, poverty
law, real estate law, trust law, and probate law. ROA.3755-57.
At the time this suit was filed, the Bar was actively
advocating for the passage of forty-seven proposed bills in these areas. Id. One of these bills (SJR 9) would amend the definition of
marriage in the Texas Constitution. ROA.3756, 3959. Another (HB 978)
would amend the Texas Code to create civil unions,
“intended as an alternative to marriage” for both sexes. ROA.3756,
3961-79. Other bills would modify the procedures
used by grandparents to gain access to grandchildren over parental objections (HB 575), ROA.3755, 3981-83; would substantively amend Texas trust law (HB 2782), ROA.3756, 3985-4017; and would impose notification requirements on parents wishing to
take summer weekend possession of a child under a court order (HB 553), ROA.3755, 4019.
Diversity Initiatives. The Bar also has an “Office of Minority Affairs.” The
goals of this office include “serv[ing] minority,
women, and LGBT attorneys and legal organizations in Texas” and “enhanc[ing] employment
and economic opportunities for minority, women, and LGBT attorneys in the legal
profession.” ROA.3841. The Office of
Minority Affairs engages in “Minority Initiatives,” which are “ongoing forums, projects,
programs, and publications dedicated to [their] diversity efforts.” Id. These
initiatives include the Texas Minority Counsel Program, Texas Minority Attorney
Program, Minority Attorneys at the Podium Project, Diversity Forum, Diversity
Summit, LeadershipSBOT, Pipeline Program, Texas Spectrum (a diversity
newsletter), and the Ten Minute Mentor Program. ROA.3841-42.
All of the Bar’s “diversity” initiatives are premised on
the assumption that is appropriate to offer certain services targeted at
individuals of a particular race, gender, or sexual orientation. The Texas
Minority Counsel Program, for example, is a “client development, networking,
and CLE event for diverse attorneys in Texas,” which are defined as “minority, women,
and LGBT attorneys.” ROA.3845. This annual program allows “diverse lawyers” to
“meet one-on-one to discuss potential outside counsel opportunities” and offers
“incomparable networking events.” ROA.3853. The Bar also operates a host of
diversity committees and sections. ROA.3849-50. Access to Justice Division and Programs. The
Bar maintains a “Legal Access Division” that “offers support,
training, publications, resource materials, and more to legal services programs
and pro bono volunteers.” ROA.3874. During the 2018-2019 budgetary year, the
Bar spent over $1 million on Legal Access Division programs. ROA.3871. In
2019-2020, the Bar budgeted over $1.5 million for these activities. ROA.3867.
The Bar spent an additional
$827,000 in 2018-2019 funding an “Access to Justice Commission,”
and it intended to spend a similar amount during the 2019-2020 fiscal year. See
ROA.3871, 3867. The Access to Justice Commission engages in a variety of highly
political and ideological activities, including lobbying. See ROA.3942-45. The
Commission’s lobbying is aimed at “increas[ing] resources and funding for
access to justice,” ROA.1607, and promoting
“systemic change,” ROA.1619. Simply put, bar members’ coerced dues are used to finance an organization
that lobbies to increase government spending on its preferred programs and
policies.
In connection with its pro bono and “access to justice
efforts,” ROA.3607, the Bar maintains a directory of “volunteer and resource
opportunities.” ROA.3887-88. That directory
“provides a comprehen[1]sive
list of training, volunteer, and donation opportu[1]nities
for attorneys who would like to assist with migrant asylum and family
separation cases.” Id. At the time this suit was filed, every one of the relevant entries promoted a group that seeks
to help undocumented immigrants remain in the United States. Id.
Moreover, the directory links to a 2018 article published by Joe K. Longley,
the then[1]President
of the Bar. In that article, Longley says he “traveled to the border to learn
how we can promote access to justice and the rule of law related to the separation
of immigrant families” and decided to create the volunteer opportunities
webpage as a result. ROA.3890-91. Even though Longley was expressly encouraging Bar members to oppose immigration
policies being implemented by the federal government, Longley
claimed that “[t]his is not about politics. It’s about access to justice.” Id.
Legal Services Fee. As noted above, Texas law requires certain attorneys to pay a $65 legal
services fee. Tex. Gov’t Code § 81.054(j). This fee is imposed only on a subset of attorneys in active
private practice in Texas. The $65 legal
services fee has nothing to do with regulating the profession or ensuring
ethical conduct by attorneys. Its sole purpose is to fund legal services for
certain groups. Half of the fees are allocated to the Supreme Court
Judicial Fund, which provides civil legal services to the poor, and the other half
goes to the Fair Defense Account of the State’s general reserve fund for
indigent criminal defense. See id. § 81.054(c). This
fee is effectively a compelled charitable contribution that is imposed on
certain Texas attorneys as a condition of practicing their chosen profession.
Other Non-Chargeable Activities. The Bar spends attorneys’ compelled dues on countless other activities
that extend far beyond the regulation of attorneys. The Bar hosts an annual convention at which political and
ideological activities are rampant.
During the 2018 convention, for example, topics included
“Diversity and Inclusion: The Important Role of Allies”; “Current Issues
Affecting the Hispanic Community”; “LGBT Pathways to the Judiciary: Impact of
Openly LGBT Judges in Texas”; “Implicit Bias”; “Texas Transgender Attorneys: A
View from the Bar”; and a “Legislative Update [on] Proposed Rulemaking Under
the Trump Administration.” ROA.3904-28.
The Bar also funds ideologically
charged continuing legal education programs. See, e.g.,ROA.3879-82
(“The Paradox of Bodily Autonomy: Sex Confirming
Surgeries and Circumcision”; “Intersectionality: The New Legal Imperative”). It spends nearly $800,000 on advertising each year.
See ROA.3870. It publishes and exercises editorial control over its “official
publication,” the Texas Bar Journal, on which it spends over $1.5 million each
year. ROA.3947; ROA.3871. And to support these activities, the Bar spends
millions on administrative staff, technology, and facilities. See ROA.3866-72.
D. Proceedings below.
1. On March 6, 2019, Petitioners—three Texas attorneys—brought
suit against the Bar’s officers and directors, alleging that: (1) the First
Amendment barred the state from compelling Petitioners to join a bar
association that engages in political and ideological activities; (2) even if
Petitioners could be compelled to join the Bar, they could not be compelled to
fund its political and ideological activities; and (3) the Bar’s procedures for
allowing members to opt[1]out
of paying for its political and ideological activities were constitutionally
inadequate. App. 11, 49-50.2
Shortly thereafter, Petitioners filed a motion for preliminary
injunction and motion for partial summary judgment on liability. The Bar
cross-moved for summary judgment.
On May 29, 2020, the district court denied Petitioners’
motions and granted the Bar’s cross[1]motion
for summary judgment. First, the district court concluded that “Keller and
Lathrop directly control under the facts of this case,” and thus foreclose Petitioners’
claim that compelling them to join the Bar violates the First Amendment. App.
57. Second, the district court found that every single one of the challenged
activities was “germane” to “Texas’s interest in professional regulation or
legal-service
2 At the time this suit was filed, the Bar failed to
provide members a Hudson notice, a description of which portions of members’
dues are paying for regulatory functions and which portions are paying for
non-chargeable political and ideological activities. See Chicago Teachers Union
v. Hudson, 475 U.S. 292 (1986). This put the entire burden of identifying
non-chargeable expenses on potential objectors.
quality improvement.” App. 59-63. Finally, the district
court summarily rejected Petitioners’ challenge to the Bar’s procedures for
objecting to impermissible expenditures. App. 63-64. Because the court
concluded that all of the challenged activities were “germane” it further held
that Petitioners’ “claim that the Bar unconstitutionally coerces them into funding
allegedly non-chargeable activities without a meaningful opportunity to object
necessarily fails as a matter of law.” App. 64 And the court found that the Bar’s
opt-out procedures were “adequate” to “protect against compelled speech.” App.
64.
2. Petitioners appealed. On July 2, 2021, the Fifth
Circuit vacated the summary judgment for the Bar, rendered partial summary
judgment for Petitioners, and remanded for the district court to determine the
scope of relief to which plaintiffs are entitled. App. 43. The court concluded
that Keller left open the question of whether attorneys can be compelled to
join a bar association that engages in “non-germane” activities. App. 16-17
n.14, 40. The Fifth Circuit then answered that question by holding that
“compelling a lawyer to join a bar association engaged in non-germane
activities burdens his or her First Amendment right to freedom of association,”
App. 21, and that “[c]ompelled membership in a bar association that engages in
non-germane activities ... fails exacting scrutiny.” App. 23.
The court then analyzed each of the challenged activities
at issue here to determine whether they were germane to regulating or improving
the legal profession. App. 25-36. It held that “some” of the Bar’s “lobbying
was germane, but most was not.” App. 27.
The court held that “advocating changes to a state’s substantive
law is non-germane to the purposes identified in Keller,” but that “[l]obbying
for legislation regarding the functioning of the state’s courts or legal system
writ large … is germane.” App. 26.
The Fifth Circuit found most of the remaining activities
to be germane under Keller: the Bar’s diversity initiatives, “though highly
ideologically charged,” were germane to improving the legal profession, App.
29; “[m]ost, but not quite all,” of the Bar’s Access to Justice initiatives were
germane; and “all” of the “miscellaneous activities—hosting an annual
convention, running CLE programs, and publishing the Texas Bar Journal—” were
germane. App. 31-36. The court found these activities to be “germane to the
purposes identified by Keller” notwithstanding their “controversial and
ideological nature.” App. 29-30.
Finally, the court held that the Bar’s procedures were
“constitutionally wanting” but that “at least under current law, opt-in
procedures are [not] required.” App. 39. It concluded that the Bar “may use opt-out
procedures,” as long as it employs the notice procedures outlined in Hudson,
which are “both necessary and sufficient.” App. 39-40. The court concluded that
the Bar’s current procedures were“inadequate” under that framework. App. 41. Petitioners
do not challenge the Fifth Circuit’s holdings that some of the Bar’s lobbying
was non-germane; that they cannot be compelled to join the Bar while it engages
in non-germane activities; and that the Bar’s procedures for disclosing its
activities were inadequate. But Petitioners now seek this Court’s review of the
lower courts’ grant of summary judgment to the Bar on Petitioners’ challenge to
the remaining expenditures and activities that were found to be “germane.”
REASONS FOR GRANTING THE PETITION
The First Amendment does not allow states to force an
individual to join and fund an organization that engages in political and
ideological activities. By concluding otherwise, the Fifth Circuit “decided an important
federal question in a way that conflicts with relevant decisions of this
Court.” S. Ct. R. 10(c). This Court’s precedents do not require that
conclusion; if they did, those precedents should be overruled.
I. The Court should grant certiorari because the
decision below misconstrues Keller and Lathrop and conflicts with this Court’s
morerecent compelled-membership decisions. Texas law requires all attorneys to
join and associate with the Bar as a condition of practicing their chosen
profession even though the Bar engages in extensive political and ideological
activities. This scheme is unconstitutional even under current law, and the
Fifth Circuit erred to the extent it heldotherwise. Keller prohibits compelled
membership in a bar association that engages in political and ideological
activities, and subsequent decisions such as Harris and Janus confirm this
understanding. At a minimum, this Court’s precedents prohibit Texas from
compelling support for bar activities that extend beyond regulatory and
disciplinary functions.
All citizens have the constitutional “freedom not to
associate.” Roberts v.
U.S. Jaycees, 468 U.S. 609, 623 (1984). “Compelling individuals to mouth
support for views they find objectionable,” including by compelled association,
“violates that cardinal constitutional command.” Janus, 138 S. Ct. at 2463.
Moreover, “freedom of speech ‘includes both the right to
speak freely and the right to refrain from speaking at all,’” and compelled
subsidization of someone else’s speech “seriously impinges on First Amendment rights.”
Id. at 2463-64. Here, Texas law compels attorneys to join, associate with,
and fund the Bar even though that organization engages in extensive political
and ideological activities to which many of its members object. The Bar lobbies for the passage of legislation; funds
numerous diversity initiatives targeted at individuals of a certain race,
gender, or sexual orientation; sponsors ideologically charged CLEs and panels;
compels charitable contributions to pay for legal services, pro bono, and
access to justice initiatives; requires members to fund its magazine; and much
more. See supra 9-13. Since the First Amendment always protects “[t]he
right to eschew association for expressive purposes,” there is no question that
compelled membership in the Bar burdens Petitioners’ constitutional rights.
Janus, 138 S. Ct. at 2463.
To reduce the burden on constitutional rights resulting
from compelled bar membership, this Court has held
that bar members may be compelled to support only those activities that are
“germane” to regulating attorneys or improving the legal profession. See Keller, 496 U.S.
at 13-14. This Court has never addressed whether any specific expendi[1]tures
are “germane.” But this Court’s precedents in both the bar and the union
context are clear that politically and ideologically charged activities can never
be funded through compelled dues without members’ consent.
The Fifth Circuit correctly held that lobbying for changes to substantive law unrelated to the
legal profession was non-germane under Keller and that Petitioners could
not be required to associate with and financially support the Bar so long as it
engaged in those activities. App. 25-29. But the court nonetheless held that
the other challenged activities were nearly all germane despite their
“controversial and ideological nature.” App. 29-36. That holding rests on a
misinterpretation of Keller and Lathrop. Those decisions—especially when read
in light of subsequent decisions like Harris and Janus—make clear that compelling
Petitioners to join and associate with the Bar notwithstanding its significant
political and ideological activities exceeds bedrock First Amendment
limitations.
The Fifth Circuit reasoned that, in Keller, this Court
“held that state bar associations may constitutionally charge mandatory dues to
‘fund activities germane’ to ‘the purpose[s] for which compelled association
was justified,’ i.e., ‘regulating the legal profession and improving the
quality of legal services.’” App. 18. Acknowledging that “Keller did not lay
down a test to determine when lobbying is germane and when it is not,” the
Fifth Circuit addressed that issue as a matter of first impression. App. 26.
Among other things, the court stated that “advocating changes to a state’s
substantive law is non-germane.” App. 26. But it concluded that “[l]obbying for
legislation regarding the functioning of the state’s courts or legal system
writ large, on the other hand, is germane. So too is advocating for laws governing
the activities of lawyers qua lawyers.” App.
26.
The Fifth Circuit reached a similar conclusion with respect
to the other challenged activities, such as the Bar’s identity-based
“diversity” initiatives; its advocacy on immigration issues; and its legal aid programs.
App. 29-36. Despite acknowledging that these activities could be seen as
“controversial and ideological,” App. 30, the court concluded that (with limited
exceptions) they were sufficiently “germane” to regulating and improving the
legal profession to pass muster under Keller.
Properly construed, however, nothing in Keller grants
state bar associations plenary power to spend coerced dues on political or
ideological activities so long as they satisfy an amorphous germaneness test. To
the contrary, Keller expressly identified “activities of an ideological nature”
as an example of non-germane activities. As the Court explained: The State Bar
may therefore constitutionally fund activities germane to those goals out of
the mandatory dues of all members. It may not, however, in such manner fund
activities of an ideological nature which fall outside of those areas of
activity. Keller, 496 U.S. at 14.
The best reading of this language is that “activities of
an ideological nature” necessarily “fall outside those areas” of permissible
activity. Id. Indeed, if a bar association had blanket authority to force its
members to associate with and fund ideologically charged activities merely
because they could be deemed “germane,” then Keller would provide little meaningful
protection at all.
But even if Keller were open to multiple interpretations
on this point, the Fifth Circuit’s approach is contrary to this Court’s more
recent precedents regarding coerced association. In Harris, decided in 2014,
the Court explained that Keller “held that members of this bar could not be
required to pay the portion of bar dues used for political or ideological purposes
but that they could be required to pay the portion of the dues used for
activities connected with proposing ethical codes and disciplining bar members.”
Harris, 573 U.S. at 655 (emphasis added).Harris eliminates any doubt that, even
under Keller’s“germaneness” framework, objectors cannot be compelled to support
activities of a “political or ideological” nature. They are non-germane as a matter
of law, full stop. This conclusion is
reflected in this Court’s decision in Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005).
There, the Court explained that Keller had “invalidated the use of the
compulsory fees to fund speech on political matters” and held that “Bar or union
speech with such content ... was not germane to the regulatory interests that
justified compelled membership.” Id. at 557-58. Keller also held, according to
Johanns, that “making those who disagreed with [that speech] pay for it
violated the First Amendment.” Id. at 558. Thus, even if there were some
ambiguity about the scope of Keller, later decisions such as Harris and Johanns
resolve it decisively in Petitioners’ favor.
Petitioners’ interpretation is further buttressed by this Court’s recent
decision in Janus. There, the Court similarly distinguished between speech that
is “germane to collective bargaining” and speech that “instead concerns
political or ideological issues.” Janus, 138 S. Ct. at 2473. The Court never
suggested that there was a third category of speech that concerned political or
ideological issues but was germane to collective bargaining. And the Court further
emphasized that even “[u]nder Abood”—the principal case upon which Keller
relied—and other pre-Janus precedents, compulsory organizations are “flatly prohibited
from permitting nonmembers to be charged” for speech that “concerns political
or ideological issues.” Id. (emphasis added).
* * *
At bottom, the Fifth Circuit correctly recognized that
bar members could not be compelled to support lobbying activity unrelated to
the legal profession. But the Fifth Circuit’s interpretation of Keller gives mandatory
bars sweeping power to compel their members to support even highly
controversial political and ideological activities so long as those activities
bear some connection to legal services or the legal profession. That holding is
contrary to both Keller and later decisions of this Court that recognize citizens’
paramount First Amendment right to decline to associate with or fund
ideological activities with which they disagree. Certiorari is warranted to
review and reverse this decision on an important question of federal law that
deprives hundreds of thousands of attorneys of bedrock First Amendment
protections.
II. In the alternative, the Court should
overrule Lathrop and Keller.
For the reasons set forth above, Petitioners should prevail
on their First Amendment challenge to the Bar’s use of coerced funds for all
the political and ideological activities challenged here. But, in the alternative,
if the Fifth Circuit was right that Keller and Lathrop actually permit the Bar
to force Petitioners to associate with and fund these activities, then those
decisions should be overruled. Stare decisis ensures that decisions to overrule
precedent are not taken “lightly.” Kisor v. Wilkie, 139 S. Ct. 2400, 2445
(2019) (Gorsuch, J., concurring in the judgment). “At the same time, everyone
agrees that stare decisis is not an inexorable command.” Id. (cleaned up). For
this reason, almost “every current Member of this Court has voted to overrule
multiple constitutional precedents” in “just the last few Terms.” Ramos v.
Louisiana, 140 S. Ct. 1390, 1411 (2020) (Kavanaugh, J., concurring in part).
Moreover, this Court has recognized that stare decisis “‘is at its weakest when
[the Court] interpret[s] the Constitution.’” Janus, 138 S. Ct. at 2478. And it applies
with the “least force of all to decisions that wrongly den[y] First Amendment
rights.” Id.
When deciding whether to overrule precedent, this
Court considers several “factors”: “the quality of [the case’s] reasoning, the
workability of the rule it established, its consistency with other related decisions,
developments since the decision was handed down, and reliance on the decision.”
Id. at 2478-79. Analyzing these factors makes it clear that if Keller and
Lathrop really do authorize coerced support for nearly all of the highly
political and ideological activities challenged here, then those decisions
should be overruled.
A. Keller and Lathrop are poorly reasoned,
inconsistent with the Court’s more recent decisions, and have wrought
significant negative consequences.
As the Fifth Circuit recognized, this Court’s broader
First Amendment jurisprudence has “changed dramatically” “[s]ince Lathrop and
Kellerwere decided.” App. 16 n.14. Indeed, these cases are now “First Amendment
‘anomal[ies].’” Janus, 138 S. Ct. at 2484.
25
This Court has already rejected Keller’s legal foundation.
In Janus, the Court overruled
Abood v. Detroit Board of Education, 431 U.S. 209 (1977), as poorly
reasoned and inconsistent with broader First Amendment jurisprudence. 138 S.
Ct. at 2460. The Court held that “States and public-sector unions may no longer
extract agency fees from nonconsenting employees.” Id. at 2486. That decision
explicitly overturned Abood. See id. (“Abood was wrongly decided and is now
overruled.”). As the Court explained, Abood threatened “[f]undamental free speech
rights” and “perpetuat[ed] … free speech violations” without adequate
justification, especially given the existence of other “‘means significantly
less restrictive of associational freedoms.’” Id. at 2460, 2466.
Keller’s holding, as construed by the Fifth Circuit, is
untenable for the same reasons. As the Fifth Circuit recognized, Keller “rested
almost exclusively on Abood.” App. 16 n.14. Keller simply extended Abood’sreasoning
to mandatory bars given the “substantial analogy between the relationship of
the State Bar and its members, on the one hand, and the relationship of employee
unions and their members, on the other.” Keller, 496 U.S. at 12.
Now that Abood “is no longer good law,” however,
“there is effectively nothing left supporting [the Court’s] decision in
Keller.” Jarchow, 140 S. Ct. at 1720 (Thomas, J., dissenting from the denial of
cert.). Having a different constitutional rule for government unions and bar
associations would be untenable given that this Court itself has recognized the
close similarities between the two situations.
Lathrop also failed to give “careful consideration” to the First
Amendment. Janus, 138 S. Ct. at 2479. Indeed,
the term “First Amendment” appears only twice in the plurality’s 28-page
opinion. The Lathrop plurality relied heavily on Railway Employees’ Department. v. Hanson, 351 U.S. 225
(1956), to conclude that compelled membership in a state bar is permissible.
See Lathrop v. Donohue,
367 U.S. 820, 842-43 (1961) (plurality op.). But such reliance was “unwarranted.”
Janus, 138 S. Ct. at 2479. Hanson involved the “‘bare authorization’” of
private union shop contracts, not government compulsion. Id. And, as this Court has already explained,
Hanson’s First Amendment analysis was “thin,” and its holding was “quite
narrow.” Harris, 573 U.S. at 631, 636.
Additionally, Hanson primarily dealt with the Commerce
Clause and substantive due process. SeeJanus, 138 S. Ct. at 2479. The First
Amendment issue was “disposed of … in a single, unsupported sentence.” Harris, 573 U.S. at 635.
Lathrop also rests on reasoning that would be unrecognizable
today. There, the Wisconsin Bar adopted a mandatory membership policy because
“too many lawyers have refrained or refused to join, … membership in the
voluntary association has become static, and … a substantial minority of the
lawyers in the state are not associated with the State Bar Association.” 367
U.S. at 833 (cleaned up). Simply put, because the bar was not attracting enough
voluntary membership, the state decided to coerce it. That reasoning is wholly
foreign to modern First Amendment jurisprudence, which ensures robust protection
for individuals who choose not to associate with or support causes or groups
with which they disagree. See, e.g., Janus, 138 S. Ct. at 2466 (noting voluntary
union membership in 28 states and at the federal level as a less restrictive
alternative to mandatory membership).
Lathrop thus cannot be sustained under the Court’s
earlier reasoning. By the time Lathrop was decided, even Justice Douglas—Hanson’s
author—had recognized the First Amendment dangers resulting from coerced
membership and “conclu[ded] that the First Amendment did not permit compulsory membership
in an integrated bar.” Harris, 573 U.S. at 630; see also Lathrop, 573 U.S. at
885 (Douglas, J., dissenting) (noting that compulsory membership in a mandatory
bar is “not compatible with the First Amendment”).
Equally important, Keller and Lathrop have inflicted
significant “real-world” damage on Petitioners and countless other bar members
across the country. Ramos, 140 S. Ct. at 1415 (Kavanaugh, J., concurring in
part). The First Amendment is “essential to our democratic form of government.”
Janus, 138 S. Ct. at 2464. This Court has accordingly worked to fulfill the
First Amendment’s foundational promise that individuals may not be “coerced
into betraying their convictions.” Id. Yet for more than 60 years, Lathrop’s
indifference to the First Amendment has allowed “men and women in [the legal]
profession” to be “regimented behind causes which they oppose.” Lathrop, 367 U.S. at 884 (Douglas, J.,
dissenting). “Surely a First Amendment issue of this importance deserve[s]
better treatment.” Harris, 573 U.S. at 636.
In the end, “[f]orcing free and independent individuals
to endorse ideas they find objectionable is always demeaning.” Janus, 138 U.S.
at 2464. And “lawyers have at least as much protection from such compulsion
under the Constitution as [anyone else].” Lathrop, 367 U.S. at 877 (Black, J.,
dissenting). If Keller and Lathrop
really permit the Bar to compel support for the highly controversial and
ideological activities challenged in this case, then those decisions should be
overruled to stop the associational harms the Bar has inflicted on Petitioners
and to bring“greater coherence to our First Amendment law.” Janus, 138 S. Ct.
at 2484.
B. It is inherently unworkable for courts
to parse out chargeable and non-chargeable activities based on an amorphous
“germaneness” test.
The decision below confirms that Keller and Lathrop
have “proved unworkable.” Id. at 2486. “Lathrop held that lawyers may constitutionally
be mandated to join a bar association that solely regulates the legal
profession and improves the quality of legal services.” App. 19. And “Keller identified
that Lathrop did not decide whether lawyers may be constitutionally mandated to
join a bar association that engages in other, nongermane activities.” App. 19.
But Keller didn’t “resolve that question” either. App. 19. Instead, both Keller
and Lathrop left that “‘difficult question’” to the lower courts. App. 25. In
remanding that issue while providing little guidance to the lower courts, this Court
admitted that “[p]recisely where the line falls” between professional
regulation and ideological imposition “will not always be easy to discern.”
Keller, 496 U.S. at 15. That was an understatement.
The Fifth Circuit’s opinion illustrates as much. “For
activities to be germane,” the court explained, “they must be ‘necessarily or
reasonably incurred for’ th[e] purposes” of “‘regulating the legal profession
and improving the quality of legal services.’” App. 24. The Fifth Circuit’s
application of the germaneness test underscores that there is no clear and
consistent way to segregate germane and non-germane expenditures in a manner
that gives adequate breathing room to the important First Amendment interests
at stake.
Take lobbying. The Bar’s lobbying, the Fifth Circuit
held, can be germane or non-germane depending on the circumstances. See App. 25
(the Bar’s lobbying “is neither entirely germane nor wholly non-germane”). For
example, lobbying to make substantive changes to Texas family law is
“obviously” non-germane. App. 27. Lobbying to create “‘exemption[s] regarding
the appointment of pro bono volunteers’” is clearly germane. App. 28. And
lobbying for changes to Texas trust law is germane “to the extent the changes
affect lawyer’s duties when serving as trustees,” and non-germane “to the
extent the changes do not.” App. 28.
From the perspective of the First Amendment interests
at stake, these distinctions are untenable. A dissenting bar member who does
want to support the Bar’s political agenda suffers the same burden on his or
her First Amendment rights regardless of whether the legislation at issue is
deemed “germane.” Indeed, in the context of public employee unions, this Court has
made clear that lobbying is a paradigmatic example of a political activity that
can never be funded through coerced dues or fees. See Janus, 138 S. Ct. at 2481
(“reject[ing] ... out of hand” the argument that “costs of lobbying” are
chargeable); Keller, 496 U.S. at 15-16 (finding it “clear” that “[c]ompulsory
dues may not be expended to endorse or advance a gun control or nuclear weapons
freeze initiative”); Knox v. Service Employees Intern. Union, Local 1000, 567
U.S. 298, 323 (2012) (Sotomayor, J., concurring in the judgment) (“When a public-sector
union imposes a special assessment intended to fund solely political lobbying
efforts, the First Amendment requires that the union provide nonmembers an
opportunity to opt out of the contribution of funds.”). Yet the Fifth Circuit’s
interpretation of the “germaneness” test allows objectors to be forced to
support significant portions of the Bar’s inherently political lobbying activities.
The other activities challenged here further illustrate
the flaws of the germaneness test. Few questions
have been more divisive across the country than identity-based programs
targeted at individuals of a certain race, gender, or sexual orientation.
See App. 29 (noting that such programs “have spawned sharply divided public
debate and widespread, contentious litigation”).
The Bar has an abundance of such
programs. See supra 10-13. Yet the Fifth Circuit allowed these
admittedly “highly ideologically charged programs” to be funded through coerced
dues because the Bar claimed they were germane to improving the quality of
legal services. App. 29.
Similarly, although
immigration policy remains a hotly contested topic of national debate, the
Fifth Circuit allowed the Bar to use coerced dues to fund its immigration
advocacy because these activities were “germane” to improving legal services
for low-income individuals. App. 31-34. If the “germaneness” test is
so capacious as to allow coerced dues to be used for these highly charged
activities, then it provides little meaningful protection at all for the
paramount First Amendment interests at stake.
At bottom, the ongoing validity of a “germaneness” First
Amendment standard for bar members was always on uneasy constitutional footing
but is entirely untenable in light of Janus. Janus explained that“Abood’s line
between chargeable and nonchargeable union expenditures has prove[n] to be
impossible to draw with precision.” 138 S. Ct. at 2481. And subsequent efforts
by this Court to clarify the line in the union context, including a test
focusing on germaneness, see Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 519
(1991), were unworkable and led to persistent “‘give it a try’” litigation. Janus,
138 S. Ct. at 2481. In the end, this Court’s precedents “have still not
provided [lower] courts with a ‘workable standard.’” Bridge Aina Le’a LLC v.
Hawaii Land Use Comm’n, 141 S. Ct. 731, 731 (2021) (Thomas, J., dissenting from
the denial of cert.).
C. Keller and Lathrop have generated no legitimate
reliance interests.
Overruling Keller and Lathrop would not unduly upset
any legitimate reliance interests. Nearly half of states do not have mandatory
bars at all, and those that do can easily transition to other, alternative arrangements
that are “‘less restrictive of associational freedoms.’” App. 23. Moreover, any
potential inconvenience to the states is rendered trivial when compared to the
“windfall” gained from decades of unconstitutional mandatory memberships and
dues. Janus, 138 S. Ct. at 2486.
States certainly have an interest in regulating the legal
profession, but compelled bar association membership is not necessary to
advance that interest.
Today, nearly twenty states regulate the legal profession
directly without resort to mandatory bars. App. 23-24.
Those states include some of the largest legal
markets, such as New York, Illinois, Massachusetts, and Pennsylvania. See id.
In those jurisdictions, the government regulates,
licenses, and disciplines lawyers directly, without also requiring them to
join, fund, or associate with an ‘integrated’ bar association. There is no
“reasonab[e] [argument] that those states are unable to regulate their legal professions
adequately.” Id.
Nor does the absence of compulsory membership sound
the death knell for bar associations. Quite the opposite. Even without Lathrop
and Keller, bar associations will continue to have carte blanche to engage in
any advocacy efforts of their choosing—no matter how political or
ideological—so long as they can obtain voluntary support from their members for
those activities. The New York State Bar Association, for example, is supported
solely by voluntary memberships and contributions. Today, it boasts over 70,000
members, more than 125 employees, and more than $20 million in annual revenue.
See About NYSBA, History and Structure of the Ass’n, archive.nysba.org/history/;
2020 Operating Budget, bit.ly/3l5VyjB.
Furthermore, a transition away from mandatory bars is
neither impossible nor overly burdensome. States can and have successfully
transitioned to “‘less restrictive’” alternatives. Knox, 567 U.S. at 310. In 2018,
the largest bar in the United States, the State Bar of California, underwent
such a transition. See Lyle Moran, California Split: 1 Year After Nation’s Largest
Bar Became 2 Entities, Observers See Positive Change, ABA Journal (Feb. 4,
2019), bit.ly/3xuSroN.
After years of complaints,
California split off its Bar’s educational, networking, and advocacy programs
into a separate, voluntary association. See id. The Bar, in turn,
refocused on lawyer admissions and discipline. See id. The transition to a less-restrictive
alternative has been a boon to both organizations, which can now fully pursue
their distinct missions while lessening the First Amendment injury to attorneys
who did not support it. See id.
Finally, state bars “have been on notice for years” about
the First Amendment issues posed by mandatory and integrated state bars. Janus,
138 U.S. at 2484. Overruling Keller and Lathrop would not come as a surprise.
Two years ago, the former CEO of the Arizona Bar explained that “conversations
[about restructuring mandatory bars] [had been] happening across the country.”
Moran, supra. Given the rising tide of legislation
and legal challenges to mandatory bars, the former CEO added that
“we [in Arizona] are doing some contingency planning and asking our[1]selves
what we would need to do if we had to change our current model.” Id. The
National Association of Bar Executives has likewise “hosted discussions at its meetings
about the changing landscape facing manda[1]tory bars.” Id.
In sum, mandatory state bars can and must transition
to less-restrictive alternatives that prevent attorneys from being coopted into
supporting causes and activities with which they disagree. Such transitions
“may cause [these organizations] to experience unpleasant transition costs in
the short term” and “may require [them] to make adjustments in order to attract
and retain members.” Janus, 138 S. Ct. at 2485-86. But those costs must be
weighed “against the considerable windfall” that state bars have received for
decades. Id. at 2486. In fact, under Keller and Lathrop “[i]t is hard to [even]
estimate how many billions of dollars have been taken … in violation of the
First Amendment.” Id. Regardless, these “unconstitutional exactions cannot be
allowed to continue indefinitely.” Id. If Keller and Lathropactually allow
Texas to force Petitioners to associate with and fund the litany of political
and ideological activities challenged here, then those decisions should be
reconsidered based on first principles.
CONCLUSION
This Court should grant the petition and reverse the
decision below in part.
November 24, 2021
Jeffrey M. Harris
Counsel of Record
William S. Consovoy
Cameron T. Norris
Tiffany H. Bates
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
(703) 243-9423
jeff@consovoymccarthy.com
Attorneys for Petitio