A cursory look over the past 55 years through ten presidential administrations reveals that the political divide in this country has intensified through each presidency. The past six years, through the presidencies of Donald Trump and Joe Biden, have witnessed the political divisions become dangerous to individual liberty, social institutions, and common human decency.
Virtually every legal profession, social organization, and religious group has been impacted. This includes State Bar Associations.
The political war against State Bars began in the early 1980s with a lawsuit against the State Bar of California (“SBOC”). The lawsuit was brought by 21 attorneys affiliated with the politically conservative nonprofit public interest law firm Pacific Legal Foundation.
The attorneys charged that SBOC violated their First Amendment speech rights by using dues all attorneys had to pay to SBOC for its membership to lobby for political and ideological issues they did not support.
That lawsuit worked its way to the U.S. Supreme Court; and, in June 1990, that Court in Keller v. State Bar of California rejected the merits of the Pacific Legal Foundation lawsuit, finding that SBC could fund such political activities that were “germane” to the association.
The Court relied on a previous decision it handed down in 1977, Abood v. Detroit Board of Education, dealing with the expenditure of union dues to fund political and ideological activities.
The Keller court defined a “germane” expenditure as one necessary for the purpose of “regulating the legal profession or improving the quality of legal services in the state.”
Keller remained settled law until June 27, 2018, when the Supreme Court handed down its landmark decision Janus v. AFSCME, which effectively overruled the Abood decision upon which Keller had relied.
Janus held that public employees were no longer required to pay union dues to keep their jobs.
Janus opened the door to new assaults on state bar associations in Texas, Oregon, Oklahoma, and North Dakota. These lawsuits were instigated and funded by conservative activist groups like the Arizona-based Goldwater Project and law professors.
The three attorneys who filed their lawsuit against the State Bar of Texas(“SBOT”)—Tony McDonald, Josh Hammer, and Mark Pulliam— argued that their Free Speech rights were violated because the SBOT spent their compulsory dues on political and ideological activities they did not support.
At the time, now impeached Texas Attorney General Ken Paxton unlawfully inserted himself in this political fray without any legitimate reason, siding with the three conservative attorneys.
SBOT’s Board of Directors Chairperson, Laura Gibson, was quoted by the Texas Tribune on May 1, 2019, responding to Paxton’s typical third-rate action:
“Were we surprised by that? Absolutely. 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.”
The SBOT lawsuit was summarily dismissed on May 30, 2020, by U.S. District Court Judge Lee Yeakel, who sat in Austin before his May 31, 2023 retirement.
However, on July 2, 2021, a three-judge panel of the Fifth Circuit Court of Appeals reversed Judge Yeakel, siding with the three attorneys. The appeals court in McDonald v. Longley effectively enjoined SBOT from requiring the attorney to either join or pay dues to the Bar pending the case’s final outcome.
By the time the Fifth Circuit handed down the McDonald decision, at least six lawsuits were pending, filed by attorneys in 31 states making the same challenges against bar associations.
The same three-judge panel that decided McDonald also revived a lawsuit against the Louisiana State Bar Association that a lower federal court had previously dismissed.
Before the SBOT could effectively digest the legal implications of McDonald, local Houston attorney Robert “Bob” Bennett (and other local attorneys) filed a class-action lawsuit in the local U.S. District Court claiming that the SBOT was “flouting” the McDonald decision by continuing to demand membership dues and not offering refunds.
The Bennett-led class action lawsuit was represented by Rich Robbins of Robbins Legal Services—a group with a history of being highly critical of the SBOT’s expenditure of membership dues. The SBOT countered the class action lawsuit by employing the services of the prominent Houston law firm, Vinson&Elkins, to defend itself against this legal action.
The firm was successful in having that lawsuit dismissed in August 2022.
In the meantime, the lawsuit against the Louisiana State Bar Association was working its way through the Louisiana federal court system. That lawsuit, Boudreaux v. Louisiana State Bar Association, had been remanded back to the U.S. District Court by the Fifth Circuit for additional legal proceedings.
Following a bench trial, the district court, on August 8, 2022, issued its Findings of Fact and Conclusions of Law, which ruled in favor of the Louisiana State Bar Association.
Attorney Boudreaux once again timely appealed the lower court dismissal to the Fifth Circuit. Again, He is represented by the Goldwater Institute and the Pelican Institute for Public Policy, another politically conservative activist group.
The Fifth Circuit held oral argument on this matter on July 11, 2023.
In July 2022, the American Bar Association weighed in on the internecine legal warfare between political activist attorneys and state bar associations this way:
“In June 2018, the Supreme Court of the United States ruled in Janus v. AFSCME that unions could no longer collect mandatory ‘fair share’ fees to cover the costs of collective bargaining, reversing a 40-year precedent.
“Several attorneys and organizations took this ruling as a signal that it was a good time to bring new First and/or Fourth Amendment cases against mandatory bars or revive old challenges, in part because of the belief that Janus was relevant to mandatory bars and might overrule the precedent set by the Court’s 1990 decision in Keller v. State Bar of California. In short, the Keller decision says that mandatory bars can use dues or membership fees to support political activities with which some members disagree, as long as those activities are ‘germane’ to the bar’s purpose of regulating the profession or improving legal services.
“Janet Welch, the recently retired executive director of the State Bar of Michigan and a close observer of challenges to mandatory or integrated bars, says proponents of the mandatory bar model rightfully have taken heart from the U.S. Supreme Court’s denial of certiorari in the challenges to post-Janus district and federal court rulings. Those courts have said that only the U.S. Supreme Court can decide whether Janus abrogates Keller.
“However, Welch notes, the 9th, 10th, and 5th circuits have ‘opened the door to an adverse decision to the integrated bar based on a freedom of association rather than freedom of speech claim.’ Also, she says, some courts have spoken approvingly of the California model in which the mandatory bar retained only its regulatory functions and a new voluntary bar was formed to carry out all of the others.
“Mandatory bars that do not continue to take seriously the need to focus their activities and statements on regulation of the legal profession and improvements in the quality of legal services risk adverse decisions in the future,’ Welch adds.”
What will happen in the end with the Boudreaux, McDonald, or Bennett class action lawsuits is anyone’s guess.
Today, terms like “speech” and “freedom” have no semblance to their legal and social meaning compared to June of 1788, when the U.S. Constitution was ratified.
In 1788, free “speech” belonged only to white male land owners age 35 or older, and “freedom” was the right to enslave Africans, commit acts of wholesale genocide against Native Americans, and pillage a stolen land of its natural resources as part of some constitutional-claimed “manifest destiny.” But, it is this concept of freedom that Constitutional originalists will rely upon.
Whatever the merits of their claims, the decision the U.S. Supreme Court ultimately renders in lieu of Keller and Janus will be politically motivated, most likely written by one of its three recently scandalized “conservative” justices. Ironically, these Justices, and their ilk, who have historically argued against judicial activism, have become the most dramatic activist justices in recent times.