Union Station: District court rulings on mandatory bar membership cases reversed

By

Jerrick Adams

Fifth Circuit reverses district court rulings on two mandatory bar membership cases

On July 2, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled in favor of plaintiffs challenging mandatory bar membership in Louisiana and Texas, two of 31 states that require lawyers to join the state bar association. 

Boudreaux v. Louisiana State Bar Association

About the case

The plaintiff is Randy Boudreaux, a Louisiana attorney. Attorneys from the Goldwater Institute, the Pelican Institute for Public Policy’s Center for Justice, Peragine Law Firm LLC, and Dane S. Ciolino LLC represent Boudreaux. The defendants are the Louisiana State Bar Association (LSBA), the Louisiana Supreme Court, and the justices of the Louisiana Supreme Court in their official capacities. Stanley, Reuter, Ross, Thornton & Alford LLC represent the defendants.     

On Aug. 1, 2019, Boudreaux filed a complaint in the U.S. District Court for the Eastern District of Louisiana challenging the constitutionality of the LSBA’s mandatory dues and membership on the grounds that they violated attorneys’ First and Fourteenth Amendment rights. Boudreaux said the LSBA lacked sufficient safeguards to ensure it did not use fees to fund political speech. 

On Jan. 13, 2020, the district court ruled in favor of the defendants, dismissing the case for lack of jurisdiction and failure to state a claim. Boudreaux appealed to the Fifth Circuit in February 2020. 

On July 2, 2021, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed the district court’s ruling and remanded the case to the lower court. Judge Don Willett, a Donald Trump (R) appointee, wrote: 

[Boudreaux] claims that compelled dues and membership violate his First Amendment rights, as does LSBA’s failure to ensure that his dues are not used to fund the bar’s political and ideological activities. The district court dismissed all of Boudreaux’s claims. We reverse. …

Discovery may bear out that LSBA does not actually engage in any non-germane activity. But at this stage, we take Boudreaux’s allegations as true and draw all reasonable inferences in his favor. Under that standard, dismissing his freedom of association claim as foreclosed by [Keller v. State Bar of California] was error. …

The Constitution requires that bar members be able to challenge expenditures as non-germane, but Boudreaux alleges he is unable to do so because of LSBA’s deficient notice process. His inability to identify non-germane expenditures is his injury, not the non-germane expenditures themselves. … By alleging that LSBA does not regularly provide notice of its expenditures with sufficient specificity, Boudreaux has pleaded an injury-in-fact for the claim he is pursuing. Dismissing his claim for lack of standing was therefore error.

Judges Jerry E. Smith, a Ronald Reagan (R) appointee, and Stuart Kyle Duncan, a Trump appointee, joined the opinion.   

The case name and number are Boudreaux v. Louisiana State Bar Association (20-30086).

Perspectives

  • Sarah Harbison, general counsel for the Pelican Institute, said: “Since at least 2007, the Bar has used member dues to take positions on bills related to civics curriculum, midwives, tort reform, and other issues. These issues are unrelated to the practice of law and lawyers should not be forced to subsidize this activity as a condition of practicing their chosen profession.”
  • Louisiana State Bar Association president H. Minor Pipes III said: “The LSBA for years has focused on ensuring that its activities and expenditures are germane to regulating or improving the legal profession. … Although we would have preferred an affirmation from the 5th Circuit, we are confident that the courts will confirm that our procedures safeguard against the Bar engaging in political and ideological activities. While we await further guidance from the Eastern District we will continue to work for the lawyers of Louisiana through our regulation of the practice of law and myriad member services and programs.”

McDonald v. Longley

About the case

The plaintiffs are Texas attorneys Tony McDonald, Joshua Hamme, and Mark Pulliam. Consovoy Mccarthy PLLC represents the plaintiffs. The defendants are Joe Longley, the immediate past president of the State Bar of Texas, Randall Sorrels, the president of the State Bar of Texas, and three members of the State Bar Board of Directors. Vinson & Elkins LLP represent the defendants.   

On March 6, 2019, the plaintiffs filed their complaint in the U.S. District Court for the Western District of Texas, claiming mandatory membership in the State Bar of Texas violated their First and Fourteenth Amendment rights, and that the state bar’s “procedures are inadequate to  ensure that members are not coerced into funding the Bar’s political and ideological activities.”

On May 29, 2020, the district court granted the defendant’s motion for summary judgment, stating: “[b]ecause the Bar has adequate procedural safeguards in place to protect against compelled speech and because mandatory Bar membership and compulsory fees do not otherwise violate the First Amendment, Plaintiffs’ 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.” The plaintiffs appealed to the Fifth Circuit in June 2020.  

On July 2, 2021, the same Fifth Circuit panel ruled in favor of the plaintiffs, overturning the district court’s ruling, remanding the case back to the lower court, and blocking the state bar from requiring membership or dues of the plaintiffs while the case is pending in the lower court.  Judge Smith penned the opinion in this case. He wrote: 

In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in non-germane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s. But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities. … 

The Bar’s procedures are inadequate under [Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson]. The Bar does not furnish Texas attorneys with meaningful notice regarding how their dues will be spent. Nor does it provide them with any breakdown of where their fees go. Instead, it places the onus on objecting attorneys to parse the Bar’s proposed budget—which only details expenses at the line-item level, often without significant explanation—to determine which activities might be objectionable. … 

The district court erred in its reading of [Lathrop v. Donohue] and Keller and in its application of Keller’s germaneness test to the Bar’s activities. We therefore VACATE the summary judgment, RENDER partial summary judgment in favor of the plaintiffs, and REMAND for the court to determine the full scope of relief to which plaintiffs are entitled. We additionally REVERSE the denial of plaintiffs’ motion for a preliminary injunction and RENDER a preliminary injunction preventing the Bar from requiring the plaintiffs to join or pay dues pending completion of the remedies phase.

The case name and number are McDonald v. Longley (20-50448).

Perspectives

  • The Cato Institute, a libertarian think tank, said: the State Bar of Texas “overstepped its constitutional bounds by delving into issues that neither regulated the legal profession nor improved the quality of legal services in the state,” and that the ruling provided “a glimmer of hope to lawyers across the country and a win for the free speech rights of Texas lawyers.” 
  • State Bar of Texas executive director Trey Apffel said: “We continue to believe the State Bar’s legislative program and all of its access to justice initiatives are germane to regulating the legal profession and improving the quality of legal services, and respectfully disagree with the panel’s contrary conclusion. We are assessing the bar’s next steps in light of the panel’s opinion.”

About the Fifth Circuit

The U.S. Court of Appeals for the Fifth Circuit hears appeals from the district courts within its jurisdiction, which includes Louisiana, Mississippi, and Texas. The chief judge of the Fifth Circuit is Priscilla Owen, a George W. Bush (R) appointee. Of the court’s 17 active judges, Reagan appointed two, Bill Clinton (D) appointed two, George W. Bush appointed four, Barack Obama (D) appointed three, and Trump appointed six.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 97 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. 

  • Massachusetts H2038: This bill would amend the laws governing strikes by public-sector workers.
    • Bipartisan sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.
  • Massachusetts H2060: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions.
    • Democratic sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.
  • Massachusetts H2061: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions. 
    • Democratic sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.
  • Massachusetts S1245: This bill would amend the laws governing strikes by public-sector workers. 
    • Bipartisan sponsorship.
    • Joint Labor and Workforce Development Committee hearing July 13.