Petition for Writ of Certiorari — Tony K. McDonald, et al., Petitioners v. Sylvia Borunda Firth, et al.

Supreme Court briefNov 24, 2021

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APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Fifth Circuit

(July 2, 2021). . . . . . . . . . . . . . . . . App. 1

Appendix B Order on Cross-Motions for Summary

Judgment in the United States

District Court for the Western District

of Texas Austin Division

(May 29, 2020). . . . . . . . . . . . . . . App. 44

Appendix C Judgment in the United States

District Court for the Western District

of Texas Austin Division

(May 29, 2020). . . . . . . . . . . . . . . App. 66

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 20-50448

[Filed: July 2, 2021]

_____________________________________________

TONY K. MCDONALD; JOSHUA B. HAMMER;

)

MARK S. PULLIAM,

)

Plaintiffs—Appellants,

)

versus

)

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.

)

_____________________________________________)

Appeal from the United States District Court

for the Western District of Texas

No. 1:19-CV-219

App. 2

REVISED

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.

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 (1990). Voluntary bars do not. See

Jarchow v. State Bar of Wis., 140 S. Ct. 1720, 1720

(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

See Ralph H. Brock, “An Aliquot Portion of Their Dues:” A Survey

of Unified Bar Compliance with Hudson and Keller, 1 TEX. TECH

J. TEX. ADMIN. L. 23, 24 (2000); Leslie C. Levin, The End of

App. 3

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

Mandatory State Bars, 109 GEO. L.J. ONLINE 1, 2 (2020). Most

states have either a mandatory or voluntary bar, but California

has switched to a hybrid model in which core functions are

performed by a mandatory state bar, while other functions

previously performed by its “sections” are now done by a separate

voluntary bar association. CAL. BUS. & PRO. CODE §§ 6001,

6031.5(a), 6056.

App. 4

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

Except for emeritus members. Id. § 81.054(b)

For the fiscal year ending in May 2018, those fees generated $23

million out of the Bar’s approximately $51 million in revenue. The

second most significant source of revenue is from sales of

continuing legal education (“CLE”) programs.

App. 5

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).

State Bar of Texas Board of Directors Policy Manual, STATE BAR

OF TEXAS §3.14.01(2018).https: //www.texasbar.com/AM/Template

.cfm?Section=Governing _Documents1&Template=/CM/ContentDis

Display.cfm&ContentID=42429 [hereinafter Policy Manual].

See Sections, STATE BAR OF TEXAS (last visited Apr. 21, 2021),

https://www.texasbar.com/Content/NavigationMenu/AboutUs/Se

ctionsandDivisions/ SectionsandDivisions1/

See STATE BAR OF TEXAS, 2019-2020 Proposed Combined Budget

2, https://www.texasbar.com/AM/Template.cfm?Section=Meeting

_Agendas_and_Minutes &Template=/CM/ContentDisplay.cfm&Co

ntentID=43829 (allocating funds from the general fund to sections

and volunteer committees).

TEX. GOV’T CODE § 81.054(j). Exempt from the legal services fee

are (1) inactive and nonpracticing attorneys, (2) attorneys over

seventy years old, (3) those who work for the federal, state, or local

governments, (4) § 501(c)(3) employees, and (5) out-of-state lawyers

who do not practice in Texas. Id. § 81.054(k).

App. 6

They are allocated to pay for legal services for the

indigent—half for civil services and half for criminal

defense. Id.

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.

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

App. 7

“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

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

Governmental Relations, STATE BAR OF TEXAS (Apr.

21,2021),https://www.texasbar.com/Content /NavigationMenu/Abo

utUs/GovernmentalRelation s/default.htm. The GRD also “serves

as the State Bar’s liaison to the Texas Legislature and other state

and federal governmental entities.” Id. In that capacity, it

responds to requests for information and assistance by the Texas

Legislature and other entities, and reviews thousands of bills each

legislative session.

App. 8

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.

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

Volunteer and Resource Opportunities, STATE BAR OF TEXAS,

https://www.texasbar.com/Content/NavigationMenu/LawyersGiving

Back/Volunteer/default.htm.

App. 9

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 expand civil access to justice,” and promote

“systemic change.” One of its mechanisms for achieving

those aims is lobbying for “both funding and nonfunding legislation.”

Finally, as mentioned above, the legal services fee,

by statute, is used to fund legal services for the

indigent.

The Bar also undertakes a number of miscellaneous

activities to which the plaintiffs object. It hosts an

annual convention, which sponsors panels, some of

which the plaintiffs contend are ideologically charged.

The Bar funds continuing legal education (“CLE”)

programs, some of which the plaintiffs aver are

similarly charged. And the Bar funds the Texas Bar

Journal.

Recognizing that some members might object to

various of its myriad initiatives, the Bar provides ways

for dissenting members to make their disagreements

known. Before the expenditure is approved, members

can lodge their objections to either the Bar’s Board of

App. 10

Directors or the appropriate committee or section. See,

e.g., Policy Manual §§ 8.01.03(B), 8.01.06(B),

8.01.08(B), 8.01.09(D). Members may also express

disapproval at the Bar’s annual public hearing on its

proposed budget. TEX. GOV’T CODE § 81.022(b)–(c). The

ballot box provides another incidental check: Members

vote for the Bar’s officers and directors. See generally

Policy Manual §§ 1.03, 2.01.

The Bar also provides a mechanism for objecting

members to obtain a pro rata refund of their

membership fee. Specifically, members may file a

written objection “to a proposed or actual

expenditure . . . as not within the purposes or

limitations” set forth by the State Bar Act or by

Supreme Court precedent. Policy Manual §§ 3.14.01,

3.14.02. The protesting member may “seek refund of a

pro rata portion of his or her dues expended, plus

interest,” on the objectionable activity. Id. § 3.14.02.

The Bar does not proactively furnish members with a

breakdown of their respective pro rata shares of

funding the Bar’s chosen pursuits. Objections are

reviewed by the Executive Director, who “in

consultation with the President, shall have the

discretion to resolve” it. Id. § 3.14.03. A refund is the

only available remedy)an objector cannot prevent the

Bar from otherwise pursuing the objected-to activity. If

a refund is issued, it is done so only “for the

convenience of the Bar”: It does not constitute an

admission that the expense was improper. Id. § 3.14.04.

If a refund is denied, the objector has no further

administrative recourse.

App. 11

The Bar requires notice of those procedures to be

“published in conjunction with any publication or

description of the State Bar’s budget, legislative

program, performance measures, amicus briefs, and

any other similar policy positions adopted by the State

Bar.” Id. § 3.14.05. Nevertheless, the Bar has record of

only one member—who is not among the plaintiffs and

who lodged the objection after the plaintiffs filed this

lawsuit—using the procedure since its adoption in

2005.

The plaintiffs sued under 42 U.S.C. §§ 1983 and

1988 on three theories: (1) Compelling the plaintiffs “to

join, associate with, and financially support the State

Bar as a precondition to engaging in their chosen

profession” violates their “rights to free speech and

association”; (2) in the alternative, if they can be

compelled to join, requiring them to “subsidize political

and ideological activities that extend beyond the Bar’s

core regulatory functions” violates their right to free

speech; and (3) related to both of those, “[t]he Bar’s

procedures for separating chargeable and nonchargeable expenses are inadequate to protect” their

First Amendment rights. The plaintiffs moved for a

preliminary injunction and partial summary judgment

on liability.10

The plaintiffs moved only for partial summary judgment because

the scope of relief they planned to seek differed based on the district

court’s holding on liability. We address both the summary judgment

on liability and the scope of the relief plaintiffs are entitled to

through a preliminary injunction; we do not have occasion to opine

on the full scope of relief to which they may be entitled.

App. 12

The Bar cross-moved for summary judgment.11 It

countered with three principal points. First, it

contended that Supreme Court precedent— specifically

Keller and Lathrop v. Donohue, 367 U.S. 820 (1961)

(plurality)—forecloses the plaintiffs’ claim that being

compelled to join the bar violates the First

Amendment. Second, the Bar asserted that the

challenged expenditures are constitutionally

permissible as “necessarily or reasonably incurred for

the purpose of regulating the legal profession or

improving the quality of . . . legal service[s].” And third,

the Bar maintained that its refund procedures are

constitutionally adequate.

The district court denied the plaintiffs’ motions and

granted summary judgment to the Bar. The court held

that Lathrop and Keller remain binding in spite of

Janus v. American Federation of State, County, &

Municipal Employees, Council 31, 138 S. Ct. 2448

(2018), and that Lathrop and Keller foreclose the

plaintiffs’ contention that being forced to join the bar

violates the First Amendment. The court further

determined that all of the challenged Bar expenses

passed constitutional muster under Keller, “because

they further[ed] Texas’s interest in professional

regulation or legal-service quality improvement.”

Finally, the court rejected the plaintiffs’ challenge to

The Bar also filed a motion to dismiss, asserting that the original

named defendants did not enforce the mandatory bar membership

and legal services fee. In response, the plaintiffs filed an amended

complaint adding additional defendants to address those concerns.

The district court dismissed the Bar’s motion without prejudice,

and the Bar does not challenge the propriety of that dismissal on

appeal.

App. 13

the refund procedures, concluding that they are

constitutionally adequate. The court entered a “take

nothing” judgment, and the plaintiffs appeal.

II.

Because “[t]his court has a continuing obligation to

assure itself of its own jurisdiction”12 before addressing

the merits, we must determine whether the Tax

Injunction Act (“TIA”) stripped the district court of

jurisdiction. Our review is de novo. Washington v.

Linebarger, Goggan, Blair, Pena & Sampson, LLP, 338

F.3d 442, 444 (5th Cir. 2003).

The TIA provides that “district courts shall not

enjoin, suspend or restrain the assessment, levy or

collection of any tax under State law where a plain,

speedy and efficient remedy may be had in the courts

of such State.” 28 U.S.C. § 1341.13 In other words, “the

[TIA] is a broad jurisdictional impediment to federal

court interference with the administration of state tax

systems.” Home Builders Ass’n of Miss., Inc. v. City of

Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)

(quotation marks omitted). The TIA does not, however,

impede federal courts’ review of regulatory fees. See id.

Therefore, to determine our jurisdiction, we must

decide whether the membership fee and the legal

United States v. Pedroza-Rocha, 933 F.3d 490, 493 (5th Cir.

2019) (per curiam), cert. denied, 140 S. Ct. 2769 (2020).

Similarly, “[t]he Anti-injunction Act, 26 U.S.C. §7421(a), bars

any ‘suit for the purposes of restraining the assessment or

collection of any tax.’” CIC Servs., LLC, v. IRS, 141 S. Ct. 1582,

1586 (2021).

App. 14

services fee are taxes or, instead, whether they are

fees.

“Whether a charge is a fee or a tax is a question of

federal law.” Neinast v. Texas, 217 F.3d 275, 278 (5th

Cir. 2000). Although the label given to a particular

outlay “has no bearing on the resolution of the

question,” Home Builders, 143 F.3d at 1010 n.10, we

may take notice of how an expense is treated by the

state’s courts, see Lipscomb v. Columbus Mun. Separate

Sch. Dist., 269 F.3d 494, 500 n.13 (5th Cir. 2001).

Generally, “a broad construction of ‘tax’ is necessary to

honor Congress’s goals in promulgating the TIA.”

Henderson v. Stalder, 407 F.3d 351, 356 (5th Cir. 2005).

“[T]he line between a ‘tax’ and a ‘fee’ can be a blurry

one.” Home Builders, 143 F.3d at 1011 (quotation

marks omitted). Indeed, “the distinction between a tax

and a fee is a spectrum with the paradigmatic fee at

one end and the paradigmatic tax at the other.”

Washington, 338 F.3d at 444 (quotation marks

omitted). But we have enunciated some workable

distinctions. First, “the classic tax sustains the

essential flow of revenue to the government, while the

classic fee is linked to some regulatory scheme.” Home

Builders, 143 F.3d at 1011. Second, “[t]he classic tax is

imposed by a state or municipal legislature, while the

classic fee is imposed by an agency upon those it

regulates.” Id. And third, “[t]he classic tax is designed

to provide a benefit for the entire community, while the

classic fee is designed to raise money to help defray an

agency’s regulatory expenses.” Id.

The membership fees are “classic fees.” First, they

are linked to the regulation of the legal profession, not

App. 15

to generating revenue for the government. Texas law

requires that Bar funds “be used only for administering

the public purposes provided by” the State Bar Act.

TEX. GOV’T CODE § 81.054(d). In fact, the Supreme

Court of Texas must distribute the fees to the Bar only

for funding expenditures to pursue those ends. See id.

§ 81.054(c). Second, the membership fees are imposed

neither by a legislature nor on the entire community.

Although a statute authorizes charging the fees, the

process of setting and collecting those fees is left to the

Texas Supreme Court and the Bar. See id. §§ 81.022,

81.054(a), (c). Furthermore, the dues are paid only by

those regulated by the Bar—licensed Texas

attorneys—“not the public at large,” indicating they are

a fee. Neinast, 217 F.3d at 278. Third and finally, the

membership fees defray the Bar’s costs. The Bar is

entirely self-funded, and the mandatory dues amount

to nearly half of its annual revenue.

The legal services fee is also a fee, albeit a less

paradigmatic one. Like the membership fee, the legal

services fee is imposed only on the legal profession, “not

the public at large.” Id. And the fee is linked to the

regulation of the legal profession, given that its

purpose is to ensure adequate funding of “basic civil

legal services to the indigent and legal representation

and other defense services to indigent defendants in

criminal cases.” TEX. GOV’T CODE § 81.054(d). In other

words, its purpose is not to raise revenue but to ensure

that members of the legal profession are able to provide

a particular legal service. On the other hand, unlike

the membership fee, the legal services fee is imposed

directly by the legislature. Compare id. § 81.054(a),

App. 16

with id. § 81.054(j). But that does not outweigh the

other factors.

Since neither the membership fee nor the legal

services fee is a tax, the TIA does not deprive the

federal courts of jurisdiction. We therefore turn to the

merits.

III.

We first analyze the plaintiffs’ claim that

compelling them to join the Bar violates the First

Amendment. The Supreme Court has twice opined on

whether mandatory bars violate the First Amendment.

We discuss those cases, Lathrop v. Donohue, 367 U.S.

820 (1961) (plurality), and Keller v. State Bar of

California, 496 U.S. 1 (1990), to determine whether the

plaintiffs’ claim survives.14

Since Lathrop and Keller were decided, the Supreme Court’s

First Amendment caselaw has changed dramatically. Both cases

drew from the then-existing jurisprudence on the First

Amendment implications of mandatory union dues, but that

jurisprudence has evolved. Keller, in particular, rested almost

exclusively on Abood v. Detroit Board of Education, 431 U.S. 209

(1977), which the Court overruled in Janus, 138 S. Ct. at 2486.

Those changes, and Janus in particular, cast doubt on Lathrop and

Keller. See Jarchow, 140 S. Ct. at 1720 (Thomas, J., dissenting

from denial of certiorari). Contra Janus, 138 S. Ct. at 2498 (Kagan,

J., dissenting) (contending that Janus did not call Keller into

question).

But “the Supreme Court abrogates its cases with a bang, not

a whimper, and it has never revisited” either Lathrop or Keller.

Tex. Democratic Party v. Abbott, 961 F.3d 389, 405 (5th Cir. 2020).

So, despite their “increasingly wobbly, moth-eaten foundations,”

State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (cleaned up), Lathrop

and Keller remain binding. Because they have “direct application

App. 17

In Lathrop, 367 U.S. at 827–28, the Court

considered whether mandatory bar membership

necessarily violates the right to freedom of association.

The Wisconsin Bar, the Lathrop plaintiff alleged,

“express[es] . . . opinion[s] on legislative matters” and

“utilizes its property, funds and employees for the

purposes of influencing legislation and public opinion

toward legislation.” Id. at 827. Therefore, he contended

“that he [could not] constitutionally be compelled to

join and give support to” the Bar. Id.

The Court rejected the plaintiff’s claim for two

reasons. First, it noted that the plaintiff’s “compulsory

enrollment imposes only the duty to pay dues”; his

involuntary membership did not require any other

participation. Id. at 827–28. Second, the Court found

that the bar’s activities at issue were almost entirely

limited to “elevating the educational and ethical

standards of the Bar to the end of improving the

quality of the legal service available to the people of the

State” Id. at 843. Though that bar was engaged in

legislative activity, that activity was “not the major

activity of the State Bar,” id. at 839, and, furthermore,

it was limited to bills pertinent to the legal profession

for which there was “substantial unanimity,” id. at

834–38.

After deciding that compelling the plaintiff to pay

dues to such a bar association did not violate the

in [this] case,” we apply them, “leaving to [the Supreme] Court the

prerogative of overruling its own decisions.” Rodriguez de Quijas

v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). With that

said, Lathrop’s and Keller’s weakened foundations counsel against

expanding their reach as we consider questions they left open.

App. 18

freedom of association, the Lathrop Court, noting the

paucity of the record, declined to decide whether “the

use of his money for causes which he opposes” violated

his right to free speech. Id. at 845. Three decades later,

Keller reached that issue.

Like the Lathrop plaintiff, the Keller plaintiffs

claimed that compelling their financial support of

political activities violated their rights to freedom of

speech and freedom of association. Keller, 496 U.S. at

5–6. The 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.” Id. at 13–14. But state bar associations

cannot constitutionally use mandatory dues to “fund

activities of an ideological nature which fall outside of

those areas of activity.” Id. at 14. Although it held that

at least some complained-of activities were germane,

the Court remanded for the lower courts to determine

exactly which of the challenged activities were nongermane.15

After deciding the free speech issue, the Court

turned briefly to freedom of association. The Keller

plaintiffs contended that “they cannot be compelled to

associate with an organization that engages in political

or ideological activities beyond those for which

See Keller, 496 U.S. at 15–16 (noting that “[c]ompulsory dues

may not be expended to endorse or advance a gun control or

nuclear weapons freeze initiative,” both of which the plaintiffs

asserted the state bar did).

App. 19

mandatory financial support is justified under the

principles of Lathrop and Abood [v. Detroit Board of

Education, 431 U.S. 209 (1977)].” Id. Despite noting

that the plaintiffs’ claim “appears to implicate a much

broader freedom of association claim than was at issue

in Lathrop,” id. at 17, the Court did not resolve that

broader claim, see id.

So where do Lathrop and Keller leave us? 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.

Keller identified that Lathrop did not decide whether

lawyers may be constitutionally mandated to join a bar

association that engages in other, non-germane

activities. Nor did Keller resolve that question.16

Therefore, we must both decide that issue and

determine whether the Texas Bar is engaged in nongermane activities.

To determine whether compelling the plaintiffs to

join a bar that engages in non-germane activities

violates their freedom of association, we must decide

(1) whether compelling the plaintiffs to join burdens

their rights and, (2) if so, whether it is nevertheless

justified by a sufficient state interest.

We join the Ninth and Tenth Circuits in reading Lathrop and

Keller as leaving that question unresolved. See Schell v. The Chief

Justice & Justices of the Oklahoma Supreme Court, No. 20-6044,

2021 WL 2657106, at *11 (10th Cir. June 29, 2021); Crowe v. Or.

State Bar, 989 F.3d 714, 727–29 (9th Cir. 2021), petition for cert.

filed (May 27, 2021) (No. 20-1678).”

App. 20

“[F]reedom of association is never mentioned in the

United States Constitution.”17 Instead, it is implicit in

the other rights listed in the First Amendment. See

Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). As

relevant here, “[a]n individual’s freedom to speak . . .

could not be vigorously protected from interference by

the State unless a correlative freedom to engage in

group effort toward those ends were not also

guaranteed.”18 Because the right to freedom of

association is part of the freedom of speech, “[t]o

determine whether a group is protected by the First

Amendment’s expressive associational right, we must

determine whether the group engages in ‘expressive

association.’” Boy Scouts of Am. v. Dale, 530 U.S. 640,

648 (2000).

For groups that engage in expressive association,

the “[f]reedom of association . . . plainly presupposes a

freedom not to associate.” Roberts, 468 U.S. at 623.

Those groups have a right to restrict their membership,

because the membership is the message.19 Individuals

Amy Gutmann, Freedom of Association: An Introductory Essay,

in FREEDOM OF ASS’N 3, 9 (Amy Guttman ed. 1998); see U.S.

CONST. amend. I.

Roberts, 468 U.S. at 622; see also NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 460 (1958) (“Effective advocacy of both

public and private points of view, particularly controversial ones,

is undeniably enhanced by group association . . . .”).

See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings

Coll. of the L. v. Martinez, 561 U.S. 661, 680 (2010) (“Who

speaks . . . colors what concept is conveyed.”).

App. 21

have an analogous right to “eschew association for

expressive purposes.” Janus, 138 S. Ct. at 2463. That

right is part and parcel of the “cardinal constitutional

command” that the government may not compel

“individuals to mouth support for views they find

objectionable.” Id.20

Based on 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. Such a bar association would invariably be

engaged in expressive activities. Even bar associations

that engage in only germane activities undertake some

expressive activities; for example, proposing an ethical

rule expresses a view that the rule is a good one, and

commenting on potential changes to the state’s court

system, as the bar in Lathrop did, expresses a view

that such a reform is a good or bad idea.

Bar associations that also engage in non-germane

activities will almost certainly be engaging in

additional expressive activities that “support . . . a

particular conception of the good life or controversial

ideology of the good society.” Id. And, when a bar

association does so, part of its expressive message is

that its members stand behind its expression. The

membership is part of the message. Compelling

“When membership of an association requires the individual to

give support to a particular conception of the good life or

controversial ideology of the good society, the freedom to refuse

association is clearly fundamental to the individual’s freedom to

live authentically in accordance with his/her own ethical and

political beliefs.” Stuart White, Trade Unionism in a Liberal State,

in FREEDOM OF ASS’N, supra, at 330, 345.

App. 22

membership, therefore, compels support of that

message. If a member disagrees with that “conception

of the good life or controversial ideology,” then

compelling his or her membership infringes on the

freedom of association. Id.

But that does not necessarily mean the plaintiffs

are entitled to relief. “The right to associate for

expressive purposes is not . . . absolute.” Roberts, 468

U.S. at 623. In its freedom-of-association cases, the

Court has generally applied “exacting . . . scrutiny,”

under which “mandatory associations are permissible

only when they serve a ‘compelling state interest that

cannot be achieved through means significantly less

restrictive of associational freedoms.’” Knox v. Serv.

Emps. Intl Union, Loc. 1000, 567 U.S. 298, 310 (2012)

(quoting Roberts, 468 U.S. at 623).

Compelled membership in a bar association that is

engaged in only germane activities survives that

scrutiny. We know that both because Lathrop held that

compelled membership in such a bar did not violate

freedom of association and because of the more recent

statement in Harris v. Quinn, 573 U.S. 616, 655–56

(2014): States “have a strong interest in allocating to

the members of the bar, rather than the general public,

the expense of ensuring that attorneys adhere to

ethical practices” as well as of regulating the legal

protection and improving the quality of legal services.

Id. And, for that reason, Keller, which allowed

App. 23

compelled subsidization21 of germane activities, “fits

comfortably within the [exacting scrutiny] framework.”

Id. at 655.

Compelled membership in a bar association that

engages in non-germane activities, on the other hand,

fails exacting scrutiny. Knox v. Serv. Emps. Int’l Union,

Loc. 1000, 567 U.S. 298, 310 (2012) (quoting Roberts,

468 U.S. at 623). Plaintiffs suggest that, instead of

exacting scrutiny, strict scrutiny should apply. Under

that standard, the government must show that its

action is “narrowly tailored” to “further compelling

governmental interests.” Johnson v. California, 543

U.S. 499, 505 (2005) (cleaned up). Because the bar’s

mandatory membership “cannot survive under even the

more permissive standard,” we do not decide whether

strict scrutiny is necessary. See Janus, 138 S. Ct. at

2465. Although states have interests in allocating the

expenses of regulating the legal profession and

improving the quality of legal services to licensed

attorneys, they do not have a compelling interest in

having all licensed attorneys engage as a group in

other, non-germane activities.

Moreover, there are other “means significantly less

restrictive of associational freedoms” to achieve the

state’s legitimate interests. Knox, 567 U.S. at 310.

Almost twenty states—including some of the largest

legal markets, such as New York, Illinois, and

Pennsylvania—directly regulate the licensing and

Exacting scrutiny is applied to both freedom-of-association and

compelled-subsidy claims. See, e.g., Janus, 138 S. Ct. at 2465

(compelled subsidy); Dale, 530 U.S. at 648 (freedom of association).

App. 24

disciplining of attorneys. See Brock, supra, at 24 n.1

(not listing those states as having mandatory bars).

The Bar cannot reasonably suggest that those states

are unable to regulate their legal professions

adequately. Nor does the Bar have to cede its ability to

engage in non-germane activities entirely—as

California has shown, a hybrid model is possible.

Therefore, the plaintiffs are entitled to summary

judgment on their freedom-of-association claim if the

Bar is in fact engaged in non-germane activities.

The purposes justifying compelled association in a

bar association are “regulating the legal profession”

and “improving the quality of legal services.” Keller,

496 U.S. at 13. For activities to be germane, they must

be “necessarily or reasonably incurred for” those

purposes. Id. at 14. The plaintiffs contend that all

“activities of a ‘political or ideological’ nature”

necessarily are non-germane. That misses the mark.

Keller said mandatory dues cannot be used to “fund

activities of an ideological nature which fall outside of

those areas of activity.” Id. (emphasis added). Though

later decisions have framed Keller somewhat as these

plaintiffs do,22 none of them purported to alter Keller’s

See, e.g., Harris, 573 U.S. at 655 (describing Keller as holding

“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”); Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 558

App. 25

standard, which contemplates that some political or

ideological activities might be germane. With that in

mind, we turn to “[t]he difficult question” of

determining whether each respective challenged

activity is germane. Id.

The Bar’s legislative program is neither entirely

germane nor wholly non-germane. The plaintiffs

advocate a bright line rule that any legislative lobbying

is non-germane. But such a rule is foreclosed by

Lathrop and Keller. In Lathrop, 367 U.S. at 836–37, the

Court identified no First Amendment violation despite

the Wisconsin bar’s lobbying for various pieces of

legislation regarding the state court system, attorney

compensation, and other matters related to the legal

profession. And Keller, 496 U.S. at 15, highlighted that

lobbying is germane where “officials and members of

the Bar are acting essentially as professional advisers

to those ultimately charged with the regulation of the

legal profession.” At the same time, the scope of the

Bar’s legislative program belies its contention that

every single bill it has lobbied for is germane to

regulating the legal profession or improving the quality

of legal services.

(2005) (“[W]e have invalidated the use of the compulsory fees to

fund speech on political matters.” (citing Keller)); Bd. of Regents of

Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 231 (2000)

(“[L]awyers could not, however, be required to fund the bar

association’s own political expression.” (citing Keller, 496 U.S. at

16)).

App. 26

Keller did not lay down a test to determine when

lobbying is germane and when it is not, acknowledging

that the dividing line would “not always be easy to

discern.” Id. at 16. Instead, it identified “advanc[ing] a

gun control or nuclear weapons freeze initiative” and

“proposing ethical codes” as the bookends of the

spectrum and left it to lower courts to work out

intermediate cases. We must do so now.

Except as stated below, advocating changes to a

state’s substantive law is non-germane to the purposes

identified in Keller. Such lobbying has nothing to do

with regulating the legal profession or improving the

quality of legal services. Instead, those efforts are

directed entirely at changing the law governing cases,

disputes, or transactions in which attorneys might be

involved. Lobbying 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.23

Lathrop’s description of the topics on which the Wisconsin Bar

took positions is illustrative of the type of lobbying that is

germane:

The State Bar, through its Board of Governors or

Executive Committee, has taken a formal position with

respect to a number of questions of legislative policy.

These have included such subjects as an increase in the

salaries of State Supreme Court justices; making attorneys

notaries public; amending the Federal Career

Compensation Act to apply to attorneys employed with the

Armed Forces the same provisions for special pay and

promotion available to members of other professions;

improving pay scales of attorneys in state service; court

App. 27

Applied to the Bar’s 2019 legislative program, for

example, that means that some lobbying was germane,

but most was not. Many of the bills the Bar supported

relate to substantive Texas law and are wholly

disconnected from the Texas court system or the law

governing lawyers’ activities. For example, the Bar’s

lobbying to amend the Texas Constitution’s definition

of marriage and create civil unions is obviously nongermane.24 The Bar’s presumably less-controversial

reorganization; extending personal jurisdiction over

nonresidents; allowing the recording of unwitnessed

conveyances; use of deceased partners’ names in firm

names; revision of the law governing federal tax liens; law

clerks for State Supreme Court justices; curtesy and

dower; securities transfers by fiduciaries; jurisdiction of

county courts over the administration of inter vivos trusts;

special appropriations for research for the State

Legislative Council.

Lathrop, 367 U.S. at 836–37 (citations omitted). Those positions,

with the possible exceptions of “curtesy and dower,” “extending

personal jurisdiction over nonresidents,” and “federal tax liens,” all

relate to the state’s court system or the activities of lawyers. That

type of lobbying is germane.

In addition to its formally taken positions, the Wisconsin bar

set up a group to address federal legislation affecting “the practice

of law, or lawyers as a class, or the jurisdiction, procedure and

practice of the Federal courts and other Federal tribunals, or

creation of new Federal courts or judgeships affecting this state,

and comparable subjects.” Id. at 838. Announcing positions on

those topics would also pass the germaneness test.

The Bar contends that its lobbying was germane because

“seeking to amend or repeal unconstitutional laws benefits the

legal profession and improves the quality of legal services because

it reduces the risk that lawyers, their clients, members of the

public, or government officials will rely on laws that judicial

App. 28

proposed substantive changes to Texas family law are

equally non-germane. The Bar’s lobbying for the

“creation of an exemption regarding the appointment

of pro bono volunteers,” on the other hand, is germane,

because it relates to the law governing lawyers. Its

lobbying for changes to Texas trust law is germane to

the extent the changes affect lawyers’ duties when

serving as trustees, and non-germane to the extent the

changes do not.

What is important, however, is that some of the

legislative program is non-germane. The Bar attempts

to salvage the program by maintaining that only its

voluntary sections engage in lobbying and that

therefore plaintiffs are not compelled to associate with

those initiatives. But, by the Bar’s own admission, “[n]o

voluntary section may assert a position regarding

legislative, judicial, or executive action unless it has

first obtained permission” from the Bar’s Board of

Directors. See Policy Manual § 8.01.06. Those positions

have the imprimatur of the entire Bar.

Moreover, even if the subject-matter sections

undertake the direct-lobbying expenses, the Bar still

uses mandatory dues to fund those sections directly

and to pay for the GRD, which reviews the sections’

proposals. That too ties the entire Bar to the program.

In sum, some of the legislative program is nongermane, so compelling the plaintiffs to join an

decisions have rendered invalid.” But Keller does not afford the

Bar a roving commission to advocate for legislation to “amend or

repeal unconstitutional laws” or “clean up legal texts.”

App. 29

association engaging in it violates their freedom of

association.

The Bar’s various diversity initiatives through

OMA, though highly ideologically charged, are germane

to the purposes identified in Keller. The plaintiffs

contend that OMA’s diversity initiatives are “highly

ideological,” because they support the approach of

“having programs targeted at certain individuals based

on their race, gender, or sexual orientation” and

“people of good faith . . . disagree sharply about the

merits of such programs.” The plaintiffs are certainly

right on that point—affirmative action and other

identity-based programs, in contexts ranging from

contract bidding to higher education, have spawned

sharply divided public debate and widespread,

contentious litigation.25 Legislation has been

introduced in Congress to address a number of racebased issues,26 and litigation remains pending

See, e.g., Schuette v. Coal. to Defend Affirmative Action,

Integration & Immigrant Rights & Fight for Equal. by Any Means

Necessary (BAMN), 572 U.S. 291 (2014); Parents Involved in Cmty.

Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Grutter v.

Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244

(2003); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

See, e.g., Commission to Study and Develop Reparation

Proposals for African- Americans Act, H.R. 40, 116th Cong. (2019);

Commission to Study and Develop Reparation Proposals for

African-Americans Act, S. 1083, 116th Cong. (2019); George Floyd

Justice in Policing Act of 2020, H.R. 7120, 116th Cong. (2020).

App. 30

challenging several diversity-justified initiatives.27 In

other words, that issue is a “sensitive political topic[ ]”

that is “undoubtedly [a] matter[] of profound value and

concern to the public.” Janus, 138 S. Ct. at 2476

(cleaned up).

But, despite the controversial and ideological nature

of those diversity initiatives, they are germane to the

purposes identified by Keller. They are aimed at

“creating a fair and equal legal profession for minority,

women, and LGBT attorneys,” which is a form of

regulating the legal profession. And the Bar contends

that those initiatives “help to build and maintain the

public’s trust in the legal profession and the judicial

process as a whole,” which is an improvement in the

quality of legal services.

The germaneness test does not require that there be

unanimity on the Bar’s position on what best regulates

the legal profession—that is typically for the Bar to

decide.28 To take a non-controversial example, the Bar’s

See, e.g., Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll., 980 F.3d 157 (1st Cir. 2020), petition for

cert. filed (Feb. 25, 2021) (No. 20-1199).

But there are limits. Certain ideologically charged activities

might be so tenuously related to the legal profession that any

argument they are germane would be pretextual. In holding that

the diversity initiatives are germane, we do not give the Bar carte

blanche to engage in any ideological activities so long as they have

some sophistic argument the activities are germane. We just

identify that the diversity initiatives are not so tenuously

connected to the purposes identified in Keller, and that therefore

their ideologically charged nature does not defeat their

germaneness.

App. 31

advocating a particular ethical rule is germane no

matter how strenuously an attorney might disagree

with its propriety. The same principle applies here. In

sum, the diversity initiatives are “activities of an

ideological nature which fall [in]side” the areas

identified by Keller, 496 U.S. at 14. Given that those

activities are germane under Keller, they are not a

basis for granting summary judgment for the

plaintiffs.29

Most, but not quite all, of the Bar’s activities aimed

at aiding the needy are germane. Specifically, (1) the

LAD, (2) the Bar’s directory of volunteer and resource

opportunities, and (3) the legal services fee solely

support pro bono work. That is germane to both

regulating the legal profession and improving the

quality of legal services. Legal aid and pro bono

programs focus on providing legal counsel to millions of

Texans who cannot afford it and would otherwise be

forced to proceed pro se. This improves the quality of

legal services available to low-income Texans, given

that they would otherwise have no legal services at all.

Such initiatives also aid Texas courts, because

decreasing the number of pro se litigants reduces the

administrative burdens those litigants place on Texas

courts. Moreover, legal aid and pro bono efforts help

lawyers to “fulfill [their] ethical responsibility to

We doubt it would be constitutionally permissible, under Janus,

to compel the plaintiffs to join an association taking the Bar’s

stances on those ideologically charged issues. But Keller binds us

as the caselaw that is most directly applicable.

App. 32

provide public interest legal service.”30 The Supreme

Court has suggested that funding legal aid and

encouraging pro bono service are permissible ends for

a mandatory bar to pursue,31 and our sister circuits

appear to agree.32

The plaintiffs’ main complaint with those programs

seems to be that they disagree with the Bar’s choice of

legal aid organizations to support, particularly in the

context of immigration. Specifically, they contend that

facilitating representation of aliens “is itself a highly

‘substantive’ and ‘ideological activity’” that “squarely

aligns the Bar with one view of a politically charged

TEX. DISCIPLINARY R. PRO. CONDUCT 6.01 cmt. 5; see also id.

preamble ¶ 6 (“A lawyer should render public interest legal

service. . . . The provision of free legal services to those unable to

pay reasonable fees is a moral obligation of each lawyer . . . .”);

TEX. STATE BAR BD. OF DIRS., PRO BONO RESOLUTION (2000)

(“[E]ach Texas attorney should aspire to render at least 50 hours

of legal services to the poor each year . . . .”).

See Lathrop, 367 U.S. at 840–43 (observing most of the

Wisconsin Bar’s political activities, which included support for

legal aid, “serve the function . . . of elevating the educational and

ethical standards of the Bar to the end of improving the quality of

the legal service available to the people of the State”).

See, e.g., Schneider v. Colegio de Abogados de P.R., 917 F.2d 620,

626, 631 (1st Cir. 1990) (endorsing mandatory dues to support

“legal aid services”); Levine v. Heffernan, 864 F.2d 457, 462 & n.4

(7th Cir. 1988) (noting that Lathrop indicated that “helping [to]

establish legal aid systems” was an “important activit[y] that the

bar engaged in”); Gibson v. Fla. Bar (Gibson I), 798 F.2d 1564,

1569 n.4 (11th Cir. 1986) (“Acceptable areas for Bar lobbying

would include . . . budget appropriations for the judiciary and legal

aid . . . .”).

App. 33

national debate.” But a “lawyer’s representation of a

client . . . does not constitute an endorsement of the

client’s political, economic, social or moral views or

activities.”33 It follows that there is no reason to believe

that facilitating lawyers’ representation of aliens in

navigating immigration laws constitutes an

endorsement of any particular viewpoint about those

statutes. And structurally, in cases where the federal

government is a party, it is unsurprising that only one

side of that “v” needs pro bono assistance.

In any event, LAD’s directory merely provides

information for attorneys interested in such matters to

connect with related organizations, and LAD provides

pro bono support for groups touching on a wide array of

legal disciplines.34 The plaintiffs do not allege, and the

record does not support, that LAD reserves those

resources only for low-income Texans with certain

political views or those who are pursuing certain

ideological causes.

AJC is more complicated, because unlike LAD, the

resources page, and the legal services fee, AJC’s

activities are not entirely cabined to making legal

representation more available to low-income Texans.

TEX. DISCIPLINARY R. PRO. CONDUCT 6.01 cmt.4. If it did, no

attorney would want to represent an accused murderer or child

molester.

For example, LAD also provides resources for pro bono

organizations seeking to assist Texas veterans, help with tax

issues, support criminal defense, or address improper conduct by

attorneys.

App. 34

To be sure, most of its activities are so directed,35 and

to the extent the Bar is supporting AJC activities

limited to helping low-income Texans access legal

services, it is germane. But some of AJC’s activities

include lobbying for changes to Texas substantive law

designed to benefit low-income Texans.36 Those may be

salutary activities. But they are aimed at making

substantive Texas law more favorable to low-income

Texans, not at “regulating the legal profession” or

“improving the quality of legal services,” so they are

non-germane under Keller. Therefore, the Bar’s funding

of the AJC is non-germane.

The miscellaneous activities—hosting an annual

convention, running CLE programs, and publishing the

Texas Bar Journal—are all germane. We explain why.

The Bar’s annual convention and CLE offerings help

regulate the legal profession and improve the quality of

legal services. Both programs assist attorneys in

For example, the AJC lobbying for funding for civil legal

services, creating pro bono opportunities for law students, and

providing training for attorneys are all merely supporting pro bono

work. And its efforts to help the Supreme Court of Texas make

Texas courts more assessable and navigable to low-income Texans,

and creating “pro se forms and toolkits” improve the quality of

legal services.

For example, AJC “supported two enacted bills that made it

easier for people to pass their money and their home outside

probate,” supported amending the Texas Property Code to “limit

dissemination of eviction information,” and supported regulations

of “wrap-around loans.”

App. 35

fulfilling requirements designed to ensure that they

maintain the requisite knowledge to be competent

practitioners. See, e.g., TEX. DISCIPLINARY R. PRO.

CONDUCT 1.01 cmt. 8. The plaintiffs’ complaint is that

some of the convention panels and CLE courses are

ideologically charged. Probably so. But that is not the

test under Keller. And moreover, any objectionable CLE

and annual convention offerings are only one part of a

large, varied catalogue, and the Bar includes

disclaimers indicating that it is not endorsing any of

the views expressed. That is enough to satisfy Keller.37

The Texas Bar Journal publishes information

related to regulating the profession and improving

legal services. Such information includes, among other

things, (1) notices regarding disciplinary proceedings

against Bar members, see TEX. R. DISCIPLINARY P. 6.07;

(2) announcements of amendments to evidentiary and

procedural rules, see TEX. GOV’T CODE § 22.108(c); id.

§ 22.109(c); (3) “public statements, sanctions, and

orders” issued by the State Commission on Judicial

Conduct, see id. § 33.005(e); and (4) articles “devoted to

legal matters and the affairs of the [Texas] Bar and its

members,” TEX. STATE BAR R. art. IX. Moreover, the

Journal purports to feature articles advancing various

viewpoints, and, in any event, includes a disclaimer

clarifying that the Bar does not endorse any views

See, e.g., Schneider, 917 F.2d at 626, 631 (endorsing “continuing

legal education programs” as a permissible activity to fund with

mandatory bar dues).

App. 36

expressed therein. That structure suffices under

Keller.38

*****

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.

IV.

Assuming, arguendo, that the plaintiffs can be

required to join the Bar, compelling them to subsidize

the Bar’s non-germane activities violates their freedom

of speech.39 Given that the Bar is engaged in non-

The plaintiffs also reference, in a single sentence, the Bar’s

spending on advertising. Beyond that, however, they do not

explain how it is unlawful, under Keller, to compel them to support

those efforts. “It is not enough to merely mention or allude to a

legal theory” “[A] party must ‘press’ its claims,” which means, at

a minimum, “clearly identifying a theory as a proposed basis for

deciding the case.” United States v. Scroggins, 599 F.3d 433,

446–47 (5th Cir. 2010). Because the plaintiffs have not met that

threshold, they have forfeited any contention related to the

advertising expenditures.

“This alternative holding is not dicta. In this circuit, ‘alternative

holdings are binding precedent and not obiter dicta.’” Ramos-

App. 37

germane activities and that its interests fail exacting

scrutiny,40 that is a straightforward application of

Keller. The Bar may “constitutionally fund activities

germane to [regulating the legal profession or

improving the quality of legal services] 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. As explained above, parts of the legislative

program and the support for AJC are non-germane, so

compelling plaintiffs to fund them violates their

freedom of speech. They are entitled to summary

judgment on their second claim.

The plaintiffs maintain that the Bar’s procedures

for separating chargeable from non-chargeable

expenses is constitutionally inadequate.41 They are, but

not for the primary reason the plaintiffs offer.

Portillo v. Barr, 919 F.3d 955, 962 n.5 (5th Cir. 2019) (quoting

Whitaker v. Collier, 862 F.3d 490, 496 n.14 (5th Cir. 2017)).

See Part III.C, supra.

Even if the plaintiffs cannot be compelled to join the Bar because

that violates their freedom of association, the adequacy of the Bar’s

procedures is still relevant. As we clarify today in No. 20-30086,

Boudreaux v. Louisiana State Bar Association, the inability to

identify non-germane expenses is itself a constitutional injury,

entitling the plaintiffs to relief. Moreover, because the plaintiffs

can be compelled to join the Bar if it ceases its non-germane

activities, per Lathrop, ensuring the Bar has adequate procedures

to notify the plaintiffs, and others, that some activities might be

non-germane is important.

App. 38

The plaintiffs contend the Bar’s procedures,

outlined in Part I.C, supra, are constitutionally

inadequate in light of recent precedent requiring clear,

free, and affirmative consent—i.e., an opt-in

system42—“before an association can use an

individual’s coerced fees or dues to support its political

and ideological activities.” The plaintiffs assert in the

alternative that, even if the Bar may use an opt-out

refund procedure, its current procedures are still

inadequate because the Bar (1) requires members to

pay dues before seeking any refund, (2) does not

provide adequate notice of its spending as required by

Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v.

Hudson, 475 U.S. 292 (1986), and (3) makes refunds

available only at the Bar’s discretion.

The Bar counters that “nothing in Keller mandates

that integrated bars adopt the exact procedures

Hudson outlined,” let alone that mandatory bars use an

opt-in system. The Bar avers that its current

procedures are constitutional under Keller because “the

Bar provides members with advance, detailed notice of

its proposed expenditures, along with several

opportunities to object to those expenditures before

they occur.” Specifically, the Bar points to (1) the

publication of its proposed budget, which itemizes

expenditures for particular categories, in the Texas Bar

Journal; (2) opportunities to object at the budget

hearing and the annual Bar Board meeting related to

the budget; and (3) the protest procedure, which allows

members to object to both proposed and actual

expenditures and obtain a refund.

See Janus, 138 S. Ct. at 2486; Knox, 567 U.S. at 322.

App. 39

Each side is half right. The plaintiffs are correct

that the Bar’s procedures are constitutionally wanting,

but they are incorrect that, at least under current law,

opt-in procedures are required. Though Janus and

Knox indicate that may be the case, Keller, despite “its

increasingly wobbly, moth-eaten foundations,”43

remains binding on this court. And Keller noted that

“an integrated bar could certainly meet its Abood

obligation by adopting the sort of procedures described

in Hudson.” Keller, 496 U.S. at 17.

Hudson requires that a public organization

collecting mandatory dues and engaging in nongermane conduct have procedures that “include an

adequate explanation of the basis for the fee, a

reasonably prompt opportunity to challenge the

amount of the fee before an impartial decisionmaker,

and an escrow for the amounts reasonably in dispute

while such challenges are pending.” Hudson, 475 U.S.

at 310. The explanation of the basis of the fee must

include “sufficient information to gauge the propriety

of the union’s fee.” Id. at 306. Hudson’s procedures

contemplate an opt-out rule. And Keller indicated that

Hudson’s procedures are sufficient to satisfy a Bar’s

obligations. Therefore, assuming that plaintiffs can be

compelled to join the Bar at all, the Bar may

constitutionally use some sort of opt-out procedure for

giving pro-rata refunds.

But, though the Bar may use opt-out procedures, its

current procedures are constitutionally inadequate.

The Bar asserts that Keller did not hold that Hudson’s

State Oil, 522 U.S. at 20 (quotation marks omitted).

App. 40

procedures are constitutionally necessary. That is

correct as far as it goes: Keller left open whether “one

or more alternative procedures would likewise satisfy”

the Bar’s obligation. Keller, 496 U.S. at 17. But Janus

and Knox have subsequently made clear that

procedures even more protective than those described

in Hudson (i.e., opt-in procedures) are necessary in the

closely related union context.44 In the absence of

Keller’s holding that Hudson’s procedures are

sufficient, we would be bound to follow the Supreme

Court’s directive in those cases and require opt-in

procedures. But of course, Keller’s indication that

Hudson’s procedures are sufficient remains binding.

Therefore, given that Keller indicated that Hudson’s

procedures are sufficient, and Janus held even more

protective procedures are necessary, Hudson’s

procedures are both necessary and sufficient.45

“Neither an agency fee nor any other payment to the union may

be deducted from a nonmember’s wages, nor may any other

attempt be made to collect such a payment, unless the employee

affirmatively consents to pay.” Janus, 138 S. Ct. at 2486 (emphasis

added); see also Knox, 567 U.S. at 312–13 (explaining that the

cases approving opt-out procedures were more “historical accident”

than “careful application of First Amendment principles”); id. at

314 (“By authorizing a union to collect fees from nonmembers and

permitting the use of an opt-out system for the collection of fees

levied to cover nonchargeable expenses, our prior decisions

approach, if they do not cross, the limit of what the First

Amendment can tolerate.”).

In so holding, we part ways with the Ninth Circuit’s decision in

Crowe, 989 F.3d at 727, and align ourselves instead with the

dissent, see id. at 734 (Van Dyke, J., dissenting).

App. 41

The Bar’s procedures are inadequate under 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. That

is a far cry from a Hudson notice, which estimates the

breakdown between chargeable and non-chargeable

activities and explains how those amounts were

determined. See Hudson, 475 U.S. at 307 & n.18.

The Bar then leaves the objecting attorney with

precious few worthwhile options to express his or her

disapproval. Though attorneys may register their

complaints with committees and sections or lodge an

objection at the Bar’s annual hearing on its proposed

budget, those processes give cold comfort: Any

objector’s opposition can be summarily overruled,

leaving that lawyer on the hook to fund ideological

activities that he or she does not support. To obtain a

refund, the Bar requires that attorneys object to a

specific activity.46 Moreover, whether a refund is

available is left to the sole discretion of the Bar’s

Executive Director, and refunds are issued only “for the

convenience of the Bar.” In the event a refund is

See Schneider, 917 F.2d at 634–35 (holding that the system for

processing objections was constitutionally insufficient under Keller

where, most relevantly, objecting attorneys had to lodge objections

to specific activities in order to receive a refund).

App. 42

denied, the objecting attorney is out of luck. Hudson

requires more than that.

VI.

Having held that the plaintiffs are entitled to

partial summary judgment, we turn to whether they

warrant a preliminary injunction pending the remedies

stage. They do.

“We review a . . . denial of a preliminary injunction

for an abuse of discretion,” Moore v. Brown, 868 F.3d

398, 402 (5th Cir. 2017), “but we review a decision

grounded in erroneous legal principles de novo,” City of

Dall. v. Delta Air Lines, Inc., 847 F.3d 279, 286 (5th

Cir. 2017) (quotation marks omitted). As discussed at

length, supra, the denial of the preliminary injunction

was based on an erroneous holding that the Bar was

not engaged in any non-germane activities, so our

review is de novo.

To obtain a preliminary injunction, the plaintiffs

must establish that (1) they are “likely to succeed on

the merits,” (2) they are “likely to suffer irreparable

harm in the absence of preliminary relief,” (3) “the

balance of equities tips in [their] favor,” and (4) “an

injunction is in the public interest.” Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008).

The plaintiffs have plainly satisfied the first factor.

They are not just likely to succeed on the merits; they

have succeeded on the merits already. The remaining

factors also support granting the preliminary

injunction. First, “[t]he loss of First Amendment

freedoms, for even minimal periods of time

unquestionably constitutes irreparable injury.” Elrod

App. 43

v. Burns, 427 U.S. 347, 373 (1976) (plurality). Next,

“injunctions protecting First Amendment freedoms are

always in the public interest.” Texans for Free Enter. v.

Tex. Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013)

(quotation marks omitted). Finally, the balance of

equities weighs heavily in plaintiffs’ favor because the

only harm to the Bar is the inability to extract

mandatory dues from the plaintiffs in violation of the

First Amendment, which is really “no harm at all.”

Christian Legal Soc’y v. Walker, 453 F.3d 853, 867 (7th

Cir. 2006).

***

The district court erred in its reading of Lathrop

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.

App. 44

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CAUSE NO. 1:19-CV-219-LY

[Filed: May 29, 2020]

_____________________________________________

TONY K. MCDONALD, JOSHUA B.

)

HAMMER, AND MARK S. PULLIAM,

)

PLAINTIFFS,

)

RANDALL O. SORRELS, LARRY P.

)

MCDOUGAL, JOE K. LONGLEY,

)

LAURA GIBSON, BRITNEY E. HARRISON, )

ANDRES E. ALMANZAN, JERRY C.

)

ALEXANDER, KATE BIHM,

)

REBEKAH STEELY BROOKER,

)

LUIS M. CARDENAS, ALISON W. COLVIN,

)

DEREK COOK, ROBERT D. CRAIN,

)

CHRISTINA DAVIS, ALISTAIR B.

)

DAWSON, LESLIE DIPPEL, MICHAEL

)

DOKUPIL, VICTOR FLORES,

)

JARROD T. FOERSTER, LAURA GIBSON,

)

JOHN CHARLES GINN, SHARI

)

GOLDSBERRY, MARC E. GRAVELY,

)

AUGUST W. HARRIS III, JOE “RICE”

)

HORKEY, JR., WENDY-ADELE

)

App. 45

HUMPHREY, MICHAEL K. HURST, NEIL D.

KELLY, DAVID C. KENT, ALDO D.

LOPEZ, YOLANDA CORTES MARES,

ROBERT E. MCKNIGHT, JR., STEPHEN J.

NAYLOR, AMIE S. PEACE, SALLY

PRETORIUS, CARMEN M. ROE,

ADAM T. SCHRAMEK, DAVID K SERGI,

ALAN E. SIMS, DINESH H. SINGHAL,

JASON SMITH, SANTOS VARGAS, G.

MICHAEL VASQUEZ, K. NICOLE VOYLES,

AMY WELBORN, JAMES WESTER, JAMES

C. WOO, AND DIANE ST. YVES,

IN THEIR OFFICIAL CAPACITIES AS

MEMBERS OF THE BOARD OF

DIRECTORS OF THE STATE BAR OF

TEXAS,

)

DEFENDANTS.

)

_____________________________________________)

ORDER ON CROSS-MOTIONS FOR SUMMARY

JUDGMENT

Before the court in the above-styled cause are the

parties’ cross-motions for summary judgment,

responses, replies, amicus briefs, and exhibits.1 On

Plaintiffs’ Motion for Partial Summary Judgment on Liability

filed March 25, 2019 (Doc. #6); Defendants’ Opposition to Plaintiffs’

Motion for Partial Summary Judgment on Liability filed May 13,

2019 (Doc. #33); Plaintiffs’ Reply in Support of Motion for Partial

Summary Judgment on Liability filed May 31, 2019 (Doc. #63);

Defendants’ Cross-Motion for Summary Judgment filed May 13,

2019 (Doc. #35); Plaintiffs’ Response in Opposition to Defendants’

Cross-Motion for Summary Judgment filed May 31, 2019 (Doc.

App. 46

August 1, 2019, the court held a hearing on the motions

at which all parties were represented by counsel.

Having considered the motions, responses, replies,

amicus briefs, the parties’ summary-judgment proof,

argument of counsel, post-hearing submissions, case

file, and applicable law, the court renders the following

order.

Jurisdiction and venue

Federal courts have original jurisdiction over “all

civil actions arising under the Constitution, laws or

treaties of the United States.” 28 U.S.C. § 1331. This

action arises under the First and Fourteenth

Amendments to the United States Constitution and is

brought pursuant Section 1983 of Title 42 of the United

States Code. This court has subject-matter jurisdiction

under Sections 1331 and 1343 of Title 28 of the United

States Code, and venue is proper in this district

because at least one of the defendants resides in this

district and all defendants reside in the State of Texas.

See 28 U.S.C. § 1391(b)(l).

#65); Defendants’ Reply in Support of Cross-Motion for Summary

Judgment filed June 18, 2019 (Doc. #75); Brief Amicus Curiae of

Goldwater Institute in Support of Plaintiffs’ Motion for

Preliminary Injunction (Doc. #39); Brief Amicus Curiae Texas

Attorney General Ken Paxton in Support of Plaintiffs’ Motion for

Partial Summary Judgment on Liability filed May 14, 2019 (Doc.

#40); Texas Legal Ethics Counsel’s Amicus Curiae Brief filed May

17, 2019 (Doc. #49); Brief Amicus Curiae of Former Presidents of

the State Bar of Texas, Forms Chairs of the Texas Bar College,

and Former Chairs of the State Bar of Texas Council of Chairs

filed May 20, 2019 (Doc. #53); Brief of amicus Curiae Texas Access

to Justice Commission filed May 20, 2019 (Doc. #54); and Brief

Amici Curiae of Concerned Lawyers of Color (Doc. #84 ).

App. 47

Factual background

Texas requires all lawyers licensed to practice in the

state to enroll in, and pay annual membership fees to,

a statewide bar. See Tex. Gov’t Code §§ 81.051, 81.054,

81.102. The Texas Legislature established the State

Bar of Texas (the “Bar”) in 1939 as “an administrative

agency of the Judicial Department of the State.” State

Bar Act § 2, reprinted in 2 Tex. B.J. 128, 128 (1939).

The operations and responsibilities of the Bar are

governed by statute, along with the Bar’s internal rules

and policies. The State Bar Act (the “Act”) mandates

that all attorneys licensed to practice law in Texas be

members of the Bar. The Bar “is a public corporation

and an administrative agency of the judicial

department” of Texas government and is subject to

“administrative control” by the Texas Supreme Court.

See Tex. Gov’t Code § 81.011(a), (c).

The Act specifies the Bar’s purposes as follows:

(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;

App. 48

(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. at § 81.012.

The Bar’s members elect the Bar’s officers and the

majority of the members of the Bar’s Board of

Directors. Id. at §§ 81.019(b), 81.020(b). Almost half of

the Bar’s annual revenue comes from membership fees,

and the Texas Supreme Court and the Bar’s Board of

Directors share responsibility for setting the fee

amount. See id. at §§ 81.022, 81.054(a). The Board may

increase fees by up to 10% once every six years. Id. at

§ 81.022(a-4). All other fee increases are subject to a

referendum vote by the Bar’s members. Id. at

§ 81.022(a-3). The annual membership fees are

currently $68 for active members licensed less than

three years; $148 for active members licensed between

three and five years; $235 for active members licensed

for at least five years; and $50 for inactive members.

Members 70 years of age and older are exempt from

paying membership fees. The Bar has not raised

annual membership fees since 1991, and remains the

lowest among the states with integrated bars.2

An integrated bar is defined as an official state organization

requiring membership and financial support of all attorneys

App. 49

In 2003, the Texas Legislature amended the Act to

require non-exempt Texas lawyers to pay a $65 legalservices fee in addition to the membership fee. Id at.

§ 81.054(c)-(d), (j)-(k). The Bar does not receive or

control that fee. Id. at § 81.054(c)-(d). The Texas

Supreme Court distributes the legal-services fees to the

Texas Comptroller, who allocates half to the Supreme

Court Judicial Fund to fund civil legal services for the

indigent and the other half to the Fair Defense Account

of the state’s general-revenue fund for indigentcriminal-defense programs. Id. at § 81.054(c).

The Texas Legislature periodically conducts

“sunset” reviews of the Bar to determine “whether a

public need exists” for the Bar’s continued existence,

including “whether less restrictive or alternative

methods of performing any function that the agency

performs could adequately protect or provide service to

the public.” Tex. Gov’t Code § 325.011. The Bar has

undergone sunset review four times, the last in 2017,

when the Texas Legislature voted to continue the Bar’s

existence until the next sunset review in 2029. See S.B.

No. 302 (2017).

Plaintiffs Tony K. McDonald and Joshua B.

Hammer are attorneys licensed to practice law in

Texas and active members of the Bar. Plaintiff Mark S.

Pulliam is an inactive member of the Bar. Plaintiffs

filed suit against Defendants, all of whom are members

admitted to practice in that jurisdiction. It has two facets which

set it apart from a voluntary bar association-official organization

by authority of the state and compulsory membership. See Tex.

Gov’t Code § 81.102.

App. 50

of the State Bar of Texas Board of Directors, in their

official capacities only, seeking declaratory and

injunctive relief to remedy alleged unconstitutional

coerced speech and association in violation of the First

and Fourteenth Amendments of the United States

Constitution. Plaintiffs assert that the mandatory

requirement that attorneys in Texas must join,

associate with, and pay dues to the Bar violates their

First Amendment right to freedom of speech and

association. See 42 U.S.C. § 1983. Plaintiffs seek a

declaratory judgment that Texas law compelling them

to join, associate with, and financially support the Bar

violates the First and Fourteenth Amendments. See 28

U.S.C. § 2201. Plaintiffs further seek attorney’s fees

and costs. See 42 U.S.C. § 1988.

Plaintiffs’ motion for partial summary judgment on

liability asserts that the current structure of the Bar

violates their First Amendment rights in three ways:

(1) by compelling membership in, and financial support

for, the Bar in violation of Plaintiffs’ First Amendment

right to freedom of speech and association; (2) by

compelling Plaintiffs to support the Bar’s activities

beyond attorney regulation in violation the First

Amendment; and (3) and by implementing procedures

for identifying non-chargeable expenses in violation the

First Amendment. Defendants’ cross-motion for

summary judgment on all of Plaintiffs’ claims asserts

that Plaintiffs have failed to raise any plausible

constitutional violations.

Arguments

Plaintiffs argue that under Janus v. American

Federation of State, County, & Municipal Employees,

App. 51

138 S. Ct. 2448 (2018), an organization that collects

compelled dues must adopt procedures under which

members opt in to supporting political and ideological

causes, rather than charging everyone the fee by

default and expecting objectors to opt out. Defendants

argue that Lathrop v. Donohue, 367 U.S. 820 (1961)

and Keller v. State Bar of California, 496 U.S. 1 (1990),

control, holding that mandatory bar membership and

mandatory bar fees do not violate the First

Amendment. Defendants further assert that Plaintiffs’

reliance on Janus is misplaced, because Janus’s

reassessment of whether a state’s interests in

maintaining labor peace and avoiding nonmember free

riding on unions’ collective-bargaining efforts justify

compelled payments from nonmembers does not

undermine the United States Supreme Court’s

endorsement of the state interests in professional

regulation and legal-service quality served by

integrated bars.

Summary-judgment review

“Summary judgment is required when ‘the movant

shows that there is no dispute as to any material fact

and the movant is entitled to judgment as a matter of

law.”’ Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)

(quoting FED. R. CIV. P. 56(a)). “A genuine dispute of

material fact exists when the ‘evidence is such that a

reasonable jury could return a verdict for the

nonmoving party.”’ Nola Spice Designs, LLC v. Haydel

Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (quoting

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).

“The moving party ‘bears the initial responsibility of

informing the district court of the basis for its motion,

App. 52

and identifying those portions of [ the record] which it

believes demonstrate the absence of a genuine issue of

material fact.”’ Id. (quoting EEOC v. LHC Grp., Inc.,

773 F.3d 688, 694 (5th Cir. 2014)). A fact is material if

“its resolution could affect the outcome of the action.”

Aly v. City of Lake Jackson, 605 Fed. App’x 260, 262

(5th Cir. 2015). “If the moving party fails to meet [its]

initial burden, the motion [for summary judgment]

must be denied, regardless of the nonmovant’s

response.” Pioneer Exploration, LLC v. Steadfast Ins.

Co., 767 F.3d 503 (5th Cir. 2014).

“When the moving party has met its Rule 56(c)

burden, the nonmoving party cannot survive a

summary judgment motion by resting on the mere

allegations of its pleadings.” Duffie v. United States,

600 F.3d 362, 371 (5th Cir. 2010). The nonmovant must

identify specific evidence in the record and articulate

how that evidence supports that party’s claim. Willis v.

Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014). “This

burden will not be satisfied by ‘some metaphysical

doubt as to the material facts, by conclusory

allegations, by unsubstantiated assertions, or by only

a scintilla of evidence.”’ Boudreaux v. Swift Transp.

Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). In deciding

a summary-judgment motion, the court draws all

reasonable inferences in the light most favorable to the

nonmoving party. Darden v. City of Fort Worth, 866

F.3d 698, 702 (5th Cir. 2017).

On cross motions for summary judgment, the court

reviews each party’s motion independently, viewing the

evidence and inferences in the light most favorable to

the nonmoving party, and determining for each side

App. 53

whether judgment may be rendered in accordance with

the Rule 56 standard. Amerisure Ins. Co. v. Navigators

Ins. Co., 611 F.3d 299, 304 (5th Cir. 2010) (internal

citation and quotation omitted); Shaw Constr. v. ICF

Kaiser Engrs., Inc., 395 F.3d 533 fn. 8 & 9 (5th Cir.

2004).

Analysis

Counts One and Two

In Counts One and Two of Plaintiffs’ First Amended

Complaint, Plaintiffs assert that compelling

membership in and financial support for the Bar and

compelling Plaintiffs to support the Bar’s activities

beyond attorney regulation violates Plaintiffs’ First

Amendment right to freedom of speech and association.

See Janus, 138 S. Ct. at 2463-64. Plaintiffs

acknowledge that the United States Supreme Court

upheld compulsory state bars in Keller, but they argue

that the Court did so only by relying heavily on Abood

v. Detroit Board of Education, 431 U.S. 209 (1977),

which Plaintiffs argue the Court explicitly overruled in

Janus. See 138 S. Ct. at 2478-79. Plaintiffs argue in the

alternative that even if Keller remains good law,

nothing in Keller authorizes a state to compel bar

membership when the bar engages in political or

ideological activities.

Defendants argue that Lathrop and Keller foreclose

Plaintiffs’ claims by squarely holding that the First

Amendment permits states to adopt integrated bars

supported by compulsory membership fees to further

the state’s interests in “regulating the legal profession

or ‘improving the quality of the legal service available

App. 54

to the people of the State.”’ Keller, 496 U.S. at 14

(quoting Lathrop, 367 U.S. at 843). Defendants further

argue that contrary to Plaintiffs’ contentions, Janus did

not overrule Keller, and integrated bars may engage in

activities that some members may view as “political or

ideological” in nature so long as they advance the

legitimate state interests recognized in Keller.

In Lathrop, the plaintiff claimed that Wisconsin’s

establishment of an integrated bar with compulsory

membership fees violated his First Amendment rights

of freedom of association and free speech. 367 U.S. at

821-23. The Supreme Court concluded that Wisconsin’s

integrated bar did not violate the First Amendment’s

guarantee of freedom of association, reasoning that a

state may constitutionally require attorneys to pay

dues to a state bar “in order to further the State’s

legitimate interests in raising the quality of

professional services,” even when an integrated bar

“engages in some legislative activity,” as long as “the

bulk of State Bar activities serve the function . . . of

elevating the educational and ethical standards of the

Bar to the end of improving the quality of the legal

service available to the people of the State.” Id. at 843.

Concluding that the record was insufficiently developed

to provide a “sound basis” for deciding whether the

integrated bar violated the plaintiffs right to free

speech, the Lathrop Court declined to resolve that

issue. Id. at 845-48.

However, Keller did resolve the free-speech issue

left open by Lathrop. The Keller plaintiffs claimed that

the integrated California State Bar’s “use of their

compulsory dues to finance political and ideological

App. 55

activities . . . with which they disagree violate[d] their

rights of free speech.” 496 U.S. at 9. The Court held

that lawyers “may be required to join and pay dues to

the State Bar,” and articulated “the scope of

permissible dues-financed activities in which the State

Bar may engage.” Id. at 4. The Court concluded that

integrated bars “are justified by the State’s interest in

regulating the legal profession and improving the

quality of legal services.” Id. at 13. Keller held that

state bars may use mandatory membership fees to

“fund activities germane to those goals,” but may not

use mandatory fees to “fund activities of an ideological

nature which fall outside of those areas of activity.” Id.

at 14. Therefore, under Keller, integrated state bars’

use of membership fees complies with the First

Amendment if the “expenditures are necessarily or

reasonably incurred for the purpose of regulating the

legal profession or ‘improving the quality of the legal

service available to the people of the State.’” Id.

(quoting Lathrop, 367 U.S. at 843). Keller

acknowledges that determining on which side of that

constitutional line a particular expenditure falls “will

not always be easy,” but the Court explained that “the

extreme ends of the spectrum are clear”: although

mandatory fees may not be used for advancing “gun

control or nuclear weapons freeze” initiatives, they may

be used for “activities connected with disciplining

members of the Bar or proposing ethical codes for the

profession.” Id. at 15-16.

App. 56

Janus did not disturb the binding holdings of

Lathrop and Keller.3 Janus addressed First

Amendment issues applicable only to public-sector

employees. 38 S. Ct. at 2478. The Court held that

arrangements whereby a governmental entity and a

labor organization agree to require government

employees to pay fees that are used by the union to

negotiate how governmental funds are spent, and in

what amounts, implicate the First Amendment in ways

distinct from agency fees in the private sector. Publicsector fees involve ‘’the government . . . compel[ling] a

person to pay for another party’s speech,” on matters

involving “the budget of government” and “the

performance of government services.” Id. at 2467, 2473.

The Court also indicated that public unions raise

particular First Amendment concerns that are not

raised by integrated state bars, noting that collective

bargaining by public unions has a special “political

valence” that the Court in Abood did not appreciate at

the time. Janus, 13 8 S. Ct. at 2483. Private-sector

agency fees raise no such issues. Like Keller and

Lathrop, this case involves mandatory membership in

a bar association, not a public-sector union.

Although Plaintiffs contend that Keller relies

heavily on Abood, the Supreme Court decided Keller

principally in the context of rejecting the contention

The United States District Court for the Eastern District of

Louisiana also has concluded that Janus did not overrule Lathrop

and Keller. See Boudreaux v. La. State Bar Ass’n, No. 2:19-cv11962, slip op. at 55-56 (E.D. La. Jan. 13, 2020), appeal docketed.

No. 20-30086 (5th Cir. Feb. 10, 2020). See also Fleck v. Wetch, 937

F.3d 1112, 1118 (8th Cir. 2019), cert. denied, 140 S. Ct. 1294 (Mar.

9, 2020).

App. 57

that the California State Bar’s “status as a regulated

state agency exempted it from any constitutional

constraints on the use of its dues.” 496 U.S. at 10.

Keller merely drew an “analogy” between integrated

state bars and labor unions. Id at 12. Janus’s

reassessment of the state interests that Abood

concluded justified agency fee arrangements did not

undermine Keller’s recognition of the very different

state interests in professional regulation and legalservice quality served by integrated bars. See id. at 1314.

Moreover, the majority opinion in Janus did not

address Keller or respond to the dissent’s assertion that

Keller was a “case . . . involving compelled speech

subsidies outside the labor sphere [that] today’s

decision does not question.” 138 S. Ct. at 2498 (Kagan,

J., dissenting). Keller and Lathrop directly control

under the facts of this case, and therefore bind this

court. See Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477,484 (1989) (“If a precedent

of this Court has direct application in a case, yet

appears to rest on reasons rejected in some other line

of decisions, the Court of Appeals should follow the

case which directly controls, leaving to this Court the

prerogative of overruling its own decisions.”).

Additionally, the Supreme Court’s decision in

Harris v. Quinn, 573 U.S. 616 (2014), confirms that

Keller fits within the “exacting scrutiny” framework

applied in Janus. Harris applied “exacting scrutiny” in

holding that states could not constitutionally charge

non-public employees agency fees. See id. at 648-51. As

later explained by Janus, exacting scrutiny requires

App. 58

that a compelled subsidy “serve a compelling state

interest that cannot be achieved through means

significantly less restrictive of associational freedoms.”

Janus, 138 S. Ct. at 2465 (quoting Knox v. Serv. Emps.

Int’l Union, 567 U.S. 298, 310 (2012)). Harris explicitly

considered whether the exacting-scrutiny framework

would disturb its prior holding in Keller that states

may require lawyers to pay fees to fund bar activities

furthering the “State’s interest in regulating the legal

profession and improving the quality of legal services.”

Harris, 573 U.S. at 655 (quoting Keller, 496 U.S. at 14).

The Court answered no, holding that Keller “fits

comfortably within [the exacting-scrutiny] framework”

applied in Harris and that its decision in Harris was

“wholly consistent with [the Court’s] holding in Keller.”

Id. at 656. Thus, the court finds no basis for holding

that Janus overrules Keller.

Having determined that Keller applies, the court

will next address whether the Bar’s challenged

activities meet the Keller standard. Keller held that

integrated bars “are justified by the State’s interest in

regulating the legal profession and improving the

quality of legal services available to the people of the

State,” id. at 13; thus, state bars may use mandatory

membership fees to “fund activities germane to those

goals,” so long as they do not “fund activities of an

ideological nature which fall outside of those areas of

activity.” Id. at 14. The question is not whether the

challenged activity is “political or ideological” in the

abstract, but whether the challenged activity is

“germane to” the state interests that justify integrated

bars’ establishment of “regulating the legal profession

and improving the quality of legal services.” Id. at 13;

App. 59

see also United States v. United Foods, Inc., 533 U.S.

405, 414 (2001) (under Keller, lawyers can “be required

to pay moneys in support of activities . . . germane to

the reason justifying the compelled association”);

Kingstad v. State Bar of Wis., 622 F .3d 708, 716 (7th

Cir. 2010) (question is “whether challenged

expenditures . . . are reasonably related to the

constitutionally relevant purposes of [the mandatory]

association”).

“The purpose of the State Bar of Texas is to engage

in those activities enumerated at [Section] 81.012 of

the State Bar Act. The expenditure of funds by the

State Bar of Texas is limited both as set forth at

[Section] 81.034 of the State Bar Act and in Keller.”

Board Policy Manual § 3.14.01 (“Policy Manual”). The

court finds that the following Bar activities Plaintiffs

challenge comply with the Keller standard because they

further Texas’s interest in professional regulation or

legal-service quality improvement.

Lobbying. Members of the Bar’s voluntary, subjectmatter sections coordinate all lobbying activities

without compensation from the Bar for their efforts.

The Bar follows a detailed, multi-step process to ensure

that its legislative activities comply with the

requirements of the State Bar Act and Keller. In

addition, the Bar maintains a policy against engaging

in legislative activities that “carry the potential of deep

philosophical or emotional division among a substantial

segment of the membership of the bar.” Policy Manual

§ 8.01.03(c). Participating in legislative activities such

as seeking to amend or repeal unconstitutional laws

benefits the legal profession and improves the quality

App. 60

of legal services because it reduces the risk that

lawyers, their clients, members of the public, or

government officials will rely on laws that judicial

decisions have rendered invalid. To date no

person–Plaintiffs included–have raised an objection

under the Bar’s protest procedure from the time of its

adoption in 2005 until the filing of Plaintiffs’ suit.

Access to Justice Programs. The Texas Supreme

Court established the Texas Access to Justice

Commission in 2001 in response to findings by a

statewide planning group that many poverty-stricken

people in Texas are underrepresented, and that gaps

exist in developing a comprehensive, integrated

statewide civil-legal-services-delivery system in Texas.

The Texas Supreme Court’s order creating the

Commission expressly provides that it is prohibited

from using Bar funds “for influencing 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 and the amount of the

expenditure is reasonable and necessary.” Tex. Gov’t

Code § 81.034.

In addition, the preamble to the Texas Disciplinary

Rules of Professional Conduct urges attorneys to be

“mindful of deficiencies in the administration of justice

and of the fact that the poor, and sometimes persons

who are not poor, cannot afford adequate legal

assistance.” Tex. Disciplinary R. Prof’l Conduct

preamble 15, reprinted in Tex. Gov’t Code Ann., tit. 2,

subtit. G, app. A (West 2013). The Bar advances Texas’

interest in professional regulation by taking steps to

App. 61

assist lawyers in fulfilling their “ethical responsibility

to provide public interest legal service.” Tex.

Disciplinary R. Prof’l Conduct 6.01 cmt. 5.

Diversity Initiatives. Texas has a long history of

discrimination in the legal profession and legal

education. See, e.g., League of United Latin Am.

Citizens, Council No. 4434 v. Clements, 999 F .2d 831,

866 (5th Cir. 1993) (en banc) (noting “Texas’ long

history of discrimination against its black and Hispanic

citizens in all areas of public life”). The Bar’s diversityrelated initiatives seek to reduce those barriers and

promote a fairness and equity among lawyers help to

build and maintain the public’s trust in the legal

profession and the judicial process as a whole,

advancing Texas’s interests in professional regulation

and improving the quality of legal services.

Continuing Legal Education. The Bar’s Continuing

Education programs assist Bar members in satisfying

minimum continuing legal education requirement in

furtherance of the members’ professional duty to

maintain the requisite knowledge of a competent

practitioner. See Tex. State Bar R. art. XII, § 6,

reprinted in Tex. Gov’t Code Ann., tit. 2. subtit. G, app.

A (West 2013); Tex. Disciplinary R. Prof’l Conduct 1.01

cmt. 8. The programs’ fees aid in funding the Bar’s

operations, without which the Bar would likely

increase its membership fees. The Bar regularly

publishes disclaimers stating that the opinions

expressed by speakers in continuing legal education

programs “do not necessarily reflect opinions of the

State Bar of Texas, its sections, or committees.”

App. 62

Bar Journal. The Bar publishes the Texas Bar

Journal, providing articles regarding “legal matters

and the affairs of the [] Bar and its members.” State

Bar R. art. IX. The Bar is required to publish

information of interest to the legal profession, including

notices of disciplinary actions and amendments to

evidentiary and procedural rules. See, e.g., Tex. R.

Disciplinary P. 6.07; Tex. Gov’t Code §§ 22.108(c),

22.109(c). The Texas Bar Journal aims to “report [on]

matters objectively” and to feature articles expressing”

[v]arious viewpoints,” including the “opinions of people

differing with the State Bar and/or Bar leaders.” Policy

Manual § 7.05.02. Each issue includes a disclaimer

making clear that publication of any article or

statement is not to be deemed an endorsement of the

views expressed therein. Like the continuing legal

education programs, the Texas Bar Journal advances

the interest of professional regulation and improving

legal-service quality by keeping Bar members up-todate on developments in the law and the legal

profession. Cf. Lehnert v. Ferris Faculty Ass’n, 500U.S.

507,529 (1991) (rejecting First Amendment challenge

to expenditures on union’s statewide journal).

Advertising. Keller authorizes expenditures to

inform lawyers and the public regarding the Bar’s

programs and the Bar’s role in regulating the legal

profession and advancing the quality of legal services.

See Kingstad, 622 F.3d at 718-19 (upholding state bar

public image campaign). See also Gardner v. State Bar

of Nev., 284 F.3d at 1043 (9th Cir. 2002). Indeed, the

Bar’s advertising activities are “highly germane to the

purposes for which the State Bar exists,” Gardner, 284

F.3d at 1043, because they inform lawyers and the

App. 63

public about the Bar’s programs and the Bar’s role in

furthering those interests.

The court concludes that the $65 legal-services fee

added by the Texas Legislature in 2003 is not subject

to Keller because it is not used to fund any Bar

expenditures, but rather is used by the Texas Supreme

Court and the Texas Indigent Defense Commission to

promote legal services for the indigent. See Tex. Gov’t

Code § 81.0549(c)-(d). Even if Keller applies, the fee

satisfies Keller because–like the Bar’s access-to-justice

programs–promoting legal services for the indigent is

“germane to” the state’s interests in regulating the

legal profession and improving the quality of legal

services. Keller, 496 U.S. at 13-14.

Count Three

In Count Three, Plaintiffs assert that the Bar’s

implementation of procedures for identifying nonchargeable expenses violate the First Amendment

because the Bar has failed to adopt the precise

procedures established by the Supreme Court in

Chicago Teachers Union v. Hudson, 475 U.S. 292

(1986). The court notes, however, that Keller did not

address the question of whether integrated bars can

adopt “alternative procedures” to prevent bar members

from being compelled to fund nonchargeable expenses.

See Keller, 496 U.S. at 17. Having previously concluded

that the Bar’s procedures ensure that all of its

expenditures comply with Keller, the court further

concludes that the Bar’s existing policies and

procedures achieve the objective of procedural

safeguards in the First Amendment by ensuring that

“the government treads with sensitivity in areas

App. 64

freighted with First Amendment concerns.” Hudson,

475 U.S. at 303 n.12.

The Bar provides members with advance, detailed

notice of its proposed expenditures, along with several

opportunities to object to those expenditures before

they occur. Bar members have multiple opportunities

to object to proposed expenditures before they

occur–none of which Plaintiffs have undertaken–

including, but not limited to, (1) at the annual public

budget hearing required under Tex. Gov’t Code

§ 81.022(b), (2) at the annual Bar Board meeting at

which the budget is approved under Policy Manual

§ 3.02.03, and (3) under the Policy Manual’s protest

procedure, which allows members to “object to a

proposed or actual expenditure,” Policy Manual

§ 3.14.02. In addition, members can object to proposed

legislative activities and participate in the Legislative

Policy Subcommittee meeting on the Bar’s proposed

legislative program. Because 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.

Conclusion

IT IS ORDERED that Plaintiffs’ Motion for Partial

Summary Judgment on Liability filed March 25, 2019

(Doc. #6) is DENIED.

App. 65

IT IS FURTHER ORDERED that Defendants’

Cross-Motion for Summary Judgment filed May 13,

2019 (Doc. #35) is GRANTED.4

A Final Judgment shall be rendered subsequently

in this cause.

SIGNED this 29th, day of May, 2020.

/s/Lee Yeakel

LEE YEAKEL

UNITED STATES DISTRICT JUDGE

Having granted summary judgment in favor of Defendants, the

court need not address Plaintiffs’ Motion for Preliminary

Injunction filed March 25, 2019 (Doc. #5). Accordingly, it is

ORDERED that Plaintiffs’ Motion for Preliminary Injunction filed

March 25, 2019 (Doc. #5) is DISMISSED.

App. 66

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CAUSE NO. 1:19-CV-219-LY

[Filed: May 29, 2020]

_____________________________________________

TONY K. MCDONALD, JOSHUA B.

)

HAMMER, AND MARK S. PULLIAM,

)

PLAINTIFFS,

)

RANDALL O. SORRELS, LARRY P.

)

MCDOUGAL, JOE K. LONGLEY,

)

LAURA GIBSON, BRITNEY E. HARRISON, )

ANDRES E. ALMANZAN, JERRY C.

)

ALEXANDER, KATE BIHM,

)

REBEKAH STEELY BROOKER,

)

LUIS M. CARDENAS, ALISON W. COLVIN,

)

DEREK COOK, ROBERT D. CRAIN,

)

CHRISTINA DAVIS, ALISTAIR B.

)

DAWSON, LESLIE DIPPEL, MICHAEL

)

DOKUPIL, VICTOR FLORES,

)

JARROD T. FOERSTER, LAURA GIBSON,

)

JOHN CHARLES GINN, SHARI

)

GOLDSBERRY, MARC E. GRAVELY,

)

AUGUST W. HARRIS III, JOE “RICE”

)

App. 67

HORKEY, JR., WENDY-ADELE

HUMPHREY, MICHAEL K. HURST, NEIL D.

KELLY, DAVID C. KENT, ALDO D.

LOPEZ, YOLANDA CORTES MARES,

ROBERT E. MCKNIGHT, JR., STEPHEN J.

NAYLOR, AMIE S. PEACE, SALLY

PRETORIUS, CARMEN M. ROE,

ADAM T. SCHRAMEK, DAVID K SERGI,

ALAN E. SIMS, DINESH H. SINGHAL,

JASON SMITH, SANTOS VARGAS, G.

MICHAEL VASQUEZ, K. NICOLE VOYLES,

AMY WELBORN, JAMES WESTER, JAMES

C. WOO, AND DIANE ST. YVES,

IN THEIR OFFICIAL CAPACITIES AS

MEMBERS OF THE BOARD OF

DIRECTORS OF THE STATE BAR OF

TEXAS,

)

DEFENDANTS.

)

_____________________________________________)

FINAL JUDGMENT

Before the court is the above entitled cause of

action. On this date, the court rendered an order

granting Defendants summary judgment. Accordingly,

the court renders the following Final Judgment

pursuant to Federal Rule of Civil Procedure 58.

IT IS ORDERED that Plaintiffs TAKE NOTHING

by their suit against Defendants.

IT IS FURTHER ORDERED that Defendants are

awarded costs.

IT IS FINALLY ORDERED the case is CLOSED.

App. 68

SIGNED this 29th day of May, 2020.

/s/Lee Yeakel

LEE YEAKEL

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.