McDonald v. Longley, 4f4th229

Background

Texas requires all licensed attorneys to join the State Bar of Texas and pay annual membership dues; a separate statutory $65 legal‑services fee funds indigent legal services.
Plaintiffs (three Texas attorneys) sued Bar officers under 42 U.S.C. § 1983, alleging compelled association and compelled subsidization of political/ideological, non‑germane activities in violation of the First Amendment.
Challenged Bar activities included its legislative lobbying program, an Office of Minority Affairs (diversity initiatives), Legal Access Division (pro bono supports and a volunteer directory), funding for the Texas Supreme Court’s Access to Justice Commission (AJC), CLE/convention panels, and the Texas Bar Journal.
The Bar offers notice, internal objection channels, and an opt‑out refund procedure (pro rata refunds at the Bar’s discretion); the refund process has been rarely used.
The district court granted summary judgment to the Bar and denied preliminary relief; the Fifth Circuit vacated in part, granted partial summary judgment to plaintiffs on associational and subsidization claims, found the Bar’s procedures constitutionally inadequate, and rendered a preliminary injunction preventing the Bar from forcing these plaintiffs to join or pay dues pending remedies.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether mandatory membership violates freedom of association when the Bar engages in non‑germane activities	Compulsory membership burdens associational rights if the Bar engages in ideological, non‑germane activities	Lathrop and Keller permit mandatory bars; compelled membership is lawful when tied to regulation/improving legal services	Compelled membership violates associational rights because the Bar engages in non‑germane activities; plaintiffs entitled to summary judgment on that claim
Whether the Bar’s legislative lobbying is germane	Lobbying for substantive law and controversial policies is non‑germane political activity	Lobbying can be germane (advising on court structure, lawyer regulation); sections and GRD limit and justify activity	Lobbying is mixed: advocacy related to courts or lawyer regulation is germane; most substantive‑law lobbying (e.g., marriage/civil‑union proposals) is non‑germane; Bar’s 2019 program included non‑germane items
Whether diversity initiatives (OMA) are non‑germane	Identity‑targeted diversity programs are ideological and thus non‑germane	Diversity programs regulate the profession and improve service quality; they build public trust in the profession	Diversity initiatives are germane to regulating the profession and improving legal services and therefore permissible to fund with mandatory dues
Whether pro bono/legal‑aid programs and AJC are germane	Supporting some organizations (e.g., immigration representation) is ideological and non‑germane	Pro bono and legal‑aid expand access to justice and improve legal‑service quality; fees statutorily dedicated to indigent services	LAD, the volunteer directory, and the statutory legal‑services fee are germane. AJC is partly germane (access projects) but partly non‑germane when it lobbies for substantive law changes benefiting low‑income Texans
Whether the Bar’s notice and refund procedures satisfy First Amendment safeguards (Hudson/Janus)	Procedures are inadequate: insufficient notice, no itemized chargeable/non‑chargeable breakdown, require payment before refund, refunds discretionary; opt‑in should be required	Keller permits Hudson‑style opt‑out procedures; Bar’s written procedures and budget publication suffice	Under binding Keller precedent Hudson‑type safeguards are required and the Bar’s procedures are constitutionally inadequate (insufficient notice/breakdown and discretionary refunds). The court declined to impose opt‑in because Keller remains binding, but found current procedures fall short of Hudson
Whether preliminary injunction was warranted	Plaintiffs will prevail on the merits and suffer irreparable First Amendment harm; injunction in public interest	District court denied injunction	Fifth Circuit reversed and rendered a preliminary injunction preventing the Bar from requiring these plaintiffs to join or pay dues pending remedies

Key Cases Cited

Lathrop v. Donohue, 367 U.S. 820 (1961) (plurality) (upheld mandatory bar membership where activities were germane to regulating the profession)
Keller v. State Bar of California, 496 U.S. 1 (1990) (held mandatory dues may fund activities germane to regulation/quality of legal services but not ideological activities outside those areas)
Janus v. American Federation of State, County, & Municipal Employees, 138 S. Ct. 2448 (2018) (required affirmative consent for certain compelled public‑sector union fees and cast doubt on prior opt‑out precedents)
Hudson v. Chicago Teachers Union, 475 U.S. 292 (1986) (procedural requirements for mandatory fee collections: adequate notice, prompt challenge before impartial decisionmaker, escrow of disputed amounts)
Knox v. Service Employees Int’l Union, 567 U.S. 298 (2012) (applied exacting scrutiny and criticized opt‑out fee systems)
Roberts v. United States Jaycees, 468 U.S. 609 (1984) (framework for freedom of association analysis)
Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (historically allowed compelled union fees for collective‑bargaining purposes; later overruled by Janus)
Harris v. Quinn, 573 U.S. 616 (2014) (discussed government interests in allocating certain regulatory costs to professionals)