Is the Texas BAR about to be neutered?
The recent lawsuit filed in March against the BAR association, filed by three attorneys with Empower Texans, would dry up the funds that the BAR association uses for lobbying against parents. This means that the money they use to pay lobbyists to fight against parental rights would dry up too, if this lawsuit prevails. This would be excellent news for parents and children in divorce. “These three Texas lawyers — Tony McDonald, Josh Hammer and Mark Pulliam — sued, pointing to the bar’s legislative and diversity initiatives and arguing that their compulsory dues cannot be spent on political activities they do not endorse,” according to the Texas Tribune.
“Their lawsuit was one of a handful filed in the wake of Janus vs. American Federation of State, County, and Municipal Employees, a 2018 U.S. Supreme Court case that decreed that mandatory public union dues may not be used for political activities without consent. The lawsuit, an existential threat to the state bar, could force the organization to splinter into a mandatory organization that would handle disciplinary disputes and a voluntary organization that could put on educational programming and other events — or even force regulation of the legal profession into the Legislature’s hands,” writes Emma Platoff, civil courts reporter for the Texas Tribune.
The Texas Family Law Foundation is one of the political organizations that represents the BAR and is paid with these mandatory compulsory dues. Amy and Steve Bresnen lobby for the Texas Family Law Foundation (TFLF). Both would be affected if this lawsuit prevails.
TFLF lobbies against equal parenting bills and against constitutional rights protections for parents and children. The BAR brags about this.
The BAR has bragged about this over the years claiming that they are protecting families. Parents have come forward to expose these lies and to share with legislators the damage that the current laws are having on their families. In Texas, parents have been trying to get an equal parenting plan option into the law for the last 12 years! TFLF has blocked their efforts at getting corrections put into the law. In Kentucky, where the BAR is not allowed to lobby, an equal parenting bill was passed without any problem.
Texas Attorney General Ken Paxton Joins Fight Against State Bar
Texas State Attorney General joined the fight against the BAR, and the BAR association is pissed off about this. They state that the AG is supposed to defend the laws of the state and that this is unprecedented.
Attorney General Paxton is the only state attorney general to come out against his own state bar, and to blast a state law as unconstitutional,” according to the Texas Tribune. The Tribune says that this is unusual and says that his job is to defend Texas law. They further hypothesize that the AG might have jumped in based on political motivations and cites that he receives some decent campaign donations from the three attorneys who filed the suit against the Texas state BAR’s mandatory dues being used for political activities. What the Texas Tribune has missed however, is that the Palmers have sued the AG and the State BAR just last year after the BAR’s UPL committee, sent a threat letter to them accusing them of practicing law because they provide information and advice to parents and attorneys regarding their constitutional rights in family law, and because they provide their arguments in motion format on their website. Their lobbying arm also has attacked the Palmers in the past through the Bresnens by sending out a memo to all of the Senators and House Representatives in an attempt to discredit them. These are attempts to restrict the sphere of information available to their attorneys and parents regarding the protections parental rights in family law. The issue has been that their attorneys are not being trained properly and have failed to provide parents with proper protections due these fundamental rights. The BAR, the Bresnens, and TFLF are attempting to restrict anyone they do not control. By requiring that only attorneys teach about the law, they can hide and restrict First Amendment activities. Since the Palmers are not attorneys, the BAR cannot directly limit their First Amendment Speech rights the same way they could an attorney. The BAR would remove the attorney’s ability to practice if they taught something the BAR did not agree with. For non-attorneys, the BAR uses a Committee established by the Supreme Court to regulate non-attorney speech. The Palmers are suing them over this attempt to restrict First Amendment rights and limit the information and knowledge available to parents trying to protect their children from government influence and interference. The Palmers also are attacking them over the violation of separation of government.
This lawsuit “could force the organization to splinter into a mandatory organization that would handle disciplinary disputes and a voluntary organization that could put on educational programming and other events — or even force regulation of the legal profession into the Legislature’s hands.”
The Palmers Lawsuit Set the Stage for the Attorney General
You can read a sample from the Palmers brief in this excerpt filed in December 2018, the month prior to the Attorney General being asked to write an opinion on whether the BAR was violating First Amendment and separation of powers issues. The Tribune reports that “In January, Longley requested a formal legal opinion from Paxton, asking: “Is it constitutional to require Bar members to pay compulsory Bar dues, including to support Bar programs … that Bar members object to on First Amendment grounds (e.g., free speech, freedom of association), inclμding programs that are not within the regulatory functions of the State Bar?”
The Bresnens have been known to attack people who try to educate the public on any injustices in the law, and they lobbed an attack against the Policy Center three years ago, during the 85th legislative session. They sent a memo to all of the Senators and House Representatives defaming the National Family Law Policy Center and Ron and Sherry Palmer using these compelled dues. Then the UPL Committee attacked the Palmers through Fix Family Courts trying to censor speech and remove the education that they provide to parents and attorneys on their fundamental parental rights.
Now the BAR is being attacked from both ends as the Palmers are suing them for trying to censor their speech and stop them from educating the public, and the Attorney General has joined the suit against them for using compelled dues to restrict First Amendment rights of attorneys.
The AG contends that he is not a proper party to this lawsuit because he is not tasked with defending the UPL statute. However, Article 2, Section 1 of the Texas Constitution prevents the Legislature from designating a judicial agency supervised by the Supreme Court of the state as “the proper law enforcement officer for certain statutes.” Law enforcement is undeniably an executive power. Granting law enforcement power to a judicial agency not only diminishes the executive authority but deprives Plaintiffs of the protections of an independent, neutral, and disinterested judiciary. The core concept of the separation of powers doctrine is that there are inherent conflicts in the exercise of certain kinds of government power that are too basically rooted in human nature to be bundled together under one branch of government. The potential for bias is inherent in the conflict between the powers.
Even if the UPL Committee can legitimately defend the UPL statutes against 1983 attack generally, that Committee cannot legitimately defend the statute, Section 81.104 of the Texas Government Code, that grants them power where the complaint is that the Committee is granted power in violation of Art. 2, Sec. 1 of the Texas Constitution. Only the executive can legitimately defend against a statutory challenge of this type.
The AG admits that state law is well-settled that the UPL Committee and not the AG is authorized to enforce the UPL laws. According to the AG, the Texas Supreme Court has approved a legislative grant of executive authority to the Texas Supreme Court itself to oversee enforcement of Texas laws. It is difficult to imagine a more tyrannical scheme than one where the state’s supreme court both regulates the enforcement of the state’s laws and holds the supreme power of judging the enforcement of the state’s laws. Here, we have three branches of government acting to vest the entirety of government power over the regulation of a profession of which they all overwhelmingly belong into into the hands of a single branch of government. The legislature made up predominantly of members of the bar, have taken executive power from the AG, a member of the bar, and conveyed that power to the judiciary, all of whom are current or former members of the BAR and have vested BAR members with absolute power over enforcement of statutes that directly benefit the BAR and its members financially and politically. In addition, the legislature has delegated legislative authority to the judiciary to determine who is subject to the UPL statutes. Parties subject to enforcement under these statutes for their political speech are commanded to hire members of the BAR to protect themselves from the actions of BAR members where the BAR member hired will potentially suffer pecuniary loss and possibly formal or informal BAR censure if they effectively represent their client. This entire scheme exists to censor speech based on content for the benefit of the BAR and only for the benefit of the BAR.
The scheme fails in its legislative mandate where the majority of the members of the BAR acquiesce to the absurd idea that domestic relations may be regulated outside of federal constitutional limitation and where attorneys overwhelmingly fail in their fiduciary duty to protect the constitutional rights of their clients in family law proceedings.
Now the AG suggests that the BAR, and not the state’s senior law enforcement officer, should defend the state’s statute that conveys this tyrannical power to the judiciary. Is this a matter of the AG deferring to legitimate separation of government power or a practical realization that he cannot directly challenge this power structure by presuming to exert his executive prerogative to defend the state’s statutes. One has to ask whether the AG has the practical executive political power to exert his prerogative or whether he is politically powerless to protect the executive prerogative against the BAR’s clear political power.
Plaintiffs allege that there is a clear appearance of bias in the AG’s political acquiescence to judicial interpretation that on its face has the appearance of a judicial power grab of executive political power. Acquiescence of political power of this magnitude is not a normal occurrence in our political system and it’s occurrence here must be evaluated under substantial constitutional scrutiny as an inherent threat to our government structure itself.
Plaintiffs assert that the AG and only the AG is empowered to represent the state statute that is alleged to unconstitutionally convey executive power to a judicial agency in violation of the separation of powers doctrine. Plaintiffs further assert that it is necessary that the AG be held to be the proper party to represent the state’s statutes to avoid the conflict of interest inherent in the above referenced scheme. It is entirely unclear whether the AG, in this instance, has the requisite political power to act independently of the judicial branch of Texas government and independently of the Texas BAR. The appearance of power the BAR exerts over the AG and his political future cannot be taken lightly in this Court’s analysis.
Plaintiffs further fear that a finding by this Court that the delegation of executive power to the judiciary is unconstitutional would create a legal paradox where the UPL Committee having been found to wield unconstitutional power couldn’t, therefore, be a proper party to defend the state’s statutes which would place this Court’s holdings into question under jurisdictional and due process grounds.
The Palmers’ core complaint against the UPLC and the BAR is that they cannot regulate the practice of law by regulating free speech protected by the First Amendment and that the UPL scheme violates the separation of powers doctrine. The attorneys’ complaint is a free speech argument. They argue that the BAR cannot use compelled dues through compelled speech of attorneys who do not agree with the BAR’s position. The Attorney General is essentially agreeing with the Palmers that the BAR association cannot regulate speech of their attorneys. The Attorney General yet again is agreeing with the Palmers. First he agreed on strict scrutiny applies to fundamental parental rights when he published his opinion, KP-0124, in response to James White’s request, And now he files a brief against his own State Bar. The State Bar themselves said that this was odd. Not odd to the Palmers who have been schooling the AG in litigation for years about strict scrutiny, the standards the courts apply, parental rights are protected by the Fourteenth and First Amendment, separation of powers, and First Amendment rights of individuals and businesses to teach about rights and the law.
The Bresnens clearly are unhappy about being confronted by parents who have come forward to expose this corruption as you can see in this video posted by Dolcefino Consulting.
Ron B. Palmer is available to speak and for media interviews through the contact page above.