U.S. District Judge Lee Yeakel of Austin scheduled an Aug. 1 hearing that he said might resolve claims three attorneys filed against the State Bar of Texas’ officers and directors, alleging that mandatory bar dues violate the Constitution when they’re used for alleged political and ideological purposes.
Yeakel, who presides in the U.S. District Court for the Western District of Texas, noted at a status conference on Thursday that both sides have filed cross-motions for summary judgment, and he would grant a two-hour-long oral argument because there are important issues in the case.
Yet, Yeakel added that he wanted to resolve the case without wasting time. He noted he can’t imagine that there would be a fact issue about how the bar operates, or whether the bar or Texas Supreme Court is responsible for assessing dues on lawyers—issues that have come up in the motions for summary judgment.
“I have a suspicion it will resolve this case,” said Yeakel. “I think the facts will be pretty straightforward.”
The plaintiffs in McDonald v. Longley claim the bar forces them to join and pay mandatory dues, which it then spends on alleged political and ideological activities, such as LGBT continuing legal education, legal aid for undocumented immigrants, diversity efforts, legal aid programs and legislative affairs efforts. They’ve argued there are no disputed facts in the case, and the court should rule for them quickly, because the law is on their side.
The case is similar to legal challenges that lawyers have filed against mandatory bar associations in other states, which all rely on a 2018 U.S. Supreme Court ruling in Janus v. AFSCME, which ruled that public sector nonunion workers cannot be required to pay union dues as a condition of employment.
The bar has argued that Janus shouldn’t apply to mandatory bar associations. It contends it’s already complying with other U.S. Supreme Court cases that pertain directly to bar associations, by ensuring all dues pay for core functions, like regulating the legal profession and improving the quality of legal services.
The judge said at the status conference that during the upcoming hearing on the cross-motions for summary judgment, he might also take up the defendant’s motion to dismiss.
In that motion, the bar argues the plaintiffs sued the wrong people because the defendants—the bar’s officers and board of directors—aren’t responsible for mandatory bar membership and dues. It points instead to two other groups: the Texas Legislature, which passed the State Bar Act that makes bar membership and dues mandatory, and the Texas Supreme Court, which collects those dues.
Consovoy McCarthy Park partner Jeffrey Harris, who represents the plaintiffs, said there might be no need to argue the dismissal motion.
“We may just amend and add those parties,” said Harris, referring to the Texas Supreme Court or its clerk. But he noted that adding parties could delay the Aug. 1 hearing, since new litigants would have to get a chance to file pleadings in the case.
The judge said, at this point, he wouldn’t schedule a hearing to consider the plaintiffs’ motion for a preliminary injunction, which asked for the court to protect the three attorneys from negative consequences if they do not pay their bar dues by June 1.
That deadline for paying dues just days away.
Harris noted that although the bar has stated the plaintiffs wouldn’t face consequences for late dues payments until August, it gave no guarantee they would remain in good standing if they they failed to pay on time. This prompted Harris to advise his clients to pay, but he said he did not want to waive the arguments in the preliminary injunction motion until he was more confident there would be a quick ruling on dispositive motions.
Tom Leatherbury, a partner in Vinson & Elkins in Dallas, who represents the bar defendants, said the cross-motions for summary judgment contained all of the facts that the court needed to make a decision. He said he agreed that if the court ruled on the motions for summary judgment, and it ended or narrowed the case, that would alter the course of the litigation.
Yeakel replied that this might dispose of the entire case, but if not, the parties would both understand what was left to argue after the hearing.
The judge added, “I’ll get something out as quickly as I can after that.”