Texas Bar Will Not Seek Rehearing En Banc, Or Supreme Court Review, For Ruling Against Mandatory Dues

"We look forward to getting back to the trial court to bring this litigation to a conclusion."

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Earlier this month, the Fifth Circuit held that the Texas Bar cannot charge mandatory dues for certain "non-germane" activities. But the court found that many of the activities the Bar funds are "germane." At the time, I wrote that the Bar would likely not risk appealing the case further:

What happens next? The Bar takes a risk by going to SCOTUS. After JanusNIFLA, and AFP, this case is a 6-3 affirm. I think the Bar stops performing the "non-germane" activities.

For once, my predictions proved accurate. The Bar announced that it would not seek rehearing en banc, and, presumably, certiorari. It seems the Bar will be happy to sever off "non-germane" activities, and keep the structure of its institution intact.

The State Bar of Texas will not seek rehearing of a 5th Circuit Court of Appeals panel opinion that upheld the constitutionality of most challenged State Bar activities and left intact the structure of the mandatory bar.

State Bar leaders announced the decision after the bar's Board of Directors met Monday to consult outside counsel on the McDonald v. Sorrels litigation.

"We are pleased that the 5th Circuit panel upheld the constitutionality of nearly all of the State Bar of Texas programs and activities challenged by the plaintiffs," State Bar of Texas President Sylvia Borunda Firth said. "Today the State Bar will inform the 5th Circuit Court of Appeals it will not be filing a petition for panel rehearing or a petition for rehearing en banc. We look forward to getting back to the trial court to bring this litigation to a conclusion." . . . .

The 5th Circuit panel opinion does not change the longstanding U.S. Supreme Court precedent that supports the mandatory bar. The opinion also does not undermine the fundamental structure and purposes of the State Bar of Texas, which was established by the Texas Legislature in aid of the Texas Supreme Court's inherent authority to regulate the practice of law.

However, the Bar may not get back to the comfortable confines of Judge Yeakel's courtroom quite so fast. The Plaintiffs did not obtain all the relief they wanted. They could seek rehearing en banc, though given the three-judge panel (Smith, Willett, Duncan), further review is unlikely. Or, the Plaintiffs can seek Supreme Court review to set a national precedent. The Court is less likely to grant cert here, because the ruling was so narrow. But the Court could hold this case pending several others that challenge integrated bars. If the Court overrules Keller and other precedents, then the Texas integrated bar still may fall. For now, I will keep paying my mandatory dues.

NEXT: Will Fourth Circuit Decision on Gun Rights of 18-20 Year Olds Become Moot?

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  1. How are judges not conflicted to make a decision about the Bar? Are most judges members (past or present) of the bar? Doesn’t this create a conflict? Even if they are not, assuming that they want to/could be nominated for a higher court wouldn’t the fact that they would be reviewed by the bar as a part of this (future) process create a conflict? They have a clear incentive to support the Bar so that the Bar will (hopefully) be more likely to support their nomination. How is this resolved?

    1. 1) You only have to be a member of the Texas State Bar to practice law at the state level in Texas; it’s established that (for example) immigration lawyers, who practice before Federal courts, don’t need state licenses or bar membership, and certainly federal judges don’t have to be members of the Texas State Bar.

      2) It does tend to be true that most appointees to a Federal judgeship in a Texas district court are going to have been Texas lawyers and thus mandatory members of the Texas State Bar, but this doesn’t create an automatic conflict any more than the fact that almost all male judges were all required to register with the Selective Service conflicts them out on a Selective Service case, or that effectively all judges pay income taxes conflicts them out on an IRS case.

      3) The Texas State Bar has nothing to do with Federal judicial appointments.

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