Brosterhous v. State Bar

MOSK, J.

I concur in the majority’s judgment. I write separately to emphasize the limited nature of our holding today.

The United States Supreme Court has held that, consistent with the First Amendment, a union cannot compel an employee who must pay union membership dues because of an agency shop agreement to contribute support for “ideological activities unrelated to collective bargaining.” (Abood v. Detroit Board of Education (1977) 431 U.S. 209, 236 [ 52 L.Ed.2d 261, 285 , *342 97 S.Ct. 1782 ]; see also Ellis v. Railway Clerks (1984) 466 U.S. 435, 447 [ 80 L.Ed.2d 428, 441-442 , 104 S.Ct. 1883 ].) In Teachers v. Hudson (1986) 475 U.S. 292 [ 89 L.Ed.2d 232 , 106 S.Ct. 1066 ], the court set forth the procedures that a union must adopt in segregating chargeable dues from voluntary contributions for political activities. Among those procedures is one that will permit members’ objections to the computation of the chargeable amount to be heard “in an expeditious, fair, and objective manner.” (Id. at p. 307 [ 89 L.Ed.2d at p. 247 ].) The court further explained that, in order to provide the “ ‘constitutional minimum,’ ” the union did not need to provide “a full-dress administrative hearing, with evidentiary safeguards,” but rather an “expeditious arbitration,” provided that the arbitrator was impartial. (Id. at p. 308, fin. 21 [ 89 L.Ed.2d at p. 248 ].) However, such a minimal procedure “would not receive preclusive effect in any subsequent [42 United States Code section] 1983 action.” (Ibid., citing McDonald v. West Branch (1984) 466 U.S. 284 [ 80 L.Ed.2d 302 , 104 S.Ct. 1799 ].)

In Keller v. State Bar of California (1990) 496 U.S. 1 [ 110 L.Ed.2d 1 , 110 S.Ct. 2228 ], the court held that Abood’s First Amendment principles apply to those required to join and pay dues to an integrated state bar. The California State Bar may charge compulsory dues to fund activities germane to “regulating the legal profession and improving the quality of legal services” (id. at pp. 13-14 [ 110 L.Ed.2d at p. 15 ]), but may not use these dues to finance “activities having political or ideological coloration which are not reasonably related to the advancement of such goals” (id. at p. 15 [ 110 L.Ed.2d at p. 15 ]). The court further held that “[w]e believe an integrated bar could certainly meet its Abood obligation by adopting the sort of procedures described in Hudson . Questions whether one or more alternative procedures would likewise satisfy that obligation are better left for consideration upon a more fully developed record.” (Id. at p. 17 [ 110 L.Ed.2d at p. 16 ].)

The United States Supreme Court has also held that if a civil rights plaintiff elects to adjudicate his claim with an administrative body acting in a judicial capacity, then the factfinding of that administrative body is entitled to preclusive effect in subsequent federal judicial proceedings. (University of Tennessee v. Elliott (1986) 478 U.S. 788, 798-799 [ 92 L.Ed.2d 635, 646-647 , 106 S.Ct. 3220 ]; see also Astoria Federal S. & L. Assn. v. Solimino (1991) 501 U.S. 104, 107-108 [ 115 L.Ed.2d 96, 103-104 , 111 S.Ct. 2166 ].) Thus, if an integrated state bar institutes a procedure greater than the constitutional minimum, equivalent to a “full-dress administrative hearing” (Teachers v. Hudson, supra, 475 U.S. at p. 308, fn. 21 [ 89 L.Ed.2d at p. 248 ]), it is likely that the findings of fact emerging from such hearing would be entitled to preclusive effect. Such findings would be reviewed for abuse of discretion under Code of Civil Procedure section 1094.5 or its federal equivalent. Of *343 course, the availability of such an administrative forum for resolving Keller claims would not prevent an aggrieved party from bringing suit, in the first instance, in a court of law. (See Patsy v. Florida Board of Regents (1982) 457 U.S. 496, 516 [ 73 L.Ed.2d 172, 187-188 , 102 S.Ct. 2557 ].)

We do not decide today whether the arbitration procedure established by the State Bar is equivalent to an administrative hearing entitled to preclusive effect. The majority merely hold, and I agree, that this issue should not be resolved on demurrer, particularly in light of the fact that we are asked to take judicial notice of an extensive arbitration record that was not presented to the lower courts. Although the majority suggest that the State Bar’s characterization of its proceeding as equivalent to an administrative adjudication “is inconsistent with [its] own rules and regulations” (maj. opn., ante, at p. 335), I do not understand the majority to be asserting that such characterization is determinative of the nature of the proceedings. The question whether the arbitration is in fact an impartial administrative hearing to which the principles of res judicata apply is to be answered by determining whether the arbitrator “ ‘is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate.’ ” (University of Tennessee v. Elliott, supra, 478 U.S. at pp. 797-798 [ 92 L.Ed.2d at p. 646 ].) This determination can only be made from an examination of the arbitration record. Thus, the State Bar is free to contend in subsequent proceedings that the factual findings in the hearing below are entitled to preclusive effect under the doctrine articulated in Elliott .

Even if preclusion per se is unwarranted, the arbitrator’s findings may still be entitled to great weight. As the United States Supreme Court has held, “ ‘the weight to be accorded an arbitral decision’ ” in a section 1983 case is to “ ‘be determined in the court’s discretion with regard to the facts and circumstances of each case.’ ” (McDonald v. West Branch, supra, 466 U.S. at p. 292, fn. 13 [80 L.Ed.2d at p. 310].) The court enumerated certain relevant factors in determining the weight of the decision, including “ ‘the existence of provisions in the collective-bargaining agreement that conform substantially with [the statute or constitution], the degree of procedural fairness in the arbitral forum, adequacy of the record with respect to the issue [in the judicial proceeding], and the special competence of particular arbitrators. Where an arbitral determination gives full consideration to an employee’s [statutory or constitutional] rights, a court may properly accord it great weight. This is especially true where the issue is solely one of fact, specifically addressed by the parties and decided by the arbitration on the basis of an adequate record.’ ” (Id. at pp. 292-293, fn. 13 [80 L.Ed.2d at p. 310], bracketed material in McDonald.)

*344 The McDonald guidelines were formulated in the context of arbitration pursuant to a collective bargaining agreement, where the arbitrator’s prime task is to ensure that the collective bargaining contract is fulfilled, and where litigation of the employee’s constitutional rights may be incidental to the enforcement of the agreement. (See also Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36, 53-54 [ 39 L.Ed.2d 147, 161-162 , 94 S.Ct. 1011 ].) In the present case, the arbitration specifically focused on the plaintiffs’ First Amendment rights, and is, in fact, an arbitral procedure undertaken at the direction of the Supreme Court in Hudson and in Keller . Both of these factors argue in favor of the arbitration decision being given greater weight than the typical collective bargaining arbitration. Thus, in Bromley v. Michigan Educ. Ass’n-NEA (E.D.Mich. 1994) 843 F.Supp. 1147, 1153-1154 , the court held that, in Hudson-type cases, the court is to review de novo the classification of categories of expenditures deemed to be chargeable, but may defer to the arbitrator as to the amount ascribed to each of those categories, once it is satisfied that the arbitrator was competent, used the proper methodology, and allowed the issue to be fully litigated.

As the majority correctly conclude, the appropriate judicial deference to the arbitrator’s factual findings is also not something that can be resolved on demurrer. But an examination of the criteria enumerated in the McDonald case cited above suggests that, all other things being equal, the findings of an arbitrator specially chosen to adjudicate a Hudson or Keller action are entitled to greater weight, in a subsequent section 1983 action, than would be the findings of an arbitrator whose adjudication of section 1983 issues is incidental to the resolution of a dispute arising out of a collective bargaining agreement.

With this understanding of the limited reach of the majority’s holding, I concur in its judgment.

On January 18, 1996, the opinion was modified to read as printed above.