Opposition Brief — Keller v. State Bar of California
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In the Supreme Court
United States
OcToBerR TERM, 1988
Eppie KELLER, ET AL
V.
State BAR OF CALIFORNIA, ET AL
E EEE OSS ee eee Se
ON PETITION FOR A WRIT OF CERTIORAR!
TO THE SUPREME COURT OF CALIFORNIA
RESPONDENTS’ BRIEF IN OPPOSITION
—— — — aS
Heasert M RosentHar HursTepier, Minka. Kats
*Diane Yu & BEARDSLEY
555 PRaNKLIN STREET Rovert S8 Tuono
San Francisco, CALIFORNIA Lavare d Zeus
(415) 561-8200 Mary EK Heavy
»Counsel of Record Jvorrn R Stans
355 South Grand Avenue
45th Floor
Loe Angeles. California
(213) 617-7070
Attorneys ‘or Respondents
= ee ee ee '
Bowne of Lee Angeties, Ine. Law Printers (215) 742-400
TABLE OF CONTENTS
Page
I.
SUMMARY OF ARGUMENT ................... 1
II.
STATEMENT OF THE Cass 4
III.
REASONS FOR DENYING THE WRIT......... 7
A. There Is No Conflict With Other Decisions 7
B. The Only Federal Question Implicated By The
California System Has Long Been Settled... 11
1. The First Amendment Does Not Restrain
C. This Court Should Not Reach Out To Take A
Case So Dependent On Issues Of State Law 14
IV.
r e ö eee eee 16
a sedesbedeacedos A-l
California Statutes
e ...t see B-1
Motion For Summary Judgment and Brief in the
Superior Cuurt
r eee eee C1
Brief in the Court of Appeal
re eee eee eee D-1
Brief in the California Supreme Court
TABLE OF AUTHORITIES CITED
( ases
Pose
Abood v. Detroit Board of Education, 431 U.S. 209,
52 L.Ed.2d 261, 97 S.Ct. 1782 (1977) ..... 3, 6,9, 13
American Party of Texas v. White, 415 U.S. 767, 39
L.Ed.2d 744, 94 S.Ct. 1296 (1974)... ......... 12
Arrow v. Dow, 544 F. Supp. 458 (D.N.M. 1982) 7.8
Autenrveth v Cullen, 418 F.2d 586 (9th Cir. 1969),
cert. demed, 397 U.S. 1036, 25 L.Ed. 2d 647, 90
anner... ccccccccccccscccessesees 9
Petition of Chapman, 509 A.2d 753 (N.H. 1986) 7.8
Chromecle Publishing Co. v. Superior Court, 4
Cal.2d 548, 7 Cal. Rptr. 109 (1960) ........... 5
Ellis v. Brotherhood of Railway, Airline & Steam-
ship Clerks, 466 U.S. 435, 80 L.Ed.2d 428, 104
ee Pe 13
Engel v. McCloskey, 92 CalApp.3d 870, 155
Cal. Rptr. 284 (1979/0 5
Ertinger v. Regents of the e of Caiteraia,
137 Cal. App.3d 389, 187 Cal. Rptr. 164 (1982)
cert. demed, 462 U.S. 1133, 77 L.Ed.2d 1368, 103
S.Ct. 3114 (1983) ......... — 14
FCC v. League of Women Voters of Califorma, 465
U.S. 364, 82 L.Ed.2d 278, 104 S.Ct. 3106 (1984) 12
Garner v. Teamsters Lecal 776. 346 U.S. 485, 9
L.Ed. 228, 74 S.Ct. 161 (1886 11
Gibson v. Florida Bar, 7 Fld 1564 lit Cir.
14—ẽFÿỹ/ñͥ!f — ...!. 7. 8
Hollar v. Government of the Virgin Islands, 857 F 2d
BED GO8 Gin Bee ( 7. 8
TABLE OF AUTHORITIES CITED
CASES
Keller v. State Bar of California, 47 Cal.3d 1152, 255
„„ „ 6. 7
Lathrop v. Donahue, 367 U.S. 820, 6 L. Ed.2d 1191,
EE 5 15
Levine v. Heffernan, 864 F. 2d 457 (7th Cir. 1988) ~
Michigan v. Long, 463 U.S. 1032, 77 L.Ed.2d 1201,
BU GAG. SEED CIGGS) . 2 cece cc cccccccccess 2, 11
Miller v. California Commission on Status of Women,
151 Cal.App.3d 693, 198 Cal.Rptr. 877, appeal
dismissed for want of jurisdiction, 469 U.S. 1133,
83 L.Ed.2d 15, 105 S. Ct. 64 (198) 12, 13
Regan v. Taxation with Representation of Washing-
ton, 461 U.S. 609, 76 L.Ed.2d 129, 103 S.Ct. 1997
r ] m . . 0 „ 12
Romany v. Colegio de Abogados de Puerto Rico, 742
e oc cccccccseoceseceess 7
Standard Oil Co. of California v. Johnson, 316 U.S.
481, 86 L.Ed. 1611, 62 S.Ct. 1168 (1942) 2
Stanson v. Mott, 17 Cal.3d 206, 130 Cal.Rptr. 697
D eee eee 6. 10, 14
State Bar of California v. Superior Court, 207 Cal.
eee 6
United States v. Lee, 455 U.S. 252, 71 L. Ed.2d 127,
r cece seees 13, 14
United States Constitution
United States Constitution, First Amendment
S 3. 8. 9, 11. 14, 15
iv
TABLE OF AUTHORITIES CITED
Page
California Constitution
California Constitution, Article VI, Sec. ....... 4
Statutes
Federal
Labor Management Relations Act, 29 U.S.C. § 141 11
National Labor Relations Act, 29 U.S.C. 5151 11
Railway Labor Act, 45 U.S.C. 5151. 11. 13
State
California Business & Professions Code
1
5
Rules
Rules of the Supreme Court
Dee eee eee see ess eee 7
ieee ee e e eee eee 11. 14
Vv
TABLE OF AUTHORITIES CITED
Page
Treatises
P. Bator, D. Meltzer, P. Mishkin, D. Shapiro, Hart
& Wechsler’s The Federal Courts and the Federal
GED Gas GE, BND cccdvcccccceccccocecece 15
L. Tribe, American Constitutional Law (2d ed.
b UV ene 14
ee „ Re
.
'
|
No. 88-1905
In the Supreme Court
OF THE
United States
OcToBER TERM, 1988
Ebb KELLER, ET AL
vs.
STaTE BAR OF CALIFORNIA, ET AL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF CALIFORNIA
RESPONDENTS’ BRIEF IN OPPOSITION
I.
SUMMARY OF ARGUMENT
The California Supreme Court conducted a careful
analysis of the constitutional status and legislative struc-
ture of the State Bar of California, and found that
California law envisions the State Bar as a state govern-
mental agency, subject to the statutory and judicially-
developed limitations on government speech. The Califor-
nia Supreme Court based its characterization of the State
Bar purely on state law, in particular the unique structure
of the State Bar and its place in California's governmen-
tal system. From this finding, it reached the inescapable
conclusion that the remedies available to those who object
to the State Bar's expenditures are the same as those
available to other taxpayers, rather than in lawsuits seek-
ing to silence the State Bar by judicial fiat.
Petitioners do not ask this Court directly to review the
California Supreme Court's holding as a matter of state
law that the State Bar is a governmental entity, as indeed
they cannot. See Standard Oil Co. of Califorma v. Johnson,
316 U.S. 481, 483, 86 L.Ed. 1611, 62 S.Ct. 1168 (1942);
Michigan v. Long, 463 U.S. 1032, 1041, 77 L.Ed.2d 1201,
103 S.Ct. 3469 (1983). Petitioners attempt to do so
indireetly, however, by ignoring the California Supreme
Court’s specific factual and legal findings regarding the
State Bar, and addressing their petition to the abstract
issue of the limits on state bars as a generic institution.
Seeking to have federal law impose a uniform structure
on the diverse needs of the states, they urge this Court to
decide that the abstraction petitioners label “a state bar
is akin to a labor union, and subject to the first amend-
ment constraints developed in the union cases, con-
straints that have never been applied to governmental
entities. Thus, in effect petitioners ask this Court to
overturn the California Supreme Court's interpretation of
California law.
By ignoring the specific findings made by the Califorma
Supreme Court, petitioners attempt to manufacture a
conflict between the decision of the California Supreme
Court and decisions of courts that have considered the
limits on compulsory fees imposed by the integrated bars
of other states. However, none of the cases cited by
petitioners addressed those bars role in state government
as did the California Supreme Court. None of the re-
ported cases describe integrated bars subject to substan-
tial legislative control of their funding and review of their
activities as is the State Bar of California. Because the
State Bar of California is viewed as a unit of state
government, no conflict exists between the California
Supreme Court's application of the standard governing
government speech in this case, and other courts’ applica-
tion of the standard governing private associations in
cases involving integrated bars of states that have opted
for an entirely different system.
In urging this Court to review the decision below as
raising an important question of federal law, petitioners
ignore the unique facts of this case and the state law
issues that predominate. The California Supreme Court
did not purport to decide what general rules govern the
use of bar fees by integrated bars. Its holding was limited
to the specific facts and state law issues presented by the
California system, which do not appear to be duplicated in
any other reported case. On these facts, federal law has
long been settled. This Court has never permitted di“ sent:
ing taxpayers to silence government speech for the obvi-
ous reason that it would critically undermine the
government's ability to function.’ The union cases cited
by petitioners themselves recognize the distinction be-
tween compelled support of private organizational speech
and compelled support of government speech, which is
justified by the safeguards inherent in the political pro-
cess as well as by the purposes and needs of government
speech. See Abood v. Detroit Board of Education, 431 U.S.
209, 259 n.13, 52 L.Ed.2d 261, 97 S.Ct. 1782 (1977)
(Powell, J., concurring). California s system therefore
‘Petitioners incorrectly characterize the (California Supreme
Court's decision as upholding spending for a virtually unlimited
the Court ignored the first amendment issues. In fact, the California
Supreme Court expressly considered the limits the first amendment
places on entities like the State Bar. The Court applied to the State
Bar the judicially-developed limits on electioneering by government.
and in doing so, found certain speeches by a former president of the
State Bar to be inconsistent with those limits. Thus, in this case.
state law provides more limits on government speech than does
federal law, see infra, § II.
4
raises no important federal questions that should be
decided by this Court, and as a matter of comity to the
judicial and legislative branches of California, this Court
should decline petitioners’ invitation to federalize the
integrated bar.
Il.
ST/TEMENT OF THE CASE
The State Bar Act, California Business & Professions
Code §§ 6000 et seq., and article VI, section 9 of the
California Constitution establish the State Bar of Califor-
nia as a public corporation.” The State Bar regulates the
practice of law in California. which includes the admis-
sion and discipline of attorneys, B&P Code § 6046, the
arbitration of fee disputes, B&P Code § 6200, and the
maintenance of a client security fund, B&P Code § 6140.5.
Its foeus extends beyond the economic needs of its mem-
bers; its statutory mandate includes the improvement of
the science of jurisprudence and promotion of the im-
proved administration of justice. B&P Code § 6031(a).
The California legislature also has commanded the State
Bar to aid in specific legal projects in the publie interest
including the Law Revision Commission and the Commis-
sion on Judicial Performance. Government Code §§ 8287,
68725.
The State Bar is governed by a twenty-three member
Board of Governors, consisting of fifteen lawyers elected
by the lawyers of the State, the State Bar president, and
six publie members, four of whom are appointed by the
All citations are to the California Code, unless otherwise indi-
eated. Copies of the relevant statutes omitted from the petition are
ineluded in the Appendix, as are the briefs submitted by the State
Bar in each of the courts below.
5
governor, one by the Senate Rules Committee, and one by
the Speaker of the Assembly. B&P Code § 6013.5. The
State Bar funds its activity primarily through fees from
lawyers admitted to practice in the State, but is required
to obtain explicit legislative approval before assessing any
fees. Every year, the State Bar is required to submit to
the Legislature a report of all projected activities and
anticipated funding needs, with details on all expendi-
tures; the documents must be in a form comparable to
those prepared by all state agencies. B&P Code § 6140.1.
Based on its review of that information, the legislature
passes a bill authorizing assessments at the level it deems
appropriate. Id.
The legislature exercises control over the State Bar's
powers in other ways in addition to its funding. For
example, in 1984, the legislature passed a statute prohib-
iting the State Bar from conducting any evaluations of
the credentials of a specific justice absent prior review
and authorization by the legislature. B&P Code
§ 6031(b). The legislature also requires the State Bar to
conduct the majority of its business in public meetings.
B&P Code § 6026.5. In 1988, the legislature mandated
additional reporting requirements for the State Bar, in-
eluding progress reports on all its programs, B&P Code
§ 6140.35, and periodic reporting on the state of attorney
discipline, B&P Code § 6140.2.
State courts have applied the California Tort Claims
Act to the State Bar, Engel v. McCloskey, 92 Cal.App.3d
870, 155 Cal.Rptr. 284 (1979), and held that its officers
may claim the public official confidential communications
privilege, Chronicle Publishing Co. v. Superior Court, 54
Cal.2d 548, 7 Cal.Rptr. 109 (1960). Nor is any of this
analysis a new aspect of California jurisprudence. In
rejecting a challenge to the constitutionality of the State
6
Bar Act sixty years ago, the California Supreme Court
upheld the legislature's exercise of the police power to
ereate the State Bar as a public, rather than a private
corporation. State Bar of California v. Superior Court, 207
Cal. 323, 278 P. 432 (1929).
The California Supreme Court in this case reaffirmed
that the state constitution, statutes and judicial decisions
“envision the bar as a governmental agency.” Keller v.
State Bar of California, 47 Cal.3d 1152, 1162, 255
Cal.Rptr. 542 (1989) (submitted as Appendix A to the
petition). As a governmental agency, the State Bar is
entitled to use its revenues for any purpose properly
within its statutory authority, subject to the limitations
on government speech applicable to all state agencies in
California to protect first amendment rights.’ The Califor-
nia Supreme Court rejected the application of Abood v.
Detroit Board of Education, 431 U.S. 209, 52 L.Ed.2d 261,
97 S.Ct. 1782 (1977) to the State Bar, correctly noting
that the restrictions placed on labor unions’ use of com-
pulsory dues have never been applied to governmental
agencies. 47 Cal.3d at 1169.
In reviewing the cases from other jurisdictions that had
applied the labor union analogy to their integrated bars,
the California Supreme Court noted important distine-
tions. None of the bar associations involved in those
cases, however, rest upon a constitutional and statutory
structure comparable to that of the California State Bar.
In Stanson b. Mott, 17 Cal.3d 206, 130 Cal.Rptr. 697 (1976), the
California Supreme Court limited agency participation in election
campaigns, barring agencies from expending public funds to promote
a partisan position. In this case, the California Supreme Court held
that the State Bar's actions in connection with the 1982 judicial
retention elections violated the Stanson rule, 47 Cal.3d at 1170-72.
7
None involves an extensive degree of legislative involve-
ment and regulation.” 47 Cal.3d at 1167.
III.
REASONS FOR DENYING THE WRIT
A. There Is No Conflict With Other Decisions
Petitioners urge this Court to review this case under
Supreme Court Rule 17(b), as a decision of a federal
question in a way in conflict with another state court of
last resort or of a Federal Court of Appeals. The conflict
cited by petitioners is created wholly by petitioners’
distortion of the substance of the California Supreme
Court’s holding; properly viewed, no conflict exists.
The California Supreme Court’s decision rests on the
unique structure and function of the State Bar of Califor-
nia; its characterization of the State Bar as a governmen-
tal agency derives solely from California law. In contrast,
no such analysis was performed in any of the cases cited
by petitioners. See Gibson v. Florida Bar, 798 F.2d 1564
(11th Cir. 1986); Romany v. Colegio de Abogados de Puerto
Rico, 742 F.2d 32 (Ist Cir. 1984); Hollar v. Government of
the Virgin Islands, 857 F.2d 163 (3d Cir. 1988); Arrow v.
Dow, 544 F. Supp. 458 (D.N.M. 1982); Petition of Chap-
man, 509 A.2d 753 (N.H. 1986).
The few facts concerning the status of the bars of these
other states that can be gleaned from the reported deci-
sions point toward a very different structure than that of
the State Bar of California. For example, in none of the
cases cited by petitioners do the funding and activities of
the integrated bars appear to be subject to control by an
elected legislature. See Gibson, 798 F.2d 1564; Romany,
742 F.2d 32; Hollar, 857 F.2d 163; Arrow, 544 F.
Supp. 458; Chapman, 509 A.2d 753. Indeed, the integrated
8
bars of Florida, the Virgin Islands, New Mexico, Wiscon-
sin and New Hampshire could not be subject to the type
of legislative control typically exerted over state adminis-
trative agencies, because they were created by court rule
and are subject only to the supervision of the judicial, and
not the legislative branch. See Gibson, 798 F.2d at 1565;
Hollar, 857 F.2d at 165; Arrow, 544 F. Supp. at 459;
Chapman, 509 A.2d at 760 (Souter, J., concurring); Le-
vine v. Heffernan, 864 F.2d 457, 458 (7th Cir. 1988). In
none of these cases does the record show a governing
board containing nonlawyer members appointed by
elected officials. Finally, nothing in the record of any of
these cases demonstrates that these other integrated bars
have been treated by the state as governmental agencies.
Comparison of the Wisconsin Bar described in Levine,
supra, 864 F.2d 457, in which the court upheld the
constitutionality of the integrated bar of Wisconsin, dem-
onstrates the difference in the policy choices among states
with respect to regulation of the legal profession and
justice system. Unlike the California State Bar, the Wis-
consin Bar does not have sole responsibility for adminis-
tering attorney discipline and continuing legal education.
Indeed, the challenge to the constitutionality of the Wis-
consin Bar was based on the reduction of its responsibili-
ties in regulatory and educational areas and its purported
transformation to an organization characterized as more
“private” in nature.
The different relationship between the State Bar of
California and the California Legislature places the State
Bar squarely within the state political system subject to
democratic controls not found in the descriptions of the
state bars in the cases cited above. This is a key distine-
tion for purposes of first amendment analysis. Unless a
legislative majority approves of the purposes and
9
amounts of its spending, the State Bar is not authorized
to assess fees. A legislative majority can contract and
expand the State Bar’s powers and provide redress not
only for members of the State Bar but also for members
of the general public who disagree with activities under-
taken by the Bar. Indeed, in 1984, objectors to the State
Bar's practice of evaluating sitting justices successfully
obtained passage of B&P 5 6031(b), which prohibits the
State Bar from evaluating specific justices without prior
legislative approval.
These are the safeguards of the democratic process that
justify treating government speech differently than that
of private associations such as labor unions.’ As Justice
Powell recognized in Abood:
Compelled support of a private association is funda-
mentally different from compelled support of govern-
ment. Clearly a local school board does not need to
demonstrate a compelling state interest every time it
spends a taxpayer’s money in ways the taxpayer finds
abhorrent. But the reason for permitting the Govern-
ment to compel the payment of taxes and to spend
money on controversial projects is tha the Govern-
ment is representative of the people.
431 U.S. at 259 n.13.
Unlike any other court in the reported decisions dis-
cussed by petitioners, the California Supreme Court spe-
cifically found the State Bar of California, like other state
The public purpose served by the government and the fact that its
ability to funetion would be severely undermined by granting line
item veto power to dissenting minorities also justify applying a
different standard to governmental expenditures. See Autenrieth v.
Cullen, 418 F.2d 586 (9th Cir. 1969), cert. denied, 397 U.S. 1036, 25
L.Ed.2d 647, 90 S.Ct. 1353 (1970) (rejecting first amendment chal-
lenge to military spending by opponents of Vietnam War).
10
agencies, is subject to substantial control by the state
legislature, the representatives of the people. Thus it is
clear that this finding requires the imposition of a stan-
dard different from that applied in cases not involving
governmental entities. This Court has never applied the
labor union analogy to government, but has in fact ap-
plied quite a different analysis. See infra, § B.
Petitioners concede that the issues of the propriety of
the State Bar's participation in the 1982 judicial retention
elections and the personal liability of State Bar officials
were adjudicated on state law grounds under Stanson v.
Mott, supra, 17 Cal.3d 206, and thus are not raised in the
petition. (Petition at 4 n.1) Because the Stanson rule
applies only to California governmental agencies, peti-
tioners thus concede that the State Bar’s governmental
status is a matter of state law. As the ruling of the court
below that the State Bar constitutes a government agency
rests purely on California law, the fact that courts in
other states may have arrived at different conclusions
concerning their integrated bars cannot be said to create
conflicting decisions on a federal question.
Petitioners attempt to manufacture a conflict on this
issue by asking this Court to view the integrated bar as a
generic institution that must always be treated akin to a
labor union regardless of the differences in structure,
purpose, and method of operation among the various state
bars. But this approach is simply an indirect way of
asking this Court to overrule the California Supreme
This issue was not even discussed in the reported cases, so it is
unclear how any of these courts would have ruled on the issue of their
state bar's governmental status. This disparity between the issues
presented in these cases and in this case further demonstrates the
lack of conflict on a federal question that would justify review by this
Court.
11
Court's holding that the State Bar is a unit of government
and not a private association. Such an approach does
violence to this Court’s expressed obligations to respect
the independence of state courts and allow them to
develop state jurisprudence unimpeded by federal inter-
ference. See Michigan v. Long, 463 U.S. at 1040-41. In
effect, it would federalize the integrated bar.
The only federal question presented by this case is what
limits the first amendment rights of dissenters place on
the activities of a governmental agency. This is not an
issue that was decided, or even addressed, by any of the
cases cited by petitioners as in conflict with the decision
of the California Supreme Court.
B. The Only Federal Question Implicated By The
California System Has Long Been Settled
1. The First Amendment Does Not Restrain Govern-
ment Speech Rationally Related To A Legitimate
Governmental End
Petitioners alternatively urge review of this case under
Supreme Court Rule 17 (e) as raising important issues of
federal law that should be resolved by this Court. How-
ever, this Court already has addressed and consistently
has rejected first amendment challenges by opponents of
Labor law is highly federalized by the National Labor Relations
Act and its amendments in the Labor Management Relations Act, 29
U.S.C. $§ 141 et seq., as well as by the Railway Labor Act, 45 U.S.C.
151 et seq. State labor regulation is limited by broad principles of
federal preemption, see, e. g., Garner v. Teamsters Local 776, 346 U.S.
485, 98 L.Ed. 228, 74 S.Ct. 161 (1953). Thus, the states never have
been free to develop their own concepts of unionism outside the long
shadow of federal law. By contrast, Congress left the field of regula-
tion of the practice of law entirely to the states.
12
governmental spending, and the petition demonstrates no
reason for this Court to revisit the issue.
In American Party of Texas v. White, 415 U.S. 767, 39
L.Ed.2d 744, 94 S.Ct. 1296 (1974) this Court rejected an
equal protection challenge based on speech and associa-
tional rights to the Texas legislature’s use of revenues to
reimburse the two major political parties for primary
expenses. This Court again rejected a taxpayer challenge
to government funding of speech in Regan v. Taxation
with Representation of Washington, 461 U.S. 609, 76
L.Ed.2d 129, 103 S.Ct. 1997 (1983), holding that govern-
ment may spend tax revenues on speech activities subject
only to a showing that the expenditure is rationally
related to a legitimate governmental objective. As the
Court noted in FCC v. League of Women Voters of Califor-
nia, 468 U.S. 364, 82 L.Ed.2d 278, 104 S.Ct. 3106 (1984),
virtually every legislative appropriation will to some ex-
tent involve a use of public money as to which some
taxpayers may object. “Nevertheless, this does not mean
that those taxpayers have a constitutionally protected
right to enjoin such expenditures.” 468 U.S. at 385 n.16.
Miller v. California Commission on the Status of Women,
151 Cal.App.3d 693, 198 Cal.Rptr. 877, appeal dismissed
for want of jurisdiction, 469 U.S. 1133, 83 L.Ed.2d 15, 105
S.Ct. 64 (1984), a case involving substantially similar
factual and legal issues to those presented here, illus-
trates how these well-settled principles apply to this case.
In Miller, plaintiffs challenged a governmental agency's
speech addressing the status of women, postulating “their
right not to enhance the Commission’s speech by tax
support.” 151 Cal.App.3d at 700. The California Court of
Appeal rejected this challenge, noting that if the govern-
ment cannot appoint a commission to speak on a contro-
versial topic without implicating dissenting taxpayers’
8
13
first amendment rights, it would lose its ability to govern.
151 Cal. App. 3d at 701. The Court noted the availability of
means within the democratic process for dissenters to
seek redress, including speaking out at the Commission’s
public meetings and using the electoral process to defeat
legislators who appointed the commissioners and sup-
ported their positions. Jd. at 702. This Court dismissed
the appeal for want of jurisdiction. The present petition
retraces that very same ground, without raising any
distinguishing factual or legal issues.
2. All Government Speech Is Subject To The Same
Standard Regardless Of The Source Of The Reve-
nue Spent
The fact that the license fees at issue in this ease are
not drawn from the entire populace does not affect the
first amendment analysis, which derives not from the
source of the revenue that is spent, but from the fact that
the government spending itself is subject to the controls
of the democratic process. See Abood, supra, 431 U.S. at
259 n.13 (Powell, J., eoneurring). In United States v. Lee,
"Indeed, in the labor union cases, this Court focussed on the
purpose of the compelled contributions, and the nature of the entity,
rather than relying on the source of the funding as the key to its
analysis. For example, in Ellis v. Brotherhood of Railway, Airline d
Steamship Clerks, 466 U.S. 435, 80 L.Ed.2d 428, 104 S.Ct. 1883
(1984), the Court looked to the purpose of compulsory union support
under the Railway Labor Act and found it to be elimination of the
“free rider” effect. 466 U.S. at 447. Although in Abood the Court
refused to distinguish between expenditures by unions in the private
sector and those by unions in the public sector, this was because the
purpose justifying compulsory support was substantially similar in
both instances. See 431 U.S. at 232 (union security issue the same in
both private and publie sector). Accordingly, expenditures from
eompulsory dues in both sectors must be limited to those germane to
this statutory purpose. (footnote continued on next page)
14
455 U.S. 252, 71 L.Ed.2d 127, 102 S.Ct. 1051 (1982), this
Court rejected a first amendment challenge to payment of
social security tax based on the challenger’s objection to
governmental use of the revenues. This Court found no
principled basis to distinguish between the use of general
taxes and the use of taxes from a more narrowly drawn
pool, such as employers subject to social security taxes,
for the purpose of first amendment analysis. 455 U.S. at
259-60. See also Erzinger v. Regents of the University of
California, 137 Cal.App.3d 389, 187 Cal.Rptr. 164 (1982),
cert. denied, 462 U.S. 1133, 77 L.Ed.2d 1368, 103 S.Ct.
3114 (1983) (rejecting first amendment challenge to use
of mandatory student health fees for abortion counsel-
ing). Under federal law, a governmental agency may use
unrestricted revenue whether derived from taxes, dues,
fees, tolls, tuition, donation or other sources for any
purposes within its authority. The same is true in Califor-
nia, subject to the additional restrictions imposed by
Stanson v. Mott, supra.
C. This Court Should Not Reach Out To Take A Case
So Dependent On Issues Of State Law
The decision below is of limited impact beyond Califor-
nia. As the California Supreme Court affirmed the consti-
tutionality of the State Bar's expenditures based on the
State Bar's status as an agency of the State of California,
the state law issues are inextricably intertwined with the
federal constitutional issue. Thus, not only is review of
this ease not justified under Supreme Court Rule 17(e),
The purpose of compulsory support of government is, of course, far
broader, extending well beyond support of any one interest group.
L. Tribe, American Constitutional Law § 12-4 at 807 (1988) (distin-
guishing government speech from compelled support of union
speech).
15
but also prudential concerns of due deference to state
court interpretation of state law counsel against it.“
There is no need for a federal rule mandating uniform
treatment of all state bars. States should be free to make
policy choices on how to regulate the legal profession in
response to their diverse circumstances, as they are free
to formulate other legal relationships. See P. Bator,
D. Meltzer, P. Mishkin, D. Shapiro, Hart & Wechsler’s The
Federal Courts and the Federal System at 533 (3d ed.
1988) Treatment of state bars should be responsive to
and reflective of this diversity.
Because of this controlling state law issue, the issues presented by
this ease do not address any questions left open by this Court's prior
examination of a challenge to an integrated bar. In Lathrop v.
Donahue, 367 U.S. 820, 6 L.Ed.2d 1191, 81 S.Ct. 1826 (1961), while
upholding the conetitutionality of the integrated bar of Wisconsin,
ereated by the Wisconsin Supreme Court as an “association...
composed of persons licensed to practice law in this state, 367 U.S.
at 825, this Court refused to rule on the constitutionality of its
expenditures in the absence of a well-developed factual record. No
finding that the Wisconsin Bar constituted a unit of state government
was before the Court, and the various members of the Court appeared
to assume otherwise. See, e. g., 367 U.S. at 881-82 (Douglas, J.,
dissenting) (lawyers should be free not to join an association of other
lawyers). nf
Justice Harlan’s discussion of government speech standards as a
useful analogy for viewing the case demonstrates that he did not view
the case as actually presenting this issue, and his formulation of
government speech standards went unchallenged by either the plural-
ity or the dissent. See 367 U.S. at 858 (Harlan, J., concurring)
(taxpayer's objections to views governmental agency presents to the
legislature at public expense do not implicate first amendment).
16
IV.
CONCLUSION
The decision of the California Supreme Court presents
neither a conflict with other reported decisions on the
same issue, nor an important question of federal law
requiring resolution by this Court. It rests squarely on the
state laws that create the State Bar of California as an
arm of government and on well-established federal and
state principles controlling government speech. The def-
erence this Court repeatedly urges toward state court
interpretation of state constitutional and regulatory
schemes, and the need to avoid unnecessary constitu-
tional decisions, counsel against the granting of the peti-
tion for certiorari. Accordingly, respondents respectfully
request this Court to deny the petition for writ of certio-
rari to the California Supreme Court.
DATED: JUNE 21, 1989 Respectfully submitted,
HERBERT M. ROSENTHAL HUFSTEDLER, MILLER,
DIANE C. Yu * Kaus & BEARDSLEY
555 Franklin Street RoBERT S. THOMPSON
San Francisco, California LAURIE D. ZELON
(415) 561-8200 Mary E. HEALY
* Counsel of Record for the JUDITH R. STARR
State Bar of California 355 S. Grand Avenue
45th Floor
Los Angeles, California
90071
(213) 617-7070
APPENDIX A
OO i”.
a * 4
* ee —
8
A-1
APPENDIX A
§ 6140.1. Proposed baseline and proposed final budg-
ets; contents; fiscal bill; submission of docu-
ments; budget change proposals
The State Bar annually shall submit its proposed base-
line budget for the following fiscal year to the appropriate
fiscal committees of the Legislature and the Joint Legis-
lative Budget Committee by November 15, and its pro-
posed final budget by February 15, so that the budget can
be reviewed and approved in conjunction with any bill
that would authorize the imposition of membership dues.
Each proposed budget shall include the estimated reve-
nues, expenditures, and staffing levels for all of the
programs and funds administered by the State Bar. Any
bill that authorizes the imposition of membership dues
shall be a fiseal bill and shall be referred to the appropri-
ate fiscal committees; provided, however, that the bill may
be approved by a majority vote.
The State Bar shall submit the budget documents in a
form comparable to the documents prepared by state
departments for inclusion in the Governor's Budget and
the salaries and wages supplement. In addition, the bar
shall provide supplementary schedules detailing operat-
ing expenses and equipment, all revenue sources, any
reimbursements or interfund transfers, fund balances,
and other related supporting documentation. The bar
shall submit budget change proposals with its final
budget, explaining the need for any differences between
the current and proposed budgets.
(Added by Stats.1986, e. 2, § 2, eff. February 4, 1986.
Amended by Stats.1986, e. 1510, § 2; Stats.1987, e. 688,
§ 3; Stats.1988, e. 1149, § 2.5)
Underline indicates changes or additions by amendment
A-2
§ 6140.2. Reports to judiciary committees on procedural
changes and improvements in disciplinary sys-
tem; reduction of complaints in inventory; geal
for timely disposition of complaints
(a) On or before April 1, 1986, and June 1, 1986, the
State Bar shall submit reports to the Judiciary Commit-
tees of the California State Senate and Assembly on the
procedural changes and improvements which have been
made in the State Bar disciplinary system and what effect
these changes have had on the number of complaints
pending, the time required to process these complaints,
and the progress made in reducing the backlog of
complaints.
(b) On or before December 31, 1987, the State Bar
shall reduce by 80 percent the complaints within its
inventory as of March 31, 1985, which have been received
but have not resulted in dismissal, admonishment of the
attorney involved, or filing of formal charges by State Bar
Office of Trial Counsel. This reduction shall be accom-
plished by dismissal, admonishment of the attorney in-
volved, or recommendation by the State Bar for
disposition by the Supreme Court.
(e) The State Bar shall set as a goal by December 31,
1987, the improvement of its disciplinary system so that
no more than six months will elapse from the receipt of
complaints to the time of dismissal, admonishment of the
attorney involved, or the filing of formal charges by the
State Bar Office of Trial Counsel.
(Added by Stats.1986, e. 2, § eff. February 4, 1986.)
A-3
§ 6140.5. Client security fund; establishment; payments;
administration; funding
(a) The board may establish and administer a Client
Security fund to relieve or mitigate pecuniary losses
caused by the dishonest conduct of those active members
of the State Bar. Any payments from the fund shall be
discretionary and shall be subject to such regulation and
conditions as the board shall prescribe. The board may
delegate the administration of the fund to the disciplinary
board provided for in Section 6086.5, or to any board or
committee created by the board of governors.
(b) Commencing January 1, 1972, the board may in-
crease the annual membership fees fixed by it pursuant to
Section 6140 by an additional amount per active member
not to exceed ten dollars ($10) in any year, the additional
amount to be applied only for the purposes of the fund.
(Added by Stats.1971, e. 1338, p. 2642, § 3.)
§ 6140.35. Progress reports; duration of section
(a) The board shall annually present written and oral
progress reports on all State Bar programs to the Judici-
ary Committees of the Senate and Assembly, as directed
by those committees. N
(b) This section shall remain in effect until January 1.
1992, and as of that date is repealed, unless a later
enacted statute, which is chaptered before January 1
1992, deletes or extends that date.
(Added by Stats.1988, e. 1159, § 29.)
A4
§ 6200. Establishment of system and procedure; applica-
bility of article; voluntary or mandatory nature;
rules; immunity of arbitrator; powers of
arbitrator
(a) The board of governors shall, by rule, establish,
maintain, and administer a system and procedure for the
arbitration of disputes concerning fees charged for pro-
fessional services by members of the State Bar or by
members of the bar of other jurisdictions. The rules may
inelude provision for a filing fee in such amount as the
board * * * may, from time to time determine.
(b) This article shall not apply to any of the following:
(1) Disputes where the attorney is also admitted to
practice in another state, and he or she maintains no office
in the State of California, and no material portion of the
services were rendered in the State of California.
(2) Claims for affirmative relief against the attorney
for damages or otherwise based upon alleged malpractice
or professional misconduct, except as provided in subdivi-
sion (a) of Section 6203.
(3) Disputes where the fee to be paid by the elient or
on his or her behalf has been determined pursuant to
statute or court order.
(e) Arbitration under this article shall be voluntary
for a client and shall be mandatory for an attorney if
commenced by a client.
(d) The board of governors shall adopt rules to allow
arbitration of attorney fee disputes under this article to
proceed under arbitration systems sponsored by local bar
associations in this state. Rules of procedure promulgated
by * * * loeal bar associations are subject to review by the
board * * * to insure that they provide for a fair, impar-
tial, and speedy hearing and award. In adopting or re-
A-5
viewing these rules, the board * * * may provide for one
lay member of any arbitration panel of three arbitrators.
(e) In any arbitration conducted pursuant to this arti-
cle by the State Bar or by a local bar association, pursu-
ant to rules of procedure approved by the board of
governors, the arbitrator or arbitrators, as well as the
arbitrating association and its directors, officers, and
employees, shall have the same immunity which attaches
in Judicial proceedings.
(f) In the conduct of arbitrations under this article the
arbitrator or arbitrators may do allof the following:
(1) Take and hear evidence pertaining to the
proceeding.
(2) Administer oaths and affirmations.
(3) Compel, by subpoena, the attendance of witnesses
and the production of books, papers, a documents pertain-
ing to the proceeding.
(Added by Stats.1978, e. 179, p. 2249, § 1. Amended by
Stats. 1984, e. 825, § 1.)
§ 6046. Examining committee; powers
The board may establish an examining committee hav-
ing the power.
(a) To examine all applicants for admission to practice
law.
(b) To administer the requirements for admission to
practice law.
(e) To certify to the Supreme Court for admission
those applicants who fulfill the requirements provided in
this chapter.
The examining committee shall be comprised of 19
members, 10 of whom shall be members of the State Bar
A-6
or judges of courts of record in this state and nine of
whom shall be public members who have never been
members of the State Bar or admitted to practice before
any court in the United States. At least one of the
attorney members shall have been admitted to practice
law in this state within three years from the date of their
appointment to the examining committee.
(Amended by Stats.1986, e. 1392, § 1; Stats.1988, e. 1159,
§ 2.3.)
§ 8287. Assistance from board of governors of bar
The Board of Governors of the State Bar shall assist
the commission in any manner the commission may re-
quest within the scope of its powers or duties.
(Formerly § 10307, added by Stats.1953, e. 1445, p. 3037,
§ 2. Renumbered § 8287 and amended by Stats.1984, e.
1335, § 2.)
§ 68725. Assistance and information
State and local publie bodies and departments, officers
and employees thereof, and officials and attaches of the
courts of this State shall co-operate with and give reason-
able assistance and information to the commission and
any authorized representative thereof, in connection with
any investigations or proceedings within the jurisdiction
of the commission.
(Added by Stats.1961, e. 564, p. 1683, § 1.)
APPENDIX B
cc
— — —— —
— ce —
B-1
APPENDIX B
HUFSTEDLER, MILLER, CARLSON & BEARDSLEY
ROBERT S. THOMPSON
DENNIS M. PERLUSS
LAURIE D. ZELON
Mary E. HEALY
700 South Flower Street
16th Floor
Los Angeles, California 90017-4286
(213) 629-4200
HERBERT M. ROSENTHAL
TRUITT A. RICHEY, JR.
MAGDALENE Y. O’ROURKE
555 Franklin Street
San Francisco, CA 94102-4498
(415) 561-8200
Attorneys for Defendants
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SACRAMENTO
EpDIE KELLER, et al.,
Petitioners and Plaintiffs,
vs.
STATE BAR OF CALIFORNIA, et al.,
Respondents and Defendants.
CIV. NO. 307168
NOTICE OF MOTION FOR SUMMARY JUDGMENT;
MEMORANDUM OF POINTS AND AUTHORITIES;
AND DECLARATIONS IN SUPPORT THEREOF
Date: December 5, 1983
Time: 9:00 a.m.
Place: Department 21
B-2
TO ALL PARTIES AND THEIR ATTORNEYS OF
RECORD:
NOTICE IS HEREBY GIVEN that on December 5,
1983, at 9:00 a.m., or as soon thereafter as this matter
may be heard, in Department 21 of the above-captioned
Court, at 720 Ninth Street, Sacramento, California, de-
fendants State Bar of California, Anthony M. Murray,
Patricia Greene, Girt K. Hirschberg, Leland R. Selna,
Jr., Geoffrey Van Louks, Thomas W. Eres, John J. Co-
stanzo, George W. Couch, III, Burke M. Critehfield.
Thomas R. David, Dixon Q. Dern, Ruth Chureh Gupta,
Dale E. Hanst, Leonard Herr, Robert A. Hine, Marta
Macias, Phillip Schafer, Craig A. Silberman, Daniel J.
Tobin, James D. Ward and Joon Hee Rho will move this
Court for an order granting summary judgment in their
favor. Defendants will move, in the alternative, for sum-
mary adjudication of issues, or for judgment on
pleadings.
B-3
This motion will be based on this Notice of Motion, the
Memorandum of Points and Authorities and Declarations
in Support Thereof, and all other papers and pleadings on
file in this action.
DATED: November 15, 1983.
Respectfully submitted,
HUFSTEDLER, MILLER, CARLSON
& BEARDSLEY
RoBErRT S. THOMPSON
DENNIS M. PERLUSS
LAURIE D. ZELON
Mary E. HEALY
HERBERT M. ROSENTHAL
Truitt A. RICHEY, JR.
MAGDALENE Y. O’RowurRKE
By LauRIE D. ZELON
Attorneys for Defendants
7 B-4
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Defendants, the State Bar of California and members
of the Board of Governors of this publie agency, seek an
order of this honorable court granting judgment on behalf
of the agency and on behalf of each individual member. In
the alternative, defendants’ motion seeks a judgment on
the pleadings or an order that all dispositive issues now
raised by plaintiffs’ complaint are determined in defend-
ants’ favor. If summary judgment is granted the matter
will be concluded. If the alternative motions are granted
plaintiffs may seek leave to amend.*
Plaintiffs’ complaint seeks to enjoin all activity of the
State Bar encompassed in the following categories:
(a) lobbying the California Legislature;
(b) submitting briefs amicus curiae;
(e) financing meetings of the Conference of
Delegates;
(d) publicizing the speeches by the President of
the State Bar; and
(e) finaneing the public information project on
judicial retention.
Complaint, © 6.
It also seeks to hold the individual defendants liable
for past expenditures of the State Bar utilized to finance
its activities in these categories. Plaintiffs seek reim-
bursement of all fees expended for “political and ideologi-
eal purposes (Prayer, © 3), without further specifying
those activities.
»We do not coneede that leave to amend should be granted.
B-5
We demonstrate in more detail in the following por-
tions of this memorandum that:
1. the State Bar is an agency of the California
state government created by Article VI, §9 of the
California Constitution and implementing
legislation;
2. because the State Bar is an agency of govern-
ment it has all powers expressly or implicitly granted
it by the Constitution and statute, limited only by
restrictions imposed by the Constitution. Stanson v.
Mott, 17 Cal.3d 206 (1976);
3. each category of State Bar activity and each
specific activity of the State Bar mentioned in the
complaint is expressly or implicitly authorized by the
California Constitution and the State Bar Act. This
authorization is confirmed annually by the Legisla-
ture in enacting legislation providing for financing
the State Bar after receiving the agency's proposed
budget for the ensuing year;
4. no constitutional restriction preeludes the
State Bar from engaging in the categories of activity
described in the complaint or the specific functions
mentioned in it. To the contrary, two decisions of the
United States Supreme court issued since the com-
plaint was filed reject the constitutional attack
mounted by plaintiffs. Regan v. Taxation with Repre-
sentation of Washington, US. 76 L.Ed. 2d
129 (1983); Common Cause v. Bolger, 2—
77 L. Ed. 2d 280 (1983);
5. the authorities upon which plaintiffs relied in
their unsuccessful motion for preliminary injunction
are inapplicable to agencies of government. They are
pertinent only to the affairs of private organizations;
and
B-6
6. a controlling decision of the California Su-
preme Court mandates rejection of plaintiffs’ claim
that the individual members of the Board of Gover-
nors of the State Bar are liable. Stanson v. Mott,
supra.
Il. PROCEEDINGS TO DATE
Plaintiffs’ complaint seeking declaratory and injunctive
relief was filed on October 25, 1982. Subsequent amend-
ments, adding plaintiffs, have been filed without changes
in the substantiy> allegations. As set forth above, plain-
tiffs challenged the expenditures of the State Bar for
“political and ideological causes,” and sought to enjoin
such expenditures and to require individual members of
the Board of Governors to refund fees used for those
purposes. Except for the five items listed in paragraph 6
of the Complaint, and set out above, plaintiffs failed to
state with specificity the activities to which they object.
Rather, they seek relief banning all such use of fees,
whether or not such uses are related to matters within the
scope of the Bar's statutory and constitutional
authorization.
On October 26, 1982, pursuant to plaintiffs’ motion, a
Temporary Restraining Order and Order To Show Cause
was issued. Although plaintiffs sought broader relief, the
TRO only prohibited the expenditure of named plaintiffs’
fees to promote “particular criteria regarding the evalua-
tion of judges in judicial retention elections.” Order,
October 25, 1982, at 2.
Subsequently, plaintiffs’ motion for preliminary injune-
tion was brought on for hearing on January 28, 1983. On
March 4, 1983, the Court denied that motion and dis-
ee —
B-7
solved the temporary restraining order then in effect.*
The Court declined to grant injunctive relief, finding it
unlikely that plaintiffs would prevail. Order at 2. The
Court also found that plaintiffs had failed to demonstrate
irreparable injury, Id. at 3.
Since that hearing, plaintiffs have propounded discov-
ery requests to defendants, to which responses have been
served.
III. THE INJUNCTIVE RELIEF REQUESTED BY
PLAINTIFF IS NOT AVAILABLE AS A MAT-
TER OF LAW
As will be demonstrated below, plaintiffs’ requested
relief is directly contrary to that approved even by the
authority on which they rely. Further, and more impor-
tantly, plaintiffs ignore the very relevant distinctions
between the California State Bar, a public agency of the
State of California with both statutory and constitutional
authority, and a private organization formed to serve the
economic interests of its membership. This distinction is
one recognized as a matter of federal and California law.
As a result, plaintiffs request this Court to grant relief
contrary to relevant federal and state authority. There-
fore, summary judgment should be granted.
A. The State Bar is an Agency of State Government
As set forth in Defendants’ Memorandum of Points and
Authorities in opposition to the Motion for Preliminary
Injunction (“Defendants’ Memorandum’),** the defen-
»On December 2, 1982, the Court entered an order continuing the
hearing on the preliminary injunction and ordering that all fees paid
by named plaintiffs be held in a separate account pending that
hearing.
**A copy of that Memorandum is attached hereto for the conve-
nience of the Court as Exhibit A.
B-8
dant State Bar is a publie agency of the State of Califor-
nia, and its conduct is governed by the rules applicable to
California state agencies. Defendants’ Memorandum at
pp. 14-15. Thus, its expenditures are proper to the extent
that “they are authorized, explicitly or implicitly, by
legislative enactment.” Stanton v. Mott, 17 Cal.3d 206, 213
(1976). As such, the State Bar is a substantially different
entity than the union to which plaintiffs seek to compare
it. Its funetion and purposes are public, not private. It is a
part of state government and the authorization for its
expenditures and functions is both explicit and implicit.
B. The State Bar May Engage in All Aetivities
Expressly or Implicitly Authorized by The State
Constitution or Statute
I. The State Bar Has Broad Explicit Authorization
The State Bar has broad legislative authorization
under Bus. & Prof. Code 55 6001, 6028, and 6031. That
latter section provides:
“The Board may aid in all matters pertaining to the
advancement of the science of jurisprudence or to the
improvement of the administration of justice, inelud-
ing, but not by way of limitation, all matters that may
advance the professional interests of the members of
the State Bar and such matters as concern the
relations of the Bar with the public.”
In addition, the State Bar is established by the Consti-
tution of the State of California. Article VI, §9. This
constitutional provision was approved by the voters in
1960. See Defendants’ Memorandum at pp. 6-8.
Finally, a detailed report of the expenditures and
activities of the State Bar is submitted to the Legislature
on an annual basis in seeking legislative approval of fees.
The Legislature approves those activities in setting the
permissible fees to be charged by the State Bar each year
B-9
on the basis of this submission. See, e.g., material submit-
ted to Legislature attached as Exhibits 1-2 to Defend-
ants’ Memorandum.
(2) The State Bar Has Implicit Authorization For The
Challenged Activities
a) Lobbying
Lobbying of the Legislature concerning issues within
the scope of Bus. & Prof. Code § 6031 has the explicit and
implicit approval of the Legislature. It is explicitly ap-
proved on an annual basis by means of the fees bill, as set
forth above. It is implicitly approved by prevailing Cali-
fornia case law, exemplified by the leading case of Stanson
v. Mott, supra. In that case, the Court specifically ap-
proved lobbying efforts even though such efforts might be
for causes with which members of the publie might disa-
gree. 17 Cal. 3d at 218. Despite this authority, however,
plaintiffs would have this Court bar the State Bar from all
lobbying activities outside of the areas of admissions,
discipline, and fees despite the specific authorization
which Bar has been given. Complaint, © 6.
That California law clearly permits public agencies to
lobby is beyond challenge. See Crawford v. Imperial Irri-
gation Dist., 200 Cal. 318 (1927); Lehane v. City & County
of San Francisco, 30 Cal. App. 3d 1051 (1972). Indeed,
the Lehane case makes clear that lobbying is permitted
even though the individual taxpayer objects to the posi-
tion which the state agency is taking.
“If a taxpayer can restrain a government entity from
lobbying for legislation to which the taxpayer is
opposed, the power of the government entity to lobby
is a power which can never be exercised, for in
practice some taxpayer will surely hold a contrary
view. If the taxpayer does not agree with the decision
of his elected representatives in this area, as in
B-10
others, his recourse is to vote against them.” 30 Cal.
App. 3d at 1056.
See also DeMille v. American Federation of Radio Art-
ists, 31 Cal. 2d 139 (1947) (majority rule permits imposi-
tion of a tax despite disagreement by a taxpayer with the
purposes for which the tax is levied).
b) Dissemination of Information To The Public
Publie agencies may also expand funds to inform poten-
tial voters about issues with which they are familiar, so
long as a fair presentation of facts is made. See Stanson,
supra, 17 Cal. 3d at 221 n.6; 58 Ops. Cal. Atty. Gen. 29
(1975); 51 Ops. Cal. Atty. Gen. 190 (1968); 42 Ops. Cal.
Atty. Gen 25 (1963); 35 Ops. Cal. Atty. Gen. 112 (1960).
Plaintiffs seek specifically to bar such activity by ob-
jecting to the education project on the judiciary. Com-
plaint 76. However, plaintiffs do not allege anywhere in
their complaint that the materials assembled for that
project are anything other than a fair presentation of
facts and of such style and tenor that they constitute a
proper attempt to inform the voters about issues concern-
ing which the Bar has special knowledge and unique
responsibilities. Rather, plaintiffs merely assert that the
project is political or ideological and thus improper. That
bare assertion is incorrect.
The relevant cases cited above permit, and may even
require, the State Bar to edueate the public in this area.
The materials in the project present information to the
publie, without exhorting the public to vote for a specific
position. The materials used were attached to the com-
plaint as Exhibit E; the plaintiffs had access to those
materials and an opportunity to review them, but could
find no grounds on which to challenge them under Califor-
nia law. If this Court should analyze these materials,
despite the absence of any specific allegations, it will find
— — ed *
—
— —— —
B-11
the materials to be fair and balanced, not improperly
motivated or styled.
e) Other Activities
The State Bar’s authority within other major chal-
lenged areas is established by California law. Plaintiffs
object to substantially all of the State Bar’s other activi-
ties, some specifically, but most generally. The Bar has
already addressed such of those issues as plaintiffs identi-
fied in their complaint in Defendants’ Memorandum at
17-28, and respectfully refers the Court to that
discussion.
Plaintiffs seek to, but may not, stop the State Bar from
engaging in activities because plaintiffs apparently disa-
gree with the positions taken by the Board of Governors,
chosen in a democratic manner to set such policies. Such
disagreement does not permit the silencing of the entire
bar. See Lehane, supra, 30 Cal.App.3d at 1056. This
doctrine has been clearly recognized outside of California
as well.
“It is true that [a member of the State Bar] is
required to contribute to the cost of the operation of
the State Bar, and he may not agree with all of the
policies as determined by its Board of Governors.
The Board of Governors is selected in a democratic
manner. It is frequently true in a democratic society
that the wishes of the majority are overruled, even
though they must contribute to the cost of the pro-
grams carried forward by the majority.“ Sams v.
Olah, 225 Ga. 497, 505 (Ga. Sup. Ct. 1969).*
In Sams, the court concluded that the test for illegal
expenditures is not a broad test of whether the funds are
* A copy of this opinion is attached hereto for the convenience of
the Court as Exhibit B.
B-12
being spent contrary to the individual’s wishes, but rather
whether the funds were spent for the authorized purposes
of the State Bar. 225 Ga. at 507. By this reasoning, the
most plaintiffs could seek to bar would be those activities
demonstrably outside of the activities authorized by the
Constitution and the Legislature.
However, plaintiffs’ approach is categorical; the de-
fense may similarly be categorical. So long as the State
Bar engages in activities which are appropriate under
California law, as they do, plaintiffs are not entitled to the
extremely broad relief they request. Plaintiffs seek no
limited, alternative relief, nor do they allege that author-
ity might exist for any specific, focused relief such as the
rebate procedure approved in Abood v. Detroit Bd. of
Educ., 431 U.S. 209 (1976). However, such a procedure
would not be authorized by authority relevant to this case,
even had plaintiffs requested it. As a result, their com-
plaint must be dismissed.
C. The Challenged Activities Are Constitutional
Defendants’ position is further authorized by recent
decisions of the United States Supreme Court. The Court
has clearly stated that the government may, in certain
instances, use tax dollars to subsidize issue-oriented
speech. There need be no compelling governmental inter-
est to support this decision, but only a rational relation-
ship to legitimate governmental purposes. Regan „.
Taxation With Representation of Washington, U.S.
— 76 L.Ed.2d 129 (1983). (A copy of this opinion is
attached hereto for the convenience of the Court as
Exhibit C.) The same test is mandated by the applicable
California authority cited above, and governs this case.
In addition the Court last term affirmed without opin-
ion the decision of a three-judge District Court in Com-
mon Cause v. Bolger, U.S. 77 L.Ed.2d 280
—U— 2 — ae
—
— — a
B-ʃ 13
(1983). In that ease, the Court held that incumbent
legislators may use the franking privilege without violat-
ing the constitutional rights of voters and nonineumbents.
The court declined to apply a strict scrutiny analysis,
because any restriction on First Amendment rights was
indirect and, because it applied to all non-incumbents,
was not content-related. The same is true here; any
restriction is indirect and applies to all who disagree with
the majority position on a broad spectrum of issues, not to
any particular position.*
The State Bar speaks as a government agency and must
be governed by this law in all respects. Although plaintiffs
allege that the State Bar purports to represent the views
of its individual members, that claim is demonstrably
without basis in fact and is merely an unsupportable
eonclusion. The State Bar speaks as a constitutional and
statutory body. See Affidavits of Peter Jensen and Ter-
rance Flanigan, lobbyists for the State Bar, attached
hereto as Exhibits E and F; State Bar’s Answers to
Plaintiffs’ Interrogatory No. 3, attached hereto as Ex-
hibit G.
D. The Authorities Previously Relied On by Plaintiffs
Are Inapplicable
Plaintins have relied primarily on Abood v. Detroit Bd.
of Educ., 431 U.S. 209 (1976), and Arrow v. Dow, 544 F.
Supp. 458 (D. N. M. 1982) for their claim for relief in this
case. However, as set forth by defendants in Defendants’
Memorandum at 28-33, that authority does not govern
here.
Abood governs where mandatory fees are imposed by a
private organization, in that case, a union. The State Bar,
* A copy of this opinion is attached hereto for the convenience of
the Court as Exhibit D.
B-14
in contrast, is a legislatively and constitutionally author-
ized agency of the government of the State of California.
The difference is both substantial and vital. Integrated
state bars, as governmental agencies, must be treated
differently from private organizations as a matter of
federal constitutional law. State Bar of Texas v. United
States of America, No. CA 3-81-9536-C, United States
District Court for the Northern District of Texas, Dallas
Division, March 25, 1983 (Slip opinion at 4).* See also
Sams v. Olah, 225 Ga. 497, 506 (Ga. Sup. Ct. 1969)
(integrated state bar is not a labor organization).
There are other differences as well. The private organi-
zation in Abood set its own dues; in contrast, the fees of
the State Bar are set by the California State Legislature.
The difference between private assessments and legisla-
tively approved taxes is substantial.
In addition, the purpose of the State Bar, as defined by
its establishing authority, is broad; the Bar is instructed
to undertake substantial duties in the public interest. In
contrast, a labor union serves limited economie interests
of its membership; in some situations, those members may
be able, through the bargaining process, to extract from
non-members a pro rata share of the expenses connected
with the economic benefits those non-members receive.
See Abood, supra, 431 U.S. at 222. In other instances, the
union may, through bargaining, be able to require mem-
bership. In such cases, mandatory dues may only be spent
for functions related to the benefits provided. See Ellis v.
Brotherhood, 685 F.2d 1065 (9th Cir. 1982), cert. granted
om Cham (a
* A copy of this opinion is attached hereto for the convenience of
the Court as Exhibit H.
**The Court in Ellis declined to take a narrow view of those
activities which provided benefits to members and for which they
—— OES —
B15
Even if the union analogy were apposite, however.
Abood specifically rejected the relief requested herein.
Plaintiffs therefore rely on Arrow v. Dow, supra, to pro-
vide the nexus to the relief they request. However, Arrow
is not only inconsistent with the decisions of the Califor-
nia Supreme Court cited above, but also, by permitting
broad relief prohibiting all “political” activities, violates
the rule set out in Abood.
The broad reading adopted by the Arrow court has been
rejected in the recent decision of the Florida Supreme
Court. In The Florida Bar Re: Amendment to Integration
Rule, No. 61,424, decided September 22, 1983, the Su-
preme Court held that political activity by its bar, estab-
lished by rule of Court, was within the defined purpose of
the bar “to improve the administration of justice, and to
advance the science of jurisprudence.” Opinion at 2. The
Court, in determining whether the challenged activities
were germane, looked broadly at purpose, as the Arrow
court failed to do. (A copy of the Opinion is attached
hereto for the convenience of the Court as Exhibit I.)
Arrow is also inapplicable to the California State Bar
factually, in that it involves a bar association established
by rule of court, not by constitutional and legislative
authorization. The California State Bar is, however, a
unique institution among unified state bars, as it is a state
agency, with both constitutional and legislative authoriza-
tion, and subject to legislative oversight. It is neither a
private organization, nor an organization created under
the limited authority of rule of court. The New Mexico
Bar does not have the broad mandate imposed on the
California Bar. As the scope of authorized activity is
central to the Abood analysis, this difference is substan-
could be foreed to contribute. This should be contrasted with the
extremely limited view of scope sought to be imposed by plaintiffs in
this case.
B-16
tial and indicates that Arrow cannot control here. Thus,
plaintiffs have no authority for the relief they request.
IV. THE INDIVIDUAL MEMBERS OF THE
BOARD OF GOVERNORS CANNOT BE HELD
LIABLE
Plaintiffs seek relief involving restitution of the sums
spent for allegedly inappropriate activities from the indi-
vidual members of the Board of Governors. However,
plaintiffs’ complaint contains no allegations concerning
the individual members of the Board of Governors other
than the fact that they are members of the Board of
Governors. There are no allegations that these members
acted in bad faith, or in any way outside of the scope of
their duties as members of the Board of Governors.
Under these circumstances, there is no authority for any
such restitutionary order.
In fact, California state law is to the contrary. Sianson
„. Mott, 17 Cal.3d 206 (1976), specifically overruled an
earlier decision of the California Supreme Court estab-
lishing strict liability for public officials authorizing the
improper expenditure of publie funds. 17 Cal.3d at 223.
overruling Mines v. Delvaille, 201 Cal. 273 (1927). The
Stanson court adopted instead the requirement that pub-
lie officials use
due care, i.e., reasonable diligence, in authorizing
the expenditure of publie funds, and may be subject
to personal liability for improper expenditures made
in the absence of such due care.” 17 Cal.3d at 226-27.
Various factors were set forth by the Court in determin-
ing whether a public official acted with the requisite due
care.
— we —
—
B-17
They were:
1. whether the expenditure’s impropriety was
obvious;
2. whether the official knew of the possible inva-
lidity of the expenditure;
3. whether the official relied on legal advice or on
the presumed validity of an existing legislative enact-
ment or judicial decision. 27 Cal.3d at 227.
Plaintiffs have made no allegations relating to any of
these standards. Although the plaintiff in Stanson v. Mott
was permitted to amend his complaint, this permission
was granted because, under the existing rule prior to
Stanson, no such allegations were required. However, such
is not the case here. The Stanson standard has been the
law since 1976, and plaintiffs are bound by it.
Further, even accepting all of plaintiffs’ allegations in
the complaint as true, there are and can be no allegations
which indicate that any expenditures were obviously im-
proper, that any member of the State Bar Board of
Governors knew of any potential invalidity, or that the
State Bar Board of Governors did not rely on the pre-
sumption of validity given by the legislative approval of
its activities. Such allegations could not be made, in light
of the Legislature's actions, and the long-standing rule of
governing publie agencies in California.
There is simply, no basis for plaintiffs’ attempt to
obtain restitution from the individual members of the
Board of Governors. Thus, in any event, the summary
judgment in favor of these defendants should be granted,
dismissing them from the lawsuit with prejudice.
B-18
V. CONCLUSION
For the reasons set forth above, defendants respect-
fully request that this Court grant their motion for sum-
mary judgment.
DATED: November 15, 1983.
Respectfully submitted,
HUFSTEDLER, MILLER, CARLSON
& BEARDSLEY
RoBERT S. THOMPSON
DENNIS M. PERLUSS
LAURIE D. ZELON
Mary E. HEALY
HERBERT M. ROSENTHAL
Truitt A. RICHEY, JR.
MAGDALENE V. O’RourKE
By Laurie D. ZELON
Attorneys for Defendants
APPENDIX C
APPENDIX C
COURT OF APPEAL, STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Eppie KELLER; RAYMOND BROSTERHOUS; DAN M. KINTER; Davip LAMPE;
GARRETT BEAUMONT; CHRISTOPHER L. FAIRCHILD; JOHN A. GORDNIER;
CHRISTOPHER N. HEARD; LEONARD C. Hoar, IR.; J. ROBERT JIBSON;
CHARLES P. Just; DAROLD D. Pieper; THOMAS HUNTER RUSSELL; NANCY
L. SWEET; MICHAEL J. WEINBERGER; Davip E. WHITTINGTON; THoMas R.
YANGER; WarD A. CAMPBELL; DonALD C. MEANEY; ASSEMBLYMAN
PATRICK J. NOLLAN; AND A. WELLS PETERSEN,
Appellants,
Vs.
STaTE BAR OF CALIFORNIA, a publie corporation; ANTHONY M. MurRRay;
PATRICIA GREENE; GERT K. HIRSCHBERG; LELAND R. SELNA, JR.;
GEOFFREY VAN Loucks; THomas W. ERES: JoHN H. Costanzo; GEORGE
W. Coucn, III: BurKE M. CrRiTcHFIELD; THomMas R. Davis; DIXON &.
Dern; Rutw Cuurcn Gupta; Dace E. Hanst; LEONARD HERR; ROBERT
A. Hine; Puyuuis M. Hix; Marta Macias; PHILLIP ScCHAPER; CRAIG A.
SILBERMAN; DANIEL J. ToBin; JAukS D. WARD; AND Joon HEE Ru.
Respondents.
3rd Civil No. 24124
(County No. 307168)
APPEAL FROM THE SUPERIOR COURT
OF SACRAMENTO COUNTY
HONORABLE HORACE E. CECCHETTINI, JUDGE
RESPONDENTS’ BRIEF
HERBERT M. RoseNTHAL HUPSTEDLER, MILLER, CARLSON &
Truitt A. Ricuey, JR. BEARDSLEY
MAGDALENE V. O'’RourRKE RosBert S. THOMPSON
555 Franklin Street LAURIE D. ZELON
San Francisco, California 94102 Mary E. HEALY
(415) 561-8200 700 South Flower Street,
16th Floor
Los Angeles, California 90017
(213) 629-4200
Attorneys for Respondents
C-i
TABLE OF CONTENTS
Page
Table of Authorities ....... cc cccccccccccecccees C-iii
I. INTRODUCTION ... wc cc ccccccccccccccces C-1
II. ISSUES PRESENTED ................... C-3
III. STATEMENT OF FACTS ................. C-4
A. Procedural History .......... 8 04
B. The History Of The State Bar And Its Activi-
— REP Terr errr TT Tre er Te Ter C-5
eee C-7
444 co oue000n0asbecnekescentesss C-8
A. California Law Permits A Publie Entity,
Such As The State Bar, To Engage In The
Type Of Activities In Which The State Bar
BS oc cc cc cdcctecesbercasenccescces C-9
1. The State Bar Is A Publie Entity ...... C-9
2. Publie Entity Authority Is Tested By The
Implicit And Explicit Powers Granted To
The Agency By The Constitution And
Legislative Action C-11
neee C-11
b. Miller v. California Commission 0-12
3. The Legislative Authority Explicitly And
Implicitly Authorizes The Full Scope Of
Current State Bar Activity ............ C-13
: a. The Speeifie Authorization Is Broad (C-13
b. The Activities Of The State Bar Have
| Been Specifically Approved By The
Legislature And The Voters ........ C-14
4. Appellants Have Failed To Show That
The Challenged Activites Are Outside The
Scope Of The State Bar’s Authorization C16
lee ses 0-17
b. Amicus Curiae Briefs .............. C-20
C-ii
TABLE OF CONTENTS
Page
e. The Conference Of Delegates ....... C-21
d. President’s Speeches............... C-21
e. Publie Information On Judicial Inde-
rens eee eee C-22
B. The Challenged Activites Are Constitutional C-22
C. The Cases On Which Appellants Rely Do Not
Affect The Controlling Case Law .......... C-24
1. Abood v. Detroit Board of Education..... C-24
2. Ellis v. Brotherhoͤęi l 0-26
DDr .es eee C-27
4. Even If Abood Were Held To Apply, The
Requested Relief Would Not Be Available C-29
a. The Decision in Abood Does Not Per-
mit An Injunction Against The State
— ⁰ le C-30
b. Abood Limits Relief To Activites
Which Are Not Germane To The Pur-
pose For Which The Organization Is
r er ae C-30
5. Compelled Membership And Payment Of
Dues Do Not Infringe Rights Of Associa-
—. rene 0-32
a. Lathrop v. Donahue ................ C-32
b. Roberts v. United States Jaycees ...... C-34
D. The Individual Members Of The Board of
Governors Cannot Be Held Liable......... C-37
. bencedeceess C-40
C-iii
TABLE OF AUTHORITIES
Cases
er Passim
Alford v. Pierno, 27 Cal. App. 3d 682 (1972) C-15
Arrow v. Dow, 544 F. Supp. 458 (D.N.M. 1982) ...
e 5060008 C-27, 28, 30
Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d
DE sdbadecdecsddnvencceccetsesiceses C-27
Bettencourt v. Industrial Acc. Comm., 175 Cal. 559
%%% Ä˖ . . C-10
Chronicle Publishing Co. v. Superior Court, 54 Cal.2d
i I...... —7—ꝙ9 C-10
Common Cause v. Bolger, U.S. 103 S. Ct.
1888, 77 L. Ed. 2d 280 (1983)......... C-8, 23, 24, 27
Crawford v. Imperial Irrigation Dist., 200 Cal. 318
ccc ͤ 0e C-13, 19
DeMille v. American Federation of Radio Artists, 31
Cal.2d 139 (1947), cert. denied 333 U.S. 876
Pct cdwasteedeceewedbiedecess C-19, 29, 33, 34
Diamond Int'l Corp. v. Boas, 92 Cal.App.3d 1015
E C-16
Ellis v. Brotherhood of Railway, Airline & Steamship
Clerks, U.S. . 80 L.Ed.2d 428 (1984)...
eee C-24, 25, 26. 27, 31
English v. County of Alameda, 70 Cal.App.3d 226
ö eee C-15
C-iv
TABLE OF AUTHORITIES
CASES
Page(s)
Erzinger v. Regents of the Univ. of Calif., 137 Cal.App.
3d 389 (1982), cert. denied US. — 103
ee. C-12, 13
The Florida Bar Re: Amendment to Integration Rule,
No. 61,242 (decided September 22, 1983)....... C-28
Lathrop v. Donohue, 367 U.S. 820 (1961) .........
Lehane v. City and County of San Francisco, 30
Cal.App.3d 1051 (1972) ................ C-16, 17, 19
Miller v. California Commission on Status of Women,
151 Cal.App.3d 693 (1984) C-2, 8, 9, 12, 13, 24, 27
Miller v. Miller, 87 Cal.App.3d 762 (1978) ........ C-18
Mines v. Delvalle, 201 Cal. 273 (1977 C-38
Natural Resources Defense Council, Inc. v. Arcata Nat.
Corp., 59 Cal.App.3d 959 (1976)) C-15
Regan v. Taxation With Representation of Wash-
ington.— U.S. — ~, 103 S.Ct. 1997, 76
Ee GED Ko eee C-9, 23, 24, 27
Rhyne v. Municipal Court, 113 Cal.App.3d 807
——— C-10
Roberts v. United States Jaycees, 52 U.S.L.W. 5076
cc ĩ˙ʃ%ô¶c˙/ c C-32, 34, 35, 36, 27
Sams v. Olah, 225 Ga. 497 (Ga. Sup. Ct. 1969) .... C-17
Service Employees’ Int'l Union v. Roseville Commu-
nity Hospital, 24 Cal.App.3d 400 (1972) ........ C-10
Stanson v. Mott, 17 Cal.3d 206 (1976) .......... Passim
State Bar of California v. Superior Court, 207 Cal.
DERG sentecusceuscetustees ̃ ˙VêF veeess C-10
C-v
TABLE OF AUTHORITIES
CASES
Page(s)
Constitution
California Constitution, Article VI, 59 C-8,9
Statutes
Bus. & Prof. Code § 6000, et seg. (State Bar Act)... C-5, 9
Bus. & Prof. Code § 6001(g).................... C-13
Bus. & Prof. Code § 600ùłꝶ C-10
Bus. & Prof. Code 5 6028(a) .................... C-14
Bus. & Prof. Code § 6031 .............. C-14, 18, 20, 21
r ̃ qc. 00ers C-10
Gov't Code 5811.2 „6650222222 C-10
D ⅛ C-10
Textbooks
12 Moore’s Federal Practice € 400.05-1 (2d ed. 1982) C-23
Other Authorities
35 Ops. Cal. Atty. Gen. 112 (1960) .............. C-11
42 Ops. Cal. Atty. Gen. 25 (1963) ............... C-11
51 Ops. Cal. Atty. Gen. 190 (1968) .............. C-11
58 Ops. Cal. Atty. Gen. 29 (1975) ............... C-11
C-1
I. INTRODUCTION
This brief is submitted on behalf of respondents, State
Bar of California, Anthony M. Murray, Patrivia Greene,
Gert K. Hirsehberg, Leland R. Selna, Jr., Geoffrey Van
Loucks, Thomas W. Eres, John J. Costanzo, George W.
Couch, III. Burke M. Critehfield, Thomas R. Davis, Dixon
Q. Dern, Ruth Church Gupta, Dale E. Hanst, Leonard
Herr, Robert A. Hine, Marta Macias, Phillip Schafer,
Craig A. Silberman, Daniel J. Tobin, James D. Ward, and
Joon Hee Rho. Respondents respectfully submit that the
decision of the trial court was correct, as the relief
requested by plaintiffs-appellants is unavailable as a mat-
ter of law.
The State Bar, as a governmental agency, is governed
by both statutory and constitutional regulations and
restrictions. As this brief will demonstrate the applicable
constitutional limitations are not those set forth in the
labor union eases on which appellants rely; rather, the
relevant authority weighing the balance between First
Amendment rights and government activities is consis-
tent with the decision below.
Appellants, in attacking the trial court's decision, have
mischaracterized the basis of that ruling. While it is true
that the Court relied on Stanson v. Mott, 17 Cal. 3d 206
(1976), in upholding the right of the State Bar to engage
in the challenged activities, the court did not hold that,
under Stanson, a public agency could not violate the First
Amendment. (Appellants’ Opening Brief (CA. O. B.) at
2.) Rather, the court correctly read Stanson as saying
that, under the rules established there, the State Bar had
not violated the First Amendment. That the limits estab-
lished in Stanson, and complied with by the State Bar, are
the appropriate limits was clearly restated by this Court
C-2
in Miller v. California Commission on Status of Women,
151 Cal. App. 3d 693 (1984).
Appellants make a categorical attack on major activi-
ties of the State Bar; they do not identify or challenge
specific problems. Nor do they seek to remove restrictions
on their own right to speak and associate; no restrictions
have been imposed. Rather, appellants seek to prevent
others from freely speaking and associating. Under the
applicable authority of the United States Supreme Court,
the California Supreme Court, and this honorable Court,
they cannot do so.
The State Bar of California has existed since 1927. It is
a creature of the State Constitution as implemented by
legislative enactments. California statutes expressly
authorize the State Bar to engage in the following range
of activities: advancement of the science of jurisprudence;
improvement of administration of justice; promotion of
relations of the Bar with the public; advancement of the
professional interests of the members of the State Bar;
and performance of actions necessary to the administra-
tion and purposes of the State Bar.
The State Legislature closely supervises the scope of
activity of the State Bar. The Legislature reviews the
activities of the State Bar each year when authorizing
annual fees payable by lawyers for the privilege of prac-
ticing law in this State. The legislative consideration of
annual State Bar fees bills does not occur in a vacuum;
the State Bar presents the activities planned for the year
to the Legislature.* In enacting the annual fees bill, the
*Original Superior Court File (.F.) 355-664 and 666-703 are
examples of these presentations. In 1982, the fees bill concerned a
two-year, rather than a one-year period. (0. F. 666-703.)
C-3
Legislature implicitly authorizes the State Bar activity
deseribed in the presentation.
The most detailed presentation by the State Bar to the
Legislature about its activity oceurred in 1981. (O.F. 355-
644) This presentation included over thirty individual
activities in some ten categories, excluding administrative
activities. Although less detailed, subsequent and prior
presentations likewise described categories of activities.
These presentations show that each of the activities
attacked by appellants constitutes a long-standing activ-
ity of the State Bar.
In their action, plaintiffs-appellants sought an injune-
tion that if granted would abort a major part of long-
performed functions of the State Bar expressly mandated
and implicitly approved by the Legislature. The authority
they cite does not, however, support the relief they
requested.
Il. ISSUES PRESENTED
This appeal raises the following issues:
1) May individuals restrain a governmental entity
from taking positions with which they may disagree
beeause such individuals are obligated to fund that
entity through a legislatively-mandated tax;
2) Does the explicit and implicit authority given
to the State Bar as a governmental entity permit the
activities of which appellants complain; and
3) May individual members of the governing
authority of a governmental entity be held personally
liable where there is no allegation or evidence that
— their actions were not taken in good faith.
C-4
Respondents submit that each of these questions has
been decided in controlling precedent from the United
‘States Supreme Court, and the California courts, in favor
of the State Bar and the members of its Board of
Governors, and that the decision of the court below
should therefore be affirmed.
III. STATEMENT OF FACTS
A. Procedural History
This action has been filed by 21 individual members of
the State Bar of California, who seek to enjoin a broad
range of activities by the State Bar to which they appar-
ently object. According to appellants, the use of the fees
they must pay as a result of the legislative authorization
of the State Bar as an integrated bar, for activities they
disapprove of, violates their First Amendment rights.
Appellants seek to enjoin the State Bar from proceeding
with its activities outside of the area of admissions,
discipline, and regulation.
A temporary restraining order and order to show cause
was entered on October 26, 1982. Respondents were
ordered to show cause why they should not be enjoined
during the pendency of the action from using the revenue
from State Bar fees, or the name of the State Bar, “to
promote any particular ideologies regarding judicial re-
tention elections or other elections.” The Court further
ordered that, pending the hearing, respondents were re-
strained from using revenue derived from the named
appellant's State Bar fees to “promote any particular
eriteria regarding the evaluation of judges and judicial
retention elections.” (O.F. 254-36.)
That order was superseded by an order continuing the
hearing from November 29, 1982, to January 25, 1983.
C-5
Pursuant to stipulation, pending the hearing the respon-
dents deposited a sum equal to the mandatory State Bar
fees of all the plaintiffs named in the complaint as of
December 2, 1982 in a trust account.“ (O. F. 241-42.)
Appellants’ motion for preliminary injunction was
heard on January 28, 1983, and denied on March 4, 1983.
(O.F. 983-85.) On November 22, 1983, following extensive
discovery, respondents’ motion for summary judgment
was filed. Plaintiffs filed a Motion for Partial Summary
Judgment on November 23, 1983. Plaintiffs’ motion was
denied on March 19, 1984. (O.F. 1752-53.) Judgment was
granted in favor of all defendants on May 24, 1984. (O.F.
1754.) After plaintiffs unsuccessfully sought a writ of
mandate, they filed a notice of appeal to this Court on
June 18, 1984. (O.F. 1759.)
B. The History Of The State Bar And Its Activities
The State Bar was created in 1927 by the State Bar
Act, Bus. and Prof. Code § 6000, et seq. Throughout its
history, the State Bar has remained subject to the provi-
sions of this statute. In 1960, the status of the State Bar
was altered when the voters approved a ballot proposition
making the State Bar a constitutional entity. A similar
vote in 1966 maintained this status. (0. F. 292-93; 300.)
The creation of the State Bar in 1927 was in part
prompted by concerns about inadequate professional
standards and competence and by widespread recognition
of the need for assistance in legal reform and improve-
ment of judicial administration. Reference to the records
of the State Bar shows that the State Bar immediately
began activities to address these concerns and that many
The complaint was amended again, on January 13, 1983, after the
Court's Order, to add additional plaintiffs.
C4
of the programs begun by the State Bar in its early years
have lasted in one form or another over the 50 years in
which the State Bar has been in existence. For example,
even in the earliest years of the Bar, and throughout its
history, there have been programs to improve delivery of
legal services to the poor, to promote reform in procedu-
ral and substantive areas of law, and to educate the public
about issues affecting the State Bar. (O. F. 293-303.)
With regard to the issues raised in this lawsuit, State
Bar records show that the types of activities challenged
by plaintiffs here have been part of State Bar programs
for many years. For example, from its inception, the Bar
organized sections of members to study and propose legal
reform. One of the areas addressed at that time was
judicial selection and conduct. In the 1930s, the State Bar
was instrumental in gaining adoption of standards for
judicial selection in California. More recently the Bar has
assisted in programs of judicial evaluation. Thus, activi-
ties to maintain the independence and integrity of the
judiciary are not new to the State Bar. (O.F. 293-98.)
Similarly, legislative activity is not new to the State
Bar. One of the most effective ways in which the State Bar
ean fulfill its obligations to advance the science of juris-
prudence and to improve administration of justice is to
suggest and promote legislation. In the early years of the
Bar, members of sections studying potential legal reform
were encouraged to lobby for reform. The members of the
Board of Governors and Secretary of the State Bar also
lobbied for adoption of legislation recommended by Bar
sections. (O.F. 294-95.)
Programs to encourage participation of State Bar mem-
bers in State Bar activities and programs to obtain the
input of State Bar members in decisions made by that
organization have also been of long standing in the State
C-7
Bar. In fact, the predecessor program to the Conference
of Delegates began in the 1930s. (O.F. 295.)
These are just a few examples of how the categories of
work of the State Bar have since its beginnings remained
relatively constant. These examples also underscore the
fact that the activities challenged by petitioners are long-
standing practices of the State Bar. These practices, and
the other activities of the State Bar are reviewed annually
by the Legislature in conjunction with its approval of the
State Bar’s fees bill. The Bar has continually played a
significant role in providing the legislative and executive
branches with information and assistance in areas of its
particular expertise.*
C. The Complaint
The complaint sought to enjoin all activity of the State
Bar encompassed in the following categories:
(a) lobbying the California Legislature;
(b) submitting briefs amicus curiae;
(e) financing meetings of the Conference of
Delegates;
(d) publicizing the speeches by the President of
the State Bar; and
(e) finaneing the public information project on
judicial retention.
»A detailed discussion of the history of the State Bar and its
activities, setting forth the matters discussed above, is ineluded in
the Declaration of Magdalene V. O' Rourke filed in the trial court.
(O.F. 289-303.)
C-8
Complaint, J 6, C. T. 3-4. Appellants did not challenge any
specifie activity in any of the enumerated classes. Their
attack was, and is, categorical.
The complaint also sought to hold the individual mem-
bers of the Board of Governors liable for past expendi-
tures of the State Bar utilized to finance its activities in
these categories. Appellants sought reimbursement of all
fees expended for “political and ideological purposes”
(Prayer, J 3, C. T. 5-6), without further specifying those
activities.
IV. ARGUMENT
Respondents assert, for the following reasons, that
appellants were not entitled to the relief they sought, and
that the decision of the court below was correct as a
matter of law:
1. the State Bar is an agency of the California
state government created by Article VI, §9 of
the California Constitution and implementing
legislation;
2. beeause the State Bar is an agency of the
government it has all powers expressly or implicitly
granted it by the Constitution and statute, limited
only by restrictions imposed by the Constitution.
Stanson v. Mott, 17 Cal.3d 206 (1976); Miller v.
California Commission on Status of Women, 151
Cal.App.3d 693 (1984);
3. each category of State Bar activity and each
specific activity of the State Bar mentioned in the
complaint is expressly or implicitly authorized by the
California Constitution and the State Bar Act. This
authorization is confirmed annually by the Legisla-
ture in enacting legislation providing for financing
C-9
the State Bar after receiving the ageney's proposed
budge: for the ensuing year;
4. no constitutional restriction precludes the
State Bar from engaging in the categories of activity
described in the complaint or the specifie functions
mentioned in it. To the contrary, two recent decisions
of the United States Supreme Court reject the consti-
tutional attack mounted by plaintiffs. Regan v. Tazxa-
tion with Representation of Washington, U.S.
— 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983); Com-
mon Cause v. Bolger, U.S. — 103 S.Ct. 1888,
77 L.Ed.2d 280 (1983);
: 5. the authorities upon which appellants rely are
inapplicable to agencies of government. They are
pertinent only to the affairs of private organizations;
and
6. a controlling decision of the California Su-
preme Court mandates rejection of appellants’ claim
that the individual members of the Board of Gover-
nors of the State Bar are liable. Stanson v. Mott,
supra. This Court has recently rejected an indistin-
guishable challenge on the same grounds. Miller,
supra.
A. California Law Permits A Publie Entity, Such As
The State Bar, To Engage In The Type Of Activi-
ties In Which The State Bar Engages
1. The State Bar is a Publie Entity.
Article VI, §9 of the California Constitution estab-
lishes the State Bar of California as a publie corporation.
The parallel legislative enactment, establishing the State
Bar as a publie corporation, and enumerating its powers,
is the State Bar Act, Bus. & Prof. Code § 6000, et seq. The
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California Supreme Court upheld the constitutionality of
the State Bar Act, and the establishment of the State Bar
as a public corporation, in State Bar of California v.
Superior Court, 207 Cal. 323 (1929).
Publie corporations constitute public entities. See Ser-
vice Employees’ Int’l Union v. Roseville Community Hospi-
tal, 24 Cal.App.3d 400, 407 (1972); Bettencourt v.
Industrial Acc. Co., 175 Cal. 559, 561 (1917). Like other
publie entities, the State Bar was created to serve govern-
mental purposes and was accordingly vested with govern-
mental powers. It is charged with the duty of regulating
the profession and practice of law, a subject which is
essentially. .. a matter of public interest and concern
.... State Bar of California v. Superior Court, supra, 207
Cal. at 331.
Because the State Bar is a public entity, its property is
exempt from taxation. As the Legislature has declared,
such property is “held for essential public and govern-
mental purposes in the judicial branch of the government
.... Bus. & Prof. Code § 6008. The members of the
Board of Governors are public officers acting under oath.
Chronicle Publishing Co. v. Superior Court, 54 Cal.2d 548,
566 (1960). These governmental powers, purposes, and
attributes demonstrate clearly that the State Bar is a
publie corporation in fact as well as in theory, and that is
is dedicated to public, not private ends. See State Bar of
California v. Superior Court, supra, 207 Cal. at 330-32.
Moreover, as a matter of general policy, publie corpora-
tions are deemed to be publie entities. See Gov't Code
§ 53050; Gov't Code § 811.2; Evid. Code § 200; Rhyne v.
Municipal Court, 113 Cal.App.3d 807, 824-25 (1980).
Thus, the State Bar, a creature of California constitu-
tional and statutory law, is, as a matter of California law,
a publie entity. Specific standards have been developed in
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California defining the range of activities in which public
agencies may properly engage. As demonstrated below,
those standards clearly authorize the State Bar to engage
in the full range of activities challenged in this lawsuit.
2. Publie Entity Authority Is Tested By The Implicit
And Explicit Powers Granted To The Agency By
The Constitution And Legislative Action
a. Stanson v. Mott
The powers of public agencies in California were de-
seribed at length in Stanson v. Mott, 17 Cal.3d 206 (1976).
In that case, a taxpayer challenged the expenditure of
funds by the State Department of Parks & Recreation to
promote the passage of a ballot proposition. In confirming
the authority of the Department to expend funds for
lobbying and public information related to ballot proposi-
tions, the court first examined the scope of the authoriza-
tion given to the agency to expend funds. This analysis
was required by “the general principle that expenditures
by an administrative official are proper only insofar as
they are authorized, explicitly or implicitly, by legislative
enactment.” 17 Cal.3d at 213. In determining whether the
challenged activity was proper, the court looked to the
various legislative authorizations pertaining to the
Department.
Various opinions of the Attorney General of California
have applied this same analysis to determine the propri-
ety of expenditure of publie funds under various eireum—
stances. See, e. g., 58 Ops. Cal. Atty. Gen. 29 (1975); 51
Ops. Cal. Atty. Gen 190 (1968); 42 Ops. Cal. Atty. Gen.
25 (1963); 35 Ops. Cal. Atty. Gen. 112 (1960).
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b. Miller v. California Commission
Appellants’ assertion that Stanson addresses only stat-
utory authorization questions, and does not decide the
constitutional issues, is clearly wrong. The Court ex-
pressed specific concern about necessary limits on govern-
ment activity, 17 Cal.3d at 218, and, accordingly, set such
limits. Compliance with those limits answers the constitu-
tional questions raised by appellants, as this Court specif-
ically reiterated in Miller v. California Commission, supra.
In Miller, plaintiffs raised a constitutional challenge to
the advocacy activities of the Commission on the Status of
Women, a tax-funded agency. They claimed that its action
in support of principles with which they disagreed vio-
lated their First Amendment rights. The Court rejected
this Proposition, holding that the government could not
be prevented from speaking because of taxpayer disagree-
ment. 151 Cal.App.3d 700-701. Indeed, the democratic
process requries the government to speak. Id. Only where
the entity does not comply with the limits set forth in
Stanson, or drowns out the individuals, is a problem
raised. 151 Cal.App.3d at 700-702. Neither situation is
present here; the State Bar has complied with Stanson,
and appellants do not claim, nor ean they, that they are
unable to make their views heard.
Appellants assert (A. O. B. at 2) that Miller does not
apply, as the entity involved was funded by general
taxation, rather than a special tax iraposed on a limited
group. That distinction is irrelevant, however. First,
Miller itself draws the relevant distinction — between
governmental entities, such as the Commission and the
State Bar, and private organizations such as labor unions.
151 Cal.App.3d at 700. Second. the rules applied by Miller
have been applied to governmental entities supported by a
special tax or fee. See Erzinger v. Regents of the Univ. of
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Calif., 137 Cal.App.3d 389, 392 (1982), cert. denied
U.S. — (1983). Finally, in terms of the relief suggested
by the Miller court, redress from the Legislature, the
individual member of the State Bar has an even broader
right in his ability both to vote to affect the policies of the
Bar by changing the membership of the Board of Gover-
nors and to seek legislative redress.
3. The Legislative Authority Explicitly And Implicitly
Authorizes The Full Seope Of Current State Bar
Activity
a. The Specifie Authorization is Broad
Like those of other California governmental agencies,
the State bar's limits are established by reference to the
authorization given to it by the Legislature and the people
of California. In the ease of the State Bar this authoriza-
tion comes from both the constitutional enactment of its
existence and the legislation directing it. Like any other
publie corporation, the State Bar:
[D ]erives its powers from the statute under which
it is ereated and acts, and from such other statutes
as may have been enacted by the legislature granting
it additional powers or limiting those already
granted.” Crawford v. Imperial Irrigation Dist., 200
Cal. 318, 326 (1927).
The legislative authorization for the California State
Bar is both clear and broad. Among other things, the
State Bar is empowered to “Do all... acts... necessary
or expedient for the adminstration of its affairs or the
attainment of its purposes.” Bus. & Prof. Code § 6001(g).
The Board of Governors of the State Bar is likewise
authorized to “make appropriations and disbursements
from the funds of the State Bar to pay all necessary
C-14
expenses for effeetuating the purposes of this chapter.”
Bus. & Prof. Code § 6028 (a). Finally,
“The board may aid in all matters pertaining to the
advancement of the science of jurisprudence or to the
improvement of the administration of justice, inelud-
ing, but not by way of limitation, all matters that may
advance the professional interests of the members of
the State Bar and such matters as concern the
relations of the bar with the public.” Bus. & Prof.
Code § 6031.
Appellants could not and did not show that any of the
challenged activities of the State Bar are outside of the
seope of its authorization. Rather, appellants wish to
enjoin State Bar activity solely by claiming that, because
they may disagree with some or all of the positions of the
State Bar, the State Bar may not use their funds to
engage in such activities.
b. The Activities Of The State Bar Have Been Specifi-
eally Approved By The Legislature And The Voters
The State Bar has engaged in the activities appellants
challenged sinee its creation. The Legislature has seruti-
nized these activities annually in conjunction with its
approval of the State Bar's fees bill. Thus, with full
knowledge of these activities, the Legislature and the
people of California have maintained the State Bar Act in
effect. In determining whether the challenged activities
are appropriate and are within the scope of the State
Bar's proper functions as a state agency, the court below
was entitled to give great weight to this consistent legisla-
tive support of the activities of the State Bar.
The intent of the Legislature in enacting the State Bar
Act is also of great import in determining the seope of the
State Bar's powers.
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“It is well settled that in construing statutes the
court must ascertain the intent of the Legislature so
as to effectuate the purpose of the law. In the course
of this procedure the court must take into account a
variety of factors, such as the context of the legisla-
tion, its objectives, the evils to be remedied, and
publie policy (citations omitted). The cases are not
less emphatic that contemporaneous construction of
the legislation may also be considered.” Natural Re-
sources Defense Council, Inc. v. Arcata Nat. Corp., 59
Cal.App.3d 959, 973 (1976) (citations omitted).
See also Alford v. Pierno, 27 Cal.App.3d 682, 688 (1972).
Administrative construction of a statute and adminis-
trative practice are likewise entitled to great weight in
ascertaining the meaning of the Legislature's actions.
English v. County of Alameda, 70 Cal.App.3d 226, 240
(1977). Thus, the actions of the Legislature, both in
reenacting the State Bar Act, and in approving the Bar's
activities every year in enacting the fees bill, are entitled
to be weighed heavily in the determination of the appro-
priate scope of the State Bar's authority. The State Bar's
annual presentation in conjunction with its fees bill is
explicit evidence of the Legislature's acute awareness of
its activities.
Further, in 1960 and in 1966 the electors of California
enacted Constitutional propositions to establish and
maintain the State Bar as a Constitutional agency. In
both elections the voters approved the State Bar's Consti-
tutional status. The material submitted to the voters in
these elections in support of, and in opposition to, the
ballot propositions was submitted to the court below.
(O.F. 893-903; 905-11.) Those materials, important in
ascertaining the intent of the electorate, constitute power-
ful evidence that the concept of a State Bar, as a body
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with the powers approved by the Legislature, was fully
supported by California voters. See Diamond Int'l Corp. v.
Boas, 92 Cal.App.3d 1015, 1034 (1979).
4. Appellants Have Failed To Show That The Chal-
lenged Activities Are Outside The Scope Of The
State Bar's Authorization
Appellants essentially object to activities in the follow-
ing five areas: (a) lobbying; (b) submitting amicus curnae
briefs; (e) financing meetings of the Conferences of Dele-
gates; (d) publicizing speeches of the President of the
State Bar; and (e) distributing public information on
judicial retention. (Complaint, € 6, O.F. 3-4; A.O.B. at
3-4.)
Significantly, however, appellants have identified no
areas beyond the scope of the legislative and constitu-
tional authorization of the State Bar. In fact, all of the
matters to which they object are within the seope of
authorization for the State Bar.
Appellants seek to, but may not, stop the State Bar
from engaging in activities because appellants apparently
disagree with the positions taken by the Board of Gover-
nors, chosen in a democratic manner to set such policies.
(O.F. 257-58.) Apparently appellants seek to use the
eatch phrase “political and ideological” to deseribe, and
halt, any positions or activities with which they disagree.
Such disagreement does not permit the silencing of the
entire Bar.* See Lehane v. City and County of San Fran-
*Indeed, appellants’ position would prohibit all government from
functioning if the disagreement of a taxpayer with a position taken
could halt an entire program. No government entity, ineluding the
Judicial Council, could lobby; the Attorney-General’s office could not
file amicus briefs. However, as has been demonstrated above, that
result is not permitted by law.
C-17
eisco, 30 Cal.App.3d 1051, 1056 (1972). This doctrine has
been clearly recognized outside of California as well.
“It is true that [a member of the State Bar] is
required to contribute to the cost of the operation of
the State Bar, and he may not agree with all of the
policies as determined by its Board of Governors.
The Board of Governors is selected in a democratic
manner.
It is frequently true in a democratic society that the
wishes of the minority are overruled, even though
they must contribute to the cost of the programs
earried forward by the majority.” Sams v. Olah, 225
Ga. 497, 505 (Ga. Sup. Ct. 1969).
In Sams, the court coneluded that the test for illegal
expenditures is not a broad test of whether the funds are
being spent contrary to the individual's wishes, but rather
whether the funds were spent for the authorized purposes
of the State Bar. 225 Ga. at 507. By this reasoning, the
most appellants could seek to bar would be those activi-
ties demonstrably outside of the activities authorized by
the Constitution and the Legislator. None of the activities
objected to, however, are unauthorized.
a. Lobbying
Appellants have challenged the entire lobbying pro-
gram of the State Bar, without attempting to show that
any of this lobbying is outside the scope of the Bar's
authority. They thus attack no specific aspect of the State
Bar's program of legislative advocacy, but simply the
right of the State Bar to engage in any lobbying activity
at all. Lobbying by publie agencies is clearly permitted
under California law, so long as the lobbying is in areas
within the euthorized jurisdiction of the agency.
the seope of Bus. & Prof. Code § 6031 has the explicit and
implicit approval of the Legislature. It is explicitly ap-
proved on an annual basis by means of the fees bill, as set
forth above. It is implicitly approved by prevailing Cali-
fornia ease law, exemplified by the leading case of Stanson
v. Mott, supra.
Having examined the scope of legislation governing the
state agency under consideration in Stanson, the court
concluded that there had been no specific authorization
for the use of public funds in the election campaigns at
issue in that case. The court distinguished such expendi-
tures from the use of funds for lobbying efforts, and noted
specifically that lobbying efforts were authorized even
though certain of the causes advocated might be those
which some members of the public might not support:
“[T]he legislative process contemplates that inter-
ested parties will attend legislative hearings to ex-
plain the potential benefits or detriments of proposed
legislation, publie agency lobbying, within the limits
authorized by statute...in no way undermines or
distorts the legislative process. By contrast, the use
of the publie treasury to mount an election campaign
which attempts to influence the resolution of issues
which our Constitution leave to the ‘free election’ of
the people does present a serious threat to the
integrity of the electoral process.” 17 Cal.3d at 218.
See also Miller v. Miller, 87 Cal.App.3d 762, 767 (1978).
The Stanson court made clear that even the prohibition
against election campaigning did not preclude the agency
from ineurring any expense in connection with the elee-
tion. The agency was implicitly authorized, the Court
C-19
held, to expend funds to inform potential voters. 17 Cal.
3d at 220-21. Indeed, the court stated that
[It would be contrary to the public interest to bar
vant information to the public, so long as such diselo-
sure is full and impartial and does not amount to
improper campaign activity.” 17 Cal.3d at 221 n.6.
Thus, the court permitted a “fair presentation of facts”
but prohibited, as had earlier courts, exhortations to the
voters to vote in a certain manner. The standard for the
determination of propriety was established as:
“a careful consideration of such factors as the style,
tenor and timing of the publication; no hard and fast
rule governs every case.” 17 Cal.3d at 222.
Within the limits set by the legislature authorization of
the agency, an agency may properly expend funds for
purposes related to the agency's mandate so long as the
power of the government is not brought to bear unfairly
upon the electoral process. The power of agencies to lobby
the Legislature, however, is specifically permitted. See
Crawford v. Imperial Irrigation Dist.. 200 Cal. 318,
(1927); Lehane, supra.
“If a taxpayer can restrain a government entity from
lobbying for legislation to which the taxpayer is
opposed, the power of a government entity to lobby is
a power which can never be exercised, for in practice
some taxpayer will surely hold a contrary view. If the
taxpayer does not agree with the decision of his
elected representatives in this area, as in others, his
recourse is to vote against them.” 30 Cal.App.3d at
1056. See also DeMille v. American Federation of
Radio Artists, 31 Cal.2d 139 (1947) cert. denied 333
U.S. 876 (1948). (majority rule permits imposition of
C-20
an assessment despite disagreement by a member
with the purposes for which the assessment is
levied ).
Appellants obviously do not dispute that they can not
only vote for state legislators, but also vote in State Bar
elections, and participate in State Bar activities. Like all
other members of the State Bar, they may attempt to
affect policy through established mechanisms, but they
may not impose their will upon the majority, or stifle the
speech of the majority.
b. Amicus Curiae Briefs
Appellants’ challenge to the State Bar's program of
submitting e@micus curnee briefs is unsupported by any
showing that the program is outside of the Bar's specific
authorization to advance the science of jurisprudence and
to improve the administration of justice.“ Again, appel-
lants attack no specific aspect of the State Bars amicus
brief program but rather its authority to file amecus briefs
in general. Certainly amicus briefs related to “the science
of jurisprudence” and “the administration of justice” can
be filed in keeping with the functions of the State Bar.
Bus. and Prof. Code § 6031. The presentation of positions
to a Court in a broad variety of cases parallels the
legislative advocacy approved in Stenson; the rationale of
that ease is applicable.
Appellants’ free speech or associational interests are in
no way infringed by the amicus program. Appellants
obviously do not contend that they cannot themselves file
amicus briefs if they disagree with any position advocated
OF 850-51 is « copy of the procedures and guidelimes for the
amicus program
C-21
by the State Bar; as with lobbying, their individual partie-
ipation is in no way prohibited.
e. The Conference of Delegates
The Conference of Delegates is an integral part of the
democratic organization of the State Bar, providing a
forum for the collegial discussion of causes by representa-
tives of the lawyers of California Appellants attack no
specific aspect of activity of the Conference of Delegates,
and they point to no facts showing that the function of the
Conference is outside the scope of authorized activities
under Bus. & Prof. Code § 6031. Appellants have also not
demonstrated that they are unable to have their views
heard and considered by the Conference. Their objection
apparently is that at the Conference a majority view may
prevail, or unpopular views may be expressed; they there-
fore seek to enjoin the free speech of their fellow lawyers.
d. President’s Speeches
Again appellants’ attack is general, as they seek to
enjoin all dissemination by the State Bar of the speeches
of its President. The Bar is charged with undertaking
activities concerning its relations with the public. Giving
the publie access to knowledge of the policies and activi-
ties of the Bar through the speeches of its President,
along with other educational activities, is thus explicitly
within the Bar's mandate and within the scope of activity
permitted by Stanson, supra.
*O.F. 853-91 is a copy of the Conference of Delegates Handbook
for 1982. This exhibit deseribes the Conference of Delegates program.
C-22
e. Publie Information on Judicial Independence
Materials describing the publie information project on
judicial independence were submitted to the court below.
O. F. 743-833. These documents demonstrate clearly that
as to style, tenor, and timing, this ongoing project consti-
tutes an effort by an informed agency to educate the
public, fully, fairly, and impartially as to matters within
its expertise. Under Stanson v. Mott and the other relevant
authority, such a program is not only permissible, but is
appropriate and socially desirable. Indeed, in light of its
legislative mandate, such a program may, in fact, be an
obligation of the State Bar. While it is true that an
information program designed to inform the public of the
fundamental characteristics of the judicial function and
of the historical foundation of an independent judiciary
may be said to promote an ideology, this is an ideology
intimately connected with the science of jurisprudence
and the administration of justice.
Once again, however, appellants seek to enjoin an entire
program without alleging or putting forth any evidence
that the materials assembled for that project are anything
other than a fair presentation of facts and of such style
and tenor that they constitute a proper attempt to inform
the voters about issues concerning which the Bar has
special knowledge and unique responsibilities. Rather,
appellants merely assert that the project is political or
ideological and thus improper. That bare assertion is
ineorrect.
B. The Challenged Activities Are Constitutional
Two recent decisions of the United States Supreme
Court further clarify the right of a governmental entity to
engage in speech activities, even though such activities
are financed by taxes. The government may, in certain
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instanees, use tax dollars to subsidize issue-oriented
speech regardless of whether there is any compelling
governmental interest to support this decision. Only a
rational relationship to legitimate governmental purposes
is required. Regan v. Taxation With Representation of
Washington,. — U.S. —_, 76 L.Ed.2d 129, 138-40
(1983). The same test is mandated by the applicable
California authority cited above, and governs this case.
In addition the Supreme Court affirmed without opin-
ion the decision of a three-judge District Court in Com-
mon Cause v. Bolger, U.S. — 77 L.Ed.2d 280
(1983).* In that ease, the Court held that incumbent
legislators may use the franking privilege without violat-
ing the constitutional rights of voters and nonineumbents
despite the greater impact thus given to the ineumbent's
speech. The Court declined to apply a strict serutiny
analysis, because any restriction on First Amendment
rights was indirect and, because it applied to all non-
incumbents, was not content-related. The same is true
here; any restriction is indirect and applies to all who
disagree with the majority position on a broad spectrum
of issues, not to any particular position.
The State Bar speaks as a government agency and must
be governed by this law in all respects. Although plaintiffs
allege that the State Bar purports to represent the views
of its individual members, that claim is demonstrably
without basis in fact and is merely an unsupportable
conclusion. The State Bar speaks as a constitutional and
statutory body. See O.F. 1139-40, 1141-42, 1612-13.
*Such a summary affirmance is a resolution on the merits and
constitutes precedential authority. See 12 Moore's Federal Practise
* 400.05-1 (2d ed. 1982).
C-24
The important governmental interest in the free flow of
information validates each of the State Bar's activities
complained of. Regan and Bolger, which are in complete
accord with the ruling of the California Supreme Court in
Stanson, supra, of this Court in Miller, supra, and the
other authority cited, required the Court below to decide
this case in favor of the State Bar; that decision should
therefore be affirmed.
C. The Cases On Which Appellants Rely Do Not Af-
feet The Controlling Case Law
Appellants seek by this action to enforce a “negative”
First Amendment right — to prevent the speech of others
with whom they disagree, and not to protect against any
abridgement of their own speech. As we have demon-
strated, this attempt is unsupported by the applicable
law. The eases on which appellants rely are clearly distin-
guishable. These cases deal either with state-compelled
financing by individuals of private organizations where
the obligation to finance is limited to activities germane to
the governmental interest justifying compulsion (A.O.B.
at 5-8, 9-13) or positive“ First Amendment rights in-
fringed by prevention of a person’s own right to speak
and associate. (A.O.B. at 8-9.)
1. Abood v. Detroit Board of Education
Appellants rely primarily on Abood v. Detroit Board of
Education, 431 U.S. 209 (1977). However, Abood deals
with compelled exactions paid by nonmembers to a pri-
vate organization, in that case a labor union, and holds
only that those exactions cannot be compelled for a
purpose unrelated to the purpose for which organization
was formed, or to discourage free-riding and the conse-
quent labor strife. Ellis v. Brotherood of Railway, Airline
& Steamship Clerks, U.S. — 80 L.Ed.2d 428
C-25
(1984), which refined Abood, however, imposes severe
restrictions upon those nonmembers who seek to negate
the First Amendment rights of members.
Abood held, in pertinent part, that non-members of a
labor union could not be constitutionally compelled to
contribute to ideological causes they opposed. The Court
held, however, that plaintiffs were not entitled to an
injunction because of its effect upon the First Amend-
ment rights of union members. 431 U.S. at 238. Instead,
the Court limited plaintiffs to a mechanism that would
limit fees, excluding the portion of the fees used for
purposes other than those for which the union was
formed. Except as it imposes such constitutionally man-
dated restrictions upon the injunctive remedy, Abood is
otherwise inapplicable to the case at bar.
The difference in the nature of the payment to the
private organization in Abood and the tax paid as fees to
the governmental entity by California lawyers distin-
guishes the case at bar from that portion of Abood which
provides for a limitation on dues. Plaintiffs in Abood were
government employees who were not members of a union
which had negotiated a collective bargaining agreement
with the Board of Education. The agreement provided for
an “agency shop,” in which those employees who elected
not to become members of the union were nevertheless
obligated to pay the equivalent of union dues to it. This
payment was designed to prevent unjust enrichment to
the nonunion employee who otherwise would receive the
benefit of union representation for which the union mem-
bers had paid. 431 U.S. at 222.
The result in Abood is a direct result of an inherent
limitation in the principle which allows governmental
compulsion of payments to the private union in the first
instance. The allowance of an agency shop as a condition
C-26
to government employment can only be justified by the
special needs and benefits to be gained from that arrange-
ment in a labor context Thus, the First Amendment
violation in Abood was the direct product of the use of non
members’ fees for purposes beyond the scope of the
benefits that justified the agency shop.
The State Bar of California is not comparable to a labor
union. The obligation of lawyers, each of whom is a
member, to pay to finance the functions of the State Bar
is imposed by constitution and statute, not contract. State
Bar fees are in reality a special tax imposed upon those
permitted to practice law in this State. Unlike the union
in Abood, the State Bar has the power to exact fees from
all active California lawyers, derived from the State's
power to tax. The pertinent scope of authority to expend
this tax is that applicable to publie entities and not that
applying to private organizations acting by agreement
with government.
2. Ellis v. Brotherhood
Abood was refined by the Supreme Court in its decision
in Ellis v. Brotherood of Railway, Airline & Steamship
Clerks, U.S. 80 L.Ed.2d 428 (1984). That case,
involving governmentally compelled dues pursuant to the
Railway Labor Act, determined that only certain ex-
penses, necessarily and reasonably incurred for the pur-
poses of the duties of the union as exclusive bargaining
representative, were statutorily permitted. 80 L.Ed.2d at
442. As to such activities, the Court found that the First
Amendment posed no barrier to the use of compelled
funds, as any interference with protected rights was
justified by the governmental interest in industrial peace.
80 L.Ed.2d at 446-47. In making this determination, the
Court cautioned that flexibility in the use of compelled
C-27
funds must be maintained. 80 L.Ed.2d. at 447. citing
Abood.
Both Abood and Ellis hold only that the state action
compelling payments used by a private organization to
subsidize speech must be supported by some governmen-
tal interest which justifies the compulsion. Neither case
requires that that interest be compelling, and neither
requires that more narrowly drawn restrictions on the
objectors’ rights be substituted. In each case, the govern-
mental interest was narrow — the preservation of labor
As Regan and Bolger demonstrate, however, where
taxes are involved the governmental interest is broad. As
long as an individual's freedom to speak is not restricted,
the power to spend is vested in the legislative branch, and
not the courts.
3. Arrow v. Dow
Appellants’ reliance upon Arrow v. Dow, 544 F. Supp.
458 (D.N.M. 1982) is badly misplaced. In that case. a
federal district court in New Mexico held that the inte-
grated bar of New Mexico could not engage in certain
specified lobbying activities if those activities were fi-
naneed with mandatory dues collected by the New Mexico
Bar Association. We submit that the decision of this
Court in Miller, supra, rather than that of a single federal
trial judge in Arrow is the persuasive authority. A deci-
sion of the district court of New Mexico is not binding on
this honorable Court. To the extent that it is inconsistent
with decisions of the California Supreme Court and
Courts of Appeal, the case must simply be disregarded.
Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450
(1962). The facts of Arrow are obviously different from
C-28
the facts here, and the case was wrongly decided in any
event.
Arrow does not concern the State Bar of California,
which is established by the state Constitution and statute;
Arrow concerns the integrated bar of New Mexico, a
ereature of a rule of court. Nothing in Arrow even sug-
ation of New Mexico is charged with the broad seope of
publie duty imposed upon the California State Bar by the
Constitution and statutes of this State. The Arrow court
held that the New Mexico Bar Association could not
assert as authority for its lobbying activity a general duty
of lawyers to evaluate and give advice to the publie on
issues related to the administration of justice or improve-
ment of the legal system. The California State Bar,
however, relies for its authority not upon some general
duty, but upon the Constitution of this State and the
powers expressly and implicitly granted by the Legisla-
ture. The analysis of the New Mexico bar is accordingly
irrelevant to California.
Moreover. Arrow was simply decided incorreetly. Al-
though it purports to follow Abood, Arrow ignores the
Supreme Court's explicit proseription against injunetive
relief whieh, by restraining organization speech, would
impinge upon the First Amendment rights of the majority
in the organization. Any validity given to Arrow is sert.
ously in question following the decision of the Supreme
Court in Ellis, further restricting the negation of First
Amendment rights of members that Arrow approved.
The broad reading adopted by the Arrow court has also
been rejected by the Florida Supreme Court. In The
Florida Bar Re: Amendment to Integration Rule, No.
61.424, decided September 22, 1983, that Court held that
politieal aetivity by its bar, established by rule of Court,
C-29
was within the defined purpose of the bar “to improve the
administration of justice, and to advance the science
jurisprudence.” Opinion at 2.“ The Court, in determining
broadly at purpose, as the Arrow court failed to do.
4. Even If Abood Were Held To Apply, The Requested
Relief Would Not Be Available
Even if the principles that Abood stated for private
organizations were held to apply to the governmental
entity involved here the relief sought would not be per-
missible. If Abood applied here, no publie entity in Cali-
fornia could act in the future. Any citizen paying taxes to
support any entity could avoid payment of his taxes any
time such agency presented a position with which he
disagreed. Such a result would be crippling:
“Majority rule necessarily prevails in all constitu-
tional government including our federal, state,
county and municipal bodies, else payment of a tax
levied for a duly authorized and proper objective
could be avoided by the mere assertion of beliefs and
sentiments opposed to the accomplishment thereof.
In a government based on democratic principles, the
benefit as perceived by the majority prevails. And the
individual citizen would raise but a faint ery of
invasion of his constitutional rights should he seek to
avoid his obligation because of a difference in per-
sonal views.” DeMille v. American Fed. of Radio
Artists, 31 Cal. 2d 139, 150 (1947), cert. denied, 333
U.S. 876 (1948).
A copy of this opinion is attached hereto as Appendix A for the
convemence of the Court.
C-30
a. The Decision In Abood Does Not Permit An Injune-
tion Against The State Bar
Appellants ignore two vital aspects of Abood. First,
Abood’s prohibition of compulsory contribution was lim-
ited to expenditures which were both not germane to the
union's duties as a collective bargaining representative
and promoted political or ideological causes. Even as to
those areas, however, the Court did
Not hold that a union cannot constitutionally
spend funds for the expression of political views, on
behalf of political candidates, or toward the advance-
ment of other ideological causes not germane to
its duties as collective-bargaining representative.
Rather, the Constitution requires only that such
expenditures be financed from charges, dues, or as-
sessments paid by employees who do not object to
advancing those ideas and who are not coerced into
doing so against their will by the threat of the loss of
governmental employment.” 431 U.S. at 235-36.
Thus, denial of the broad injunctive relief sought was
upheld. 431 U.S. at 241.
D. Abood Limits Relief to Activities Whieh Are Not
Germane To the Propose For Which The Organiza-
tion Is Formed
In addition, appellants have made no attempt to
demonstrate that the challenged activities are not ger-
mane to the purposes for which the State Bar was formed,
as those purposes are defined by the California Constitu-
tion and the relevant sections of the Business and Profes-
sions Code. Instead, appellants rely on Arrow, which
declares that any activity outside of the very narrow
range of admissions, discipline, and regulation is not
germane. This approach, however, fails utterly to meet the
C-31
burden placed upon plaintiffs by both Abood itself and the
interpretation of that ruling in Ellis. That the Arrow
court elected not to address this issue does not excuse
appellants from this burden.
Appellants assert that Lathrop v. Donohue, 367 U.S. 820
(1961) supports their belief that “the elevation of educa-
tional and ethical standards” are the sole permissible
activities of a unified Bar. (A. O. B. at 13.) However, an
analysis of Lathrop shows that the reference made by the
Court was to “improving the quality of the legal service
available” and to “raising the quality of professional
services. 367 U.S. at 843. In concluding that this defined
interest was met by the activities of the Wisconsin bar,
the Court reviewed those activities extensively, citing the
purposes as stated in the bylaws:
“to aid the courts in carrying on and improving the
administration of justice; to foster and maintain on
the part of those engaged in the practice of law high
ideals of integrity, learning, competence and public
service and high standards of conduct; to safeguard
the proper professionai interests of the members of
the bar; to encourage the formation and activities of
local bar associations; to provide a forum for the
discussion of subjects pertaining to the practice of
law, the science of jurisprudence and law reform, and
the relations of the bar to the public, and to publish
information relating thereto; to the end that the
publie responsibilities of the legal profession may be
more effectively discharged.” 367 U.S. at 828-29.
The Court's review of the activities and policies of the
Wisconsin Bar shows programs very similar in scope and
content to the activities complained of here, including
lobbying and the establishment and support of sections
and committees. 367 U.S. 829, u. 7, 834-842. Thus, Lathrop
C-32
provides no support for appellants’ attempt to impose
their own beliefs on the majority of the State Bar.
5. Compelled Membership And Payment Of Dues Do
Not Infringe Rights of Association
The claim that compelled membership in and payment
of dues to an integrated state bar infringes rights of
association has already been considered and rejected by
the United States Supreme Court in Lathrop v. Donohue.
supra. No new authority calls into question the holding of
Lathrop and in fact a recent Supreme Court case address-
ing rights of association supports the trial court's finding
in this case that the State Bar has not infringed appel-
lants rights. See Roberts v. United States Jaycees, 52
U.S.L.W. 5076 (1984).
a. Lathrop v. Donohue
Appellants attempt to underplay the significance of the
precedent of Lathrop by focusing their discussion of the
ease on the Court's failure to reach a decision on the free
speech issues raised in this case. The Court, however, did
decide that associational rights were not infringed by
association with and payment of dues to an integrated
state bar, the activities of which were very similar to those
of the California State Bar.
In upholding the constitutionality of the integrated bar
of the State of Wisconsin, a four-justice plurality of the
Supreme Court specifically held that the only compulsion
involved was the compelled financial support represented
by the payment of dues, not any other membership activ-
ity. The membership requirement was held to infringe no
associational rights. 367 U.S. at 828, 842. In their concur-
ring opinion, Justices Harlan and Frankfurter reached
the same conclusion. 367 U.S. at 850-51.
C-33
Members of the State Bar in California are compelled
only to pay their membership fees. Like the lawyers in
Lathrop, they are not compelled to attend meetings, to
voice affirmation for any position taken by the State Bar.
to refrain from speaking in opposition to positions taken
by the State Bar, or even to vote on issues on which they
are entitled to vote as members of the State Bar. 367 U.S.
at 828. Appellants do not conter.d otherwise. Thus, on the
associational issue, Lathrop is the persuasive authority.
In emphasizing the multifaceted aspect of the Bar's
endeavors, the plurality opinion coneluded that:
“Given the character of the integrated bar shown on
this reeord, in the light of the limitation of the
membership requirement to the compulsory payment
of reasonable annual dues, we are unable to find any
impingement upon protected mghts of association.”
367 U.S. at 843.
Although the Court in Abeood noted that it did not
believe that the majority in Lethrop had agreed on any
proposition other than that the constitutional issue
should be reached, 431 U.S. at 233, u. 29, that statement
must be read in the context of the narrow issues
presented in Abood. The question that was not decided by
the Court in Lathrop concerns infringement of rights of
speech.
That question was determined in California in De Mille,
supra, wi ch rejected plaintiff's contention that the fee
requirement was unconstitutional because it represented
compulsory expression. The contribution was not an indi-
vidual expression of the views of the plaintiff, the Court
held, nor was the use of the fund a use of his money to
express his views:
C-34
union represents the common or group interests of
its members, as distinguished from their personal or
private interest. “Structurally and functionally, a
labor union is an institution which involves more
than the private or personal interests of its members.
It represents organized, institutional activity as con-
trasted with wholly individual activity. This differ-
ence is as well defined as that existing between
individual members of the union.’ 1 Cal. 2d at 149
(citations omitted).
The Court also observed that, in an organization,
[mere disagreement with the majority does not
absolve the dissenting minority from compliance with
action of the association taken through authorized
union methods. And compliance — here payment by
the plaintiff of the assessment — would not stamp
his act as a personal endorsement of the declared
view of the majority.* Id. at 150.
Thus, Lethrop is authoritative and consistent with
DeMille. If, however, the Abeod footnote were read
broadly to limit the decision in Lathrop, the opinions
expressed by a majority of the members of the Lathrop
court are fully consistent with controlling (California
authority
b. Roberts v. United States Jaycets
In Roberts . United States Jaycees, 52 S. LW. 5076
(1984), the Supreme Court held that application of the
* Indeed, the Court drew an analogy te « bar association, which
wses its funds to support ails which the majomty consider worthy of
support, but ub which courts will net interfere merely because some
members disagree with that pesitien. 3) (al Dd at 150
——
C-35
Minnesota Human Rights Act to require the national
organization of Jaycees to admit women as voting mem-
bers to local Minnesota chapters did not abridge male
members’ freedom of association. 52 U.S.L.W. at 5081. In
reaching that result, the Court defined the two aspects of
protected associational rights: intimate human relation-
ships; and association for expressive purposes relating to
activities protected by the First Amendment such as
speech, assembly, petition for redress of grievances, and
the exercise of religion. Outside of those two narrow
eategories which are entitled to broad protection, the
amount of protection depends on a balance of interests to
determine the nature of the right at issue. 52 U.S.L.W. at
5078.
The Court found that the degree of protection afforded
“may vary depending on the extent of which one or the
other aspect of the constitutionally protected liberty is at
stake in a given case.” Id. Thus, determination of the
nature of the right involved is a fundamental step in
determining the amount of protection afforded the right:
“Determining the limits of state authority over an
individual’s freedom to enter into a particular associ-
ation therefore unavoidably entails a careful assess-
ment of where that relationship's objective
characteristics locate it on a spectrum from the most
intimate to the most attenuated of personal attach-
ments.... We need not mark the potentially signifi-
cant points on this terrain with any precision. We
note only that factors that may be relevant include
size, purpose, policies, selectivity, congeniality and
other characteristics that in a particular ease may be
pertinent.” 52 U.S.L.W. at 5079 (citations omitted).
Intimate associational rights protect individuals’ free-
dom of choice regarding matters such as family, marriage,
C-36
and schooling. The matters involved in such association
frequently fall within the zone of privacy recognized to be
constitutionally protected. Such association usually in-
volves small numbers of individuals who are closely re-
lated and such association is usually based upon highly
personal choices. See Roberts, 52 US.L.W. at 5078-5079.
Expressive associational rights, as defined by the
Court, involve the protection of “collective effort on be-
half of shared goals as a corollary of an individual's
freedom to speak, worship, and petition the government.
52 U.S.L.W. at 5079. The Court set forth three ways in
which governmental action might infringe on that free-
dom: by withholding benefits because of membership in a
disfavored group; by requiring disclosure of membership
in a group; or by interfering with the internal organiza-
tion of a group. It was the last of these that was involved
in Roberts; the Court found that constitutional protection
may extend to choices not to associate, where a group
seeks to exclude those whose interests are inimical to the
purposes for which the group was formed. 52 U.S.L.W. at
5080. Infringement of such constitutionally protected as-
sociational rights is permissible only when justified by a
compelling state interest. Id.
The issue of infringement does not arise, however, until
the determination is made that the claimed rights are in
fact constitutinally protected. Appellants ignore the fact
that not all interpersonal dealings warrant constitutional
protection, 52 U.S.L.W. at 5079, and claim infringement
of their associational rights without performing the re-
quired analysis. Application of that analysis in this case
shows that the nature of the rights affected and the
amount of impact on these rights do not warrant constitu-
tional protection. Neither intimate associational rights
nor expressive associational rights are affected by Califor-
C-37
nia’s requirement that attorneys practicing in California
belong to and pay dues to the State Bar.
Association with the State Bar has none of the charac-
teristics marking association of an intimate nature. This
Court reed only consider the type of relationships af-
forded such constitutional protection and the values un-
derlying such protection to find the associational aspects
of membership in the State Bar does not involve such
personal and emotional bonds. Like the Jaycees organiza-
tion, the California State Bar is large and ineludes mem-
bers from varied backgrounds representing a variety of
interests. As in the Jaycees case, “much of the activity
central to the formation and maintenance of the associa-
tion involves the participation of strangers to that rela-
tionship.” 52 U.S.L.W. at 5079. Compelling association
with the State Bar does not enter into the realm of highly
personal relationships. Attorneys need only become mem-
bers and pay their fees. No further association or activity
is required.
Similarly, the claimed right of the individual appellants
not to associate with the State Bar does not implicate any
of the expressive rights defined by the Court. Although
appellants remain free to speak and act in support of
their own beliefs, they wish to silence the group and
interfere with the purpose for which it was formed, a
purpose supported by a governmental interest in inelu-
sion, not exclusion. Their claimed right not to associate
finds no support in Roberts.
D. The Individual Members Of The Board Of Gover-
nors Cannot Be Held Liable
Appellants sought restitution of the sums spent for
allegedly inappropriate activities from the individual
members of the Board of Governors. However, appellants
C-38
have never alleged or placed on the record any evidence
that those members acted in bad faith, or in any way
outside of the scope of their duties as members of the
Board of Governors. Under these circumstances, there is
no authority for any such restitutionary order.
In fact, California state law is to the contrary. Stanson
v. Mott, 17 Cal. 3d 206 (1976), specifically overruled an
earlier decision of the California Supreme Court estab-
lishing strict liability for publie officials authorizing the
improper expenditure of public funds. 17 Cal. 3d at 233,
overruling Mines v. Delvalle, 201 Cal. 273 (1972). The
Stanson court adopted instead the requirement that pub-
lie officials use
due care, i.e., reasonable diligence, in authorizing
the expenditure of public funds, and may be subject
to personal liability for improper expenditures made
in the absence of such due care.” 17 Cal. 3d at 226-27.
Various factors were set forth by the Court in determin-
ing whether a public official acted with the requisite due
care. They were:
I. whether the expenditure’s impropriety was
obvious;
2. whether the official knew of the possible inva-
lidity of the expenditure;
3. whether the official relied on legal advice or on
the presumed validity of an existing legislative enact-
ment or judicial decision. 17 Cal. 3d at 227.
There is no evidence on the record showing liability
under these standards. Appellants submit now, however,
that they should be permitted to amend their complaint
(A. O. B. at 19-20). That permission was never sought
below, nor was any evidence brought forward to show that
J
C-39
they could so amend, or that material issues of fact
existed. Estate of Supple, 247 Cal. App. 2d 410 (1966)
cited by appellants, denied the very relief appellants seek,
where, as here, no allegation of bad faith was made and
where, as here, no evidence was in the record to support
the allegations.
Further, although the plaintiff in Stanson v. Mott was
permitted to amend his complaint, this permission was
granted because, under the existing rule prior to Stanson,
the Stanson allegations had not been required. However,
such is not the case here. The Stanson standard has been
the law since 1976, and appellants were bound by it in
drafting their complaint, and now.
Further, even accepting all of the allegations of the
complaint as true, there are and can be no allegations
which indicate that any expenditures were obviously im-
proper, that any member of the State Bar Board of
Governors knew of any potential invalidity, or that the
State Bar Board of Governors did not rely on the pre-
sumption of validity given by the legislative approval of
its activities. Such allegations could not be made, in light
of the Legislature's actions, and the long-standing rule of
law governing public agencies in California.
There is, simply, no basis for the attempt to obtain
restitution from the individual members of the Board of
Governors. Thus, in any event, the summary judgment in
favor of the individual defendants was properly granted,
dismissing them from the lawsuit with prejudice.
C-40
V. CONCLUSION
For the reasons set forth above, respondents respect-
fully submit that the decision of the trial court should be
affirmed in all respects.
DATED: October 2, 1984
Respectfully submitted,
HERBERT M. RoseNTHAL
Truitt A. Ricney, Jr.
MAGDALENE V. O'Rourke
and
HvUPSTEDLER, MILLER, CARLSON &
BEARDSLEY
Rosert S. THomMpson
LauRIE D. ZSLON
Mary E. Heaty
By
LAURIE D. Zr
Attorneys for Respondents
APPENDIX D
APPENDIX D
S.F. 25050
In the Supreme Court
OF THE
State of California
EDDIE KELLER, et al.,
Plaintiffs/Appellants /
Cross-Appellees,
V.
STATE BAR OF CALIFORNIA, ETC., et ul.,
Defendants /Respondents/Appellees.
OPENING BRIEF ON THE MERITS
OF DEFENDANTS/RESPONDENTS/ APPELLEES
N HERBERT M. ROSENTHAL HUFSTEDLER, MILLER, CARLSON
Truitt A. Rienkv. JR. & BEARDSLEY
MAGADALENE V. O’RourKE RoBERT S. THOMPSON
555 Franklin Street LAURIE D. ZELON
San Francisco, CA 94102 Mary E. HEALY
(415) 561-8200 JupITH R. STARR
700 South Flower Street
Suite 1600
Los Angeles, CA 90017
(213) 629-4200
Attorneys for Defendants
Respondents /Appellees
I.
II.
III.
IV.
D-i
TABLE OF CONTENTS
A. The State Bar Has Been Consistently
Treated As Government...............
B. The Court of Appeal Erred In Holding
The State Bar Is Not Government .....
1. Government May Exercise
Diseretionary Powers..............
Government May Be Funded By A
D h · sce
3. Membership Is Not An Issue
4. The State Bar Must Be Treated As
e ˙ i ....
CALIFORNIA LAW SETS GUIDELINES
FOR GOVERNMENT SPEECH THAT
PROTECT FIRST AMENDMENT RIGHTS
A. Stanson Strikes The Balan eee
B. Miller Provides Additional Guidelines
C. Miller and Stanson Apply To This Case
CALIFORNIA LAW COMPLIES WITH
FEDERAL CONSTITUTIONAL RE-
Ee sececeseccéscccecescecses
A. Federal Law Permits Government
nn
B. Required Association With The State
Bar Does Not Violate Plaintiffs’ Free-
D eee
C. Speech Activity By The State Bar Does
Not Implieate The Individual ..........
D-ii
TABLE OF CONTENTS
V. THE STANDARDS GOVERNING PRI-
VI.
VATE LABOR ORGANIZATIONS
SHOULD NOT BE APPLIED TO THE
„. %%
A. The Labor Union Cases Are Not Appli-
. „ %ĩ0“ é
B. The Court of Appeal Improperly
Adopted “Political and Ideological” As
A Standard for Evaluating Speech Of
Tae Geate DSP occ (
C. Decisions In Other Jurisdictions Deal-
ing With Unified Bars Do Not Deal
With The Issue Central To This Case...
D. The Court Incorrectly Interpreted The
U.. ...
E. The Court of Appeal's Unwarranted Ex-
pansion Of The Abood Test Confliets
With First Amendment Rights
1. Abood Protects Free Speech........
2. The Expanded Court of Appeal Test
.....
3. Unrestrained Personal Liability Will
Inhibit Protected Speech...........
4. The Court of Appeal’s Test Is Based
On Prohibited Content — Based Dis-
. ö....
THE TRIAL COURT PROPERLY
GRANTED SUMMARY JUDGMENT IN
FAVOR OF THE INDIVIDUAL DEFEND-
BITES »KWZ. ... „%
Page(s)
25
25
27
VII.
D-iii
TABLE OF CONTENTS
Page(s)
The Judgment In Favor Of The Individ-
ual Defendants Was Required By Law.. 38
The Court of Appeal Decision
Improperly Requires the State Bar To
Justify Each Of Its Activities In
Response To A Categorical Challenge .. 40
The Undisputed Facts Establish Defend-
ants’ Right To Prevail As A Matter Of
D-iv
TABLE OF AUTHORITIES
Cases
Page(s)
Abood v. Detroit Board of Education, 431 U.S. 209,
52 L. Ed. 2d 261, 97 S. Ct. 1782 (1977) ........
„e auseseees D-30, 31, 33, 34, 36, 38, 43
Anderson v. Liberty Lobby, Inc., 54 U.S. L. W. 4755
(June 25, 19860)))))0:m: cece cece eee ecees D-41
Angelus Chevrolet v. State, 115 Cal. App. 3d 995,
171 Cal. Rptr. 801 (1981) ........- eee eee eee D-41
Arrow v. Dow, 544 F. Supp. 458 (D.N.M. 1982) ... D- 30
Baggett v. Bullitt, 377 U.S. 360, 12 L. Ed. 2d 377,
84 S. Ct. 1816 (1964) ...... . D-33
Bettencourt v. Industrial Accident Comm., 175 Cal.
559, 166 P. 323 (191177777 777 D-5
Brady v. State Bar of California, 533 F.2d 502 (9th
GG ˙ ˙¹1 mw ᷑ ꝛ ͤ D-7
Chicago Teachers Union, etc. v. Hudson, U.S.
— 89 L. Ed. 2d 232, 106 S. Ct. 1066 (1986) .. D-31
Chronicle Publishing Co. v. Superior Court, 54 Cal.
2d 548, 7 Cal. Rptr. 109, 354 P. 2d 637 (1960) .. D-6
Common Cause v. Bolger, 574 F. Supp. 672 (1982),
aff d. 461 U.S. 911, 77 L. Ed. 2d 280, 103 S. Ct.
ee D-21
Crawford v. Imperial Irrigation Dist., 200 Cal. 318,
Ie D-15
Daugherty v. Riley, 1 Cal. 2d. 298, 34 P. 2d 1005
„bbb d d e D-10
Ellis v. Brotherhood of Railway, Airline & Steam-
ship Clerks, 466 U.S. 435, 80 L. Ed. 2d 428, 104
SB. Ce. BGR eh) D-31, 33, 34
—— — — — oe
D-v
TABLE OF AUTHORITIES
CASES
Engel v. McCloskey, 92 Cal. App. 3d 870, 155 Cal.
D, ̃ĩ V ˙—» 55 D-12
Environmental Planning and Information Council,
etc. v. Superior Court, 36 Cal. 3d 188, 203 Cal.
Rptr. 127, 680 P. 2d 1086 (1984) .............. D-42
Erzinger v. Regents of the Univ. of Calif., 137 Cal.
App. 3d 389, 187 Cal. Rptr. 164 (1982), cert.
den. 462 U.S. 1133, 77 L. Ed. 2d 1368, 103 S. Ct.
, »A D-10, 18, 19
Falk v. State Bar, 411 Mich. 63, 305 N.W. 2d 201
% ²˙ AA ⁰¹ 0 recent D 29
FCC v. League of Women Voters of California, 468
U.S. 364, 82 L. Ed. 2d 278, 104 S. Ct. 3106
„ D-20, 21, 23, 25
First Nat’l. Bank of Boston v. Bellotti, 435 U.S. 765,
55 L. Ed. 2d 707, 98 S. Ct. 1407 (1978) ............
PP oe eT Pe eT ee ery Te D-31, 32, 36, 37
Gibson v. the Florida Bar, F. 2d — (11th
Cir., September 15, 1966)... 2... ccc ccc sccccces D-30
Good Government Group of Seal Beach, Inc. v.
Superior Court, 22 Cal. 3d 672, 150 Cal. Rptr.
258 (1978), cert. den. 441 U.S. 961, 60 L. Ed. 2d
1066, 99 S. Ct. 2406 (1979099-ĩũãrrr 000008, D-42
Gooding v. Wilson, 405 U.S. 518, 31 L. Ed. 2d 408,
L D-35
Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85
r Gekunecsencebeoeweseus D-37
D-vi
TABLE OF AUTHORITIES
CASES
Page(s)
Herron v. State Bar of California, 212 Cal. 196, 298
Re D-8
Hishon v. King & Spalding, Inc., 467 U.S. 69, 81 L.
Ed. 59, 104 S. Ct. 2229 (198hh39łt: D-24
Kolender v. Lawson, 461 U.S. 352, 75 L. Ed. 2d
903, 103 S. Ct. 1855 (198g3⸗2:iõꝶ ne D-34, 35
Lathrop v. Donohue, 367 U.S. 820, 6 L. Ed. 2d
1191, 81 S. Ct. 1826 (1961) .......... D-8, 21, 22, 30
Lehane v. City and County of San Francisco, 30
Cal. App. 3d 1051, 106 Cal. Rptr. 918 (1972),
app. dismissed 410 U.S. 982, 35 L. Ed. 2d 698,
OG Se, BE · ˙¹i. 1 D-15; 17
Metromedia, Inc. v. San Diego, 453 U.S. 490, 69 L.
Ed. 2d 8, 85 S. Ct. 1136 (1965)............ D-37, 38
Miller v. California Commission on Status of Wo-
men, 151 Cal. App. 3d 693, 198 Cal. Rptr. 877,
app. dismissed U.S.. 83 L. Ed. 2d 15,
105 S. Ct. 64 (1984) D-9, 10, 12, 16, 17, 18, 19, 20, 25
Muskopf v. Corning Hospital Dist., 55 Cal. 2d 211,
11 Cal. Rptr. 89, 359 P. 2d 457 (1961) ......... D-10
NAACP v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83
it. = YF) „„ „„ „„ D-36
NLRB v. General Motors Corp., 373 U.S. 734, 10 L.
Ed. 2d 670, 83 S. Ct. 1453 (1963) ............. D-26
New York Times v. Sullivan, 376 U.S. 254, 11 L.
Ed. 2d 686, 84 S. Ct. 710 (1964) .............. D-33
Pacific Gas & Electric Co. v. Public Utilities Comm.
of Calif., _— U.S. , 89 L. Ed. 2d 1, 106 8.
oi fF: „„ „„ D-21, 24, 25, 34
— —— — —
D- vii
TABLE OF AUTHORITIES
CASES
Page(s)
In Re Peterson, 208 Cal. 42 (1929) ............... D-7
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 33
L. Ed. 2d 212, 92 S. Ct. 2286 (1972)........... D-33
Railway Employees Dept. v. Hanson, 351 U.S. 225,
100 L. Ed. 112; 76 S. Ct. 714 (1961) ....... D-21, 22
Regan v. Taxation With Representation of Washing-
ton, 461 U.S. 540, 76 L. Ed. 2d 129, 103 S. Ct.
D ˙ àz; bene en eas D-20, 21, 35
Roberts v. United States Jaycees, 468 U.S. 609, 82 L.
Ed. 2d 462, 104 S. Ct. 3244 (1984) ............ D-23
Rhyne v. Municipal Court, 113 Cal. App. 3d 807,
170 Cal. Rptr. 312 (198hhh:;::: D-5
Savelli v. Board of Medical Examiners, 229 Cal.
App. 2d 124, 40 Cal. Rptr. 171 (1983), cert. den.
380 U.S. 934, 13 L. Ed. 2d 821, 85 S. Ct. 940
ASR ae A Rae pte ... D-10
Schneider v. Colegio de Abogados de Puerto Rico,
565 F. Supp. 963 (1983), rev'd and remanded,
sub. nom. Romany v. Colegio de Abogados de
Puerto Rica, 742 F. 2d 32 (Ist Cir. 1984) ....... D-30
Scott v. Dixon, 720 F. 2d 1542 (11th Cir. 1983),
cert. den. U.S. ___, 83 L. Ed. 2d 64, 105 8.
, ee ee edad D-39
Service Employees’ Int l. Union v. Roseville Comm.
Hospital, 24 Cal. App. 3d 400, 101 Cal. Rptr. 69
%%% ct bade eeesesunenenena D-5
D-viii
TABLE OF AUTHORITIES
CASES
Page(s)
Sipple v. Chronicle Pub. Co., 154 Cal. App. 3d 1040,
201 Cal. Rptr. 665 (198hꝓ¹))⸗17õ1ů . eee D-42
Stanson v. Mott, 17 Cal. 3d 206, 130 Cal. Rptr. 697,
II Passim
State Bar of Calif. v. Superior Court, 207 Cal. 323,
Fe Ff) | a PrrrrrrrT TTT rrr D-8
Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748, 48
L. Ed. 2d 346, 96 S. Ct. 1817 (1976)........... D-33
West Virginia State Board of Education v. Barnette,
319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178
„„ D-23, 24
Wooley v. Maynard, 430 U.S. 705, 51 L. Ed. 2d 752,
Saane) D-23, 24
Voung Americans for Freedom v. Gorton, 91 Wash.
2d 204, 588 P. 2d 195 (Wash. 19789) D-15
Constitution
California Constitution, Article VI, §9 ........ D-5, 10
Statutes
United States Code
GB UEC 6 IGG ö ö D-39
Business & Professions Code
§ 6000, et seg. (State Bar Act)) D-5
eo ö o N D-14
„„ D-6
- —— Le —
D- ix
TABLE OF AUTHORITIES
STATUTES
Page(s)
r ·öwmmm.· -m ˙rtt, m D-6
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/ ĩ² ·ü cbidkhnneenebaeeeeebenves D-6, 17
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Code of Civil Procedure
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Evidence Code
p%%%%ium celhneknncendesbesegeunsdeees D-5
Fish & Game Code
Dr, ²˙ ˙AA ⁰ͥ QT D-10
Government Code
rm . D-5
D-x
TABLE OF AUTHORITIES
STATUTES
Page(s)
/ ĩ ²˙7U⁰tDÄ ] ZII. 7. D-10
D /! D-6
,, A D-6
Public Resource Code
Di dindan ded 000A ¹·¹ ww--.̃5Ü.ñ4⏑ ̃ r'Ü òV D-10
West Annot. Code, Rules Pt. 2, p. 243 (1986
%%% D-6
Treatises
H. Hart and A. Sacks, The Legal Process, 1-9 (tent.
D ̃ . ˙˙ D-35
K. Davis, Administrative Law Treatise § 3.9 (2d
r ankdeaeekie cawde oso D-10
L. Tribe, American Constitutional Law, § 12-26
Pe tikendenkkeawtedendadduthesawendews D-17, 35
M. Yudof, When Government Speaks xvi (1983) D-14, 35
Weil & Brown, Civil Procedure Before Trial § 10:10
/ ˙% T D-41
“s+ ——— — — — «
4 ~& weet i «
D-1
This brief is submitted on behalf of the State Bar of
California and the individual appellees below who are
former members of the State Bar’s Board of Governors.’
These parties seek affirmance of the summary judgment
entered by the trial court preserving the ability of the
State Bar to fulfill its legislatively and constitutionally
mandated role in California government.
I. INTRODUCTION
Plaintiffs challenge the propriety of certain fundamen-
tal categories of State Bar activities. They claim the
activities violate their first amendment rights because
they oppose the activities, because they consider the
activities “ideological and political” and because the ac-
tivities are funded by fees the Legislature requires all
attorneys practicing in the State to pay annually.
The case presented by plaintiffs’ pleadings was not the
ease decided by the Court ef Appeal; while plaintiffs seek
to enjoin Bar activity within broad areas outside of
regulation of attorney admission and discipline, the Court
of Appeal treated their claims as if they were limited
objections to the use of mandatory fees for specific activi-
ties within the broad categories with which Plaintiffs
disagree. From this mistaken view of the case, other
errors, including the ruling that the record was inade-
quate to support the summary judgment, flowed.
Plaintiffs’ challenge, however, is overbroad and cate-
gorical; they seek to enjoin all lobbying, all speeches by
State Bar presidents, all filing of amicus briefs and all
activity of the Conference of Delegates. The only specific
activity challenged by Plaintiffs was the State Bar's
‘Defendant Phyllis M. Hix does not join in this brief, and was not a
party to the proceeding in the Court of Appeal.
D-2
publication and dissemination of materials from its Inde-
pendence of the Judiciary program. Plaintiffs also seek to
hold individuals who served as members of the State
Bar’s Board of Governors personally liable for expendi-
tures made to support the challenged activities.
The right asserted by Plaintiffs is a negative right — a
right not to be associated with the State Bar or to finance
indirectly speech with which they may disagree. Plaintiffs
claim this right will be protected only if the State Bar is
prohibited from engaging in activities that may be classi-
fied as “political and ideological.” Plaintiffs assert that
the State Bar is analogous to a labor union, and that
federal labor union cases permit the relief they seek.
Plaintiffs’ claims, however, far exceed the rights recog-
nized in the labor union eases. In fact, Plaintiffs seek
greater restrictions on the State Bar’s activity than those
imposed on labor unions by arguing that the State Bar is
unable to act at all if a category of activity falls within the
all pervasive label of “political and ideological,” even
though the activity is germane to the State Bar's purpose.
Labor unions are merely required to rebate compelled
dues, rather than use them for purposes not germane to
collective bargaining; they are not required to cease their
activity.
Plaintiffs’ claim also fails because the State Bar is a
part of California government and is not analogous to a
labor union. The activities of the State Bar (and its
governing board) must be evaluated by the teachings of
the United States Supreme Court and this Court dealing
with compelled exactions that finance government speech
if the proper balance is to be struck between individual
rights and the rights and needs of the public for effective
government. This Court’s decision in Stanson v. Mott, 17
Cal. 3d 206 (1976) balances these interests and provides
D-3
both the scope necessary for government to govern and
the predictability necessary to permit individuals serving
as public officials to undertake their duties without being
paralyzed by fear of liability.
Stanson held that a governmental entity can use public
funds to advocate positions on matters within its statu-
tory authorization, so long as the “style, tenor and tim-
ing“ of the government speech does not taint the electoral
process. Government may engage in advocacy through
activities other than partisan electoral campaigning, in-
eluding lobbying, so long as explicitly or implicitly au-
thorized by statute. Stanson also protects the individuals
who constitute government from the paralyzing effeets of
the broad reaching liability imposed by the Court of
Appeal. Thus, this Court should affirm the application of
Stanson to the activities of the State Bar, and to all
authorized governmental activity, to ensure that govern-
ment is not limited to actions and speech only on topics
engendering no controversy. Only in this way can govern-
mental action be fully informed action.
At core, this ease concerns what standards control
government speech and when they apply. The key issue is
whether the State can, through constitutional and statu-
tory provisions, create a governmental entity and em-
power it to address issues with social and political
content when those activities are funded by a specific
regulated group, itself intimately related to a governmen-
tal function, rather than by the public at large. The State
Bar submits that while the attorneys of this State alone
finance the activities of the State Bar, it is entirely proper
for the State to create, empower and fund the State Bar
as it has. The State Bar is a governmental entity, and
Plaintiffs are, like all other taxpayers, compelled by the
state to finance activities of government.
D-4
The Court of Appeal erred in treating the State Bar as
a labor union and in so doing committed additional error
by adopting the phrase “political and ideological” as a
standard in its decision. The phrase has meaning in the
labor context when a union is charged with improperly
using dues compelled from union shop members or agency
shop nonmembers for purposes not germane to collective
bargaining. The phrase was adopted in that context by the
United States Supreme Court to define one area of union
activity unrelated to preservation of labor peace, which
was the purpose that the Court found justified compelled
association with a union. The use of the phrase is grossly
misplaced (and susceptible to far broader meaning) as a
test of the propriety of a governmental action. To pre-
clude state government and its individual subparts from
engaging in all activity with a “political and ideological”
content would prevent government from governing, and
would require it to shape its conduct to an unwieldy and
inappropriately vague standard.
By failing to r
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