# Opposition Brief — Keller v. State Bar of California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0506%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 496 U.S. 1 ## Text 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 C-10 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 C-11 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). C-12 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 C-13 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. C-15 “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 C-16 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 C-23 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 cas [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0506%3A03. Public record. Not legal advice.