Brosterhous v. State Bar

• Citation: 906 P.2d 1242,12 Cal.4th 315,48 Cal.Rptr.2d 87
• Decision Date: 21 December 1995
• Docket Number: No. S043692,S043692
• Court: United States State Supreme Court (California)
• Parties: , 12 Cal.4th 651A, 906 P.2d 1242, 95 Cal. Daily Op. Serv. 9770, 95 Daily Journal D.A.R. 16,966 Raymond L. BROSTERHOUS et al., Plaintiffs and Appellants, v. STATE BAR OF CALIFORNIA et al., Defendants and Respondents.

Page 87

48 Cal.Rptr.2d 87

12 Cal.4th 315, 12 Cal.4th 651A, 906 P.2d 1242,

95 Cal. Daily Op. Serv. 9770,

95 Daily Journal D.A.R. 16,966

Raymond L. BROSTERHOUS et al., Plaintiffs and Appellants, v. STATE BAR OF CALIFORNIA et al., Defendants and Respondents.

No. S043692.

Supreme Court of California.

Dec. 21, 1995.

As Modified Jan. 18, 1996.

Ronald A. Zumbrun, Anthony T. Caso and Deborah J. La Fetra, Sacramento, for Plaintiffs and Appellants.

Diane C. Yu, Lawrence C. Yee, Starr Babcock, Richard J. Zanassi, Dina E. Goldman, San Francisco, and Robert M. Sweet, Marina Del Rey, for Defendants and Respondents.

BAXTER, Justice.

Pursuant to the decision of the United States Supreme Court in Keller v. State Bar of California (1990) 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1, this court and the State Bar of California (State Bar) established procedures by which a member's challenge to the State Bar's annual calculation of the amount of compulsory membership dues to be used for "political activities" is to be resolved by arbitration. A member who objects to use of that proportional part of his or her dues may then deduct the sum from the dues payment.

The question presented in this case is whether a member dissatisfied with the arbitral decision, and claiming that payment of the required portion of dues violates the member's First Amendment rights to freedom of speech and association, may bring an action for an injunction and damages under 42 United States Code section 1983 (section 1983), a federal civil rights act. ¹ The Court of Appeal held that United States Supreme Court precedent construing section 1983 and the congressional intent underlying it preclude a procedure which limits the claimant to an arbitral remedy.

We agree and affirm the judgment of the Court of Appeal.

Arbitration of members' objections to the manner in which the State Bar calculates the portion of annual dues used for political and ideological purposes is not a permissible substitute for an action for damages and injunction authorized by section 1983. Limiting members to judicial review of the arbitration decision would violate congressional intent that a section 1983 cause of action be available even to persons who have arbitrated a claim that mandatory dues payments are being used for such purposes in violation of their First Amendment rights to freedom of speech and association. We also conclude that a section 1983 action may be brought regardless of whether the member has sought judicial review of the arbitrator's decision.

I Background

In 1990, the United States Supreme Court upheld a claim by attorney members of the State Bar that the use of funds derived from compulsory dues to finance political and ideological activities of the State Bar with which the members disagree violates the members' First Amendment right of free speech if those expenditures are not reasonably and necessarily incurred for the purpose of regulating the legal profession or improving the quality of legal services. (Keller v. State Bar of California, supra, 496 U.S. 1, 14, 110 S.Ct. 2228, 2235 (Keller ).) The court suggested adoption of procedures similar to those the court had outlined in Chicago Teachers v. Hudson (1986) 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (Hudson ), by which the amount of each member's dues attributable to political and ideological activity is determined and ultimately forgiven, but did not rule out the possible adequacy of alternative procedures.

Hudson involved a challenge to the procedures by which a union in an agency shop determined which activities were germane to the union's duties as a collective bargaining agent for the employees and those activities for which dissenting employees could not be compelled to contribute, and the procedure by which the union responded to nonmember employee objections to that determination. The court first reaffirmed its earlier holdings in Abood v. Board of Education (1977) 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 and Ellis v. Railway Clerks (1984) 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 in which it had laid down the rule that a union may not "consistently with the Constitution, collect from dissenting employees any sums for the support of ideological causes not germane to its duties as collective-bargaining agent." (Ellis v. Railway Clerks, supra, 466 U.S. at p. 447, 104 S.Ct. at p. 1892.) In Keller, the court had extended that rule to the California integrated State Bar in which membership by all attorneys licensed to practice in this state is compulsory.

Hudson emphasized that while an agency shop was constitutionally permissible, protection of the nonunion employees' First Amendment rights required procedures which are carefully tailored to avoid unnecessary infringement on their associational rights and which gave the employees "a fair opportunity to identify the impact of the governmental action on their interests and to assert a meritorious First Amendment claim." (Hudson, supra, 475 U.S. at p. 303, 106 S.Ct. at p. 1074.) The court then held: "[T]he constitutional requirements for the Union's collection of agency fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending." (Id. at p. 310, 106 S.Ct. at p. 1078.)

Rejecting an argument that the requirement of a procedure for administrative challenge was unnecessary, as ordinary judicial remedies were sufficient, the court also said: "[W]e presume that the courts remain available as the ultimate protectors of constitutional rights." (Hudson, supra, 475 U.S. at p. 308, fn. 20, 106 S.Ct. at p. 1076, fn. 20.)

Following Keller, the State Bar added article IA. to the State Bar Rules and Regulations. That article established procedures which the State Bar believed would satisfy its obligation to advise members of the basis on which it calculated the amount of member dues devoted to activities regulating the legal profession and improving the quality of legal services (the Abood amount) and to provide prompt resolution of members' challenges to that calculation by a neutral decision maker.

Under the provisions of article IA, a member of the State Bar may deduct from the member's annual membership fee the member's share of those "nonchargeable expenses" the member does not wish to support. "Nonchargeable expenses" are defined in section 1.B. as "expenses incurred for activities having political or ideological coloration which are not reasonably related to the advancement of the purposes and goals of the State Bar to regulate the profession or improve the quality of legal services." (State Bar Rules & Regs., art. IA, § 1.B.) In advance of that election the State Bar provides members with an independently audited statement which identifies the major categories of expenses deemed chargeable and nonchargeable.

Section 3 of article IA establishes an appeal procedure under which a member who disagrees with the State Bar's categorizing of any activity as chargeable to the annual membership fee and the determination of the advance reduction may serve and file an individual written objection with the State Bar. The State Bar must then place the amount of the challenged fee in escrow and consider the challenge at its next regularly scheduled meeting after the deadline for receipt of challenges. The Board of Governors may remit any part of the challenged fee and/or refer the challenge to arbitration. When arbitration is ordered the member and the State Bar may select a mutually agreed-on impartial arbitrator who will hear and decide the challenge (or challenges if more than one member's challenges are consolidated). "The arbitration decision shall be binding as to the challenger(s) and the State Bar, subject to such appropriate review as determined by the Supreme Court." (State Bar Rules & Regs., art. IA, § 3E.)

For the year 1991, the State Bar calculated the nonchargeable portion of the annual $478 regular membership fee as $3, based on audited financial statements for expenditures in 1989, the most recent available. The State Bar consolidated the challenges and a single, 14-day hearing was held before an arbitrator. The arbitrator required refund of an additional $4.36, plus interest, to the challengers. Members who did not file challenges received only the $3 reduction.

Plaintiffs, 46 members of the State Bar, then filed this action in the Sacramento County Superior Court, naming the State Bar and the individual members of the Board of Governors who allegedly were responsible for determining the chargeable and nonchargeable expenses, as defendants. The complaint sought declaratory relief and money damages, and alleged that even after the dues reduction allowed by the arbitrator, defendants had compelled all attorneys to pay for expenditures related to political and ideological activities of the State Bar. ²

Plaintiffs asserted that compelling them to support those activities with compelled membership fees violated their rights to freedom of speech and association in violation of the First Amendment to the United States Constitution; section 1983; and article I, sections 2 and 3 of the California Constitution.

The State Bar demurred to the complaint on the grounds that: (1) it failed to state a cause of action; (2) because the plaintiffs were bound by the arbitration decision, they were limited to a petition to vacate the arbitrator's decision brought pursuant to Code of Civil Procedure section 1285 et seq.; and (3) article IA of the State Bar Rules and Regulations affords plaintiffs an adequate remedy at law and prevents irreparable injury. Over plaintiffs' opposition, the trial court sustained defendants' demurrer without leave to amend and dismissed the action with prejudice. In a minute order incorporated into that judgment, the...