Keller v. State Bar, S.F. 25050

CourtUnited States State Supreme Court (California)
Citation767 P.2d 1020,255 Cal.Rptr. 542,47 Cal.3d 1152
Decision Date23 February 1989
Docket NumberS.F. 25050
Parties, 767 P.2d 1020 Eddie KELLER et al., Plaintiffs and Appellants, v. THE STATE BAR OF CALIFORNIA et al., Defendants and Respondents.

Ronald A. Zumbrun, John H. Findley and Anthony T. Caso, Sacramento, for plaintiffs and appellants.

Hufstedler, Miller, Carlson & Beardsley, Hufstedler, Miller, Kaus & Beardsley, Robert S. Thompson, Laurie D. Zelon, Mary E. Healy, Judith R. Starr, Los Angeles, Herbert M. Rosenthal, Truitt A. Richey, Jr., and Magadalene Y. O'Rourke, San Francisco, for defendants and respondents.

Joseph A. Ball, Ball, Hunt, Hart, Brown & Baerwitz, Long Beach, Alvin H. Goldstein, Jr., Goldstein & Phillips, James J. Brosnahan, San Francisco, Edmund G. Brown, Sr., Los Angeles, Robert E. Cartwright, Sr., San Francisco, Leonard M. Friedman, Sacramento, David M. Harney, Los Angeles, Kurt W. Melchior, David C. Phillips, Roger S. Ruffin, San Francisco, Daniel M. Sklar, Los Angeles, Daniel U. Smith, Kentfield, Robert L. Winslow, Los Angeles, Howard, Rice, Nemerovski, Canady, Robertson & Falk, Jerome B. Falk, Jr., San Francisco, John T. McTernan, Jerry P. Gordon, Margolis, McTernan, Scope & Epstein, Los Angeles, Horvitz, Levy & American, Ellis J. Horvitz, Peter Abrahams, Encino, Munger, Tolles & Olson, Bradley S. Phillips, Los Angeles, Altshuler & Berzon, Fred H. Altshuler and Marsha S. Berzon, San Francisco, as Amici Curiae, on behalf of defendants and respondents.


This suit attacks the use of dues collected by the State Bar of California to finance lobbying, amicus curiae briefs and other activities, including election campaign activities, politically or ideologically objectionable to plaintiffs. Upon analysis of the constitutional status and legislative structure of the State Bar, we conclude that the State Bar may use dues to finance any activity, except election campaigning, which is germane to its statutory mission to promote "the improvement of the administration of justice." (Bus. & Prof.Code, § 6031, subd. (a) 1.)

Acting pursuant to its statutory authority, the State Bar for many years has lobbied the Legislature and other governmental agencies, filed amicus curiae briefs in pending cases, held an annual conference of delegates at which issues of current interest are debated and resolutions approved and engaged in a variety of education programs. In 1982 the State Bar publicized the inaugural speech by its new president, Anthony Murray, in which he addressed the confirmation of appellate justices in the impending election. The State Bar subsequently disseminated material on that subject to local bar associations and other organizations.

All of these activities were financed primarily from membership dues, as are all bar activities except the bar examination. The State Bar levies membership dues pursuant to statutory authority ( § 6140) subject to a maximum limit set annually by the Legislature. Every attorney engaged in active practice in California is required to be a member of the bar ( §§ 6125-6126) and to pay the dues assessed; a refusal to pay results in the suspension of membership ( § 6143), which deprives the attorney of the right to practice law in California ( § 6225).

Plaintiffs contend that the activities in question constitute the advancement of political and ideological causes, and cannot constitutionally be financed from mandatory dues. This is an issue of first impression in this state. Courts of some other jurisdictions have limited the use of bar dues, but there is no consensus concerning those limits.

When we set out to analyze the issue, we are confronted immediately with two competing paradigms. The State Bar argues that we should view it as a government agency, which may use revenues from any source for any purpose within the scope of its authority. Plaintiffs, on the other hand, argue that we should view the bar as a labor union or private association whose right to use dues money is restricted by constitutional principles.

We believe the governmental agency paradigm more closely fits the case of the California State Bar. Accordingly, we conclude the bar may use dues to finance all activities germane to its statutory purpose, a phrase which we construe broadly to permit the bar to comment generally upon proposed legislation or pending litigation. By analogy to governmental agencies, however, the bar may not engage in election campaigns; thus certain of the activities in connection with the 1982 election exceeded its statutory power.

I. Proceedings In This Action.

Plaintiffs, 21 members of the State Bar, filed suit against the bar and its Board of Governors. Their complaint alleged that "[t]he State Bar of California, by and through its Board of Governors, has expended and will continue to expend substantial portions of the revenues derived from ... mandatory dues payments to advance political and ideological causes, including, but not limited to:

"a. lobbying the California State Legislature on various matters ...;

"b. submitting briefs amicus curiae in various cases ...;

"c. financing meetings of the Conference of Delegates at which political and ideological causes are advanced ...;

"d. publicizing the political and ideological speeches of its president, Anthony M. Murray ...;

"e. financing a so-called 'public information' project designed to disseminate to the general public a particular ideology regarding judicial retention elections...."

Plaintiffs then alleged that they do not subscribe to many of the political and ideological causes promoted by the bar, and object to the use of mandatory dues to advance any of the political and ideological views of the Board of Governors or the conference of delegates. They sought a declaration that defendants have violated their constitutional rights, an injunction restraining defendants from using bar dues or the name of the State Bar to advance political and ideological causes or beliefs, and an injunction compelling defendants to reimburse the bar for all funds expended for political and ideological purposes since September 12, 1982.

Plaintiffs attached a partial list of the bills which the bar has lobbied for or against, of the cases in which it has appeared as amicus curiae, and of resolutions adopted by the conference of delegates. They also attached a copy of Anthony Murray's inaugural address when he became president of the bar on September 12, 1982, a press release describing that address, and a later press release dated October 8. (Although the complaint referred to "speeches," the September 12 speech is apparently the only one at issue.) Finally, plaintiffs attached a copy of an educational packet entitled "The Case for an Independent Judiciary" distributed by the bar in October of 1982. The packet included a copy of Murray's inaugural address, a resolution of the Board of Governors, a sample speech, fact sheets on crime and conviction rates, judicial retention elections, and judicial performance, and suggestions for speech fora and media coverage.

Defendants answered, admitting that they have used dues to finance all of the described activities, but maintaining that such expenditures did not violate plaintiffs' rights. 2 Defendants then moved for summary judgment or adjudication of issues. In support, they submitted declarations which described the bar's legislative and amicus curiae program and asserted that the bar usually acted only in matters which affect the bar itself, the attorney-client relationship, or the administration of justice. In lobbying or filing amicus curiae briefs the bar's representatives purport to act only on behalf of the State Bar, and not to represent the views of each of its members. Plaintiffs filed a cross-motion for summary judgment, but submitted no declarations.

The trial court granted summary judgment for defendants, finding that the State Bar was a governmental agency authorized to do the acts in question. The court further found that the plaintiffs had failed to show that the individual defendants acted without due care or in bad faith.

The Court of Appeal reversed. The majority opinion by Justice Sparks divided State Bar activities into two categories. The first, regulatory activities, included the testing and admission of bar applicants and the disciplining of members. These activities, the Court of Appeal said, were akin to those of a governmental agency. The bar's administration-of-justice function--a function which included all the activities here challenged--it found akin to the actions of a labor union. Such actions, it held, could be financed from mandatory dues only if the particular action in question served a state interest important enough to overcome the interference with dissenters' First Amendment rights. 3 Each lobbying activity, it said, and each amicus curiae brief, would have to be examined, with the State Bar bearing the burden to justify its action.

The Court of Appeal further held that the Murray speech and educational packet constituted election campaigning unauthorized by statute. It further found that the Board of Governors' approval of such unauthorized expenditures may subject its members to personal liability, and raised a triable issue concerning their good faith and exercise of due care. We granted the defendants' petition for review.

II. Structure And Function Of The State Bar. 4

Although the parties submitted much documentation in support of and in opposition to the respective motions, there is no real factual dispute about the State Bar and its activities. As we recently recounted, "[i]n 1927, the Legislature adopted the State Bar Act (Bus. & Prof.Code, § 6000 et seq.) establishing 'what is known as an "integrated" bar, i.e., an organization of members of the legal profession of the state with a large measure of self-government, performing such functions as examining applicants for admission,...

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