Keller v. State Bar of California

• Decision Date: 23 May 1986
• Citation: 226 Cal.Rptr. 448,201 Cal.App.3d 1135
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 201 Cal.App.3d 1135 201 Cal.App.3d 1135 Eddie KELLER, et al., Plaintiffs and Appellants, v. STATE BAR OF CALIFORNIA, et al., Defendants and Respondents. Civ. 24124.

Page 448

226 Cal.Rptr. 448

Previously published at 201 Cal.App.3d 1135

201 Cal.App.3d 1135

Eddie KELLER, et al., Plaintiffs and Appellants, v. STATE BAR OF CALIFORNIA, et al., Defendants and Respondents.

Civ. 24124.

Court of Appeal, Third District, California.

May 23, 1986.

Review Granted Aug. 28, 1986.

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

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

SPARKS, Associate Justice.

"The State Bar of California is a public corporation. Every person admitted and licensed to practice law in this State is and shall be a member of the State Bar except while holding office as a judge of a court of record." (Cal.Const., art VI, § 9.) Under pain of criminal punishment, no person may practice law in California unless he is an active member of the State Bar. (Bus. & Prof. Code, §§ 6125-6126.) ¹ The Board of Governors of the State Bar, upon authorization from the Legislature, fixes and imposes an annual membership fee upon members of the State Bar. ( § 6140.) The fees are paid into the treasury of the State Bar, and become part of its funds. ( § 6144.) Plaintiffs are licensed attorneys and members of the State Bar. They assert that the State Bar and its Board of Governors utilize their compelled membership fees to promote political and ideological positions contrary to their beliefs and in violation of their First Amendment rights. The trial court granted summary judgment in favor of the State Bar and the members of the Board of Governors. The plaintiffs appeal.

The decisions of the United States Supreme Court "establish with unmistakable clarity that the freedom of an individual to associate for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments." (Abood v. Detroit Board of Education (1977) 431 U.S. 209, 233, 97 S.Ct. 1782, 1798, 52 L.Ed.2d 261, 283.) "The fact that [employees] are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights. For at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State." (Id., at pp. 234-235, 97 S.Ct. at pp. 1799, 52 L.Ed.2d at p. 284; citations and fns. omitted.) Those principles, the Abood court concluded, prohibited a school board from requiring teachers, as a condition of holding a job in a public school, to contribute to the union for the support of political and ideological causes which they opposed and which were unrelated to collective bargaining. (Id., at pp. 235-236, 97 S.Ct. at pp. 1789-90.) These same First Amendment principles prohibit the State Bar from requiring its members, as a condition of practicing law, to contribute to the support of political or ideological causes they oppose and which are not germane to the purposes of the State Bar Act.

As we shall demonstrate, the State Bar has no constitutional or legislative authority to engage in purely political or ideological activities unrelated to its statutory purposes. Its powers are limited to what we will call its regulatory and administration of justice functions. The State Bar is free to act and speak on matters germane to these functions. It may also engage in conduct germane to its purposes even though that conduct has political or ideological ramifications so long as that activity does not impose additional infringements upon First Amendment rights not justified by a compelling governmental interest. But when the State Bar acts beyond these legitimate functions, we agree with plaintiffs that its members may not be constitutionally compelled to support political and ideological positions with which they disagree through compelled membership fees as the condition of the right to practice law. Since defendants have failed to establish that there are no triable issues concerning the constitutional and statutory legitimacy of the challenged conduct, we shall reverse the judgment and remand for further proceedings.

I

This litigation commenced when four of the plaintiffs filed a petition for a writ of mandate and complaint for declaratory and injunctive relief against the State Bar and the members of the State Bar Board of Governors. Plaintiffs allege that the State Bar, by and through the Board of Governors, has expended and will continue to expend substantial portions of the revenues derived through mandatory membership fees to advance political and ideological causes, including, but not limited to: (1) lobbying the California Legislature; (2) submitting amicus curiae briefs in cases taking positions in direct opposition to those held by some of its members; (3) financing meetings of the Conference of Delegates at which political and ideological causes are advanced; (4) publicizing the political and ideological speeches of its then president, Anthony Murray; and (5) financing a so-called public information project designed to disseminate to the general public a particular ideology regarding judicial retention elections. Plaintiffs further allege that they do not subscribe to many of the political and ideological beliefs advanced, and that they object to the use of their mandatory dues to further any such beliefs. Plaintiffs assert that to compel them to provide financial support for the advancement of any political and ideological beliefs, particularly those with which they disagree, violates their constitutional rights of freedom of speech and association, as guaranteed by the First and Fourteenth Amendments of the United States Constitution. ² Plaintiffs sought a declaration that the defendants have violated their constitutional rights through the expenditure of mandatory bar dues and the use of the name of the State Bar of California for the advancement of political and ideological purposes; an injunction restraining the use of mandatory dues and the name of the State Bar to advance such purposes; and an injunction compelling the members of the Board of Governors to reimburse the treasury of the State Bar for the amount they authorized to be expended for political and ideological purposes since September 12, 1982. ³ In the alternative the plaintiffs sought similar relief in a proceeding for a writ of mandate. On two subsequent occasions the complaint was amended to name additional plaintiffs.

The defendants answered and admitted that they have expended portions of the revenue from compelled membership fees for purposes of lobbying the Legislature, filing amicus curiae briefs in litigation, financing meetings of the Conference of Delegates, publicizing the speeches of the president of the State Bar, and for financing a public education project on the judiciary. They deny, however, that these expenditures were in violation of the plaintiffs' constitutional rights. Defendants also set forth as affirmative defenses: (1) the failure to state a cause of action; (2) laches; (3) estoppel and/or unclean hands; and (4) that they are privileged to do the acts complained of due to legislative authorization and that they acted in good faith. ⁴ The trial court sustained the demurrer of the plaintiffs to the defense of estoppel and/or unclean hands without leave to amend.

Defendants moved for summary judgment, or in the alternative summary adjudication of issues or judgment on the pleadings. The plaintiffs countermoved for partial summary judgment.

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 recent activities. As the California Supreme Court 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, formulating rules of professional conduct, disciplining members for misconduct, preventing unlawful practice of the law, and engaging in study and recommendation of changes in procedural law and improvement of the administration of justice.' (1 Witkin, Cal. Procedure (1970 ed.) Attorneys, § 157, p. 168.)" (Saleeby v. State Bar (1985) 39 Cal.3d 547 557, 216 Cal.Rptr. 367, 702 P.2d 525.) ⁵ Thus, the State Bar is authorized to establish an examining committee to "examine all applicants for admission to practice law" and thereafter to "certify to the Supreme Court for admission those applicants who fulfill[ed] the requirements...." ( § 6046, subds. (a), (c).) Under the board's auspices, local administrative committees may investigate complaints about the conduct of members and may thereafter forward reports and recommendations to the board for action. ( § 6043, subds. (a), (c).) After a hearing, the board "has the power to recommend to the Supreme Court the disbarment or suspension from practice of members or to discipline them by reproval, public or private, without such recommendation." ( § 6078.) "In those two areas, the bar's role has consistently been articulated as that of an administrative assistant to or adjunct of [the Supreme Court], which nonetheless retains its inherent judicial authority to disbar or suspend attorneys. In the area of admission to practice, an applicant is admitted only by order of the Supreme Court which, upon certification by the bar's examining committee that the applicant fulfills the admission requirements, 'may admit such applicant as an attorney at law in all the courts of this State....' " (Saleeby, supra at p....