Popejoy v. New Mexico Bd. of Bar Com'rs
| Decision Date | 17 May 1995 |
| Docket Number | Civ. No. 92-1462 JB/LH/LFG. |
| Citation | 887 F. Supp. 1422 |
| Parties | Thomas L. POPEJOY, Jr., et al., Plaintiffs, v. NEW MEXICO BOARD OF BAR COMMISSIONERS, et al., Defendants. |
| Court | U.S. District Court — District of New Mexico |
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Richard Rubin, Santa Fe, NM, William Walker, Walker & Van Heijenoort, Albuquerque, NM, for plaintiffs.
Andrew G. Schultz and Charles K. Purcell, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for defendants.
THIS MATTER comes before the Court1 on Plaintiffs' third motion to enforce judgment and to vacate the decision of the impartial decisionmaker, filed August 22, 1994 (Docket No. 78), Plaintiffs' motion to reconsider the Court's memorandum opinion and order of August 24, 1994, filed September 8, 1994 (Docket No. 85), and Defendants' motion to dismiss, filed July 28, 1994 (Docket No. 73). Having reviewed the submissions and arguments of the parties, and having thoroughly considered the applicable law in this matter, the Court concludes that Plaintiffs' third motion to enforce judgment is not well taken and is denied; that Plaintiffs' motion to reconsider is well taken and is granted but, as explained below, only to the extent of amending, and not overruling, the August 24, 1994 memorandum opinion and order; and that Defendants' motion to dismiss is well taken and is granted.
Plaintiffs are members of the New Mexico State Bar (the "Bar") who brought this action to force the Bar to disclose past expenses and future proposed budgets as required by the First Amendment. At stake is the ability of dissenting members of the Bar to object to expenditures for political or ideological activities not germane to the Bar's purposes of regulating the legal profession or improving the quality of legal services. On August 26, 1993, Judge Burciaga entered a memorandum opinion and order critical of the Bar's disclosure practices. Popejoy v. New Mexico Bd. of Bar Commr's, 831 F.Supp. 814, 818-20 (D.N.M.1993). Specifically, Judge Burciaga found that the Bar failed to comply with Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986) and Keller v. State Bar of California, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). Popejoy, 831 F.Supp. at 819-21. Judge Burciaga consequently ordered the Bar to comply with the strictures of Hudson and Keller. Id. at 821.
Pursuant to Judge Burciaga's order, the Bar provided to all members an accounting of the major categories of the Bar's expenditures for 1991 through 1993 and for the proposed 1994 budget. The Bar categorized those expenditures into what it believed were chargeable, that is, expenses of a non-ideological nature germane to the Bar's purposes, and non-chargeable expenses. The Bar concluded that all expenditures for fiscal years 1991, 1993, and 1994 were chargeable. For 1992, the Bar determined that expenditures for a Muscular Dystrophy Association fund-raising golf tournament, sponsored by the Young Lawyers Division, were not germane. The Bar classified these expenses as de minimis, however, and did not provide a refund. The Bar hired an independent auditor to verify that the classification of expenses was accurate.
On January 25, 1994, Judge Burciaga, dissatisfied in part with the Bar's disclosure efforts, directed the Bar to allocate expenditures it classified as "Administrative Office Salaries" to specific program activities, to identify expenses incurred for lobbying, public relations and charitable activities, and to institute a time-keeping system for Bar employees. Popejoy v. New Mexico Bd. of Bar Commr's, 847 F.Supp. 155, 157-59 (D.N.M. 1994). For the years 1991 to 1993, the Bar had not kept accurate time records of exactly how Bar employees spent their time on certain activities. The Bar responded to Judge Burciaga's January 25, 1994 order by allocating salary overhead on a pro rata basis, a practice that, coincidentally, the California State Bar employs. In all other respects, the Bar complied with Judge Burciaga's January 25, 1994 order.
Subsequently, the Bar provided members with an opportunity to challenge any prior or proposed expenditures, and allowed for an impartial decisionmaker to address those objections the Bar refused to accept. The New Mexico Supreme Court appointed Frank X. Gordon, Jr., former Chief Justice of the Arizona Supreme Court, to hear and determine the validity of the objections. Some members objected to all past expenditures, even those clearly chargeable, and demanded a complete refund of all dues paid from 1991 to the present. After notice by publication, Justice Gordon received evidence and heard argument on April 25 and 26, 1994. During these proceedings, no one appeared as counsel for any of the challengers and only one Plaintiff, Thomas L. Popejoy, appeared to give a brief opening statement; for the most part, then, only the Bar presented substantial evidence and argument. On June 29, 1994, Justice Gordon issued his decision, which was later published in the New Mexico Bar Bulletin. With the exception of monies spent on the golf tournament, Justice Gordon found all expenses to be chargeable to the membership.
On August 24, 1994, Judge Burciaga considered Plaintiffs' second motion to enforce the Court's January 25, 1994 judgment. Popejoy v. New Mexico Bd. of Bar Commr's, Civ. No. 92-1462 JB, Mem. Op. and Order, 1994 WL 823551 (D.N.M. filed Aug. 24, 1994). In that motion, Plaintiffs argued that the Bar's utilization of a pro rata allocation of salary overhead did not meet the dictates of Hudson. Id. at 2. Judge Burciaga ruled that Plaintiffs bore the burden of proving that the Bar's expenditures were non-germane, and because they failed to present substantial evidence during the April 25 and 26 proceedings, they failed to satisfy this burden. Id. at 4 and n. 1. Judge Burciaga implied that the Bar's allocation of overhead "does not change the potential for abuse." Id. at 3. However, because Judge Burciaga believed Plaintiffs had failed to prove their damages, he did not expressly strike down the Bar's allocation method. Id. at 4.
Three dispositive motions are now pending. Plaintiffs' motion to reconsider relates to Judge Burciaga's August 24, 1994 order. Plaintiffs assert that Judge Burciaga erred in imposing upon them the burden of proof, and they request a complete refund of all dues paid because of the Bar's failure to maintain adequate time records. In this motion, Plaintiffs additionally contend that the decisionmaker erred in concluding that certain expenditures were chargeable, specifically, expenses incurred in relation to certain lobbying activities and to the Bar's "Task Force to Assist Gulf Military Personnel and Families." In Plaintiffs' third motion to enforce the Court's judgment and to vacate the decision of Justice Gordon, Plaintiffs argue that the decisionmaker used the wrong standard to gauge chargeability and as a result, reached erroneous decisions. In particular, Plaintiffs contend that charges with respect to the construction of the new State Bar Center and for defending against the present litigation should not be imposed upon the members. Finally, Defendants filed a motion to dismiss based on their contention that they have fully complied with the Court's orders and hence no reason exists for maintaining jurisdiction over the present action.
The Court will discuss, first, the standard Justice Gordon employed and the merits of his findings regarding those expenditures to which Plaintiffs voiced specific objections, and second, Judge Burciaga's August 24, 1994 memorandum opinion. The Court will next address a matter that Judge Burciaga took under advisement but never resolved, namely, whether Justice Gordon was properly named as an independent and impartial decisionmaker.
Plaintiffs take issue with the test Justice Gordon employed to ascertain whether a given expenditure was chargeable to the membership. Plaintiffs derive from Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991) (plurality opinion), the test they contend Justice Gordon should have applied. In Lehnert, the Court provided its most recent guidance with respect to union chargeability determinations. A majority of the Court agreed that chargeable activities in the union shop context "must (1) be `germane' to collective bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding `free riders'; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop." Id. at 519, 111 S.Ct. at 1959. From this statement, Plaintiffs argue that the impartial decisionmaker should have assessed whether a given activity "(1) was germane to the practice of law; (2) was justified by the government's vital policy interest in regulating the legal profession or improving the quality of legal services available to the people of the State; and (3) did not significantly add to the burdening of free speech that is inherent in the allowance of an integrated bar association." Pls.' Mem. Supp.3d Enforce J. at 3 n. 1. Plaintiffs specifically attack Justice Gordon's focus on whether a given activity is characterizable as political or ideological. They argue that whether a given activity has ideological coloration Id. at 3.
A review of Justice Gordon's decision leads the Court to conclude that he used the correct standard. Justice Gordon extensively discussed the applicable law in his opinion. In re: Challenges to the New Mexico State...
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...whether union expenses "involve additional interference with the First Amendment interests"). See also Popejoy v. New Mexico Bd. of Bar Comm'rs, 887 F. Supp. 1422, 1429 (D.N.M. 1995) (office construction expenses fully chargeable; they have no communicative value and impose no additional bu......