Schneider v. Colegio de Abogados de Puerto Rico, s. 88-1937

• Citation: 917 F.2d 620
• Decision Date: 02 November 1989
• Docket Number: Nos. 88-1937,s. 88-1937
• Parties: Robert E. SCHNEIDER, Jr., et al., Plaintiffs, Appellees, v. COLEGIO de ABOGADOS de PUERTO RICO, Defendant, Appellant. Robert E. SCHNEIDER, Jr., et al., Plaintiffs, Appellees, v. COLEGIO de ABOGADOS de PUERTO RICO, et al., Defendants, Appellees. Appeal of Carmen Ana CULPEPER, etc., et al., Defendants. Robert E. SCHNEIDER, Jr., et al., Plaintiffs, Appellants, v. COLEGIO de ABOGADOS de PUERTO RICO, et al., Defendants, Appellees. to 88-1939. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 620

917 F.2d 620

Robert E. SCHNEIDER, Jr., et al., Plaintiffs, Appellees, v. COLEGIO de ABOGADOS de PUERTO RICO, Defendant, Appellant.

Robert E. SCHNEIDER, Jr., et al., Plaintiffs, Appellees, v. COLEGIO de ABOGADOS de PUERTO RICO, et al., Defendants, Appellees.

Appeal of Carmen Ana CULPEPER, etc., et al., Defendants.

Robert E. SCHNEIDER, Jr., et al., Plaintiffs, Appellants, v. COLEGIO de ABOGADOS de PUERTO RICO, et al., Defendants, Appellees.

Nos. 88-1937 to 88-1939.

United States Court of Appeals First Circuit.

Heard Nov. 2, 1989.

Decided Oct. 24, 1990.

Rehearing and Rehearing En Banc

Denied Dec. 20, 1990.

Robert E. Schneider, Jr., with whom Hector L. Marquez was on brief, for Robert E. Schneider, Jr., et al.

Anabelle Rodriguez-Rodriguez, Asst. Sol. Gen., with whom Rafael Ortiz-Carrion, Sol. Gen., Jorge E. Perez Diaz, Sol. Gen., and Norma Cotti-Cruz, Deputy Sol. Gen., were on brief for Carmen Ana Culpeper, etc., et al.

Harry Anduze Montano with whom Carlos V. Garcia Gutierrez, Carlos A. Rodriguez Vidal, Pia Gallegos, Patricio Martinez, and Carlos Ramos, were on brief, for Colegio de Abogados de Puerto Rico.

Before CAMPBELL, Circuit Judge, COFFIN, Senior Circuit Judge, and PIERAS, ^* District Judge.

COFFIN, Senior Circuit Judge.

This case requires us to add another chapter, still not the final one, to an already lengthy saga concerning the constitutionality of Puerto Rico's system of mandatory bar membership. In the decision on appeal, the United States District Court for the District of Puerto Rico held that compelled membership in the bar association known as the Colegio de Abogados de Puerto Rico ("Colegio") is unconstitutional in its present form. Schneider v. Colegio de Abogados de Puerto Rico, 682 F.Supp. 674 (D.P.R.1988). The district court also invalidated statutes requiring that lawyers affix official stamps, sold by the Colegio, to all court documents. We agree that the present system is constitutionally deficient, and therefore in large part affirm the conclusions of the district court. We modify the court's judgment, however, to delay temporarily an injunction prohibiting mandatory dues so that the Colegio may remain integrated while it attempts to correct its constitutional defects. ¹ We also limit the court's holding on the stamp statutes.

I. Legal and Factual Background

We detailed the origins and early history of this case at length when the dispute last came before us. See Romany v. Colegio de Abogados de Puerto Rico, 742 F.2d 32 (1st Cir.1984). The district court in its most recent decision also set forth a thorough review of the prior proceedings. See Colegio, 682 F.Supp. at 675-679. We see no need to repeat, once again, the full factual and procedural background of this case. This opinion therefore shall contain only that history necessary for a full understanding of the issues we decide today.

Accordingly, we begin this background section by stating briefly the constitutional claim raised by plaintiffs and reviewing the federal law relevant to that claim. The next subsection describes the Colegio system as it presently exists. We then review the district court's decision. In Section II of the opinion, we briefly discuss jurisdiction and appealability issues. Section III contains our analysis and conclusions. The remaining sections discuss the stamp issue and damages, and provide a brief summary of the opinion.

A. Constitutional Principles

Plaintiffs, five attorneys, claim that Puerto Rico's mandatory system of bar membership violates their First Amendment freedom of association by depriving them of the right not to associate with the Colegio, which conducts activities they find objectionable. ² Their primary complaint is that the Colegio uses their compulsory dues and fees to publicly espouse views and support causes, with which they disagree, on controversial issues far removed from the immediate concerns of lawyers. These issues have in the past included supporting the Sandinista Front for National Liberation in Nicaragua, forcing the United States Navy to leave the island of Vieques, stopping the draft, and amending the electoral law in Puerto Rico. See Schneider v. Colegio de Abogados de Puerto Rico, 565 F.Supp. 963, 966-971 (D.P.R.1983); 682 F.Supp. at 679-681.

In a decision reached after oral argument in this case, and for which we held up our opinion, the United States Supreme Court addressed a virtually identical claim made by 21 members of the California bar. In Keller v. State Bar of California, --- U.S. ----, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990), the Court reaffirmed its earlier conclusion that compelled membership in a state bar association, and the exaction of compulsory dues, do not per se violate an individual's First Amendment rights, see Lathrop v. Donahue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961). ³ The Court went on, however, to establish for the first time that the principles it previously had developed for the permissible use of compulsory union dues are equally applicable for the use of mandatory bar dues.

Abood [v. Detroit Board of Education, 431 U.S. 209 [97 S.Ct. 1782, 52 L.Ed.2d 261] (1977) ] held that a union could not expend a dissenting individual's dues for ideological activities not "germane" to the purpose for which compelled association was justified: collective bargaining. Here the compelled association and integrated bar is justified by the State's interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.

110 S.Ct. at 2236.

The Supreme Court recognized that its limitation on the use of mandatory bar dues was not self-executing and that a difficult problem remained in defining the class of activities germane to "regulating the legal profession and improving the quality of legal services." Id. The Court again found the union context helpful in setting guiding principles, and quoted from its decision in Ellis v. Railway Clerks, 466 U.S. 435, 448, 104 S.Ct. 1883, 1892, 80 L.Ed.2d 428 (1984):

"[W]hen employees such as petitioners object to being burdened with particular union expenditures, the test must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Under this standard, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and administering a collective-bargaining contract and of settling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit."

We think these principles are useful guidelines for determining permissible expenditures in the present context as well. Thus, the guiding standard must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or 'improving the quality of the legal service available to the people of the State.' Lathrop, 367 U.S., at 843 (plurality opinion).

110 S.Ct. at 2236. Even with this standard, however, the Court acknowledged that the line will be difficult to draw

between those State Bar activities in which the officials and members of the Bar are acting essentially as professional advisors to those ultimately charged with the regulation of the legal profession, on the one hand, and those activities having political or ideological coloration which are not reasonably related to the advancement of such goals.... But the extreme ends of the spectrum are clear: Compulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected with disciplining members of the bar or proposing ethical codes for the profession.

Id. at 2237.

The Court in Keller also acknowledged that state bar associations may encounter added inconvenience or burden in ensuring that compulsory dues are used only for permissible purposes, but observed that " 'such additional burden or inconvenience is hardly sufficient to justify contravention of the constitutional mandate,' " 110 S.Ct. at 2237 (quoting Keller v. State Bar, 47 Cal.3d 1152, 1192, 255 Cal.Rptr. 542, 568, 767 P.2d 1020, 1046 (1989) (Kaufman, J., concurring and dissenting)).

The Court therefore held that a permissible system of mandatory bar membership must include a mechanism for protecting the rights of dissenting members to withhold financial support of activities that fall outside the bar's core purposes. ⁴ On the limited record before it, the Court declined to speculate on the various methods a bar association might adopt to accomplish the required segregation of funds. The justices noted, however, that the procedure they deemed adequate for unions in Teachers v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986), also would suffice in the bar setting. 110 S.Ct. at 2237. In Hudson, the Court held that "the constitutional requirements for the collection of ... 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." 475 U.S. at 310, 106 S.Ct. at 1078.

Before turning to our analysis of whether the Colegio system, which is modeled after the Hudson procedure, fulfills these constitutional requirements, we complete our background summary...