State Bar & Bar Associations
Feb. 7, 2001
Out of the Mouths of Lawyers
Mark Jan. 8, 2001, as a banner day for the First Amendment, specifically for the principle that individuals cannot be forced to underwrite political and ideological campaigns with which they might disagree. On that day, the State Bar of California announced, in effect, that it would cease its long series of courtroom campaigns against bar members who object to the use of dues for the advancement of ideologically driven agendas.
Deborah J. La Fetra
Senior Attorney, Pacific Legal Foundation
Harold E. Johnson
Mark Jan. 8, 2001, as a banner day for the First Amendment, specifically for the principle that individuals cannot be forced to underwrite political and ideological campaigns with which they might disagree. On that day, the State Bar of California announced, in effect, that it would cease its long series of courtroom campaigns against bar members who object to the use of dues for the advancement of ideologically driven agendas.
Meeting in Los Angeles, the bar's Board of Governors abruptly voted to halt the association's appeal in Brosterhous v. State Bar of California, C015318 (Cal. App. 3rd Dist.). In doing so, they agreed to live with a superior court ruling that the bar had no right to use compulsory dues to fund various projects that have no relation to what is supposed to be the bar's mission: regulating and improving the profession.
The significance of the bar's retreat can be appreciated only in light of the long period of stubbornness that preceded it. Nearly 20 years have passed since the bar was first challenged in court over its persistent involvement in hot-button political causes, which were usually liberal positions of the "politically correct" variety. In the early 1980s, the bar embraced the nuclear freeze and gun control and jumped into debates on comparable worth, the Equal Rights Amendment and other disputes. A group of 21 bar members, noting that they, along with all the state's lawyers, were compelled to join and pay dues, went to court to object to the political use of their money.
Their ultimate victory came in Keller v. State Bar, 496 U.S. 1 (1990). The U.S. Supreme Court ruled that the bar had violated the plaintiffs' First Amendment rights by forcing them into supporting political activity.
Unfortunately, however, the bar brass persuaded themselves that Keller hadn't meant what it said. As late as 1998, San Diego attorney Mark Pulliam, writing in the Wall Street Journal, could cite a litany of questionable post-Keller initiatives: "[The Supreme Court's decision] didn't stop the bar from advocating political positions unrelated to the practice of law. Most recently, it has supported same-sex marriages, reduced penalties for drug dealers and the prohibition of discrimination against transvestites and transsexuals. [In 1997], the bar angered many members when it endorsed a trial-lawyer-backed bill that would have rescinded key provisions of Sacramento's landmark 1975 medical malpractice reform."
While continuing to engage in questionable pursuits, the bar calculated only the smallest of deductions from bar dues to accord with its "nongermane" activities. The deduction at the beginning of the 1990s was less than $5. More than 170 objecting bar members believed that a greater reduction was appropriate, and they filed a civil rights action in Sacramento Superior Court, citing the state and federal constitutions. Thus began Brosterhous.
In September 1999, a trial was held, and the bar lost on almost every point. The court found that it violated its members' constitutional rights by coercing support of programs not essential to its purposes, including lobbying activities in the office of governmental affairs and the legal service section and various internal committees sometimes known for political activism.
The bar lost no time announcing an appeal. But now, 16 months later, it has reversed course. Why? The organization's official spin is that it no longer engages in many of the challenged activities or is able to fund at least some of the programs with voluntary contributions.
But most of the credit for the reversal probably goes to the California Supreme Court's ruling this past December in Gerawam Farming Inc. v. Lyons, 24 Cal.4th 468 (2000). In Gerawam, the court relied on the state constitution in holding that plum growers could not be coerced to pay for generic industry advertising. It didn't matter that the advertising arguably lacked political or ideological content or, indeed, that the speech was "commercial."
The bar, which had filed an amicus brief pleading with the court to rule otherwise, had to realize that its own gig was up and that the day of shaking down members for dubious purposes was over.
The 2001 dues bill reflects the bar's belated acceptance of its constitutional responsibilities. The amount of the deduction, as a percentage of mandatory dues, has increased five-fold, and some programs have been taken off the budget entirely. Most important, the withdrawal from the appeal, while a bow to the inevitable, is a recognition that even lawyers have a First Amendment right to their own opinions - and a right to not be compelled to fund somebody else's.
Deborah J. La Fetra and Harold Johnson are attorneys with Pacific Legal Foundation in Sacramento.
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