High Court Bans Use of Bar’s Mandatory Dues for Ballot Races

The California Supreme Court ruled unanimously Thursday that the State Bar may not spend the compulsory dues paid by lawyers on election campaigning for the justices or other candidates and measures on the ballot.

However, the court also ruled in a separate 4-3 vote that the Bar may use such funds for a broad range of other, non-election activities--such as lobbying for legislation, filing advisory briefs in court and adopting stands on political issues. Such activity is permissible so long as it promotes “the improvement of the administration of justice,” Justice Allen E. Broussard wrote for the court majority.

The ruling came in a widely watched test of the constitutional rights of the state’s 110,000 lawyers, all of whom are required to join the Bar in order to practice law in California and now pay $417 a year in dues.

Partial Victory

The decision was a limited victory for a group of 21 prosecutors and lawyers who filed suit seven years ago contending that the Bar was violating their First Amendment rights by using their money to support candidates and causes they oppose.

The justices agreed with the attorneys that the Bar improperly used their dues in a “public education” program in support of four high court members who successfully sought voter confirmation in the 1982 general election.

The court cited the widespread distribution of a speech made three months before the election by Los Angeles attorney Anthony Murray, who was Bar president at the time. While Murray did not mention the justices by name, he denounced what he called the “idiotic cries of . . . self-appointed vigilantes and unscrupulous politicians” who were opposing retention of the four jurists.

The “nature and timing” of the speech’s publication indicated it was meant to “assist in the election campaign on behalf of the justices,” Broussard wrote.

The Bar, with special power to regulate the legal profession, is closely akin to a “governmental agency,” and thus by law cannot spend money on election campaign ing, he wrote.

Ironically, it was Broussard--along with then-Justices Frank K. Richardson, Otto M. Kaus and Cruz Reynoso--who were candidates for retention in the 1982 election. The Bar did not participate in the 1986 election in which Reynoso, Chief Justice Rose Elizabeth Bird and Justice Joseph R. Grodin were defeated by the voters.

Broussard’s opinion was joined by Justices Stanley Mosk and John R. Arguelles and Appellate Justice Clinton W. White, sitting by special appointment.

In dissent, Justice Marcus M. Kaufman agreed that the Bar’s involvement in the 1982 election was improper but said the majority was wrong in concluding that its other political activities posed no threat to the rights of free speech and association of dues-paying Bar members.

“Resistance to coerced association and intolerance of government-enforced support of philosophical, religious, political causes animated the founding of our nation and the drafting of its Constitution,” Kaufman wrote in an opinion joined by Justice Edward A. Panelli and Appellate Justice Nat A. Agliano, sitting by special appointment.

Chief Justice Malcolm M. Lucas and Justice David N. Eagleson did not participate in the case.

State Bar President Colin W. Wied of San Diego welcomed the decision, saying the court had recognized “the important public purpose of our administration of justice functions.”

The Bar remains free to take stands on any issues related to the administration of justice, Wied said. “But if it’s on the ballot, we can’t talk about it,” he said.

Wied noted that the ruling will not prevent lawyers from individual participation in the political process, nor will it prohibit local bar associations, with voluntary memberships, from endorsing candidates for judicial office.

Anthony T. Caso of the Pacific Legal Foundation, an attorney representing the lawyers who challenged the Bar’s use of dues for political activity, said he was “very pleased” the court banned Bar involvement in election campaigning. But he expressed dismay with that part of the decision allowing a wide range of other activity.

“In the past, the Bar’s Conference of Delegates had taken positions on a nuclear freeze, handgun control, prison conditions and environmental concerns,” Caso said. “Now, with this decision, they’re not going to feel at all restrained . . . about furthering their own political and ideological concerns at the expense of the members.”

State Deputy Atty. Gen. Eddie T. Keller, the lead plaintiff in the suit against the Bar, said it was likely the ruling would be appealed to the U.S. Supreme Court. “The constitutional issues in the case may be ripe for a decision up there,” he said.

The case arose when Keller and the other attorneys filed suit in Sacramento Superior Court against the Bar and its Board of Governors, a 22-member group that supervises the Bar and its testing, licensing and discipline of California’s lawyers.

A trial court dismissed the suit. In 1986, however, a state Court of Appeal in Sacramento reinstated the action, finding that the distribution of Murray’s speech and other material amounted to election campaigning and thus violated the rights of members whose dues were used to finance the education program.

Broussard, in the 35-page majority opinion, ruled that because the Bar was more like a governmental agency than a labor union, it was free to use any of its funds for lobbying, public education or other activity so long as it does not engage in election campaigns.

Ruling on another issue in the case, the court held that members of the Bar’s Board of Governors may not be held personally liable for reimbursement of the unauthorized expenditures made in the 1982 election.