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BILL MORROW; BARRY KEENE; BRUCE HENDERSON, Plaintiffs-Appellants,
v.
THE STATE BAR OF CALIFORNIA, a public corporation; MEL
ASSAGAI, Defendants-Appellees.
No. 97-17008
United States Court of Appeals for the Ninth Circuit
D.C. No. CV-97-01115-GEB
Appeal from the United States District Court for the Eastern
District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted February 10, 1999 -- San Francisco, California
Before: Mary M. Schroeder, Ferdinand F. Fernandez, and Barry
G. Silverman, Circuit Judges.
COUNSEL
Paul N. Halvonik, Berkeley, California and Fred J. Hiestand,
Sacramento, California, for the plaintiffs-appellants.
James J. Brosnahan, Jr., Mark W. Danis, Morrison &
Foerster, San Francisco, California, and Marie M. Moffat, Lawrence
C. Yee, Dina E. Goldman, Office of General Counsel, The State
Bar of California, San Francisco, California, for the defendants-appellees.
Filed September 2, 1999
SCHROEDER, Circuit Judge:
Plaintiffs are members of the State Bar of California
who object to political positions taken by the Bar. They contend
that their freedom of association rights under the First Amendment
are violated by their being forced to belong to an organization
that publicly espouses views with which they disagree. Plaintiffs
seek to enjoin the political activities of the Bar that are not
germane to its regulatory functions, even though plaintiffs are
not required to finance these political activities with their
dues. The district court dismissed the complaint on the ground
that the Supreme Court has upheld mandatory bar membership so
long as members are not compelled to contribute to political
activities. See Keller v. State Bar of California, 496
U.S. 1 (1990); Lathrop v. Donohue, 367 U.S. 820 (1961).
Plaintiffs appeal and we affirm.
BACKGROUND
Plaintiffs are several current and former California
public officials who belong to the State Bar of California. Plaintiff
Bill Morrow represents California' s 73rd assembly district;
Barry Keene is a former state senator; and J. Bruce Henderson
is a former member of the San Diego City Council. Defendants
are the State Bar and Mel Assagai, a former executive officer
of the State Bar who in 1996 was given a two-year contract as
a lobbyist for the State Bar.
California maintains a unified bar. In a unified bar,
regulatory functions (such as admission, continuing education,
and attorney discipline) are combined with non-regulatory activities
(such as arranging social functions, obtaining rental car discounts
for members, and political lobbying) in a single organization
in which membership is mandatory. More than half of the states
have unified bars.
Plaintiffs disapprove of the California State Bar' s
political activities in support of four 1997 California bills.
The bills would have raised the ceiling on pain and suffering
damages in medical negligence cases, prohibited civil compromises
in domestic violence cases, defined a state claim for a hostile
work environment, and permitted state law claims for discrimination
on the basis of sexual orientation.
Plaintiffs do not complain about how the State Bar spends
their mandatory dues. In compliance with the Supreme Court' s
decision in Keller, the State Bar allows members to seek
a refund of the proportion of their dues that the State Bar has
spent on political activities unrelated to its regulatory function.
See id., 496 U.S. at 7. Rather, plaintiffs complain that
by virtue of their mandatory State Bar membership, they are associated
in the public eye with viewpoints they do not in fact hold. This
they contend violates their First Amendment rights to free association.
The district court dismissed the complaint for failure
to state a claim. It ruled on the basis of the Supreme Court'
s decision in Lathrop, which upheld mandatory state bar
membership in the face of similar objections. See id.
The district court noted that plaintiffs are not compelled to
endorse or financially support any position of the Bar. They
are free to disagree publicly with the State Bar' s political
stances. The court also noted that in light of the huge size
of the California Bar, the political positions of the Bar are
unlikely to be attributed to all its individual members.
The plaintiffs appeal, contending the district court
erred as a matter of law. We review de novo. See Stone v.
Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995).
DISCUSSION
The issue is whether plaintiffs' First Amendment rights
are violated by their compulsory membership in a state bar association
that conducts political activities beyond those for which mandatory
financial support is justified. The Supreme Court has twice visited
the question of bar membership.
In Lathrop, 367 U.S. 820 (1961), the Supreme
Court held it constitutional to compel attorneys to contribute
dues to a unified bar that conducts political activities. Lathrop,
a Wisconsin attorney, sought a refund of his mandatory bar dues.
He argued that he could not be compelled to join and support
an organization that lobbied the legislature. See id. at
822 & 828. The Wisconsin Supreme Court held that compelled
bar membership did not violate his rights of freedom of association
or free speech. See id. at 823. The Supreme Court affirmed
without a majority opinion. A majority of the Justices, however,
agreed that mandatory paid membership in the bar did not violate
freedom of association. Four of the six votes reaching that conclusion
were expressed in the plurality opinion of Chief Justice Warren
and Justices Brennan, Clark, and Stewart. In their view, given
that the only action Lathrop was compelled to take was the payment
of dues, and, further, that the bulk of the State Bar' s activities
were non-political, there was no impingement on Lathrop' s right
of free association. See id. at 843. The other two votes
came from Justices Harlan and Frankfurter, who stated unequivocally
in their concurrence that "a State may Constitutionally
condition the right to practice law upon membership in an integrated
bar association." Id. at 849.
A majority of the Court in Lathrop was unable
to agree on whether the use of mandatory dues to support political
or ideological activities by the Wisconsin Bar would violate
Lathrop' s First Amendment rights. See id. at 844. The
Supreme Court addressed this question in Keller v. State Bar
of California, 496 U.S. 1 (1990). It held that the California
State Bar could not use mandatory dues to fund "activities
of an ideological nature" that were not germane to "regulating
the legal profession and improving the quality of legal services."
Id. at 16. The Court reasoned that compelling contributions
to an organization for political purposes violated free speech
just as much as prohibiting contributions to political organizations.
See id. at 9-10.
The Court drew its distinction between regulatory and
ideological activities from a line of labor union cases. The
most important of those cases, Abood v. Detroit Bd. of Ed.,
431 U.S. 209 (1977), held that Michigan could compel state employees
who did not belong to the employees union to contribute money
to the union only to the extent the money was spent on "collective-bargaining,
contract administration, and grievance-adjustment purposes."
Id. at 232. Mandatory contributions could not be spent
on "political and ideological purposes unrelated to collective
bargaining." Id.; see also Ellis v. Brotherhood of Ry.
Airline and S.S. Clerks, 466 U.S. 435 (1984).
Plaintiffs stress that the Court recognized in Ellis
that mandatory assessments by a labor union constitute a significant
intrusion on First Amendment rights that can be justified only
by compelling state interests. Plaintiffs contend no such interests
justify mandatory bar memberships. The difficulty with this argument
is that the Court decided Keller after Ellis and Abood.
On the question of mandatory bar membership, the issue presented
here, Keller reaffirmed Lathrop' s holding that "lawyers
admitted to practice in the State may be required to join and
pay dues to the State Bar." Keller, 496 U.S. at 4.
The plaintiffs in this case do not contend that mandatory
bar membership restricts, directly or indirectly, their ability
to express their own views or to disagree with the positions
of the Bar. Nor do they contend that membership compels them
to express any particular ideas or make any particular utterances
of any kind. This case is thus unlike Wooley v. Maynard,
430 U.S. 705 (1977), in which the Supreme Court held that a citizen
cannot be compelled to display the New Hampshire state motto,
"Live Free or Die," on a license plate. See id.
at 714. Also unavailing is plaintiffs' reliance on Pacific
Gas & Elec. Co. v. Public Util. Comm' n of Cal., 475
U.S. 1 (1986) in which the Court overturned a California regulation
requiring a privately owned utility to include in some of its
bill mailings a letter from a private consumer group. Here none
of plaintiffs' property, i.e. their dues, is being used to espouse
views with which plaintiffs disagree.
Plaintiffs nevertheless contend that language in Keller leaves
open the question whether membership alone may cause the public
to identify plaintiffs with State Bar positions in violation
of plaintiffs' First Amendment rights. It is difficult for us
to accept plaintiffs' interpretation of this passage since the
Court in Keller reaffirmed Lathrop on this very point.
See Keller, 496 U.S. at 4. The language on which plaintiffs
rely states:
In addition to their claim for relief based on [the California
Bar' s] use of their mandatory dues, petitioners' complaint also
requested an injunction prohibiting the State Bar from using
its name to advance political and ideological causes or beliefs.
This request for relief appears to implicate a much broader freedom
of association claim than was at issue in Lathrop. Petitioners
challenge not only their ' compelled financial support of group
activities,' but urge that they cannot be compelled to associate
with an organization that engages in political or ideological
activities beyond those for which mandatory financial support
is justified under the principles of Lathrop and Abood.
The California courts did not address this claim, and we decline
to do so in the first instance.
Id. at 17 (internal cross-references omitted). The
claim reserved in Keller was a broader claim of violation
of associational rights than was at issue in either Lathrop
or in this case. Here, plaintiffs do not allege that they are
compelled to associate in any way with the California State Bar'
s political activities. They do not allege that the Bar' s political
involvement is greater and the regulatory function less than
it was when the Court decided Keller and Lathrop. The
claim they make is therefore no broader than that in Lathrop,
where the court held the regulatory function of the bar justified
compelled membership. Lathrop controls our decision here.
The judgment of the district court is AFFIRMED.
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