Sacramento Superior Court Judge Morris England
Jr. said he would rule soon on the Pacific Legal Foundation's
request that it be paid at current market rates for some 5,000 hours
of work it put into Brosterhous v. State Bar over the last 10 years.
PLF is seeking to double its $1.1 million fee
demand to almost $2.3 million, contending it is entitled to a
multiplier because the case was significant and complex and because it
believes the plaintiffs prevailed on seven of eight points.
Bar lawyers tried to minimize the matter's
importance, noting that a decade of litigation resulted in small
change for the 41 plaintiffs and did not break new constitutional
ground. They asked the judge to reject the multiplier and to reduce
the requested base amount by more than half - action which would
reduce a fee award to about $400,000.
England ruled in 1999 that the State Bar
improperly used mandatory member dues to fund some of its activities
in 1991, the year after the U.S. Supreme Court ruled in Keller v.
State Bar that mandatory fees could not be used to pay for activities
with political or ideological coloration not "reasonably related"
to the bar's core functions.
The bar gave up its appeal in January because it
no longer funds controversial programs with dues money.
It recently settled a fee demand from Lawrence
Hensley of Sacra-mento's Nageley & Meredith, who tried the case
for PLF, for about $90,000.
The arguments at a July 6 hearing focused on
three points: whether hours spent on a 1991 arbitration should be
included in any fee award, whether the total number of hours was
justified and whether a multiplier is appropriate.
England appeared receptive to both sides'
arguments about different issues and asked questions that suggested he
may scale back the PLF request but still order the bar to pony up some
He seemed to agree with PLF attorney Deborah J.
La Fetra that Brosterhous was a significant case that forced the bar
to change the way it pays for its programs. (Signifi-cance and
complexity are grounds for a multiplier.)
"A lot of significance was placed on this
case," England said. "This was the first execution of the Keller
case. I think it does have some first impression issues."
He later observed, "It seems like it's taken
all three branches of our government to get the bar to change the way
it charges dues" - a reference to Gov. Pete Wilson's 1997 veto
of the dues bill, legislation specifying what activities cannot be
funded by dues, and court decisions.
Mark Danis, a San Diego attorney who represented
the bar during the trial, disagreed and told England the bar has done
its best to comply with Keller. Brosterhous challenged the deduction
the bar offered its members in 1991 for "non-chargeable"
activities, a refund it based on 1989 pre-Keller expenditures.
"There's been disagreement about what Keller
means," Danis said. "This court has come down differently on some
issues, but the bar has substantially complied with Keller."
Danis also disputed La Fetra's contention that
the bar has violated its members' First Amendment rights for 10
years. "This case was about one year," he said. "Each year's
activities are different."
Dispute over success
La Fetra told England that PLF was successful on
seven of eight issues and that it prevailed throughout the course of
litigation, including at the appellate level.
She accused the bar of intentionally prolonging
the proceedings through its "stubborn intransigence," and said PLF
deserves to be compensated for work it did as the case "went on and
She even submitted a bill for additional work
required to justify the hours PLF claimed in its fee request after the
bar said the hours were not adequately described.
William Chapman, a San Francisco fees expert
retained by the bar, disputed her every claim, downplaying the
importance of the case, saying the hours claimed are unjustified and
arguing that a multiplier is not warranted.
Keller itself resulted in a fee award of $261,000
with no multiplier, Chapman said, adding, "One million dollars seems
excessive. A multiplier? I don't think so."
He said the plaintiffs had "quite limited
success" in the litigation, saying they originally sought a refund
of $129, and reduced that amount to $75, then $67, and eventually
received only $10.
"What plaintiffs undertook was a full frontal
assault on bar programs," Chapman said. "What it settled for was
He asked England to subtract from any award the
550 hours PLF claimed for an early arbitration and 350 hours spent on
fleshing out the fee request, a 20 percent reduction for what he said
are questionable hours and a reduction for what he called "bracket
creep" - rates based on an attorney's current experience rather
than the level of experience at the time the work was done several
The total reduction would amount to $650,000 to
$700,000, Chapman said.
England has 90 days to rule.