used to fund activities with political or
ideological coloration not reasonably related to the bars core
functions. Those functions, the court said, are the regulation of the legal profession and
improving the quality of legal services for the people of California.
In response to Keller, the bar created the so-called Hudson deduction
for activities it determines are non-chargeable to member dues.
In 1991, it offered a $3 refund, which later was upped by an
arbitrator to $7.36 for activities that should not be charged to the membership.
Based on 1989
Brosterhous challenged the way the bar calculated the $3 deduction,
which was based on expenditures for 1989.
Although he originally challenged all 30 program categories, only
eight were addressed in the 1999 trial. They included lobbying activities, the Conference
of Delegates, bar relations (a now-defunct program which included committees on ethnic
minority relations and women lawyers), and Volunteers in Parole, a mentoring program which
matches attorneys with youthful parolees.
England ruled that much of the legislative lobbying, the Conference
of Delegates and outreach programs designed to advance the careers of women or minority
attorneys could not be paid for with mandatory dues.
Since the ruling, the legislature mandated that lobbying and the
Conference of Delegates cannot be funded with bar dues. VIP has been independently funded
for years, and the educational sections, which England said could be funded with mandatory
dues, also are now supported only by their members fees.
Bar officials said that 85 percent of active lawyers who have paid
their 2001 dues so far opted not to deduct $5 for the bars lobbying efforts or $7
for programs to address bias in the legal profession. As a result, the bar expects to have
some $800,000 it will earmark for those programs.
All the programs addressed by Judge England now receive ample
voluntary financial support, Madden said. He added that Brosterhous is based on the
way the bar did business in 1989 and that virtually all the facts of the case are moot.
Also weighing on the boards mind were two recent Supreme Court
rulings one addressed outreach programs for women and minorities and the other was
a free speech case involving farmers.
The court unanimously ruled in December that Proposition 209
prohibits cities and counties from using recruitment and outreach programs that focus on
women or minorities. In a decision written by Janice Rogers Brown, the courts only
African-American, the court said a San Jose program requiring contractors to recruit
female or minority subcontractors for city contracts violated Prop. 209 because it gave
preferential treatment based on race and gender.
That decision followed by three days a 4-3 vote which revived a
lawsuit filed by a Clovis plum grower who objects to paying into a marketing fund to
promote the sale of plums. Forcing Gerawan Farming, Californias largest plum grower,
to pay $80,000 each year into a general advertising fund against its will could violate
its free speech rights under the state constitution, the court said. It sent the case back
to the Court of Appeal.
Pacific Legal Foundation has indicated it will seek legal fees and
costs, but Madden declined to discuss the financial liability the bar may face.
The major thing that influenced me was the fact that I couldnt
justify spending our members money pursuing an issue thats no longer relevant
to how we run the bar, he said.
If we were fighting over something that was critical to us,
added Madden, I would have been willing to take the responsibility for doing it, but
I couldnt see doing it given the way were doing business these days.