California Bar Journal
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State Bar, citing outdated 1989 programs, drops appeal in dues case
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used to fund activities with political or ideological coloration not “reasonably related” to the bar’s 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.

Small portion

Bar officials said that 85 percent of active lawyers who have paid their 2001 dues so far opted not to deduct $5 for the bar’s 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 board’s 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 court’s 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, California’s 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.

Legal fees

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 couldn’t justify spending our members’ money pursuing an issue that’s 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 couldn’t see doing it given the way we’re doing business these days.”