REGULARS

"This is the worst form of Monday-morning quarterbacking," said Mark Danis, an attorney with Morrison Foerster in San Francisco who is defending the State Bar. In opening arguments before Sacramento Superior Court Judge Morrison C. England Jr., Danis said the plaintiffs challenge not how their money was spent, but how the bar calculated the amount of the deduction.

The case, Brosterhous v. State Bar, was filed in 1992, two years after the U.S. Supreme Court ruled that mandatory bar dues could not be used to fund activities with political or ideological coloration not "reasonably related" to the bar's core functions.

Those functions, the court said in Keller v. State Bar, 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.

Deputy attorney general Raymond Brosterhous of Sacramento and 39 other unhappy bar members, represented by the conservative Pacific Legal Foundation (PLF), challenged the way the bar calculated the Hudson deduction for 1991.

At the center of the debate is which activities are "chargeable" and which are not, based on Keller. The plaintiffs are challenging eight bar programs, including its lobbying activities, the Conference of Delegates, bar relations (an office which includes committees on ethnic minority relations and women lawyers), and Volunteers in Parole, a mentoring program which matches attorneys with youthful parolees.

"This is a First Amendment case," said Lawrence Hensley, a Sacra-mento attorney representing PLF. "The plaintiffs are not here expecting a greater monetary award. But the issue is very much about money - how money is being used. To the extent it is used for non-germane activities, it must be refunded."

Early steps

Within two weeks of the 1990 Keller decision, the bar took steps to implement the ruling, Danis told the court last month. It ordered no expenditures for non-germane activities, temporarily suspended all lobbying, and ordered a review of all bar programs and all resolutions pending before the Conference of Delegates.

In order to determine the deduction for the 1991 dues, the bar reviewed its 1989 activities, the last year for which an audit had been completed, Danis said. It calculated a deduction of $2.56 and rounded that figure up to $3.

In arriving at that figure, bar officials applied the Keller standard to each program, Danis said. "What's at issue is whether the bar made a reasonable and fair effort to grant the plaintiffs a refund and apply the Keller standard," he said.

Danis told Judge England that under Keller, the bar was entitled to considerable discretion in deciding which activities are chargeable, and he said the judge is not required to "go into the minutiae of how the calculation was made."

"This case boils down to two issues," he added. "What is the proper standard when reviewing the bar's method of reaching the amount of the deduction, and what's the proper interpretation of Keller when applied to the eight programs?"

But Hensley argued that the Hudson deduction was "woefully inadequate" because it did not take into account any overhead expenses from offices outside the eight challenged programs. Staff time from the Office of Research, for example, supported the activities of the lobbying office but was not part of the calculation, Hensley said.

"The conclusion is that the State Bar . . . does not adequately account for overhead expenses when determining what is non-chargeable," Hensley said.

He also argued that some programs the bar claims meet the non-political, non-ideological standard are in fact very political in nature. For example, the whole purpose of the Conference of Delegates is "for non-germane activities," he said.

Challenging rationale

And he challenged the "chargeable" rationale for committees devoted to minority and women attorneys offered by former bar general counsel Diane Yu.

Those committees met the standard of "improving the quality of legal service available" in California, Yu testified, because they worked to achieve diversity in the bar and to improve professionalism.

Hensley countered that diversity and how it is achieved are social questions. "Can that social issue be addressed by the State Bar with the use of mandatory funds? The answer to that question is no."

The trial concluded May 19, and the judge took the matter under submission.