|using their mandatory dues to take positions on political issues with
which they don't agree. The bar, on the other hand, says it has given fair and accurate
dues deductions to the plaintiffs, who it says are quibbling about negligible amounts of
money and minutiae.
"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."
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.
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.