Keller v. State Bar of California
Decided on June 4, 1990; 496 US 1


A. Issues Discussed: Freedom of speech and association

B. Legal Question Presented:

Does the State Bar's use of members' compulsory dues to finance political and ideological activities with which members disagree violate their First Amendment right of free speech when such expenditures are not necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services?

A. Background:

"The State Bar is an organization created under California law to regulate the State's legal profession. It is an entity commonly referred to as an 'integrated bar' - an association of attorneys in which membership and dues are required as a condition of practicing law in a State. Respondent's broad statutory mission is to 'promote `the improvement of the administration of justice.' The association performs a variety of functions such as 'examining applicants for admission, formulating rules of professional conduct, disciplining members for misconduct, preventing unlawful practice of the law, and engaging in study and recommendation of changes in procedural law and improvement of the administration of justice.' Respondent also engages in a number of other activities which are the subject of the dispute in this case. '[T]he State Bar for many years has lobbied the Legislature and other governmental agencies, filed amicus curiae briefs in pending cases, held an annual conference of delegates at which issues of current interest are debated and resolutions approved, and engaged in a variety of education programs.' These activities are financed principally through the use of membership dues.

Petitioners, 21 members of the State Bar, sued in state court claiming that through these activities respondent expends mandatory dues payments to advance political and ideological causes to which they do not subscribe. Asserting that their compelled financial support of such activities violates their First and Fourteenth Amendment rights to freedom of speech and association, petitioners requested, inter alia, an injunction restraining respondent from using mandatory bar dues or the name of the State Bar to advance political and ideological causes or beliefs. The trial court granted summary judgment to respondent on the grounds that it is a governmental agency and therefore permitted under the First Amendment to engage in the challenged activities. The California Court of Appeal reversed, holding that while respondent's regulatory activities were similar to those of a government agency, its 'administration-of-justice' functions were more akin to the activities of a labor union. The court held that under our opinion in Abood v. Detroit Board of Education such activities 'could be financed from mandatory dues only if the particular action in question served a state interest important enough to overcome the interference with dissenters' First Amendment rights.'

The Supreme Court of California reversed the Court of Appeal by a divided vote. The court reasoned that respondent's status as a public corporation, as well as certain of its other characteristics, made it a 'government agency.' It also expressed its belief that subjecting respondent's activities to First Amendment scrutiny would place an 'extraordinary burden' on its mission to promote the administration of justice. The court distinguished other cases subjecting the expenditures of state bar associations to First Amendment scrutiny on the grounds that none of the associations involved in those cases rested 'upon a constitutional and statutory structure comparable to that of the California State Bar. None involves an extensive degree of legislative involvement and regulation.' The court concluded that 'the State Bar, considered as a government agency, may use dues for any purpose within the scope of its statutory authority.' With the exception of certain election campaigning conducted by respondent and its president, the court found that all of respondent's challenged activities fell within its statutory authority."

On certiorari the US Supreme Court reversed and remanded the judgment of the Supreme Court of California.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Anthony T. Caso argued the cause for petitioners. With him on the briefs were Ronald A. Zumbrun and John H. Findley.

Briefs of amici curiae urging reversal were filed for the Ad Hoc Committee Opposing Lobbying and Certain Other Activities of a Mandatory Bar by James J. Bierbower; for the American Civil Liberties Union by Steven R. Shapiro and John A. Powell; for the National Right to Work Legal Defense Foundation by Edwin Vieira; for the Washington Legal Foundation et al. by Daniel J. Popeo, Paul D. Kamenar, and John C. Scully; for Robert E. Gibson by Herbert R. Kraft; for Trayton L. Lathrop, pro se; and for Joseph W. Little, pro se.

Seth M. Hufstedler argued the cause for respondents. With him on the brief were Robert S. Thompson, Laurie D. Zelon, Judith R. Starr, Herbert M. Rosenthal, and Diane Yu. Briefs of amici curiae urging affirmance were filed for the American Bar Association by L. Stanley Chauvin, Jr., Carter G. Phillips, and Mark D. Hopson; for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Laurence Gold; for the Beverly Hills Bar Association et al. by Ellis J. Horvitz and Peter Abrahams; for the California Legislature by Bion M. Gregory; for the Lawyers' Committee for the Administration of Justice by James J. Brosnahan; for the State Bar of Michigan et al. by Michael Franck and Michael J. Karwoski; and for the State Bar of Wisconsin et al. by John S. Skilton, Barry S. Richard, and Stephen L. Tober.

"The State Bar of California was created, not to participate in the general government of the State, but to provide specialized professional advice to those with the ultimate responsibility of governing the legal profession. Its members and officers are such not because they are citizens or voters, but because they are lawyers. We think that these differences between the State Bar, on the one hand, and traditional government agencies and officials, on the other hand, render unavailing respondent's argument that it is not subject to the same constitutional rule with respect to the use of compulsory dues as are labor unions representing public and private employees.

...[T]he guiding standard must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or 'improving the quality of the legal service available to the people of the State.'

The Supreme Court of California decided that most of the activities complained of by petitioners were within the scope of the State Bar's statutory authority and were therefore not only permissible but could be supported by the compulsory dues of objecting members. The Supreme Court of California quoted the language of the relevant statute to the effect that the State Bar was authorized to 'aid in all matters pertaining to the advancement of the science of jurisprudence or to the improvement of the administration of justice.' Simply putting this language alongside our previous discussion of the extent to which the activities of the State Bar may be financed from compulsory dues might suggest that there is little difference between the two. But there is a difference, and that difference is illustrated by the allegations in petitioners' complaint as to the kinds of State Bar activities which the Supreme Court of California has now decided may be funded with compulsory dues.

Petitioners assert that the State Bar has engaged in, inter alia, lobbying for or against state legislation (1) prohibiting state and local agency employers from requiring employees to take polygraph tests; (2) prohibiting possession of armorpiercing handgun ammunition; (3) creating an unlimited right of action to sue anybody causing air pollution; and (4) requesting Congress to refrain from enacting a guest-worker program or from permitting the importation of workers from other countries. Petitioners' complaint also alleges that the conference of delegates funded and sponsored by the State Bar endorsed a gun control initiative, disapproved statements of a United States senatorial candidate regarding court review of a victim's bill of rights, endorsed a nuclear weapons freeze initiative, and opposed federal legislation limiting federal-court jurisdiction over abortions, public school prayer, and busing.

Precisely where the line falls between those State Bar activities in which the officials and members of the Bar are acting essentially as professional advisers to those ultimately charged with the regulation of the legal profession, on the one hand, and those activities having political or ideological coloration which are not reasonably related to the advancement of such goals, on the other, will not always be easy to discern. But the extreme ends of the spectrum are clear: Compulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected with disciplining members of the Bar or proposing ethical codes for the profession."

The US Supreme Court reversed and remanded the judgment of the Supreme Court of California.

Justice Vote: 9 Pro vs. 0 Con

  • Rehnquist, W. Pro (Wrote majority opinion)
  • White, B. Pro (Joined majority opinion)
  • Blackmun, H. Pro (Joined majority opinion)
  • Stevens, J. Pro (Joined majority opinion)
  • O'Connor, S.D. Pro (Joined majority opinion)
  • Scalia, A. Pro (Joined majority opinion)
  • Kennedy, A. Pro (Joined majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)

The ACLU, as amicus curiae, urged reversal of the Supreme Court of California judgment; the Supreme Court reversed and remanded in a 9-0 vote, giving the ACLU an apparent win.