they please the court i'd like to reserve a two minutes for about this morning i'm going to focus primarily on one issue supreme court or president does not foreclose the plaintiff's challenge to organize requirement that ideological activities and germane to regulating the legal profession or improving the quality of services at the end of the kelo decision there was one issue it was not resolve and that's the question of whether it violates an attorney's right to freedom of association to require an attorney to join a bar association and engages in millan dreaming speech the plaintiffs claim presents that issue the circuit and it seems to me looking at the record in those cases that if there's a strong argument that this claim that you're talking about what i what i call the what i started calling the pure research claim to distinguish it from the claim that was addressed  morrow said what d we're not addressing the claim the color of the dress it was raised in morrow in this court doesn't really get like the supreme court it can just say we don't we don't want to we don't want to address the claim that you raised even though you raised it so what are we supposed to do with morrow i f it and i think it was an address tomorrow but it was raised in ma so what we do with that one thing moral makes clear is that heller did reserve an issue related to lawyers right to freedom of association with respect to borrows so ca sions morrow is very unclear as to what that remaining issue is but keller it is clear as to what that issue is and that is association with  association claim i don't know what that claim would be they're not look they're about that but something more extreme than the claim that you're raising or that was actually raised in kalar as actually race and in in morrow or in fact i don't know reach it but there was a claim before and arguably it implicitly decided it implicitly decided the claims were for one thing the this court can do standard if we're going to take a more recent supreme court case and say it has overruled i mean our standard on that is pretty high what do we keep are we bound by a prior panel's decision if it's doesn't provide  reasoning if it just implicitly decides something not in this instance where there's an intervening supreme court precedent that makes clear that there is a level of st amendment screwed and even a court should apply but the court definitely didn't apply in the previous case this court has never applied exacting st amendment scrutiny to mandatory membership in a bar association that engages in non germane speech and certainly late for it didn't do that either a laborer didn't consider germane versus non germane activities and tell her specifically said that and not address the freedom of association as if it was reserving so in light of all those pesky let me ask you just sort me as you're related question it there's also sort of the the weirdness for lack of a better word that i think i agree with you that keller decided the money claiming you know what end but it did not decide the pure free association d claim but as you know keller did allow there to be enter greater bars latham did allow there to be integrated bar and ma did allow that i mean this it's sort of it's sort of odd to say for decades we've had these these cases and they've allowed them by not reaching the claim but they were they were unconstitutional all this time i mean i think you see i say i just kind of an odd circumstance has been under those precedents even if we put d janice st has asked me to the able to have one that engages in non germane speech and didn't address that and given that it didn't address that that's deliberate question and it's one that's especially important to address now that the supreme court has clarified that exact in its st amendment obviously and here is also didn't say anything about whether mandatory membership to survive exact is for me it didn't say anything about whether or a government could serve its interests and rip in the waiting the legal profession in a way that was le state bar doesn't provide sufficient information for members to just propriety if they were jews and the plaintiffs should have an opportunity to develop a record on that the goal or decision contemplated that there might be alternatives safeguards other than those good specified that could suffice he said consideration of those we have to call it was a war fully developed ready so at the very least women should have an opportunity d to develop that record to determine whether what the oregon state arms do him actually protects st amendment rights in the way it's counsel you want to reserve you only have about a minute left i will reserve the balance of  i think that maybe your honor was on the right track in terms of maybe it left open a claim of some extreme situation where that's not that's not ok let me let me read what it says it says in addition to their claim for really based on respondents use of their mandatory abuse their complaint requests an injunction urban estate barred from using its name to advance political and ideological causes or beliefs that's just another way of saying they want injunctions stuck in the bar that they have to be a member of from engaging in they cannot be compelled to associate with an organization engages in political or ideological activities beyond those for which meant very fast or just under the principles of laughter in a boat and then the supreme court says california courts didn't address this we decline to do so on the st since the state courts of course can rid of this henri man that's not an extreme claim that's exactly the claim that they're raising here as maybe morrow is talking about some sort of extreme line if that's the case and morrow is mischaracterizing color but color is not talking about some extreme claim that it would be kind of the extreme and absurd for a spring court to brought up an extreme claim because because there was no strong claim presented i don't know any case where they've presented some sort of like they're actually like making me sign the bar's statements you know the parts not on non germane ideological statements or breaking me put my name so i don't think that's right and so but tell me why i'm wrong so as you noted your honor under academia if the supreme court claim open it's not if you i went back and read it again last night it's not some sort of extreme claim it's exactly almost word for word the claim being raised in this case that keller is specifically contemplate that there may be  cases do that all time supreme court has to say you brought two claims we're going to address wam we're going to rest one but you know it must be nice piece brickwork they just don't have to address the other like it could be that the other means of the activities completely unconstitutional but this is doesn't seem like the right case in this case what they said is we want the california courts we want this to percolate a lot more in the lower courts so you're right that this other claim the one that you're opposing counsel didn't even talk about this morning because you just you know i think that is foreclosed by color was decided by the courts this addresses the safeguards that should be in place and it points as an example to chicago teachers versus hudson as the way that you would protect dissenters right i think i think your argument then counsel would be and i understand it has a certain amount of force to say you know what the supreme court was kind of assuming there must be constitutional because it allowed it to continue but that's not really how the supreme court does things the supreme court can completely decide one if you leave another issue completely under side and then come back later or ha the lower courts come back later and decide that the conduct was completely unconstitutional even though this other doctor and it lead to the costs to the the the other type of claims and lead to that conclusion so i don't think that works i don't think it works to say the supreme court was assuming that you could have this speech it doesn't work when the supreme court said there's a whole claim that we haven't addressed and we're late leaving it open we have to we this claim is not foreclosed to us unless it's for cause by morrow i don't one member of the bar cannot be completely associated with all the members of the bar so i mean morrow as i remodel it says it's weird decision because it says multiple times they complain about the fact that they're forced to be a part of this claim if if our hands aren't up and we have to reach members on a political or ideological issue so long as it is speaking up regarding the purposes for which it is d statutorily created and that is for improving the quality of legal services d or regulating he if what you're saying is that the the open claim in color is a bar that consistently engages in non germane speech i don't think that situation where you have a bar that has an and assuming that the that the free association claim has not been decided by color and morrow and how do you when how do you know how to how do we not send this back to how the court addressed this using the supreme court thank you thank you counsel very much if you use your time for battle  thank you it certainly won't suffice to say that the order of the state bar has bylaws this says that it has to only do germane things that the bar has used that to argue is i think you're right that makes sense in a supreme court in a union context is very clear that you you can't just take their word for it so it's the best reason why we have these procedures but there is a little bit of a difference here in that you know unions word for it and maybe the bar does sometimes gauge non germane speech they try not to it sounds like unlike the unions which say so does that make a difference when you've got an entity that is trying not to you know that  overestimate what counts is germane speech and we have that issue here where the players challenge statements that appear to be totally non germane and yet the bar association defends them as the aims are made showing that it takes a different a much more expansive idea what counts as germane speech and whether it's intentional or not attorneys have the same right in same interest in protecting themselves against subsidizing thank you counsel thank you both