William H. Rehnquist: We'll hear argument next in No. 88-1905, Eddie Keller v. the State Bar of California. Mr. Caso, you may proceed whenever you're ready.
Anthony T. Caso: Mr. Chief Justice, and may it please the Court: Rightly or wrongly individuals in our society are judged, categorized and characterized by their associations. It is in fact how we define ourselves. Today's case concerns the freedom to choose those types of associations by which we will be judged. An example from recent history is very relevant. Earlier this month at its convention, the American Bar Association adopted a resolution on the question of abortion rights. A 40-year member of that Association, an officer, was so offended by that particular ideological position that he felt compelled to announce his resignation. The members of the California Bar Association have no similar right. This case does not challenge the right of California to regulate attorneys through a mandatory bar association. Instead, it asks whether having done so, may it also authorize the bar to, in the words of the California Supreme Court, comment generally upon matters pending before the legislature. So, both the right to the freedom of association and the freedom of speech are before the Court in this case. Speech rights are implicated by compelled dues payments that are then used for political and ideological purposes, while association rights are implicated by compelled membership in an expressive association. Infringements upon these rights may be justified only by a compelling state interest. The bar in this case identifies no such interest, yet, instead, seeks a blanket exemption under the so-called government speech doctrine. All attorneys in California are required both to... to belong and pay an annual dues payment to the State Bar in order to maintain their license to practice law. In addition to its many regulatory activities, the bar also engages in activities we've identified as political and ideological. These include lobbying on issues that range from environmental questions to criminal penalties.
Byron R. White: May they lobby on any subject permissibly against the views of some minority?
Anthony T. Caso: If it is... if it is supported by a compelling governmental interest. In other words, if there is a reason for California to force these people together into an association and pay a fee for that purpose.
Byron R. White: So... so your answer to my question is that they can... they can lobby for nothing unless there's a compelling interest for it?
Anthony T. Caso: Yes.
Anthony M. Kennedy: Could they lobby for a pro bono requirement for all attorneys in the state?
Anthony T. Caso: Again, if the state identifies that as an interest for forcing all attorneys into an association--
Anthony M. Kennedy: Well, that... take this... take this case. Suppose that you prevail on... on your theory, could the bar association lobby the legislature for a requirement that all lawyers in the State of California devote 30 hours a year for pro bono work?
Anthony T. Caso: --I don't believe so because I believe that there's an underlying public policy purpose behind such legislation that doesn't extend to a reason for California to force these people into a group, to force them to pay a fee to make that type of a political judgment.
William H. Rehnquist: Well, do you have to start kind of building the wheel from scratch every... every question you get to with respect to the State Bar? Couldn't one say there is sufficient reason to... for California to require an integrated bar in the interest of attorney... to start out with, in the interest of maintaining attorney discipline and that sort of thing?
Anthony T. Caso: Indeed, that is what this Court did in Lathrop. But when the state also authorizes the bar to go beyond that, it's Petitioners' position that they must identify what state interest they are fulfilling.
William H. Rehnquist: Well, but couldn't you say some of these things are at least offshoots of the need to regulate the practice of... regulate the practice of law?
Anthony T. Caso: If indeed they are offshoots. And the way the Court's test would... would look at that is, is this actually advancing the compelling state interest in the least drastic means.
William H. Rehnquist: Well, do... but do you think the Lathrop decision that a state may integrate its bar is based on a compelling necessity for integrating the State Bar?
Anthony T. Caso: I'm not sure that the Court in Lathrop used those terms. I know when... at the end of the analysis in the plurality decision the court was just looking at, given these things that the bar is doing, the state is promoting an interest to improve the delivery of quality legal services. So, it's not looking at the types of political conduct that the bar in this case engages in.
Antonin Scalia: Indeed, Lathrop didn't involve speech at all, did it? So you'd never get into... what was it... a speech case?
Anthony T. Caso: It was both--
Antonin Scalia: Was it--
Anthony T. Caso: --a speech and association case, and only the association issue was decided.
Antonin Scalia: --Only the association issue was decided. There wasn't any compelled speech by anybody. I thought your position was... and your answers didn't seem to indicate this... but I thought your position was that it can't be a compelling state interest to... to make the... the organized bar lobby.
Anthony T. Caso: It... it... there can be underlying compelling state interest. And let's take the Lathrop example.
Antonin Scalia: To make them lobby. What... what... what would be the... the example in which it would be necessary for the State Bar to lobby to compel--
Anthony T. Caso: Well, to take the Lathrop example, improving the quality of legal services. If the state legislature holds sway on those particular issues, the bar should be able to go to the legislature and lobby, for instance, on an issue relating to the qualifications for a law school, the qualifications one must possess before they could take a bar examination.
Anthony M. Kennedy: --And then you're saying there's a compelling state interest that the bar association must lobby on qualifications for law schools?
Anthony T. Caso: No, Your Honor. I'm saying there is a compelling state interest... the base compelling is what I believe was recognized in Lathrop, was improving the quality and delivery of legal services. And that base would then allow the bar to go and lobby on issues that are related to that, that actually advance that interest.
Byron R. White: But the bar wouldn't have to do that?
Anthony T. Caso: It would not have to do that. It wouldn't be--
Byron R. White: It may authorize to--
Anthony T. Caso: --It would be authorized.
Antonin Scalia: --Uh-huh. Well, what if I disagree with that position of the bar even though it's an issue that relates to lawyers?
Anthony T. Caso: And again--
Antonin Scalia: My dues are still going to... to subsidize that lobbying against a position--
Anthony T. Caso: --Precisely, and your rights are--
Antonin Scalia: --But you say that would be okay?
Anthony T. Caso: --Your rights are infringed. It's okay because the state has identified a compelling interest that allows it to overcome your individual right of dissent in that circumstance.
Speaker: What is that?
Anthony T. Caso: Again, I'm going back to Lathrop. The interest recognized was improving the quality and delivery of legal services. California, in this case, has identified no interest at all. There is none in this record.
Sandra Day O'Connor: Now, does Abood speak in terms of a justification by a compelling state interest in every case, or does it talk about germaneness to the purpose?
Anthony T. Caso: Abood first talks about the importance of the state's interest. It doesn't use the word compelling state interest. Germaneness comes in--
Sandra Day O'Connor: Do you rely on Abood?
Anthony T. Caso: --Yes, Your Honor.
Sandra Day O'Connor: Uh-huh.
Anthony T. Caso: The germaneness question in Abood comes into then is what we're allowing issues to be spent upon, is that germane to the state's interest? In other words, is it related? Is the state's interest actually advanced? When this Court decided the decision in Chicago Teachers v. Hudson, it did refer in a footnote to the compelling state interest test in association and speech cases of this type.
Sandra Day O'Connor: Exactly what do we have before us here? What are the activities of the bar that are left in this case that are now before us that we have to apply this test to?
Anthony T. Caso: In this case, we have the entire range of bar conduct. They have been prohibited from doing nothing. The court below said laws are the business of lawyers and, therefore, we give the State Bar of California the right to comment generally on all matters that come before the legislature without restriction.
Sandra Day O'Connor: And did the courts below say it would be all right for the bar to support political candidates as well and make contributions to them?
Anthony T. Caso: That was the one restriction, was the political campaign. There is a question about ballot initiatives, because the record does reflect that the bar had adopted resolutions supporting ballot initiatives, but the court did not specifically say that that was not okay.
Sandra Day O'Connor: Under... the under the ruling below, is the State Bar free to give endorsements to judicial candidates on retention elections?
Anthony T. Caso: I don't believe so. Nor are they allowed to do so under legislation that was passed after they had done so in this case.
William J. Brennan, Jr.: Okay. So can we agree with you without overruling Lathrop?
Anthony T. Caso: Certainly. In fact, we would be--
William J. Brennan, Jr.: How?
Anthony T. Caso: --We would be adopting Lathrop as the base and this is what we have found to be a sufficient interest for the state to force all attorneys into an association. If they wish to do something beyond those things, beyond the delivery... improving the quality of legal services or improving its delivery, they must identify what the state's interest is. They have not done that.
William J. Brennan, Jr.: Uh-huh. But you say Lathrop was [inaudible].
Anthony T. Caso: I would argue that the interest found by the Court to justify the association in Lathrop arises to the level of a compelling interest, as did the dissent in the California Supreme Court.
William H. Rehnquist: Neither Lathrop or Abood, which is certainly a related case on the other side, uses that term?
Anthony T. Caso: That's true, Your Honor. The... the phrase v. Jaycees, and the compelling state interest was used in restricting association rights. And, again, we have here an expressive association. The bar looks to shield its conduct as a governmental entity. It says the First Amendment doesn't apply to us in this case, dissenters have no right to complain. We have to look at what type of an entity the bar is, how it functions. It functions, for the most part, as a an autonomous entity. It's governed by a Board of Governors that's partially elected, partially appointed. It's given extensive control over bar operations. It's not supported by general tax revenues; instead, it's supported by compelled dues payments of the petitioners. This money goes directly to the State Bar's treasury, not to the state treasury. When the bar seeks to spend that fund, it spends it on the authority of the vote of the Board of Governors. It need not go to the legislature for an appropriation, it need not be reviewed by the governor, it is not subject to the governor's veto, line item veto, or reduction of powers.
John Paul Stevens: Mr. Caso, how many members of the bar are there?
Anthony T. Caso: I believe approximately 120,000.
John Paul Stevens: Why is it different than a city having a population of 120,000?
Anthony T. Caso: Because the state has compelled this group together.
John Paul Stevens: And you don't have to live in Berkeley--
Anthony T. Caso: Cities... cities have at least some element of voluntariness. In fact, that's what the right to travel is all about. But here we are compelled together into an association if you wish to practice this occupation.
Antonin Scalia: --Well, you don't have to be a lawyer, just as you don't have to live in Boise. I mean, it seems to me there's a certain amount of voluntary... voluntariness in both of those things, isn't there?
Anthony T. Caso: There is, and the teachers in Abood don't have to be teachers in that school district either. Again, we've... we've taken this particular discrete group, a more compelling--
John Paul Stevens: No, but they had to have the union. They had to have the... be represented by the union.
Anthony T. Caso: --They didn't have to work in that school district. They could have moved.
John Paul Stevens: No, I know. But if... the fact of working in the school district is not what gave rise to their problem. I mean, had there been no union, they could have worked in the school district and had no compelled speech.
Anthony T. Caso: Uh-huh.
John Paul Stevens: But just living in Berkeley or Boise, or wherever it is, or being a member of the bar is what does it here.
Anthony T. Caso: Here it's the fact that one wants to practice this particular profession, the state places a burden on that.
John Paul Stevens: Right.
Anthony T. Caso: It says in order to do so you have to belong to this group and you have to pay this group a fee. And so we look to why can the state do that, where is the state's interest? If it's a regulatory interest, that's fine. But does that interest extend to allowing that group to engage in the type of political activity at issue here? And the question comes up is what type of an entity is the bar. It is in fact... at least, purports to be... the sum of its members. When it speaks, it purports to do in a representative capacity. The bar may attempt to deny this in a portion of its brief, but then it later claims majority support for some of its positions.
Sandra Day O'Connor: Well, even if Abood applies here, wouldn't you say that a good many of the State Bar's ideological activities and positions are germane to its purpose in the... advancing the administration of justice and so forth?
Anthony T. Caso: Well, the precise definition of that term is the precise problem in this case, Your Honor. The California Supreme Court defined the term administration of justice to be essentially meaningless. We have no idea what those words mean. When they looked at that, they said, that's the bar's purpose. Now, laws are the business of lawyers; therefore, they may comment on any issue that comes before the legislature. That... that becomes administration of justice.
Sandra Day O'Connor: Well, I'm just asking you whether that wouldn't meet the Abood test of germaneness, at least as we have articulated it in that case.
Anthony T. Caso: You... you would first have to find that a grant of authority that broad to comment on anything that comes before the legislature is itself a sufficient interest of the state to compel attorneys into an association, to compel them to pay a fee. Then they can argue that what we do is related to that. But the first step is, is that an important enough interest? We argue that it has to be a compelling interest.
Sandra Day O'Connor: Although nothing in our cases, in Lathrop or Abood, says that?
Anthony T. Caso: Abood, I believe, uses the words "sufficiently important". Hudson, Chicago Teacher's Union uses the words v. Jaycees.
Anthony M. Kennedy: Your principal argument seems to be that a lawyer who disagrees with the position is going to be somehow branded in the community for having views that he or she doesn't really espouse. But as a practical matter, I am unimpressed by that argument. Everybody knows that lawyers don't agree on very much. [Laughter]
Anthony T. Caso: But lawyers are very public people, Your Honor, and they are going to be branded by these positions simply because the only essence of the bar's speech is that it claims to be that of its members. In other words, let me put it in the words of the California legislature--
Anthony M. Kennedy: Well, it claims to be... it claims to be the members of the majority or the Board of Governors. Whatever. That's all.
Anthony T. Caso: --Let... let me take an example from recent history. A judge in California, Judge Walker, has just gone through a very bruising confirmation process. One of the issues was he belonged to a private club that had a restrictive membership policy. That policy was branded on him even though he got up and said, "I disagree with that". He got up, and he attempted to change that policy, but until he resigned, he was branded with that policy. We are very public people. These positions... the association itself is a factor in how the public defines us.
William H. Rehnquist: Well, Mr. Caso, in our Abood decision, which dealt with teachers, and a couple of other decisions dealing with, I believe, other... other union members, it seems to me the ground upon which objection was made by the dissidents was not that they were tarred with the brush approved by the majority but that their money was being taken to express views with which they didn't agree.
Anthony T. Caso: Precisely, Your Honor. Those were speech cases. And like I said, this case has both elements, speech and association.
William H. Rehnquist: So, insofar as you're talking about speech here you subscribe to the arguments made by... made by the people similarly situated in... in Abood and Hudson?
Anthony T. Caso: Correctly, Your Honor. And again, it has both those elements. And the reason Abood came out differently... you remember in Abood the petitioners in that case asked for an injunction against the activity and the court says, no, you can't have it. And the reason is that the underlying union in Abood is itself a voluntary organization. People that have an independent First Amendment right to join together on political issues. That's what a union is. The California Bar is not a similar entity. There are no voluntary members. There is no underlying core that's exercising First Amendments. It's an artificial construct that exists only by compulsion of the state. To effectuate these rights I believe the Court has a range of alternatives. For the speech... freedom of speech issues, the remedy is clearly laid out in the Hudson decision, and it's very clear and easy for anyone to follow. As far as associational rights, I believe this Court can identify those clearly permissible activities which the state does have an interest to compel attorneys together into an association and, indeed, they've done so in the Lathrop case. Again, I--
Antonin Scalia: Are the two... are the two coextensive, and would... would you agree that any member of the California Bar has to pay for whatever activities we conclude the bar association may engage in?
Anthony T. Caso: --Yes, Your Honor. If you agree with me on the association issue, then there is going to be no dues reduction plan. If, on the other hand, you just focus on the speech problem, then a Hudson-type remedy will have to be established. So, in other words, the association issue will subsume the speech, but the speech alone requires a different remedy if that's the only remedy that you are willing to give relief on. If there are no further questions of the Court, I will reserve my remainder.
William H. Rehnquist: Very well, Mr. Caso. Mr. Hufstedler.
Seth M. Hufstedler: Mr. Chief Justice, and may it please the Court: One of the first questions of the Court dealt with what it is that we have left in this case, and I must say that I have had a great deal of difficulty trying to determine what the petitioners' position is on that from the beginning. I should tell you, first of all, that in all the formal pleadings in this case, the complaints, the attempt to get a preliminary injunction against the State Bar, the motion for a partial summary judgment, all asked that the State Bar be prevented from doing these things, from using its name in any way in any legislative activity, from ever appearing before the legislature as a State Bar on any issue and ever advising any member of the public of its position on any legislative matter. That was the injunction they sought to obtain and that's what their complaint asks.
John Paul Stevens: But, Mr. Hufstedler, didn't they also ask for a refund of money that had been used to support political activities?
Seth M. Hufstedler: No, Justice Stevens, they didn't, and so far as I can determine, until today, other than saying Hudson should control here, they have never said, we really ought to--
John Paul Stevens: Paragraph 3 of the prayer of the complaint asked for an injunction compelling Respondent Defendants to reimburse the treasury of the State Bar and so forth and so on. I thought it's just exactly what you... page 7 of the--
Seth M. Hufstedler: --Oh, no.
Speaker: --of the--
Seth M. Hufstedler: No, Your Honor. You're quite right, that's what it says, but that's not... they didn't ask that they be reimbursed.
John Paul Stevens: --No, but they asked that--
Seth M. Hufstedler: They asked that the members of the Board of Governors of the State Bar repay the State Bar for the expenditures that had taken place.
Speaker: --I see.
Seth M. Hufstedler: They didn't ever ask that they, as members of the bar, be repaid for a share of their dues.
John Paul Stevens: Are they barred, as a matter of pleading, you say, from asking for this relief now?
Seth M. Hufstedler: No, Your Honor. I wouldn't urge that question; I don't think so. I'm simply trying to define what I think it is that they have asked for and how I think unreasonable some of their demands have been. Now, let's come down to the present day, and for the first time... the first time... on the last page of their closing brief they tell us now presumably what we're talking about. And they say their position is not that they object to the bar advising the governor--
William H. Rehnquist: This... this is their reply brief, Mr. Hufstedler?
Seth M. Hufstedler: --This is their reply brief, page 12... 11 and 12, actually, the conclusion, the very last... the next two pages and the last paragraph. If you'll look at the conclusion, for example, they say they don't challenge the bar's power to appoint a member of the Law Revision Commission. It's all right for the bar to get involved in changing the laws and improving the laws. They don't even object to the bar advising the governor on the qualification of judicial appointees. What could be a more political or ideological approach than speech to the governor about what the bar thinks about judicial appointees? Nor, now, do they say, for the first time... all of these are for the first time--
Antonin Scalia: I suppose that depends on what you mean by qualifications, Mr.... Mr. Hufstedler.
Seth M. Hufstedler: --Oh, I... certainly, that's quite right. And I must say that's a perfectly legitimate inquiry into almost anything we talk about here today because the entire record is almost all in generic terms and so we have that problem as we go along. But if you look at the last page at the top, they say, "Instead, it is the bar's political and ideological advocacy. " Now, I think this Court has already said that political in this context doesn't mean much. Whether you're looking at the language in Lathrop or whether you're looking at the language in Abood, those don't any longer add anything to what we're talking about. What they're talking is legislative advocacy. And they say, "Instead, it is the bar's political and ideological advocacy, unrelated to the regulation of the practice of law or the improvement of the judicial system. " For the first time now we have a concession that the bar can do those things with regard to the regulation of the profession, the practice of the law. Furthermore, not just in that area, which was the area primarily dealt with in Lathrop, but with regard to improvement in the judicial system. Now, it is our position that the State Bar is entitled to take positions, legislatively and otherwise, on matters affecting the judicial system or, more broadly, in the words of the statute of California, which authorized the State Bar, to act in the aid of the administration of justice.
William H. Rehnquist: Well, you don't take the position then, Mr. Hufstedler, that the State Bar is precisely the equivalent of, say, the corporate City of Sacramento or the City of San Diego, which I presume could take positions on almost anything they wanted to without violating the Constitution?
Seth M. Hufstedler: I quite agree, Your Honor. We... you're correct, we do not take that position. To the contrary, as indicated, we have statutory authorization, and it is to act, as I've indicated, in the areas of administration of justice, advancing the science of jurisprudence, period.
William H. Rehnquist: Supposing that the California statute authorizing the State Bar had said in effect you... you may lobby and so forth to the same extent that the city or state may lobby and may take positions, would you... would you think that the Constitution might raise any problems treating the State Bar that way?
Seth M. Hufstedler: I don't think so, but I think there's an intermediate question that has to be asked and that's what's the State Bar authorized to do. The State Bar is only authorized to do what I said. It's not authorized to act outside the scope of--
Byron R. White: But what... what did the court below say the bar was authorized to do?
Seth M. Hufstedler: --To pursue the administration of justice. Actually, Your Honor, the statement is really quite clear.
Byron R. White: You don't think it said that they can lobby on any kind of a law before the legislature?
Seth M. Hufstedler: No. It did say that laws are the business of lawyers and that they may have expertise to help with respect to that. But the overall view, as stated in the first paragraph when the court determines what they're going to talk about and what they're going to hold, and they say... and this is the first paragraph of Justice Broussard's opinion. Upon analysis, et cetera, "We conclude that the State Bar may use dues to finance any activity except the election campaigning which is germane to its statutory mission to promote. " --quote... "the improvement of the administration of justice. "
Antonin Scalia: Which includes laws, and laws are the business of lawyers, so--
Seth M. Hufstedler: It does indeed.
Antonin Scalia: --I... I read the court's opinion as I thought you did, to say that the California State Bar can... can lobby about any law whatever.
Seth M. Hufstedler: Well, I would... I'd have to say now... really, perhaps, I'm only quibbling with that, Your Honor. If, for example, the State Bar did what the ABA did and what was cited as a horrible example here to you today... if the Board of Governors said, we want to go out and support any position with respect to abortion, I don't think that per se is included within the administration of justice. Or let's take a more concrete example because this one is in the record, it's the one area where the complaint is made that the State Bar has done something it shouldn't do, and it's an area I would say to you that probably is not within the administration of justice. So, we can start with those propositions. The Conference of Delegates in California adopted a resolution favoring nuclear freeze. Now, in my view, that's not an area of the administration of justice. It might involve some kind of a statute, but I think under the statutes of California the State Bar is not authorized to lobby on that proposition.
Anthony M. Kennedy: Well, does a nuclear freeze or the abortion controversy... does that raise a constitutional problem? Let's assume that the statute was not written to confine the bar to the administration of justice, so the bar may lobby on matters in the public interest.
Seth M. Hufstedler: Certainly that would be in the public interest and the lawyers might have some expertise on some particular grounds. Let's take--
Anthony M. Kennedy: Well, would there be a constitutional problem? I mean, I take it what's before us is... is really a constitutional case.
Seth M. Hufstedler: --Yes, all right.
Anthony M. Kennedy: And if you're... if you're trying to say that we needn't be concerned because a number of these issues won't arise, that's one thing. But in order to test the constitutional theory, what's your answer about the nuclear freeze and the abortion controversy?
Seth M. Hufstedler: All right, I am saying the former, and let me address the latter. With regard to the constitutional question, it seems to me the issues are clear. This Court has laid them down. First of all, so far as a state government in its activities is concerned, it must have a legitimate state goal in order to adopt a program that it wants to go forward with. The first test this Court has said is is this a legitimate government interest. Now, let me say to you here in answer to your question, as the briefs say and despite the contrary claim that we haven't made it clear. We have identified from the beginning that the interest we're talking about is the interest in the advancement of the administration of justice. Now, the first question is, is that a legitimate state goal? It seems to me no one can have any doubt. Not only the advancement of the administration of justice is a legitimate goal, not only is it an important goal... and although I... I would dispute the fact that any of these cases require that it be compelling, I can't think of a more compelling interest than advancing the interest in the administration of justice. So, the first question is is the administration of justice an important governmental interest that qualifies? It seems to me the answer is yes. Now, the second constitutional question, as I understand it, that this Court has laid down is, all right, if the legislature has adopted that goal, have they adopted reasonable means in order to pursue it? Here they have adopted a State Bar Act, they have created a state bar as a governmental agency to carry out the state purpose of bringing the lawyers' expertise to be available both to the public generally and to the legislature on the questions of the administration of justice.
Antonin Scalia: It's done more than create a state agency which is usually staffed by people who volunteer to staff it. It's created the agency and impressed every lawyer in California into... into service as a member of it. Now, that's--
Seth M. Hufstedler: Well--
Speaker: --that's a good deal different, it--
Seth M. Hufstedler: --Well, that's only--
Antonin Scalia: --seems to me. That's only partly right, Your Honor. It has made every member a member of the State Bar and require that they pay a fee in order to practice law. It has not impressed them into service. That's the important thing. As a lawyer in California, I don't have to do thing one for the State Bar. You have to be a member of the State Bar. You have to be a member of that agency that you were just talking about, don't you?
Seth M. Hufstedler: --All right. And let's talk about what that means. That means I have to pay dues, period. I don't have to do another single thing. I don't have to go to a meeting.
Antonin Scalia: Okay.
Seth M. Hufstedler: It's true I have to follow--
Antonin Scalia: It means two things. You have to support its activities, including its speech, with your money, and it means, secondly, that you have to be associated with that agency of which you're a member. So that somebody can come up to you and say, hey, I see that your... your bar association just endorsed a nuclear freeze.
Seth M. Hufstedler: --All... all true.
Antonin Scalia: Don't you have any control over those guys?
Seth M. Hufstedler: All true with a couple exceptions. Certainly they are members and certainly they pay, and there is no other obligation. Now, you included in your question, and I can understand why, the observation that, well, your bar just endorsed a nuclear freeze. And that's the other point I want to talk about... on the nuclear freeze, as an example. The bar didn't endorse a nuclear freeze. It's very important to understand what the Conference does and why it is important in California. In connection with the annual meeting of the lawyers in California, the State Bar has a Conference of Delegates to which any bar association can send delegates, and in fact, any ten lawyers in the state can get together and send a delegate if they wish to do so. There they discuss primarily the nuts and bolts of practicing law. In the record you have the information for the year 1982. There were 181 resolutions; 39 of them dealt with the Code of Civil Procedure and the evidence code. The nuts and bolts. But in the course of that somebody put in a resolution that the State Bar should endorse the nuclear freeze. The Conference discussed it, passed the resolution. The Conference has no binding authority on anyone. Free speech. The members of the Association can come together and talk and you can hear what these people say and exchange their ideas.
Byron R. White: But is the Conference of Delegates financed by the bar dues?
Seth M. Hufstedler: It is indeed, Your Honor. It is indeed. But the point is the State Bar took no action whatsoever on that. The State Bar--
John Paul Stevens: Yes, but there are other... there are other examples in the record, are there not, of things for which the bar lobbied that could be characterized as not strictly professional issues, such as armor-piercing bullets and environmental law?
Seth M. Hufstedler: --I don't think so, Your Honor. And let me tell you about armor-piercing bullets. Yes, indeed, there was some discussion and there was some lobbying with respect to armor-piercing bullets. And why? That statute redefined the definition of first-degree murder and created a first-degree murder claim in California if somebody were murdered with an armor-piercing bullet. Now, that's the sort of thing that relates directly to the administration of justice, the definition of first-degree murder, and that's what lawyers talked about so far as the as the bullet--
John Paul Stevens: Yes, but isn't it also an issue on which policy-makers could have disagreements that are unrelated to their professional skills?
Seth M. Hufstedler: --Of course they could. No doubt about that.
Antonin Scalia: I don't know why it has anything to do with the administration of justice in any... in any sense that lawyers are expert about. I mean, whether you should... you should provide that offense for someone who uses an armor-piercing bullet or not, you either think yes or you think no. I don't know... what... does it have to do with the Rules of Civil Procedure or... it seems to me imminently a political issue having very little to do with the expertise of lawyers.
Seth M. Hufstedler: It seems to me, Your Honor, when you deal with the section in California which deals with the various elements of first-degree murder and what is required that that's something that lawyers not only have a great deal of expertise in that they can assist with, but it also could very well affect the volume of cases in California, the trial calendars and various other procedural matters.
William H. Rehnquist: Well, Mr. Hufstedler, what if in the same general area there were a referendum in California to abolish capital punishment as it is provided in whatever section it is of the California criminal code. Now, may the bar constitutionally and statutorily take a position on that?
Seth M. Hufstedler: My view would be no, that... again, it depends.
Anthony M. Kennedy: I can't imagine anything that's more germane to the administration of justice.
Seth M. Hufstedler: Well, certainly for somebody who is charged with it, I think that's quite right. But let me... let me... let me sort these out just a bit, because I think the armor-piercing bullet case is an example. Each of these things have various kinds of elements that do go directly to the administration of justice and they have various underlying policy elements. Now, if the question put before the State Bar was should there be capital punishment or should there not be capital punishment, I suggest to you that's not a matter of administration of justice. That's an underlying policy matter and, therefore, the State Bar should stay out of that, as indeed they have.
Anthony M. Kennedy: But I... but the message you want to leave us with is that constitutionally even if the State Bar could and did take an issue on that there's no constitutional violation?
Seth M. Hufstedler: That's true. With this exception and this qualification. One would have to decide that if the state bar... let's suppose the state legislature passed a statute and said, state bar, you go out and formulate a position on capital punishment and report it to the legislature. Suppose they did that. Now, if they did that, I would have no doubt of its constitutionality because, one, the state has a perfectly legitimate interest in determining what the views are of people who have knowledge in that area, and this is a rational way of having that information collected and made available... it need not be exclusive. And, therefore, I would say that's constitutional. I would say the state bar doesn't do it not because there's a constitutional--
John Paul Stevens: Yes, but you left out one step, Mr. Hufstedler. You said they could be asked to formulate a position. Surely they could do that. Could they go further and lobby for that position using the funds that these other people who don't agree with the position have donated? That's the question.
Seth M. Hufstedler: --All right. It certainly is. And the answer to that... my answer to that would be yes, Justice Stevens, and let me tell you why. And each time you come back to what is really the very important question here and the crux. These people are required to pay dues to the State Bar, and if they are required to pay dues, shouldn't we act as though this were a private organization and they have... because their dues are being used some way they don't want to they ought to have some kind of relief. The answer to that question is no for two reasons, both of which it seems to me give you a complete answer here. The first is that this is a state agency, and it's a legitimate, genuine state agency. I can--
Sandra Day O'Connor: Well, let's talk about that for a minute. The court below seemed to go off on the theory that because it's a state agency the First Amendment is inapplicable.
Seth M. Hufstedler: --Well--
Sandra Day O'Connor: I thought that was a little curious.
Seth M. Hufstedler: --I--
Sandra Day O'Connor: Do you defend that position?
Seth M. Hufstedler: --I don't defend that position. I really don't think that's what the state... what the court there intended to say in any event. I think what the court said is this is a state agency. Clearly the Constitution's First Amendment applies to the state, the federal government. That's what it and the Fourteenth Amendment do. But the point is that when the state imposes a tax... let me use the word tax for the moment... upon each lawyer for the right to practice law in California, it now has a tax which it can use for any legitimate, authorized purpose. And if that purpose is a constitutional purpose, we don't then have the negative First Amendment rights applicable to the activity of a government agency. Now, that's the first ground and that's why the California Supreme Court talked about that question. This is a state--
Sandra Day O'Connor: Well, I... I'm not sure. Is it a function of... of the standing doctrine that doesn't let taxpayers come in and challenge these things? It isn't that the First Amendment doesn't apply, I suppose.
Seth M. Hufstedler: --No, you're certainly right about that. It's not on the--
Sandra Day O'Connor: It's a standing question.
Seth M. Hufstedler: --Yes, it is a standing question.
Sandra Day O'Connor: But I suppose members of the State Bar have been recognized as having standing to challenge what the State Bar does with their dues.
Seth M. Hufstedler: Well, I think this will be the question that decides that issue probably. Certainly, the California court said no. But to answer your question, yes, I think in broad terms it's a standing question. But let me state it a little bit broader. I think the view is that our social contract is that you can't demit, you can't secede from a government institution. Probably the best... the clearest case that has come down from this Court is United States against Lee where the Amish being required to pay taxes in violation of their religious views for Social Security. I think--
Anthony M. Kennedy: Well, that's... that's why this whole government argument, it seems to me, may cut against you. It seems to me that you may have a harder case because you're a governmental agency--
Seth M. Hufstedler: --Well--
Anthony M. Kennedy: --for that very reason, that the lawyer can't get out.
Seth M. Hufstedler: --There are some--
Anthony M. Kennedy: And that the bar does have certain immunities and powers that make it even more potent.
Seth M. Hufstedler: --Well, there are certainly some drawbacks to being a government agency. For example, we can't campaign, we can't contribute to candidates. If we weren't a government agency, of course we could do that sort of thing. We would have a First Amendment right and we could do so. So, there are some disadvantages. But as a government institution... you remember, I'm sure, what Harlan said in Lathrop. He thought it was beyond any doubt that the government could charge lawyers a fee for practicing law and he thought there was no question they could use those fees to set up a law revision commission or some such institution to comment on the change of laws. And that's essentially the argument, that this is a tax; you can't demit from the payment of the tax even though you disagree with it.
Antonin Scalia: But there has to be a line somewhere. Do you think a state can create an agency with the use of general... general funds that it charges with the mission of lobbying for... on particular referendum issues? It's the state's referendum lobbying agency, and it goes out and advertises and--
Seth M. Hufstedler: Well, of course, you're asking--
Antonin Scalia: --speaks to the public on referendums.
Seth M. Hufstedler: --a basic constitutional problem. My answer would have to be to you, if it meets the constitutional requirements of this Court, yes, it could. But it would have to meet those requirements--
Antonin Scalia: Right. I'm sort of asking you that. Do you think it meets the constitutional requirements of this Court?
Seth M. Hufstedler: --I would think you'd have to know what it was about. If you established a... an agency which was to campaign on any issue that came along--
Antonin Scalia: Yeah. Not partisan campaigns but... but on any... on any issue--
Seth M. Hufstedler: --Well, let me broaden--
Antonin Scalia: --whether it's armor-piercing bullets or capital punishment or abortion, or whatnot, tax funds are going to fund this agency which intervenes in the... in the political process by... by lobbying with legislators and by campaigning with the public.
Seth M. Hufstedler: --Well, let me... let me broaden the question just a bit and then narrow it back to your question. If the state should come up with an agency which said on every issue which comes up before the public we want you to examine it, examine what the issues are on both sides, and publish what those issues and analyses are so the voters can view them, I would say, yes, no doubt about it at all. Now, if the State Bar said... or, if the state said, we're going to pass a statute and you're going to go out and pick one side of every issue and then go out and campaign only for that side, I would have serious doubts that that was a legitimate public issue and would pass original constitutional muster for a legitimate government purpose.
William H. Rehnquist: Yet the governor of California may go from place to place in the state and take positions on just one side of issues and certainly no one can challenge the fact that the state may be paying for his trips.
Seth M. Hufstedler: Absolutely certain that elected officials can do so and can endorse any issue they wish to do so, and that's paid for by taxes and you can't demit, you can't refuse to pay taxes or get part of it back because somebody did.
Anthony M. Kennedy: In Justice Scalia's hypothetical with this do-good agency that can lobby on any issue, could only the lawyers be compelled to pay dues to that to support its activities?
Seth M. Hufstedler: Well, I would suppose it would have to have a fairly close relationship to lawyers. But I have no doubt that without being confiscatory the state can impose a tax upon lawyers for the right to practice law and then use those funds however it sees fit for any legitimate purpose. I think--
Byron R. White: Well, if they couldn't, though, it wouldn't be a speech or association issue, would it?
Seth M. Hufstedler: --No, it wouldn't be at all. It wouldn't be at all.
Byron R. White: It would be something else.
Seth M. Hufstedler: I think that's right.
John Paul Stevens: When I asked you about the lobbying for capital punishment you said there were two answers, one was the state agency answer and you never told us your second.
Seth M. Hufstedler: You're quite right and I do want to tell you the state answer, and I appreciate the opportunity to do so. Under the Abood, the labor union-type cases, which is the basic authority that's relied on here by the petitioners, it seems to us that you reach the same result. And let me see if I can't say it in four or five sentences and then to the extent we need to discuss it further we can. But the Abood and their... and its progeny are quite clear, that the first thing you look at is what is the government interest that justifies compelling membership in the labor union. And in the labor union cases it's collective bargaining and labor peace, and that's clear. And the test is not a compelling interest test but quite clearly is the activity germane then to collective bargaining. And if it is germane, the compelled duties may be used for it. Now, let's move over to the State Bar. The labor union analogy per se clearly doesn't fit. The State Bar does nothing by way of collective bargaining, and yet that's the sole ground that justifies dues there. So you have to kind of throw that out and look back a step in more general principles. What's the purpose of the State Bar? Now, the California Constitution, the California Supreme Court, the California statutes make that clear. It is to aid in the administration of justice, and that includes regulation of the profession. Now, I suggest to you that those duties, those interests, the regulation of the profession, the advancement of the administration of justice, are every bit as compelling as labor peace, and those are the interests which correspond to collective bargaining which justify bringing all of the lawyers together in a compulsory association. The association portion has long since been established in Lathrop and we're dealing now with the dues side of it.
Speaker: Now--
Seth M. Hufstedler: Therefore, the compelling interest... I'll be through with this in just a moment.
Speaker: --Sure.
Seth M. Hufstedler: The compelling interest that permits us to go forward here, or the important interest, is the administration of justice and the regulation of the profession and, therefore, under exactly the same parallel reasoning, so long as these activities are germane to the administration of justice, the compelled dues are appropriate.
Antonin Scalia: I'm... I'm not sure I agree with your... your compelling interest analysis. It doesn't seem to me that you just pick a general goal like administration or justice or labor peace and that that's the compelling interest. It seems to me you look to see whether you need an organization such as a labor union in order to conduct collective bargaining. You obviously do. That is the compelling interest, the compelling need for that kind of an organization. And I suppose the appropriate question here is do you need this kind of a compulsory association in order to improve the administrative... the administration of justice instead of relying upon voluntary organization? At least for some... for some areas. Now, perhaps you do for disbarment and... and things of that sort, policing the ethics of the profession. But for recommendations on laws, do you need this kind of an association as opposed to the numerous voluntary bar associations that exist throughout the country?
Seth M. Hufstedler: Let... let me--
Antonin Scalia: And that's... that's a much different questions, it seems to me.
Seth M. Hufstedler: --It is a much different question, and I suggest it's not a question that the cases would support. I don't believe any of these cases say, is this the exclusive way or is this the need. I think it talks about compelling interest in the sense of the importance of the interest, not the fact that it is an exclusive interest or that it can't be done any other way. Let me conclude because my time obviously is about out, and I'd like to conclude with this thought. The State of California has set up an integrated bar association for the purpose of getting certain advantages in the state. And those advantages are to get the common collective view of lawyers on these various interests that they have undertaken, the advancement of the administration of justice and the regulation of the profession. Now, I suggest to you that it is appropriate to let the State of California set up its own government regulatory body and to impose taxes, impose dues, whatever the label is, upon the lawyers to support that organization as a matter of taxes and to accomplish a legitimate, important, indeed, if necessary, even compelling state interest: the advancement of the administration of justice. That's why we believe this is ultimately important. And I would conclude with the final thought that if you look at the amount of money the State Bar spends for these few items of lobbying that the complaint is made about here, you'll find it's a tiny fraction of 1 percent, because seven-eights of the budget, as the record shows, goes for regulation of the profession and discipline... two-thirds go to discipline alone... and that only a tiny portion deals with these very few instances that have been suggested, all of which in our view are entirely justified.
William H. Rehnquist: Thank you, Mr. Hufstedler. Mr. Caso, you have 11 minutes remaining.
Anthony T. Caso: Thank you, Your Honor. Indeed, the vast majority of the bar's budget does go to these other activities and thus, unlike what the bar's amici would say, the world will not end if Petitioners prevail in this case. A question from the bench related to what was the scope of authority to the bar under the decision of the California Supreme Court. In Volume III of the Appendix at page 576, the court notes, "If the bar is considered a governmental agency, then the distinction between revenue derived from mandatory dues and revenue from other sources is immaterial. " "A governmental agency may use unrestricted revenue, whether derived from taxes, dues, fees, tolls, tuition, donation, or other sources, for any purpose within its authority. " Now, what is the bar's authority? It continues the use the phrase, "administration of justice". Indeed, this Court used that phrase in the Lathrop case.
Byron R. White: Well, what if... what if we agree with you, what will our judgment be?
Anthony T. Caso: Your judgment will be that the... the bar can do those things that the state has an interest in, and if it wishes to do other things, it must--
Byron R. White: That the state has an interest in.
Anthony T. Caso: --That the state has an important or compelling interest.
Byron R. White: Well, the state obviously thinks it has an interest in all these things. But you think--
Anthony T. Caso: There--
Byron R. White: --You think there... we would have to... we would have to say there may be an integrated bar but only for certain purposes?
Anthony T. Caso: --The Court has already ruled that there may be a mandatory bar association when the state's purpose is to improve the quality and delivery of legal services. The question now is--
Byron R. White: Not... not--
Anthony T. Caso: --is having done that--
Byron R. White: --Not the administration of justice?
Anthony T. Caso: --What does that term mean?
Byron R. White: I... I don't know.
Anthony T. Caso: Under... in the court below, that term is limitless, Your Honor.
Byron R. White: What does improving the quality... the delivery of legal services mean?
Anthony T. Caso: In Lathrop, the Court looked at very specific examples of what was happening, continuing legal education, admission and discipline of attorneys. Ethics, opinions of the advisory--
Byron R. White: Well, do you think... do you think the reform... that reformation of the tort... law of torts would be improving the delivery of legal services?
Anthony T. Caso: --No, Your Honor. That doesn't relate to the delivery of legal services. That's the mechanical function that attorneys do. We go out and represent people, that's the delivery of legal services. And I think that's what the Court was talking about in the Lathrop decision, improving the quality of that.
John Paul Stevens: May I ask you this question, because the administration of justice obviously can be a large or small term--
Anthony T. Caso: That's right.
John Paul Stevens: --depending on what you include in it. Your opponent suggested really what you're fighting about is less than a very small fraction of one percent of the budget of the bar association. And you sort of accepted that when you got up a moment ago and said, that proves that the case really won't hurt anybody because you'd just have to take ten cents a year of their dues, or something like that. Do you agree that the area of controversy is that small?
Anthony T. Caso: I'm not sure it is that small. When this case began in 19--
John Paul Stevens: Well, how about... what's your judgment? I mean, obviously at least two-thirds of it is noncontroversial. The discipline stuff is okay, I guess--
Anthony T. Caso: --Yes, Your Honor. Let me explain. In 1982, when this case began, the bar was identifying approximately 16 to 17 percent of its budget as administration of justice functions. Since that time, however, there's been a tremendous increase in dues that's devoted exclusively to discipline. And I haven't attempted to calculate what percentage of its budget, but at that time, when this case began, the dues were approximately $200. We were talking about 16 to 17 percent of its budget as the total amount devoted to this type of activity.
John Paul Stevens: --Yes, but you don't object to all of this--
Anthony T. Caso: Correct.
John Paul Stevens: --as I understand your brief. You agree that you can reform the Rules of Civil Procedure and that sort of thing, don't you? Have... have bar money spent on... or do you think it can do nothing to change the law?
Anthony T. Caso: It can change the law when the--
John Paul Stevens: I mean to lobby for--
Anthony T. Caso: --state has that interest. Again, we have to start from the state ground, is that the state has to identify why is it doing this.
John Paul Stevens: --Well, it wants to improve the administration of justice, and there's an area of dispute about what that includes. And I'm just trying to understand because I really think there is some vagueness in your position as to how many of these things you really object to. Do you have any idea of what percent of the budget you think is improperly spent?
Anthony T. Caso: I go back to the 1982 figures as my base point. And I would say the great majority of that 16 to 17 percent would fall within an objectionable portion. And the reason again, Your Honor, just to say administration of justice... and that's all the California Supreme Court... just to say the words--
John Paul Stevens: Well, I know, but, see, you do have a remedy on specific issues you disagree with. You could go into state court and say this is beyond the statutory definition. You probably could get Mr. Hufstedler to argue your case for you on some of these things--
Anthony T. Caso: --But... but the--
John Paul Stevens: --like the nuclear freeze.
Anthony T. Caso: --California Supreme Court has... has laid down the definition of what those terms mean in California, what those terms mean in this statute. Laws are the business of lawyers is what they said.
Thurgood Marshall: But what exactly--
Anthony T. Caso: Anything--
Thurgood Marshall: --in this statute are you opposed to? What words?
Anthony T. Caso: --We're not opposed to the words in the statute.
Thurgood Marshall: Well--
Anthony T. Caso: It's the way California defined them, Your Honor. And let me give you an example.
Thurgood Marshall: --In line with Justice Stevens, we have to say... you want us to say something specific, don't you?
Anthony T. Caso: Yes, Your Honor.
Thurgood Marshall: What do you want us to say specifically? Words, please.
Anthony T. Caso: The remedy this Court should issue is that... to decide the bar is well within its power to use mandatory association and mandatory fees to finance those activities related to the delivery of quality legal services, as this Court determined in Lathrop. If the bar wishes to go further, it must identify an interest of the state that is compelling.
Byron R. White: But it doesn't... it doesn't... I thought you were... you wanted... you were asking perhaps an injunction against the bar from doing those things.
Anthony T. Caso: Certainly when I go back to the courts in California with this decision it will be... I don't--
Byron R. White: If you get a... if we agree with you, you don't... you're not... wouldn't... would it solve your problem to... to have a little refund of dues or do you want an injunction against the bar from doing these things as long as they have an integrated bar?
Anthony T. Caso: --Your Honor, on the association rights we want an injunction. On the speech rights, if... if that's all the Court is going to grant relief on is the speech rights--
Byron R. White: It isn't going to do you--
Anthony T. Caso: --then the refund solves the problem.
Byron R. White: --It isn't going to satisfy you to... to have the... the kind of a solution that there is in the labor union area?
Anthony T. Caso: That does not take care of what we assert are the association rights at stake here because this is an expressive association that they're compelled to be members of.
John Paul Stevens: No, but it does take care of your free speech claim.
Anthony T. Caso: It does take care of the speech claims.
John Paul Stevens: A refund of about $10 out of the $200 would do it.
Anthony T. Caso: Sure. And, Your Honor, perhaps it's best to look at this case, can California--
John Paul Stevens: Well, according to Mr. Hufstedler--
Anthony T. Caso: --compel all doctors--
John Paul Stevens: --a refund of about 25 cents out of that $200 would do it. That's what I'm trying to figure out. Whether it's $10 or 15 cents. Counsel, I still don't understand how your compelling interest works. That the bar can go further, it can do these activities if the state identifies a very significant and important interest you said.
Anthony T. Caso: --Interest that would--
Anthony M. Kennedy: I think you could make--
Anthony T. Caso: --Okay.
Anthony M. Kennedy: --a very rational argument... a lot of people could... that nothing is more important to morality and to continued law than a nuclear freeze.
Anthony T. Caso: Okay. But that interest has to be related--
Anthony M. Kennedy: And so are we supposed to judge whether or not each of these issues on an issue-by-issue basis is somehow compelling?
Anthony T. Caso: --No. No, Your Honor. The interest has to be... has to grant the state a reason to compel these people here, attorneys only, into a group for that purpose. That's where the... if you go back to the Abood case, the reason--
Antonin Scalia: But would you apply some test that if there is a voluntary association of lawyers that's willing to provide the... the analysis or the advice there's... there's prima facia no compelling state interest in impressing every lawyer in the state to supporting such an enterprise?
Anthony T. Caso: --Certainly I don't think you can delegate to a voluntary association a regulatory function.
Antonin Scalia: I'm not saying delegating. I'm saying whenever you have a voluntary association of lawyers that has come forward and said these are our comments on the Rules of Civil Procedure, whatever they are, you prima facia don't need a mandatory state association of lawyers to do the same thing.
Anthony T. Caso: Well, certainly, and there are a number of those associations, and the legislature is better served because only those people that want to belong to that association are making that message and the legislature is better able to evaluate it in that respect.
Antonin Scalia: And what do you need a mandatory association of all the state lawyers for? For discipline matters? For what?
Anthony T. Caso: Well, this Court has recognized that's okay for the state to do, for discipline matters, for continuing legal education, for ethics requirements. These are things that the state can compel attorneys into an association for. The court below would say it can go beyond that and "comment generally on any matter before the legislature. "
Thurgood Marshall: How do you expect us to write something that you won't write yourself?
Anthony T. Caso: I'm sorry, Your Honor. I go back to the fact that--
Thurgood Marshall: No. Where in your papers do you say what you want?
Anthony T. Caso: --Well, again, I'd just have to go back to the fact that California has--
Thurgood Marshall: Is it written down so I can read it?
Anthony T. Caso: --Unfortunately I didn't provide a real clear--
Thurgood Marshall: Sir?
Anthony T. Caso: --I did not provide a clear definition of that in my papers, and I apologize for that, Your Honor.
Thurgood Marshall: Well, what can we do?
Anthony T. Caso: What you can do is reverse the decision--
Thurgood Marshall: If you're not clear about it, how do you expect us to be clear about it?
Anthony T. Caso: --What you can do is reverse the decision of the California Supreme Court that says that the State Bar--
Thurgood Marshall: Just reverse?
Anthony T. Caso: --is a governmental agency and can do--
Thurgood Marshall: Just say we reverse?
Anthony T. Caso: --No, Your Honor. You can reverse the decision on those grounds and require the state to articulate an interest, which it has not done in this case because it never reached that level of analysis. It said this is a governmental agency, it can do anything any other governmental agency can do without First Amendment restriction as far dissenting minorities or dissenting members. The state has not articulated that interest. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Caso. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.