California attorneys lose free-association claim against state bar

Tuesday, September 7, 1999

Three members of the State Bar of California who argued that their First
Amendment free-association rights were violated when the bar advocated political
positions they disagreed with have lost their appeal.

The 9th U.S. Circuit Court of Appeals ruled on Sept. 2 that requiring
attorneys to pay membership dues does not violate general free-association

Bill Morrow, Barry Keene and Bruce Henderson sued the bar in 1998, seeking to
enjoin the association from engaging in certain political activities. The
plaintiffs objected to the bar’s support in 1997 for four bills in the
California Legislature that affected state tort and employment law.

The plaintiffs in Morrow v. The State Bar of California contended that
because membership in the state bar was mandatory for licensed attorneys, they
were being forced to associate in the public eye with viewpoints with which they

The attorneys attempted to rely on the 1990 U.S. Supreme Court decision
Keller v. State Bar of California. In Keller, the high court
unanimously ruled that the state bar could not force its members to financially
support the bar’s funding of political and ideological activities not associated
with the bar’s normal regulatory functions. The high court reasoned that forcing
individuals to fund positions they did not support violated their free-speech

After the Keller decision, the California State Bar allowed its
members to seek a refund of the proportion of their dues that the bar spent on
political activities unrelated to the bar’s regulatory functions.

The attorneys did not allege a free-speech violation under Keller
because they had the opportunity to seek a refund. However, they claimed that
Keller also supported their free-association claim.

The attorneys who filed the Keller lawsuit had sued on both
free-speech and free-association grounds. However, the U.S. Supreme Court
decided the case on free-speech grounds and did not address the free-association

Noting that the high court was silent on the free-association issue in
Keller, the 9th Circuit reached back to a 1961 U.S. Supreme Court
decision, Lathrop v. Donohue. In Lathrop, the high court rejected
the free-association claim of a Wisconsin lawyer who argued that he should not
have to pay dues to an organization that espoused views different from his own.

“We are unable to find any impingement upon protected rights of association,”
the high court wrote in Lathrop.

The 9th Circuit decided that because Keller was silent on the
free-association issue, the principles of the 1961 Lathrop decision must
apply in Morrow. The court also noted that the plaintiffs could still
“express their own views” and “disagree with the positions of the Bar.”

Attorneys handling the case could not be reached for comment.