Keller v. State Bar of California

PETITIONER: Keller
RESPONDENT: State Bar of California
LOCATION: Doby’s Motel Court

DOCKET NO.: 88-1905
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: Supreme Court of California

CITATION: 496 US 1 (1990)
ARGUED: Feb 27, 1990
DECIDED: Jun 04, 1990

ADVOCATES:
Anthony T. Caso - on behalf of the Petitioners
Seth M. Hufstedler - on behalf of the Respondents

Facts of the case

Question

Media for Keller v. State Bar of California

Audio Transcription for Oral Argument - February 27, 1990 in Keller v. State Bar of California

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?