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KELLER v. STATE BAR OF CALIFORNIA

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Court of Appeal, Third District, California.

Eddie KELLER, et al., Plaintiffs and Appellants, v. STATE BAR OF CALIFORNIA, et al., Defendants and Respondents.

Civ. 24124.

Decided: May 23, 1986

Ronald A. Zumbrun, John H. Findley and Anthony T. Caso, Sacramento, for plaintiffs and appellants. Hufstedler, Miller, Carlson & Beardsley, Robert S. Thompson, Laurie D. Zelon and Mary E. Healy, Los Angeles, Herbert M. Rosenthal, Truitt A. Richey, Jr. and Magdalene Y. O'Rourke, San Francisco, for defendants and respondents.

“The State Bar of California is a public corporation.   Every person admitted and licensed to practice law in this State is and shall be a member of the State Bar except while holding office as a judge of a court of record.”   (Cal.Const., art VI, § 9.)   Under pain of criminal punishment, no person may practice law in California unless he is an active member of the State Bar.  (Bus. & Prof. Code, §§ 6125–6126.) 1  The Board of Governors of the State Bar, upon authorization from the Legislature, fixes and imposes an annual membership fee upon members of the State Bar.  (§ 6140.)   The fees are paid into the treasury of the State Bar, and become part of its funds.  (§ 6144.)   Plaintiffs are licensed attorneys and members of the State Bar.   They assert that the State Bar and its Board of Governors utilize their compelled membership fees to promote political and ideological positions contrary to their beliefs and in violation of their First Amendment rights.   The trial court granted summary judgment in favor of the State Bar and the members of the Board of Governors.   The plaintiffs appeal.

 The decisions of the United States Supreme Court “establish with unmistakable clarity that the freedom of an individual to associate for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments.”  (Abood v. Detroit Board of Education (1977) 431 U.S. 209, 233, 97 S.Ct. 1782, 1798, 52 L.Ed.2d 261, 283.)  “The fact that [employees] are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights.   For at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State.”  (Id., at pp. 234–235, 97 S.Ct. at pp. 1799, 52 L.Ed.2d at p. 284;  citations and fns. omitted.)   Those principles, the Abood court concluded, prohibited a school board from requiring teachers, as a condition of holding a job in a public school, to contribute to the union for the support of political and ideological causes which they opposed and which were unrelated to collective bargaining.  (Id., at pp. 235–236, 97 S.Ct. at pp. 1789–90.)   These same First Amendment principles prohibit the State Bar from requiring its members, as a condition of practicing law, to contribute to the support of political or ideological causes they oppose and which are not germane to the purposes of the State Bar Act.

 As we shall demonstrate, the State Bar has no constitutional or legislative authority to engage in purely political or ideological activities unrelated to its statutory purposes.   Its powers are limited to what we will call its regulatory and administration of justice functions.   The State Bar is free to act and speak on matters germane to these functions.   It may also engage in conduct germane to its purposes even though that conduct has political or ideological ramifications so long as that activity does not impose additional infringements upon First Amendment rights not justified by a compelling governmental interest.   But when the State Bar acts beyond these legitimate functions, we agree with plaintiffs that its members may not be constitutionally compelled to support political and ideological positions with which they disagree through compelled membership fees as the condition of the right to practice law.   Since defendants have failed to establish that there are no triable issues concerning the constitutional and statutory legitimacy of the challenged conduct, we shall reverse the judgment and remand for further proceedings.

I

 This litigation commenced when four of the plaintiffs filed a petition for a writ of mandate and complaint for declaratory and injunctive relief against the State Bar and the members of the State Bar Board of Governors.   Plaintiffs allege that the State Bar, by and through the Board of Governors, has expended and will continue to expend substantial portions of the revenues derived through mandatory membership fees to advance political and ideological causes, including, but not limited to:  (1) lobbying the California Legislature;  (2) submitting amicus curiae briefs in cases taking positions in direct opposition to those held by some of its members;  (3) financing meetings of the Conference of Delegates at which political and ideological causes are advanced;  (4) publicizing the political and ideological speeches of its then president, Anthony Murray;  and (5) financing a so-called public information project designed to disseminate to the general public a particular ideology regarding judicial retention elections.   Plaintiffs further allege that they do not subscribe to many of the political and ideological beliefs advanced, and that they object to the use of their mandatory dues to further any such beliefs.   Plaintiffs assert that to compel them to provide financial support for the advancement of any political and ideological beliefs, particularly those with which they disagree, violates their constitutional rights of freedom of speech and association, as guaranteed by the First and Fourteenth Amendments of the United States Constitution.2  Plaintiffs sought a declaration that the defendants have violated their constitutional rights through the expenditure of mandatory bar dues and the use of the name of the State Bar of California for the advancement of political and ideological purposes;  an injunction restraining the use of mandatory dues and the name of the State Bar to advance such purposes;  and an injunction compelling the members of the Board of Governors to reimburse the treasury of the State Bar for the amount they authorized to be expended for political and ideological purposes since September 12, 1982.3  In the alternative the plaintiffs sought similar relief in a proceeding for a writ of mandate.   On two subsequent occasions the complaint was amended to name additional plaintiffs.

The defendants answered and admitted that they have expended portions of the revenue from compelled membership fees for purposes of lobbying the Legislature, filing amicus curiae briefs in litigation, financing meetings of the Conference of Delegates, publicizing the speeches of the president of the State Bar, and for financing a public education project on the judiciary.   They deny, however, that these expenditures were in violation of the plaintiffs' constitutional rights.   Defendants also set forth as affirmative defenses:  (1) the failure to state a cause of action;  (2) laches;  (3) estoppel and/or unclean hands;  and (4) that they are privileged to do the acts complained of due to legislative authorization and that they acted in good faith.4  The trial court sustained the demurrer of the plaintiffs to the defense of estoppel and/or unclean hands without leave to amend.

Defendants moved for summary judgment, or in the alternative summary adjudication of issues or judgment on the pleadings.   The plaintiffs countermoved for partial summary judgment.

Although the parties submitted much documentation in support of and in opposition to the respective motions, there is no real factual dispute about the State Bar and its recent activities.   As the California Supreme Court recently recounted, “[i]n 1927, the Legislature adopted the State Bar Act (Bus. & Prof. Code, § 6000 et seq.) establishing ‘what is known as an “integrated” bar, i.e., an organization of members of the legal profession of the state with a large measure of self-government, performing such functions 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.’  (1 Witkin, Cal. Procedure (1970 ed.) Attorneys, § 157, p. 168.)”  (Saleeby v. State Bar (1985) 39 Cal.3d 547, 557, 216 Cal.Rptr. 367, 702 P.2d 525.) 5  Thus, the State Bar is authorized to establish an examining committee to “examine all applicants for admission to practice law” and thereafter to “certify to the Supreme Court for admission those applicants who fulfill[ed] the requirements․”  (§ 6046, subds. (a), (c).)   Under the board's auspices, local administrative committees may investigate complaints about the conduct of members and may thereafter forward reports and recommendations to the board for action.  (§ 6043, subds. (a), (c).)   After a hearing, the board “has the power to recommend to the Supreme Court the disbarment or suspension from practice of members or to discipline them by reproval, public or private, without such recommendation.”  (§ 6078.)  “In those two areas, the bar's role has consistently been articulated as that of an administrative assistant to or adjunct of [the Supreme Court], which nonetheless retains its inherent judicial authority to disbar or suspend attorneys.   In the area of admission to practice, an applicant is admitted only by order of the Supreme Court which, upon certification by the bar's examining committee that the applicant fulfills the admission requirements, ‘may admit such applicant as an attorney at law in all the courts of this State․’ ”  (Saleeby, supra at p. 557, 216 Cal.Rptr. 367, 702 P.2d 525;  citations omitted.)   In addition to those duties, the State Bar enforces the law relating to the unlawful practice of law and illegal solicitation (§§ 6030, 6125–6131, 6150–6154), administers an arbitration system for fee disputes (§ 6200–6206), maintains a client security fund (§ 6140.5) and engages in other similar matters relating to the legal profession.   For the sake of convenience, we shall refer to these activities as the State Bar's regulatory function.

In addition to its regulatory powers, the board is empowered to “aid in all matters pertaining to the advancement of the science of jurisprudence or to the improvement of the administration of justice․”  (§ 6031, subd. (a).) 6  This has been called the “laudable general purpose of the [State Bar] act.”  (Herron v. The State Bar (1931) 212 Cal. 196, 199, 298 P. 474.)   The bar's general counsel has described section 6031 as “the spring board for State Bar activities.”  (Use of Mandatory State Bar Dues, Assembly Committee on Judiciary, hearing 9/17/79, letter of Herbert M. Rosenthal, p. 111.)   We shall call this the State Bar's administration of justice function.   Some of these functions have been statutorily delineated;  most have not.   For example, the State Bar is mandated by statute to cooperate with and give assistance to the Commission on Judicial Performance (Gov. Code, 68725), to assist the Law Revision Commission (Gov.Code, § 10307), and to evaluate the judicial qualifications of gubernatorial nominees for appointment to courts of record.  (Gov. Code, § 12011.5.)

In aid of all of its powers, the State Bar is authorized to do all acts “necessary or expedient for the administration of its affairs and the attainment of its purposes.”  (§ 6001, subd. (g).)  In sum, the State Bar has two legitimate but divergent functions:  one is to regulate the practice of law and the other to advance the administration of justice.

To carry out its functions, the State Bar is governed by a Board of Governors of 22 members, 16 of whom are members of the State Bar and 6 of whom are nonattorneys appointed by the Governor of the State with approval of the Senate.  (§§ 6010, 6011, 6013.5.)   Fifteen of the attorney members of the board are elected by the members of the State Bar from geographical areas established by the Legislature, and one member is elected by the board of directors of the California Young Lawyers Association.  (§§ 6012, 6013, 6013.4.)   The board elects the officers of the State Bar.  (§§ 6021–6024.)   The State Bar has established a Conference of Delegates, which consists of representatives of voluntary local and special bar associations.   The conference meets once a year to consider proposals, many of which are intended for legislative action.   The board has also from time to time established committees or sections open to members of the bar interested in particular areas of the law and which advise the board in those areas.   The board has also appointed commissions, which include nonattorneys as members.   The board employs lobbyists to assist in the bar's legislative program.

There are, concededly, “difficult problems in drawing lines” between activities related to the governance and regulation of the practice of law and engaging in recommendations for the improvement of the administration of justice on the one hand and those relating to ideological activities unrelated to such functions on the other hand.  (See Abood v. Detroit Board of Education, supra, 431 U.S. at p. 236, 97 S.Ct. at p. 1780, 52 L.Ed.2d at p. 285.)   But the State Bar has made no showing in its motion for summary judgment that it did not use compelled membership fees to advance political and ideological causes which were not reasonably related to the regulation of the practice of law or the advancement of the administration of justice, or if germane, which do not impose additional and unjustified burdens on First Amendment rights.   Although the State Bar expended substantial sums in lobbying the Legislature in years past, it did not undertake in its motion to show that its lobbying efforts were limited to the advancement of its statutory purposes.   It has also underwritten some of the cost of the Conference of Delegates and the conference has occasionally strayed from matters relating to the administration of justice to more global issues of statecraft.   In 1981, for example, the Conference of Delegates considered such issues as the Federal War Powers Act, limiting the United States presidency to a single six-year term, the participation of American athletes in the Olympics and Pan American games, and the federal budget.   In 1982 the conference had scheduled consideration of resolutions on such issues as the repeal of the presidential proclamation concerning draft registration, a bilateral nuclear weapons freeze, a transfer of funds from the federal military budget to meet specified social needs, establishment of Dr. Martin Luther King, Jr.'s birthday as a national holiday, and legislative reapportionment.

In 1982 the State Bar engaged in two other activities which the plaintiffs abhor.   First, was the use of compelled membership fees to finance and publicize the speeches of then president Anthony Murray.   The second was the use of compelled membership fees for a public education project.   Both concerned judicial retention or recall elections.   In September, Murray used the occasion of his swearing in as president to adopt what is described as a political and ideological position on judicial retention, and to announce the statewide public education project.   Murray adopted the position that the only legitimate basis for voting not to retain a justice in a retention election is a showing of incapacity or misconduct.   He described the views of those who disagree as “the idiotic cries of self-appointed vigilantes,” and “hysterical ‘soft-on-crime’ rantings.”   Those who hold such views were depicted as “self-seeking prosecutors and lawyers who want to be judges,” “unscrupulous politician[s],” “bullies,” and “political mercenaries who are trying to pull down our legal system.”   Naturally, dissenters are offended by being forced to underwrite their own public vilification.

The public education project was designed to support and spread the views expressed by Murray.   It consisted of materials sent to local groups with instructions on the best means of educating the public in accordance with those views.   In order to promote the education project the board passed a resolution stating that it is the duty of attorneys to support an independent judiciary and calling upon members of the State Bar to take steps to educate the public on such matters.   Murray utilized this resolution in seeking support for his views from local groups.

Plaintiffs object to being compelled to provide financial support for the advancement of any political and ideological beliefs as a condition to practicing their profession.   The defendants do not deny that they use compelled membership fees to promote political and ideological views.   They assert that they have the right to do so, and that plaintiffs' suit is an attempt by a minority to impose their will upon the majority, or to stifle the speech of the majority.7

Although defendant's principal motion was for summary judgment, they originally supported the motion by only two innocuous declarations.   Both were by the bar's legislative representatives and both of these lobbyists declared that they represented the “State Bar of California as a public corporation and not the individual members.”   Subsequently, the defendants filed supplemental declarations in support of their motion.   The declaration of Truitt A. Richey, Jr., an attorney employed in the Office of the General Counsel, described the bar's amicus curiae program.   Mr. Richey asserted that it was his “observation that this participation [in the amicus curiae program] has been limited to issues basic to the State Bar, e.g., validity and interpretation of the State Bar Act or State Bar rules;  validity and interpretation of legislation that the State Bar has sponsored;  or the validity and interpretation of legislation or acts of court that can seriously affect the administration of justice and attorney-client relationships.”   Mr. Richey then set forth a brief description of the matters in which the State Bar had participated as amicus curiae since January 1977.   Those descriptions support Mr. Richey's observation.   Mary G. Wailes, an attorney and Secretary of the bar, filed a series of declarations.   They generally described the legislative oversight of the State Bar, its relationship with its members and the public, the Conference of Delegates, and other organizational matters.

Code of Civil Procedure section 437c, subdivision (b) directs that a motion for summary judgment “shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken.”   Subdivision (c) of that section mandates that the “motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”   It follows then as a matter of statutory dictate that “[s]ummary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried.   The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.”  (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822;  citations omitted.)

As we have noted, defendants made no showing at all in support of their motion for summary judgment that the State Bar did not use compelled membership dues to advance political and ideological causes.   No doubt the reason for that omission was the defendants' categorical position that the State Bar is a governmental agency and, like all government, may engage in purely political and ideological conduct.   That contention is the lynchpin upon which this case hangs or falls.

The trial court granted summary judgment in favor of the defendants.   It agreed that the State Bar is a governmental agency authorized to do the acts which plaintiffs find objectionable.   While express constitutional or statutory authorization did not exist for all of the activities, the court felt such authority should be implied.   The court found that the First Amendment is not a bar to these activities.   With regard to the individual defendants, the court found that the plaintiffs failed to show they did not act with due care, and that it appeared they acted in good faith.   Judgment was entered in favor of all defendants.   This inevitable appeal followed.

II

We begin our journey by sketching the constitutional terrain we must traverse.   In Railway Employes' Dept. A.F.L. v. Hanson (1955) 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 11 12, the United States Supreme Court was confronted with a claim that government-sanctioned compelled membership in a union as a condition of continued employment was a violation of the free speech clause of the First Amendment.   The case involved a challenge to the federal Railway Labor Act (45 U.S.C. § 152), which provided that, notwithstanding any state law, a carrier and a union could agree that all employees were required to join the union.   The Court upheld the provision, noting that the wisdom of the legislation was not at issue and that Congress could properly conclude that employees who receive the benefits of union representation in collective bargaining should be required to share financial support for it.  (351 U.S. at pp. 233–235, 76 S.Ct. at pp. 718–720, 100 L.Ed. at pp. 1131–1132.)   But the United State Supreme Court cautioned in Hanson:  “If ‘assessments' are in fact imposed for purposes not germane to collective bargaining, a different problem would be presented.”  (Id., at p. 235, 76 S.Ct. at pp. 719–720, 100 L.Ed. at p. 1132.)   The record contained no evidence that the compelled union dues were used for any purpose other than collective bargaining, and the court held that on the record there was no more infringement or impairment of First Amendment rights than in the case of a lawyer who is compelled to be a member of an integrated bar.  (Id., at p. 238, 76 S.Ct. at pp. 721, 100 L.Ed. at pp. 1133–1134.)

In 1961, in International Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141, the Court considered another challenge to a union-shop agreement under the Railway Labor Act.   In that case there was evidence that the compelled union dues were used “to finance the campaigns of candidates for federal and state offices whom [the plaintiffs] opposed, and to promote the propagation of political and economic doctrines, concepts and ideologies with which [they] disagreed.”  (367 U.S. at p. 744, 81 S.Ct. at p. 1787, 6 L.Ed.2d at p. 1147.)   Rather than consider the constitutional questions, the Court construed the Act to prohibit the use of compulsory dues for political purposes, and remanded the case to the Supreme Court of Georgia to devise a remedy.  (Id., at p. 768, 81 S.Ct. at pp. 1799–1800, 6 L.Ed.2d at pp. 1160–1161.)   As the high court later recounted, the Street court “held that the Act does not authorize a union to spend an objecting employee's money to support political causes.   The use of employee funds for such ends is unrelated to Congress' desire to eliminate ‘free riders' and the resentment they provoked.   The Court did not express a view as to ‘expenditures for activities in the area between the costs which led directly to the complaint as to “free riders,” and the expenditures to support union political activities.’ ”  (Ellis v. Railway Clerks (1984) 466 U.S. 435, 439–440, 104 S.Ct. 1883, 1887, 80 L.Ed.2d 428 at p. 436, citations omitted.)

In a companion case to Street, the Court considered a challenge to the Wisconsin integrated bar on constitutional grounds.  (Lathrop v. Donohue (1961) 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191.)   Although the court could not agree on an opinion, six of the members of the court were of the view that a state may constitutionally condition the right to practice law on membership in an integrated bar.  (367 U.S. at p. 843, 81 S.Ct. 1838, 6 L.Ed.2d at p. 1205, plurality opinion, and 367 U.S. at p. 849, 81 S.Ct. at p. 1841, 6 L.Ed.2d at pp. 1208–1209 concurring opinion.)   The Court did not reach a decision on whether an integrated bar may constitutionally use compelled membership fees for political and ideological purposes.   The plurality opinion found that “the case presents a claim of impingement upon freedom of association no different from that which we decided in [Hanson ].”  (367 U.S. at p. 843, 81 S.Ct. at p. 1838, 6 L.Ed.2d at p. 1205.)   The four member plurality found that the issue was not presented on the record before the Court, and accordingly the question whether an attorney may be compelled to provide financial support for political activities he opposes was not decided.  (Id., at pp. 847–848, 81 S.Ct. at pp. 1840–1841, 6 L.Ed.2d at pp. 1207–1208.)

The question of compulsory fees as a condition of employment arose again in Abood v. Detroit Board of Education, supra, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261.   In that case the board had entered into a contract with a teachers' union pursuant to which all teachers who failed to join the union were required to pay the union a service fee equal to the regular dues of members, a so-called “agency shop” agreement.   Although the Supreme Court recognized that compelling employees to contribute financial support to their collective bargaining representative does have an “impact” on their First Amendment rights, insofar as the service fees were used for collective bargaining, contract administration, and grievance adjustment purposes the fees were nevertheless permissible under the decisions in Hanson and Street.   (431 U.S. at pp. 222–223, 232, 97 S.Ct. at 1793, 1798, 52 L.Ed.2d at pp. 276, 282.)  8

Abood presented the issue which had not been decided in Hanson and Street:  whether compelled fees as a condition of employment could be used for political and ideological purposes unrelated to collective bargaining.   This was so because the Michigan Court of Appeals had held that state law permitted the use of fees for such purposes, and the plaintiffs had alleged that such expenditures were made.   On this question the Court had no difficulty in declaring that the agency-shop agreement and the state law which permitted it violated the federal constitution.  “Our decisions establish with unmistakable clarity that the freedom of an individual to associate for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments.  [Citations.]  Equally clear is the proposition that a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment.  [Citations.]”  (431 U.S. at pp. 233–234, 97 S.Ct. at p. 1798–1799, 52 L.Ed.2d at p. 283.)   The First Amendment, the court further ruled, protects the right to contribute to an organization to spread a political message the contributor espouses, and the amendment is no less infringed where contributions are compelled rather than prohibited.  (431 U.S. at p. 234, 97 S.Ct. at p. 1799, 52 L.Ed. at p. 284.) 9

The Abood court did not hold that the union could not constitutionally spend funds for the expression of political and ideological views.   Rather, it held that such expenditures must be financed from the charges, dues or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will.  (Id., at pp. 235–236, 97 S.Ct. at pp. 1799–1800, 52 L.Ed.2d at pp. 284–285.)   As the high court later noted, “ Abood held that employees may not be compelled to support a union's ideological activities unrelated to collective bargaining.   The basis for the holding that associational rights were infringed was the compulsory collection of dues from dissenting employees.”  (Minnesota Bd. for Community Colleges v. Knight (1984) 465 U.S. 271, 291, 104 S.Ct. 1058, 1069, 79 L.Ed.2d 299, 316, fn. 13.)   In sum, the Abood court “found no constitutional barrier to an agency shop agreement between a municipality and a teachers' union insofar as the agreement required every employee in the unit to pay a service fee to defray the costs of collective bargaining, contract administration, and grievance adjustment.   The union, however, could not, consistently with the Constitution, collect from dissenting employees any sums for the support of ideological causes not germane to its duties as collective-bargaining agent.”  (Ellis v. Railway Clerks, supra, 466 U.S. at p. 447, 104 S.Ct. at p. 1892 80 L.Ed.2d at p. 441.)   As we have noted, the Abood court recognized that difficult problems would arise in drawing lines between activities which are permissibly financed by compelled fees and those which are not.   It did not attempt to draw such a line because the case was presented after a judgment on the pleadings without an evidentiary hearing.  (Abood, supra, 431 U.S. at p. 236, 97 S.Ct. at p. 1800, 52 L.Ed.2d at 285.)

The high court had occasion to draw that line in Ellis v. Railway Clerks, supra, 466 U.S. at pp. 446–447, 104 S.Ct. at pp. 1891–1892, 80 L.Ed.2d at p. 441, when it was called upon “to define the line between union expenditures that all employees must help defray and those that are not sufficiently related to collective bargaining to justify their being imposed on dissenters.”   The court held that under the Railway Labor Act “the test must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.   Under this standard, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and administering a collective-bargaining contract and of settling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit.”  (Id., at p. 448, 104 S.Ct. at p. 1892, 80 L.Ed.2d at p. 442.) 10  If the challenged expenditures are authorized by the Act, then the only constitutional issue remaining is “whether these expenses involve additional interference with the First Amendment interests of objecting employees, and, if so, whether they are nonetheless adequately supported by a governmental interest.”  (Id., at p. 448, 104 S.Ct. at p. 1892, 80 L.Ed.2d at p. 447.)

The central question in this case is whether the constitutional limitations of Abood apply to an integrated bar association.   Stated another way, the issue is whether a lawyer, as a condition to becoming and remaining an attorney with the right to practice law, may be required to join and pay membership dues to an organization which uses a portion of those dues not to foster its legitimate purposes but rather to finance political and ideological ideas contrary to his or her own beliefs.   We find the principle of Abood to be applicable and controlling because we discern no persuasive reason why lawyers should be treated differently than other public or private persons for First Amendment purposes and because we conclude that the State Bar, when acting in its administration of justice function, speaks for itself and not the State of California and consequently is more analogous to a labor union than to government.   Indeed, as the plurality opinion in Lathrop forecast, the case involving an integrated bar is no different from the union-shop agreement at issue in Hanson.  (367 U.S. at p. 842, 81 S.Ct. at p. 1837, 6 L.Ed.2d at p. 1205.)

 The historical underpinnings of the practice of law do not support the defendants' position that compelled membership fees may be utilized to promote political and ideological positions unrelated to the practice of law or the administration of justice.   For many years the right to practice law was regarded as a mere privilege upon which the state could place such conditions and restrictions as it saw fit.  (Cohen v. Wright (1863) 22 Cal. 293, 323.)   Indeed, in Lathrop at least one justice relied upon that ground.  (367 U.S. at p. 865, 81 S.Ct. at p. 1849, 6 L.Ed.2d at p. 1218, concurring opinion of Whittaker, J.)   That earlier view has now been thoroughly discredited.   (Konigsberg v. State Bar of California (1957) 353 U.S. 252, 257, 77 S.Ct. 722, 725, 1 L.Ed.2d 810, 816;  Schware v. Board of Bar Examiners (1957) 353 U.S. 232, 238, 77 S.Ct. 752, 756, 1 L.Ed.2d 796, 801.)   Our own Supreme Court has found it impossible to consider admission to the profession to be a mere privilege.  (Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 452, fn. 3, 55 Cal.Rptr. 228, 421 P.2d 76.)   Instead, the opportunity to practice law is a fundamental right protected by the Privilege and Immunities Clause of the federal Constitution.  (Supreme Court of New Hampshire v. Piper (1985) 470 U.S. 274, ––––, 105 S.Ct. 1272, 1278–1279, 84 L.Ed.2d 205, 213.)

It has been equally well established that the protection of the First Amendment extends to those who are or would be lawyers.   In Baird v. Arizona (1971) 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639, an applicant had been refused admission to the Arizona bar after she refused to answer a question concerning past associations.   After the Arizona Supreme Court upheld the denial of admission, the United States Supreme Court reversed.   The four justice plurality opinion noted that the First Amendment protects associational freedom and that a state cannot exclude a person from a profession solely because he is a member of a particular political organization or because he holds certain beliefs.  (401 U.S. at p. 6, 91 S.Ct. at p. 706, 27 L.Ed.2d at pp. 646–647.)   The First Amendment limits a state's power to inquire into beliefs and associations and the state bears a heavy burden to show that such inquiry is necessary to protect a legitimate state interest.   (Id., at pp. 6–7, 91 S.Ct. at pp. 706, 27 L.Ed.2d at p. 647.)   In short, “views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law.”   (Id., at p. 8, 91 S.Ct. at p. 707, 27 L.Ed. 2d at p. 647.)   A fifth justice concurred because the State Bar's purpose in asking the question was to inquire into political beliefs, “[y]et the First and Fourteenth Amendments bar a State from acting against any person merely because of his beliefs.”  (401 U.S. at pp. 9–10, 91 S.Ct. at pp. 707–708, 27 L.Ed.2d at pp. 648–649, concurring opinion of Stewart, J.)   The same result was reached on similar facts in Re Stolar (1971) 401 U.S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657.   Since it is clear that the associational rights of attorneys are protected by the First Amendment, and since those rights are infringed equally by compelled rather than prohibited contributions for political purposes, no plausible reason appears why Abood should not apply to integrated bar associations.

Likewise, the historical underpinnings of the California integrated bar do not support the defendants' contentions.   The power of the Legislature to regulate the practice of law has long been recognized.   In Ex Parte Gregory Yale (1864) 24 Cal. 241, at page 244, the Supreme Court said with regard to attorneys:  “The manner, terms, and conditions of their admission to practice, and of their continuing in practice, as well as their powers, duties and privileges, are proper subjects of legislative control to the same extent and subject to the same limitations as in the case of any other profession or business that is created or regulated by statute.”   When the Legislature determined to integrate the California bar, the Act was upheld on the basis that it was a reasonable exercise of the legislative power to regulate the practice of law.   In State Bar of California v. Superior Court (1929) 207 Cal. 323, at page 334, 278 P. 432, the Court said:  “When we turn to those sections of the State Bar Act which purport to invest the board of governors, or its administrative committees, with governmental functions and disciplinary powers we find that these uniformly and expressly have relation to the practice of the law.”   In Brydonjack v. State Bar (1929) 208 Cal. 439, at page 443, 281 P. 1018, the court acknowledged that “the power of the legislature to impose reasonable restrictions upon the practice of the law has been recognized in this state almost from the inception of statehood.”

The issue of compelled membership fees was upheld at an early date.   In Carpenter v. The State Bar (1931) 211 Cal. 358, 295 P. 23, the petitioner had failed to pay his bar dues and penalties and he disclaimed liability for such payments.   The Supreme Court said:  “The validity of the State Bar Act as a regulatory measure under the police power has been repeatedly upheld by this court.   When that fact is conceded, it follows as a matter of course that the reasonable expenses necessary to pay the costs of enforcement of the act, in furtherance of the purposes thereof, may be imposed upon the membership in the form of fees or dues.”  (Id., at p. 360, 295 P. 23 ;  citations omitted.)   Likewise, in Herron v. State Bar, supra, 24 Cal.2d at page 64, 147 P.2d 543, the Court noted that the State Bar Act is valid as a regulatory measure under the police power, and that “the reasonable expenses necessary to pay the costs of enforcement of the act, in furtherance of the purposes thereof, may be imposed upon the membership in the form of fees or dues.”

The legislative power to regulate a profession was explained with regard to real estate brokers and salesmen in Riley v. Chambers (1919) 181 Cal. 589, 185 P. 855, at pages 592–593, as follows:  “Nor can it be controverted that the right to engage in a lawful and useful occupation cannot, in effect, be taken away under the guise of regulation.   On the other hand, it is equally true that a lawful and useful occupation may be subjected to regulation in the public interest, and that all regulation involves in some degree a limitation upon the exercise of the right regulated.   The test is whether or not the limitation imposed is really by way of regulation only, is one whose purpose and effect go no further than throwing reasonable safeguards in the public interest around the exercise of the right.   If the limitation is of this character, its imposition is a proper exercise of the police power resident in the legislature, and whose exercise is one of the latter's most important functions.”   If an act is a valid regulatory measure, then reasonable fees imposed to defray the expenses attached to the administration of the law may be imposed.  (Shaffer v. Beinhorn (1923) 190 Cal. 569, 573, 213 P. 960.)

 It was these authorities which the Supreme Court relied upon in upholding the integration of the State Bar, and the imposition of reasonable fees upon members.  (See Carpenter v. The State Bar, supra, 211 Cal. at p. 360, 295 P. 23.)   From these cases two principles may be derived.   First, in the exercise of the police power the Legislature may validly regulate the practice of the legal profession.   Second, the members of the legal profession may be charged reasonable fees to defray the costs of the regulation of the profession and the costs of implementing the State Bar Act and its purposes.   Yet nowhere in these authorities is it suggested that it is within the power of either the Legislature or the State Bar to compel membership in a political organization or to require members of a profession to provide financial support for the advancement of political and ideological ideas which are unrelated to the regulation of the profession or the administration of justice.

 The defendants assert that the State Bar is a public agency and that membership fees are actually taxes upon the right to practice law.   They assert that the use of such fees for the advancement of political and ideological ideas is simply a case of the government adding its own voice to the many that it must tolerate, and is thus permissible under this court's decision in Miller v. California Com. On Status of Women (1984) 151 Cal.App.3d 693, 198 Cal.Rptr. 877.   In Miller we were confronted with a taxpayer suit seeking either to abolish the commission or to prohibit it from lobbying or promoting its views on measures to improve the status of women, as the Legislature had expressly authorized.   We rejected the challenge.   We noted that government may no more compel someone to express a view than it may forbid someone from voicing one.   Although it may not compel citizens to contribute to a nongovernmental entity for the support of political and ideological activity, this does not mean that government itself must be ideologically neutral.  (151 Cal.App.3d at p. 700, 198 Cal.Rptr. 877.)   Government has legitimate interests in informing, in educating, and in persuading, and it may add its voice to the marketplace of ideas on controversial topics.  (Id., at p. 701, 198 Cal.Rptr. 877.)   Nevertheless, it may not, in the guise of governmental speech, trammel the free speech rights of its citizens.  (Ibid.)

Our decision in Miller is inapplicable here for two reasons.   First, the commission was established by the government and authorized to speak on its behalf, but no one was forced to add his or her assent to the government's voice in advocating a belief.   Second, the commission was funded by the government out of its general funds.   No one was compelled to finance the government's voice as a condition of employment or the right to engage in a profession.   In contrast, the State bar purports to speak on behalf of its members, and thus plaintiffs' voices are compelled to be added to those of the bar.   And, of course, the plaintiffs are compelled to finance the bar's voice as a condition of engaging in their profession.

 But even further, the State Bar is a unique organization which partakes of some governmental attributes and some nongovernmental characteristics.   Because of its singular character, the State Bar cannot be deemed a regular state agency.   As William Hamm, the Legislative Analyst, testified before a legislative committee, “Article VI, Section IX, of the State Constitution creates the State Bar as a public corporation, and it makes Bar membership mandatory for all practicing attorneys in California.   The Bar is not a regular state agency, and, as a consequence, its expenditures are not reviewed and approved by the Legislature as part of the budget process each year.   The Legislature, however, does set a ceiling on the membership fees that the Bar may charge practicing attorneys․  [¶]  The Bar is an administrative arm of the California Supreme Court in matters of admission and discipline of attorneys, the crediting and monitoring of law schools, and in regulating legal specialization.   These activities are mandated by statute or court rules, and thus the Bar is required to undertake these activities.   In addition to these mandatory activities, the Bar is authorized, but not required, to administer various other programs that the Bar deems necessary to advance the legal field.”  (Review and Briefing on Legislative Analyst Report on the State Bar, Special Legislative Investigating Committee on the State Bar, March 11, 1980.)   It is this dichotomy of function that makes the State Bar “sui generis.”  (See Brotsky v. State Bar (1962) 57 Cal.2d 287, 300, 19 Cal.Rptr. 153, 368 P.2d 697.)   Thus for its mandatory functions, the State Bar and its officers and employees are public officers.  (See e.g., Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 565–566, 7 Cal.Rptr. 109, 354 P.2d 637.)   But that does not make the State Bar the government or imbue it with the government's right to speak to political and ideological matters unrelated to the legal field.

 It is true that the State Bar is designated a “public corporation.”   But as we shall endeavor to show, not all public corporations constitute government.   Former Civil Code section 284 defined a public corporation as follows:  “Public corporations are formed or organized for the government of a portion of the state.”   Thus it was that Bettencourt v. Industrial Acc. Com. (1917) 175 Cal. 559, at page 561, 166 P. 323, held that “[p]ublic corporations, therefore, under the controlling definition of the law are those corporations formed for political and governmental purposes and vested with political and governmental powers.” 11  In State Bar of California v. Superior Court, supra, 207 Cal. 323, 278 P. 432, it was contended that the State Bar, despite its designation as such, could not be a public corporation because its purpose and function were not the “government of a portion of the state.”   The Supreme Court rejected that contention in this fashion:  “It is to be noted in considering this contention that the constitution does not attempt to define the several sorts of corporations which may be formed by or in accordance with legislative action, but that the foregoing definition of what shall constitute public as distinguished from private corporations is purely of statutory origin.   This being so it must be clear that the provisions of the Civil Code above quoted could not be held to constitute a limitation upon later legislation to create public corporations for other purposes than those relating to ‘the government of a portion of the state.’   It is a fact within general knowledge that the state legislature has, upon not a few occasions since the adoption both of our present constitution and of the foregoing section of the Civil Code, provided for the creation of various kinds of public corporations or associations which did not have for their function or purpose the ‘government of a portion of the state.’ ”  (Id., at p. 329, 278 P. 432.)   Thus, while the State Bar is a public corporation, it is not a public body formed or organized for political or governmental purposes.   In short, while the State Bar serves a public purpose and its officers may speak in the public interest to advance the administration of justice, it is not by that account the government.   In the exercise of its administration of justice function the State Bar does not speak for the State of California or all of its citizenry.   Instead, it speaks in its corporate capacity as a public corporation whose only members are attorneys licensed to practice law in California.  (§ 6002.)   Although its voice may advance a compelling state interest, it is nevertheless not governmental speech.   Acting in its discretionary administration of justice capacity the State Bar must, therefore, be deemed a nongovernmental association.   And as we noted in Miller, the Legislature “may not delegate the authority to a nongovernmental entity to extract funds for the support of political and ideological activity not directly related to the purpose for which the entity is given the power to levy.”  (Miller v. California Com. on Status of Women, supra, 151 Cal. App.3d at p. 700, 198 Cal.Rptr. 877.)   Accordingly, the conclusion that government may add its voice to public controversies does nothing to undermine the objection to compelled membership and financial support for the political and ideological ideas alleged to have been espoused by the State Bar.

 We likewise cannot accept the assertion that the membership fees required of attorneys are simply tax receipts which the government may spend as it likes.   The fees do not purport to be taxes.  (§ 6140.)   The fees are imposed upon members of the State Bar regardless of whether they are practicing law.  (§§ 6140, 6141.)   The fees do not become a debt owed to the State Bar and the failure to apy them in itself cannot lead to criminal or civil actions, but only to suspension from membership in the Bar.  (§ 6143.)   And the fees may be waived.  (§ 6141.1.   See Estate of Stanford (1899) 126 Cal. 112, 117–120, 54 P. 259;  Doctors Hospital v. County of Santa Clara (1957) 150 Cal.App.2d 53, 55–56, 309 P.2d 501.)   More critical, however, is the fact that an integral part of the regulatory act is compelled membership in the State Bar.   An attorney is not permitted to simply pay a license tax but decline to join the State Bar;  he is required to become a member of the bar and pay membership fees.   The failure to pay the fees does not directly deprive the attorney of the right to practice law;  it is the suspension of membership which carries that result.  (§ 6125.)   It is thus clear that the fees are in fact membership fees imposed under the police power to regulate the practice of law, and as such they must be such as are reasonably necessary to pay the costs of regulation, together with the costs of aiding matters relating to the advancement of the administration of justice.  (See Herron v. State Bar, supra, 24 Cal.2d at 64, 147 P.2d 543 ;  Carpenter v. The State Bar, supra, 211 Cal. at 360, 295 P. 23.)   To the extent such fees are used to advance political and ideological ideas unrelated to the regulation of the legal profession or the administration of justice, those fees stand on no different footing than the compelled agency-shop fees required of Detroit's public school teachers as a condition of continued employment which were at issue in Abood.   Because the State Bar speaks for itself rather than the state in the exercise of its discretionary administration of justice function, it is sufficiently analogous to a labor union to be treated similarly for First Amendment purposes.  “Certain characteristics of union organization and integrated bar organization make these two entities particularly susceptible to first amendment scrutiny.   In each organization actual membership and/or compulsory financial support are required for continued employment in the particular field.   Such compulsion is authorized by the state with respect to union agreements and established directly by state action regarding bar integration.   Also, political and legislative activities are widespread in both entities.”  (Note, First Amendment Proscriptions on the Integrated Bar:  Lathrop v. Donohue Re-Examined, supra, 22 Ariz.L.Rev. at p. 954.)

 For all of these reasons, we conclude that the principles of Abood v. Detroit Board of Education, supra, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261, apply to an integrated bar association.   In so holding we note that all of the courts which have considered the question, although disagreeing on the consequences of their application, agree that the Abood principles apply to integrated bar associations.   In Arrow v. Dow (1982) 544 F.Supp. 458, at pages 462–463, the United States District Court found Abood to be controlling in the context of the New Mexico State Bar's use of compelled membership fees for political and ideological purposes.   Although declining to hold categorically that the bar was prohibited from spending bar dues for lobbying, the court concluded that “the lobbying efforts presently under consideration were not directed to important governmental interests which would justify the infringement upon [dissenting members'] rights caused by using Bar dues to finance lobbying efforts.”  (Id., at p. 463.)   In Schneider v. Colegio de Abogados de Puerto Rico (1983) 565 F.Supp. 963, at page 978, the United States District Court held Abood to be controlling with regard to the Puerto Rican integrated bar.   In a later decision the court refused to stay its judgment.  (Schneider v. Colegio de Abogados de Puerto Rico (1983) 572 F.Supp. 957.)   In Romany v. Colegio de Abogados de P.R. (1st Cir.1984) 742 F.2d 32, the Court of Appeals held that in view of the fact that the Puerto Rican bar was working on a plan to avoid the use of dissenters' fees for ideological purposes, the District Court should have abstained from acting.   However, the court agreed that Abood was applicable, and held that the District Court could properly enter an interim order to protect the dissenting members of the bar pending action by the local authorities.  (742 F.2d at pp. 44–45.)   In Falk v. State Bar of Michigan (1981) 411 Mich. 63, 305 N.W.2d 201, at 217–218, a divided Supreme Court of Michigan, unable to agree upon a decision, remanded the case for an additional evidentiary hearing to develop the record concerning the bar's activities.   Nevertheless, all the justices agreed that the Abood principles applied to the intregated bar of Michigan.   Finally, our attention has been called to a decision of the Supreme Court of Florida refusing to amend its integration rule.  (The Florida Bar (1983) 439 So.2d 213 .)  In that decision the court held that the improvement of the administration of justice and the advancement of the science of jurisprudence are compelling state interests.   Citing Abood, the court concluded that those interests may be advanced by any means that are “germane” to that interest.12  (Ibid.)

III

Our conclusion that the constitutional restrictions of Abood govern an integrated bar association leaves open the question of the scope of the activities in which the State Bar may engage without violating the First Amendment.   We turn now to that question.

A

 Lawyers do not surrender their First Amendment rights by joining the State Bar.   Members of the bar, no less than other persons, maintain their constitutional rights of free speech and association.   But as is the case with other persons, those constitutional rights are not absolute.  (Roberts v. United States Jaycees, supra, 468 U.S. at p. ––––, 104 S.Ct. at p. 3252–3253, 82 L.Ed.2d at p. 475;  C.S.C. v. Letter Carriers (1973) 413 U.S. 548, 567, 93 S.Ct. 2880, 2891, 37 L.Ed.2d 796, 814;  Konigsberg v. State Bar of California, supra, 366 U.S. at p. 49, 81 S.Ct. at p. 1005–1006, 6 L.Ed.2d at p. 116.)   Even protected First Amendment rights may be impinged upon “if the State demonstrates a sufficiently important interest.”  (Buckley v. Valeo (1976) 424 U.S. 1, 25, 96 S.Ct. 612, 638, 46 L.Ed.2d 659, 691.)   But to justify such a constitutional intrusion, the state must demonstrate a compelling governmental interest.  (Cousins v. Wigoda (1975) 419 U.S. 477, 489, 95 S.Ct. 541, 548, 42 L.Ed.2d 595, 604;  National Asso. For The A.C.P. v. Alabama, supra, 357 U.S. at p. 463, 78 S.Ct. at p. 1172, 2 L.Ed.2d at p. 1500.)

 Few would deny that the state has a compelling interest in promoting the improvement of the administration of justice and the advancement of jurisprudence.   Clearly there is such a compelling, indeed even a paramount, interest.   As Justice Williams powerfully recounted in his opinion in Falk v. State Bar of Michigan, supra, 411 Mich. 63, 305 N.W.2d at p. 228:  “The fair and efficient use of the state legal system is paramount to the state's very existence.   Without a legal system to make, interpret and enforce laws, without some mechanism to weigh and resolve conflicting claims, there is anarchy.  [¶]  As officers of the court, lawyers play an indispensable role in the administration of justice.   The state must not only protect its legal machinery from abuse through such safeguards as the attorney grievance procedure but must also be mindful of the competence of attorneys, who are in a position to best assist, or most impede, the general public in securing justice.   Authorizing the State Bar to aid the state in promoting improvements in the administration of justice is essential for the state's continued existence.”   We similarly conclude that the State Bar's statutory authorization to “aid in all matters pertaining to the advancement of the science of jurisprudence or to the improvement of the administration of justice” embodies a compelling government interest (Bus. & Prof.Code, § 6031, subd. (a)).13

 We also believe it is indisputable that the state has a sufficiently compelling interest in the regulation of attorneys to warrant an integrated bar.  “The adequate protection of public interests, as well as inherent and inseparable peculiarities pertaining to the practice of law, require a more detailed supervision by the state over the conduct of this profession than in the case of almost any other profession or business.”  (In re Galusha (1921) 184 Cal. 697, 698, 195 P. 406.)   The state's answer to this compelling need was to create an integrated bar which is largely self-governing and which provides essential assistance to the state in regulating and supervising the profession.  (See State Bar of California v. Superior Court, supra, 207 Cal. 323, 278 P. 432.)   Although an integrated bar constitutes a significant impingement upon the First Amendment rights of lawyers, that impingement is amply justified by the compelling governmental interest in the regulation of the legal profession.   In Abood, the compelling governmental interest fostered by Congress was the maintenance of labor-management peace through union collective bargaining.   Here the compelling state interests advanced by the Legislature are the regulation of attorneys and the improvement and advancement of jurisprudence and the administration of justice.   Those functions constitute the State Bar's raison d'etre and form the framework against which the constitutional challenge must be judged.

B

In determining the scope of activities in which an integrated state bar may be permitted to engage, we apply the test set forth in Ellis v. Railway Clerks, supra, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428.   There, in the context of a union-shop, the Supreme Court examined the First Amendment limitations upon the activities which a union can support with funds extracted from dissenters.  (Id., at p. 454–456, 104 S.Ct. at pp. 1895–1896, 80 L.Ed.2d p. 446.)  Analogous limitations apply to integrated bar associations.

 When the activity of the State Bar is clearly germane to either its regulatory or administration of justice function and that activity does not involve political or ideological causes, no constitutional barrier prohibits it.  “At a minimum, the union may constitutionally ‘expend uniform exactions under the union-shop agreement in support of activities germane to collective bargaining.’ ”  (Ellis, supra, 466 U.S. at p. 456–457, 104 S.Ct. at p. 1896–1897, 80 L.Ed.2d at p. 447, citation omitted.)   Thus, for example, when the State Bar expends funds for the discipline of attorneys (§ 6040 et seq.) or to assist the Law Revision Commission (Gov. Code, § 10307), no First Amendment restrictions preclude those expenditures.

At the other extreme, the State Bar may not constitutionally use compelled dues for the support of ideological or political causes not germane to its two statutory purposes.   Once again the analogy to the union-shop is apt:  “The union, however, could not, consistently with the Constitution, collect from dissenting employees any sums for the support of ideological causes not germane to its duties as collective-bargaining agent.”  (Ellis, supra, 466 U.S. at p. 447, 104 S.Ct. at p. 1892, 80 L.Ed.2d at p. 441.)

The more difficult question arises when the expenditure of the State Bar is for an activity which relates to its statutory purposes in some fashion but also implicates additional First Amendment concerns.14  In that case the critical issue is whether the challenged expenditure is sufficiently related to the State Bar's statutory functions to justify its imposition upon objecting members.   This requires, in the case of unions, that a line be drawn “between union expenditures that all employees must help defray and those that are not sufficiently related to collective bargaining to justify their being imposed on dissenters.”  (Ibid.)  A similar line must be drawn for the State Bar.   The dividing line depends upon “whether these expenses involve additional interference with the First Amendment interests of objecting employees, and, if so, whether they are nonetheless adequately supported by a governmental interest.”  (Id., 466 U.S. at p. 456, 104 S.Ct. at p. 1896, 80 L.Ed.2d at p. 447.)   In drawing that line it must be recalled that “by allowing the union shop at all, [the Supreme Court has] already countenanced a significant impingement on First Amendment rights.   The dissenting employee is forced to support financially an organization with whose principles and demands he may disagree.”  (Id., 466 U.S. at p. 455, 104 S.Ct. at p. 1896, 80 L.Ed.2d at p. 446.)

The test applied in Ellis consists of balancing the additional interference with First Amendment rights which such a challenged activity entails against an asserted governmental interest.   Thus some activities which would not be permissible standing alone may nonetheless be allowed because they do not increase the infringement already resulting from the compelled, but justified, extraction.  (Ibid.)  The dissenters “may feel that their money is not being well-spent, but that does not mean they have a First Amendment complaint.”   (Id., at p. 456, 104 S.Ct. at p. 1896, 80 L.Ed.2d at p. 447 .)  Other activities may raise more serious First Amendment concerns but may be permissible because the additional interference is supported by a sufficient governmental interest.  (Ibid.)  This governmental interest need not be sufficient to support the total infringement;  it need only be sufficient to justify the additional infringement that the expense entails.  (Ibid.)

We now apply the Ellis test to the activities challenged here.   Some of the challenges can be resolved on the record before us.   Others lack an adequate record and in keeping with the position taken by the Abood court, we decline to attempt to divine precise lines for those challenged expenditures in an evidentiary vacuum.   Instead, as to those expenditures, we undertake only to set the broad perimeter around which the line must be drawn in light of the challenge.

Plaintiffs specifically challenge the State Bar's use of membership fees to underwrite the cost of lobbying the Legislature, filing amicus curiae briefs in selected cases, holding meetings of the Conference of Delegates, disseminating the speeches of its former president and establishing a public information program concerning election of justices.   We consider those challenges in order.

1. Lobbying.   In the agency shop context, it has been held that the propriety of lobbying activities with compelled contributions depends upon the nature of the lobbying.   For example, in Robinson v. State of New Jersey (3rd Cir.1984) 741 F.2d 598, at page 609, the court said:  “So long as the lobbying activities are pertinent to the duties of the union as a bargaining representative and are not used to advance the political and ideological positions of the union, lobbying has no different constitutional implication from any other form of union activity that may be financed with representation fees.”   On the other hand, in Beck v. Communications Workers of America (C.W.A.) (4th Cir.1985) 776 F.2d 1187, at pages 1210–1211, a union's lobbying expenditures with nonmember fees were disallowed because some of those efforts ran far afield from the purposes of collective bargaining, and because the union made no effort to distinguish proper from improper lobbying activities.   The court indicated, however, that some lobbying activities may be relevant to collective bargaining and hence may be proper.

 In like fashion the State Bar may, without objection, engage in lobbying activities which are germane to its two statutory purposes.   Since the State Bar is empowered to do all acts necessary or expedient for the attainment of its purposes (§ 6001, subd. (g)), the means it employs are generally not in issue.   Thus the bar may elect to lobby the Legislature in order to promote the passage of laws which improve the administration of justice or which relate to the regulation and supervision of attorneys.   But it is apparent that not all legislation is germane to the administration of justice or the regulation of the bar.   A bill to create a new airport district, for example, does not relate to the administration of justice.   It is equally obvious that the bar's right to lobby is not limited to procedural, as opposed to substantive, changes in the law.   Not all improvements and advancements can be made by procedural changes.   Thus, it is not lobbying per se that transgresses the constitutional line.   Rather the question is whether the lobbying concerns matters relating to the State Bar's statutory functions.   Lobbying activities to improve the administration of justice may relate to legislation which also has ideological overtones and may therefore arguably constitute some limited additional infringement of the First Amendment rights of lawyers.   In that case, the question is whether there is an “additional infringement of First Amendment rights beyond that already accepted, and ․ that is not justified by the governmental interests behind the [integrated bar] itself.”  (Ellis, supra, 466 U.S. at p. 456, 104 S.Ct. at p. 1896, 80 L.Ed.2d at p. 447.)   Consequently, the validity of particular lobbying expenditures must be determined upon an adequate evidentiary record, keeping in mind that it is the Bar which bears the burden of proving the validity of its lobbying expenditures.  (Beck v. Communications Workers of America (C.W.A.) , supra, 776 F.2d at p. 1211;  see also Chicago Teachers Union v. Hudson, supra, 475 U.S. 292, 106 S.Ct. at p. 1075, 89 L.Ed.2d at p. 246.)

 2. Amicus Curiae Briefs.   Litigation expenses stand on the same footing as lobbying expenses.   This much was recognized in Ellis where the court held that litigation expenses not having a direct connection with the bargaining unit may not be charged to objecting employees.   The court acknowledged, nevertheless, that some litigation expenses are clearly chargeable to such employees as a normal incident of the duties of the union as the exclusive representative.   By a parity of reasoning, the state's interest in the improvement of the administration of justice is sufficient to warrant the bar's participation in litigation which may affect the administration of justice.   After all, a precedential judicial decision establishes the law of this state just as surely as a statutory enactment.   Yet, it is apparent that not all lawsuits, simply because they are filed in a court, involve the administration of justice.   The suit may only involve private litigants fighting over a personal dispute about which the State Bar could not conceivably have a legitimate interest.   The bar consequently cannot indiscriminately file amicus curiae briefs in lawsuits or otherwise engage in litigation.   Thus, the resolution of the issue, once again, depends upon a proper record.

 3. Conference of Delegates.   The propriety of the meetings of the Conference of Delegates is also resolved by the decision in Ellis.   There, with respect to union conventions, the court declared:  “We have very little trouble in holding that [non-union employees] must help defray the costs of these conventions.   Surely if a union is to perform its statutory functions, it must maintain its corporate or associational existence, must elect officers to manage and carry on its affairs, and may consult its members about overall bargaining goals and policy.   Conventions ․ seem to us to be essential to the union's discharge of its duties as bargaining agent.”  (Id., at p. 448–449, 104 S.Ct. at p. 1892–1893, 80 L.Ed.2d at p. 442.)   It is true that conventions have a “direct communicative content and involve the expression of ideas” and consequently implicate additional First Amendment concerns.   (Id., at p. 454–455, 104 S.Ct. at p. 1895–1896, 80 L.Ed.2d at p. 447.)   “Nonetheless, we perceive little additional infringement of First Amendment rights beyond that already accepted, and none that is not justified by the governmental interests behind the union shop itself.”  (Ibid.)  The meetings of the Conference of Delegates serve much the same function as union conventions.   Much of the bar's efforts with respect to its litigation and lobbying activities have originated with the Conference of Delegates.   We have previously noted that the conference has occasionally strayed from the bar's regulatory and administration of justice functions, but that does not preclude the use of objecting members' dues altogether.   So long as the Conference of Delegates serves the State Bar's statutory functions, the bar may properly use compelled dues to support that portion of the conference's activities.

 4. Speeches of the President.   Plaintiffs do not object to the publication of the president's speeches in general.   Rather they object to the publication of former president Anthony Murray's speeches and viewpoints in 1982.   We have recounted the essence of those speeches and viewpoints and suffice it say here that he adopted a specific position about a public election and compulsory bar dues were used to advocate that position.   We agree with plaintiffs that the challenged expenditures were improper.

 The Constitution of California, article VI, section 16, subdivision (a) provides in relevant part:  “Judges of the Supreme Court shall be elected at large and judges of courts of appeal shall be elected in their districts at general elections at the same time and place as the Governor.”   Thus the Constitution leaves the election of appellate court judges to the “free election” of the People.  (Cal.Const., art. II, § 3;  see Stanson v. Mott (1976) 17 Cal.3d 206, 218, 130 Cal.Rptr. 697, 551 P.2d 1.)   The right to participate in a free election is the most precious right our system of government accords its citizens for without it other rights, even the most basic, are illusory.  (Williams v. Rhodes (1968) 393 U.S. 23, 31, 89 S.Ct. 5, 10–11, 21 L.Ed.2d 24, 31.)   Indeed, the First Amendment finds its fullest and most urgent application precisely in the conduct of political campaigns.  (Patriot Co. v. Roy (1971) 401 U.S. 265, 272, 91 S.Ct. 621, 625–626, 28 L.Ed.2d 35, 41.)   Our state Supreme Court has recognized the overriding importance of free elections to the people of California.  “[W]e examine with a close and questioning attention every intrusion, subtle or direct, which impairs or affects the unconditional exercise of these perogatives.”  (Johnson v. Hamilton (1975) 15 Cal.3d 461, 469, 125 Cal.Rptr. 129, 541 P.2d 881;  see also Canaan v. Abdelnour (1985) 40 Cal.3d 703, 714, 221 Cal.Rptr. 468, 710 P.2d 268;  Stanson v. Mott, supra, 17 Cal.3d at pp. 218–219, 130 Cal.Rptr. 697, 551 P.2d 1.)   These principles apply whether the issue presented at the free election of the people is partisan or nonpartisan.  (Galda v. Rutgers (3rd Cir.1985) 772 F.2d 1060, 1064.   See also Stanson v. Mott, supra, 17 Cal.3d at pp. 217–218, 130 Cal.Rptr. 697, 551 P.2d 1;  First National Bank of Boston (1978) 435 U.S. 765, 785–786, 98 S.Ct. 1407, 1420–1421, 55 L.Ed.2d 707, 723.)   In fact, it was precisely this type of “political” activity which was condemned in an agency shop situation in Abood.  (431 U.S. at p. 235, 97 S.Ct. at p. 1799–1800, 52 L.Ed.2d at p. 284.)

 It is apparent from these authorities that the use of compelled fees for election compaigning is not merely a slight additional impingement on First Amendment rights;  it is a substantial additional interference, resulting in the most grievous infringement possible.   It is doubtful that any governmental interest can justify such an infringement, but the interests asserted here, substantial though they may be, do not.15

We also must reject defendants' contention that these publications were simply a “public education program.”   In Stanson v. Mott, supra, 17 Cal.3d 206, 130 Cal.Rptr. 697, 551 P.2d 1, the court recognized that the fair presentation of relevant information does not necessarily constitute election campaigning even though the information may relate to an election issue.  (Id., at p. 221, 130 Cal.Rptr. 697, 551 P.2d 1.)   The propriety of the expenditure depends upon the style, tenor and timing of the publication and whether it appears that the publication was designed primarily for the purpose of influencing the voters at an election.  (Id., at p. 222, esp. fn. 8, 130 Cal.Rptr. 697, 551 P.2d 1.)   In light of the record before us, defendants' claim that they were merely educating the public borders on the specious.   Murray's position, and the bar's project adopted to support that position, were both designed for the expressed purpose of influencing the voters.   Defendants adopted a position on how and why the electors should cast their votes and then campaigned to convince the electorate to follow that position.   The bar's campaign included efforts to disparage the position, personalities and motives of members and others who held and urged opposite views.   This was election campaigning pure and simple and no compelling governmental interest justified it.   These publications violated the First Amendment rights of dissenting members of the bar.

 5. Public Education Programs.   As with the objection to the publication of the president's speeches and views, the plaintiffs do not challenge public education programs in general.   They challenge only the specific 1982 program designed to influence judicial elections.   This limited attack is well advised, for public informational programs will often be an important means by which the State Bar advances its statutory functions.16  Still, the bar may not engage in election campaigning in the guise of disseminating information to the public.   What we said with respect to the president's activities is equally applicable here.   Parts of the bar's 1982 public education program were clearly election campaigning and the use of compulsory dues for that political purpose breached the constitutional barriers erected by the First Amendment.

D

 But within the perimeters of its statutory purposes and the confines of the First Amendment the State Bar is entitled to use compelled membership dues even though some members may object to the manner of their use.   The State Bar, after all, is not just a trade union.   Under its statutory mandate, the State Bar bears a special public responsibility and is endowed with a commensurate right to speak in the public interest on matters in aid of the improvement of the administration of justice.   The touchstone is the germaneness, not the popularity, of its acts.   The broad lines of germaneness are easy to sketch and some of them we have already sketched.   Whether our state constitution should be amended to provide for less than 12 jurors clearly relates to the administration of justice;  whether the federal government should adopt an economic policy of balanced budgets does not.   Naturally, the fine lines are more difficult to draw.   All line drawing, at the fringes, bears some stamp of arbitrariness.   As the fineness of the distinctions becomes more pronounced, the path of the boundary becomes less distinct.   Because of that inherent obstacle to perfect demarcations, no doubt, in the words of Justice Holmes, “some play must be allowed for the joints of the machine” of the State Bar.  (Missouri, K. & T.R. Co. v. May (1904) 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971;  see also Ellis v. Railway Clerks, supra, 466 U.S. at 454–455, 104 S.Ct. at 1895–1896, 80 L.Ed.2d at 447.)   For all that, there are lines to be drawn and boundaries to be respected.   Contrary to its position asserted here, the State Bar does not have plenary power to rove about to right every wrong and speak to every issue.   Just as it is not a trade union, neither is the State Bar a public ombudsman.

But when the State Bar does act within the confines of its statutory functions, the fact that some of its members may disagree with its actions is not constitutionally relevant.   Analytically, the State Bar's statutory functions are comparable to the collective bargaining functions of a union that were considered in Abood.   As the Abood court noted, “[t]o compel employees financially to support their collective-bargaining representatives has an impact upon their First Amendment interests.   An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative.   His moral or religious views about the desirability of abortion may not square with the union's policy in negotiating a medical benefits plan.   One individual might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself․  The examples could be multiplied.   To be required to help finance the union as a collective-bargaining agent might well be thought, therefore, to interfere in some way with an employee's freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.   But the judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.”  (Abood v. Detroit Board of Education, supra, 431 U.S. 209, 222, 97 S.Ct. 1782, 1793, 52 L.Ed.2d 261, fn. omitted.)   By the same token, plaintiffs and other members may have philosophical objections to specific activities undertaken by the State Bar.   But so long as those activities are consistent with the bar's statutory purposes and do not impose additional infringements on the First Amendment rights of dissenters which are not justified by a compelling governmental interest, the State Bar is free to engage in them.

 But the lynchpin of the bar's position, that it is government entitled to speak politically and ideologically, must fall and with it the favorable summary judgment.   The State Bar has not demonstrated that there is no triable issue on whether it has engaged in political and ideological activities unrelated to its statutory purposes, or if germane, which do not impose additional infringements on the First Amendment rights of objecting members.

 To the extent that plaintiffs establish in further proceedings that the State Bar has used compelled membership fees in excess of the statutory authority granted to it, or in violation of the principles of the First Amendment, they will be entitled, at the least, to declaratory relief.   To the extent they establish that funds are spent in excess of statutory authority they will also be entitled to injunctive relief to prevent future expenditures.  (Stanson v. Mott, supra, 17 Cal.3d at p. 223, 130 Cal.Rptr. 697, 551 P.2d 1.)   The First Amendment, however, does not require that the defendants be enjoined from future expenditures.   The State Bar may expend funds for activities which are germane to its statutory purposes even though the expenditures, if funded by dues of dissenting members, would transgress First Amendment limitations.   The constitution only requires that these transgressing expenditures not be financed with the compulsory dues of those who object.  (Abood, supra, 431 U.S. at pp. 235–246, 97 S.Ct. at pp. 1799–1805, 52 L.Ed.2d at pp. 284–285.)   The remedy for such a situation, if the State Bar desires to engage in those activities, is to provide a scheme whereby the dissenting members are not required to finance the political or ideological activities of the State Bar.  (Chicago Teachers Union v. Hudson, supra, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232;  Ellis, supra, 466 U.S. at p. 443–444, 104 S.Ct. at p. 1890, 80 L.Ed.2d at p. 439;  Abood, supra, 431 U.S. at p. 237, fn. 35, 97 S.Ct. at p. 1800–1801, fn. 35.)

IV

We finally consider the propriety of the summary judgment in favor of the individual defendants.   Plaintiffs sought to hold the members of the Board of Governors liable for amounts expended for improper purposes after September 12, 1982.   The trial court found that plaintiffs failed to show that the board members did not use due care, and that the supporting papers showed that they acted in good faith.   Summary judgment was therefore granted in favor of the individual defendants.

 We first hold that the individual defendants may not be held responsible for expenditures which are authorized by statute but which impermissibly impinge upon plaintiff's First Amendment rights under Abood and Ellis.   This is so because, as we have noted, the Constitution does not forbid such expenditures;  it only requires that they not be financed with the compulsory dues of the dissenters.   Accordingly, the individual defendants cannot be required to reimburse the bar for such expenditures, although the bar may be required to provide a remedy to the plaintiffs.

 The individual defendants may be held, upon a proper showing, to reimburse the State Bar for expenditure of funds which are in excess of the bar's statutory powers.17  In moving for summary judgment the individual defendants asserted, in their points and authorities, that they had acted in good faith and that the plaintiffs had not shown that they had not.   This was an insufficient showing to support summary judgment in favor of the individual defendants.   The fact that the defendants may have authorized unlawful expenditures raises an issue as to their good faith and exercise of due care in doing so.   In order to support summary judgment the defendants were required to present affidavits, declarations, and other supporting papers which would show that there is no triable issue of fact and that they were entitled to a judgment as a matter of law.  (Code Civ.Proc., § 437c, subds. (b), (c).)   The defendants bore the burden of furnishing supporting documents that established that all the claims of the plaintiffs were entirely without merit on any legal theory.  (Lipson v. Superior Court, supra, 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.)   Mere conclusory allegations are insufficient.  (de Echeguren v. de Echeguren (1962) 210 Cal.App.2d 141, 146, 26 Cal.Rptr. 562.)   And this is particularly so where the conclusory allegations are contained in points and authorities and are unsupported by affidavits, declarations, or other appropriate supporting papers.   Defendants failed to establish by competent evidence that they acted in good faith as a matter of law, and consequently they were not entitled to summary judgment in their favor.

The judgment is reversed and the cause is remanded for further proceedings in accordance with the views expressed in this opinion.

I concur in the judgment and in much of the opinion of the court.   I write separately to emphasize the State Bar's heavy burden on remand of proving a constitutionally permissible justification for using compelled membership dues to support political or ideological causes, even though such activities may be related in some way to the Bar's statutorily conferred powers.   The forced subsidization of political or ideological causes inevitably involves additional First Amendment intrusions on the rights of objecting attorneys beyond those already countenanced by compelled membership in an integrated bar.   Determination of constitutional adequacy of the governmental interest required to justify the additional intrusion (see Ellis v. Railway Clerks (1984) 466 U.S. 435, 454–455, 104 S.Ct. 1883, 1895–1896, 80 L.Ed.2d 428, 447) necessarily implicates the means employed to serve that interest.   As stated in Roberts v. United States Jaycees (1984) 468 U.S. 609, ––––, 104 S.Ct. 3244, 3252, 3253, 82 L.Ed.2d 462, 475 and reiterated in Chicago Teachers Union v. Hudson (1986) ––– U.S. ––––, ––––, fn. 11 106 S.Ct. 1066, 1074, fn. 11 89 L.Ed.2d 232, 245, fn. 11, infringements on the right to associate for expressive purposes “may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”  (Emphasis added.)   Thus even when pursuing a legitimate governmental interest, the means chosen must be “ ‘least restrictive of freedom of belief and association’ ” (Chicago Teachers Union, supra, –––U.S. at p. –––– fn. 11, 106 S.Ct. at p. 1074, fn. 11, 89 L.Ed.2d at p. 245, fn. 11, quoting Elrod v. Burns (1976) 427 U.S. 347, 363, 96 S.Ct. 2673, 2684–2685, 49 L.Ed.2d 547, 559).

As does the court, I conclude that the record establishes beyond dispute that the use of compelled membership dues specifically to publicize the speeches and views of the State Bar President in 1982 and generally to engage in election campaigning in the guise of a program of public education is clearly a violation of the constitutional rights of objecting members.   Furthermore, I agree that performance of the strictly regulatory functions of the bar does not violate the constitutional rights of any member.   Beyond that, however, because of the inadequacy of the evidentiary record on appeal, I believe it is premature to speculate on the kinds of activities financed by compulsory bar dues which do not impermissibly infringe upon the First Amendment rights of objecting members.

FOOTNOTES

1.   All further statutory references are to the Business and Professions Code unless otherwise indicated.

2.   The First Amendment to the United States Constitution provides that “Congress shall make no law ․ abridging freedom of speech ․ or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”   Freedom of association is protected both by the free speech clause of the First Amendment and the due process clause of the Fourteenth Amendment.  “Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs.   While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition.”  (Healy v. James (1972) 408 U.S. 169, 181, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266, 279.)   Thus, “implicit in the right to engage in activities protected by the First Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”  (Roberts v. United States Jaycees (1984) 468 U.S. 609, ––––, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462, 474.)  “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause, ․ which embraces freedom of speech.”  (National Asso. For The A.C.P. v. Alabama (1958) 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488, 1498.)   Consequently, “[T]here can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments.”  (Kusper v. PontikeS (1973) 414 U.S. 51, 56–57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260, 266;  see generally, Tribe, American Constitutional Law (1978) §§ 12–1 to 14–13, pp. 576–885;  Emerson, Freedom of Association and Freedom of Expression (1964) 74 Yale L.J. 1.)The California Constitution contains similar guarantees:  “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.   A law may not restrain or abridge liberty of speech or press.”  (Cal. Const., art. I, § 2, subd. (a).)  “The people have the right to ․ petition government for redress of grievances, and assemble freely to consult for the common good.”  (Cal. Const., art I, § 3.)

3.   Plaintiffs also allege that the amount of the mandatory membership dues is set by statute and that the defendants have no discretion to lower the amount of the dues or to rebate a portion of the dues to members who object to the use of dues to advance political and ideological purposes.   This allegation is erroneous.   The board, not the Legislature, sets the amount of the annual dues, although it must be set within a maximum set by the Legislature.  (§ 6140).   And the board may provide by rule for the waiver of the payment of the annual membership fee by any member, or any portion thereof, or any penalty thereon.  (§ 6141.1.)   Nonetheless, the record makes clear that the board believes it has the right to engage in political and ideological activity supported by membership fees of dissenting members, and it refuses to waive payment of any portion of such members' dues.

4.   Defendant Phyllis M. Hix answered separately from the other defendants.   Although she answered the allegations of the complaint in the same manner as the other defendants, the only affirmative defenses she set forth were the failure to state a cause of action, and that her actions were privileged.   Hix is not involved in this appeal.

5.   “An integrated bar is a compulsory association of attorneys that conditions the practice of law in a particular state upon membership and mandatory dues payments.”  (Note:  Parker, First Amendment Proscriptions on the Integrated Bar:  Lathrop v. Donohue Re-Examined (1980) 22 Ariz.L.Rev. 939, 941, fn. omitted.)   It is to be distinguished from a voluntary bar association in which membership is optional with the lawyers of the state.  (See Winters, Bar Association Organization and Activities (1954) p. 1.)

6.   In addition, the board is authorized by that subdivision to aid in “all matters that may advance the professional interests of the members of the State Bar and such matters as concern the relations of the bar with the public.”In 1984 the Legislature restricted the administration of justice function by prohibiting the board, or anyone under its auspices, from engaging in any evaluation of appellate justices.   Section 6031, subdivision (b) now reads:  “Notwithstanding this section or any other provision of law, the board shall not conduct or participate in, or authorize any committee, agency, employee, or commission of the State Bar to conduct or participate in any evaluation, review, or report on the qualifications, integrity, diligence, or judicial ability of any specific justice of a court provided for in Section 2 or 3 of Article VI of the California Constitution without prior review and statutory authorization by the Legislature.  [¶]  The provisions of this subdivision shall not be construed to prohibit a member of the State Bar from conducting or participating in such evaluation, review, or report in his or her individual capacity.  [¶]  The provisions of this subdivision shall not be construed to prohibit an evaluation of potential judicial appointees or nominees as authorized by Section 12011.5 of the Government Code.”  (Stats. 1984, ch. 16, § 2, p. ––––.)

7.   In fact, nothing in the record supports the conclusion that the views of the State Bar as adopted by the Board of Governors actually reflect the views of the majority of the membership.   In September and October, 1980, the Field Research Corporation conducted a survey of the membership for the State Bar.   With regard to legislative lobbying, 65 percent of the membership felt that the State Bar should actively lobby to affect the outcome of legislation which affects the practice and procedure of law, and another 25 percent felt the bar should take a position as an organization on such matters.   With regard to legislation affecting the economic interest of lawyers, 46 percent felt the bar should actively lobby, and 25 percent felt the bar should take a position.   With regard to areas of substantive law where lawyers have special expertise, 42 percent felt the bar should lobby, and 36 percent felt the bar should take a position.   With regard to social issues in which there is substantial public controversy, only 9 percent felt the bar should lobby, and 27 percent felt the bar should take a position.   On matters involving social issues upon which there is little or no public controversy, 6 percent felt the bar should lobby, and 17 percent felt the bar should take a position.   An apt generalization could be that the further removed an issue is from the practice of law the smaller is the portion of the membership which will support bar activity in advancing a view.

8.   The history of the Hanson, Street and Abood trilogy was recently expostulated in San Jose Teachers Assn. v. Superior Court (1985) 38 Cal.3d 839, 215 Cal.Rptr. 250, 700 P.2d 1252.   As the California Supreme Court noted, the Abood court “reject [ed] the arguments of protesting employees that Hanson and Street should not control in Abood because of the distinctive nature of public employment.”  (Id., at p. 846, fn. 2, 215 Cal.Rptr. 250, 700 P.2d 1252.)

9.   More recently, the high court declined to view a challenged impairment of associational rights “through the prism of procedural due process protections necessary for deprivations of property.   As in Abood, we analyze the problem from the perspective of the First Amendment concerns.”  (Chicago Teachers Union v. Hudson (1986) –––U.S. ––––, ––––, 106 S.Ct. 1066, 1074–1075, fn. 13 89 L.Ed. 2d 232, 245, fn. 13.)   The First Amendment requires its own safeguards to “insure that the government treads with sensitivity in areas freighted with First Amendment concerns.”  (Id., at p. 1066 [106 S.Ct. at p. 1074 fn. 12, 89 L.Ed.2d at p. 245, fn. 12].)   Since the allowance of an agency shop is itself an impingement upon First Amendment rights, the government and the union have a responsibility to minimize that impairment and to facilitate a dissenter's ability to protect his rights.  (Id., at p. ––––, 106 S.Ct. at pp. 1076–1077 fn. 20, 89 L. Ed.2d at pp. 247–248, fn. 20.)

10.   In Chicago Teachers Union v. Hudson, supra, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232, the court adhered to the view that a dissenting employee may not be required to support financially any ideological causes not germane to the union's duties as a collective bargaining agent.  (Id., at p. ––––, 106 S.Ct. at p. 1074, 89 L.Ed.2d at p. 244.)   The court expressly declined to consider whether a dissenting employee may be required to contribute to non-germane, non-ideological expenditures.  (Id., at p. ––––, 106 S.Ct. at p. 1074–1075, fn. 13, 89 L.Ed.2d at p. 245, fn. 13.)

11.   Although the statute has long since been repealed, this definition of a public corporation has occasionally been repeated.  (See e.g., Service Employees' Internat. Union, Local No. 22 v. Roseville Community Hosp. (1972) 24 Cal.App.3d 400, 407, 101 Cal. Rptr. 69.)

12.   The Florida court further concluded that the political activities of the bar were germane to those compelling state interests.   On this point, we disagree.   As we explain in the text, purely political activities, such as engaging in election campaigning, cannot fairly be construed to relate to the administration of justice and hence cannot be characterized as being germane to the permissible activities of the State Bar.

13.   Jurisprudence, by definition, is “[t]he philosophy of law, or the science which treats of the principles of positive law and legal relations.”  (Black's Law Dict. (5th ed.1979) p. 767.)   The administration of justice, on the other hand, relates to the adjudication or adjustment of rights and duties in a legal system.   It is concerned with how a legal system is managed and conducted.  “Administration is an exercise of power in a concrete situation for the accomplishment of private or public purposes.”  (Bodenheimer, Jurisprudence, the Philosophy and Method of the Law (Rev. ed. 1974) § 61, p. 284.)

14.   In Chicago Teachers Union v. Hudson (1986) 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232, the high court found “it unnecessary to resolve any question concerning non-germane, non-ideological expenditures.”   (Id., at p. ––––, fn. 13, 106 S.Ct. at p. 1074–1075, 89 L.Ed.2d at p. 245, fn. 13.)   We also find it unnecessary to reach that issue.   It is possible for the State Bar, with the use of compelled dues, to engage in conduct which exceeds its statutory authorization but which does not advance any political, ideological or other free speech and associational interest.   Since the State Bar has no power to act in matters unrelated to its statutory purposes, we need not decide whether the First Amendment also bars any ultra vires act with compelled membership dues.

15.   Nor do we find legislative authorization for the bar to engage in such political activities.  Stanson v. Mott, supra, 17 Cal.3d 206, 130 Cal.Rptr. 697, 551 P.2d 1, involved a different, but related, situation.   There the director of the state parks department authorized the department to expend $5,000 to promote the passage of an election bond measure to provide funds for the acquisition of park land.   In a challenge to the use of departmental funds for election campaigning, the Supreme Court noted the serious constitutional questions such expenditures raised, both from the standpoint of distortion of the democratic electoral process and from the standpoint of using public funds, to which objecting electors had an equal right, to advocate a position contrary to their beliefs.   (17 Cal.3d at pp. 216–217, 30 Cal.Rptr. 697, 551 P.2d 1;  see also Mines v. Del Valle (1927) 201 Cal. 273, 287, 257 P. 530.)   The court found it unnecessary to resolve the constitutional questions, however, because it held that legislative authorization for the use of public funds for election campaigning cannot be implied but must be given in clear and unmistakeable language.  (Id., at p. pp. 219–220, 130 Cal.Rptr. 697, 551 P.2d 1.   See also International Machinists v. Street, supra, 367 U.S. at pp. 768–769, 81 S.Ct. at pp. 1799–1800, 6 L.Ed.2d at pp. 1160–1161.)   These same considerations are applicable here and we decline to find legislative authorization for the use of compulsory bar dues for election campaigning in the absence of clear and unmistakeable language to that effect.   Since election campaigning is not statutorily authorized, it is not germane to the statutory purposes of the State Bar.

16.   As we have noted elsewhere in the margin, the Board of Governors of the State Bar is statutorily authorized to aid “such matters as concern the relations of the bar with the public.”  (§ 6031, subd. (a).)  In furtherance of that purpose or its other statutory purposes the State Bar may engage, subject to the First Amendment constraints delineated in the text, in public information programs.

17.   Perhaps due to the unique nature of the State Bar and this litigation, the parties have assumed that the standard set forth in Stanson v. Mott, supra, 17 Cal.3d at page 223, 130 Cal.Rptr. 697, 551 P.2d 1, is controlling.   There the Supreme Court held that a public official who authorizes the improper expenditure of public funds is personally liable for the repayment of those funds if he failed to exercise due care in permitting the expenditure, regardless whether he acted in good faith.   In determining whether the official acted with due care all of the circumstances must be considered, including whether the expenditure's impropriety was obvious, whether the official was alerted to the possible invalidity of the expenditure, and whether the official relied upon legal advice or the presumed validity of a legislative enactment or a judicial decision.  (17 Cal.3d at p. 227, 130 Cal.Rptr. 697, 551 P.2d 1.)   Defendants have maintained that this is simply a case of the government adding its voice to those it must tolerate, and if that claim were accepted it would follow that the individual defendants are public officials within the meaning of Stanson v. Mott.   However, we have rejected the claim that the bar speaks for the government.   Although the members of the board of governors have been held to be public officials in performing their mandatory function of regulating the practice of law (Chronicle Pub. Co. v. Superior Court, supra, 54 Cal.2d at p. 566, 7 Cal.Rptr. 109, 354 P.2d 637;  Werner v. Hearst Publications, Inc. (1944) 65 Cal.App.2d 667, 671, 151 P.2d 308), it is not clear that they are public officials with respect to the bar's discretionary administration of justice function.   This raises a question of the appropriate standard to apply in determining whether the individual defendants may be held liable for repayment of unauthorized expenditures.  (Compare Corp. Code, § 309 [under general corporation law a director is not liable if he acts in good faith and with such care, including reasonable inquiry, as an ordinarily prudent person would use in similar circumstances];  Malone v. Superior Court (1953) 40 Cal.2d 546, 551, 254 P.2d 517 [officer of an unincorporated association or a nonprofit corporation is to be treated the same as a public officer for purposes of an accounting upon improper handling of the association funds].)   In this appeal the parties have not briefed or argued the issue of the standard to be applied in determining the liability of the individual defendants and we therefore do not reach that issue.

SPARKS, Associate Justice.

CARR, J., concurs.

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