ROBERT E. GIBSON v. FLORIDA BAR
Legal provision: Writ Improvidently Granted
Argument of Raymond J. LaJeunesse, Jr.
Chief Justice Rehnquist: We'll hear argument next in No. 90-1102, Robert Gibson v. the Florida Bar.
Mr. LaJeunesse: Mr. Chief Justice, and may it please the Court:
Petitioner Robert Gibson is required to be a member of the Florida Bar as a condition of his practice of his law in Florida by rule of the Florida supreme court.
He brought this lawsuit challenging the constitutionality of the collection of compulsory bar dues that are used for political and ideological purposes, and on a first appeal the 11th Circuit held that the bar, indeed, was violating his First Amendment rights by using his compulsory dues for political and ideological purposes unrelated to the bar's core regulatory functions, thus anticipating this Court's decision in Keller v. California State Bar.
The 11th Circuit remanded the case for the district court to determine which of the past positions taken by the bar were constitutionally permissible and impermissible uses of Mr. Gibson's dues.
Unknown Speaker: The context of the case has very much changed in... well, I'll ask you, in light of the Florida supreme court's order that the State bar not engage in nonbar-related activities.
Hasn't that certainly changed the significance and importance of this case, if not... if not technically mooted it?
Mr. LaJeunesse: I... I don't think so, Your Honor.
The... the Frankel decision, which is the decision to which Justice Kennedy refers, merely held that the bar may not use compulsory dues for lobbying purposes which do not meet this Court's Keller test.
It did not go as far as Keller to hold that compulsory bar dues may not be used for all ideological activities not germane to the bar's core regulatory functions, so we still have a problem with regard to activities other than lobbying... for example, public relations, education programs, publications, matters which were at issue in... in Keller, in addition to lobbying.
Unknown Speaker: Why would the... why would... is that clear?
I mean, why would the Florida court hold that?
Mr. LaJeunesse: That's--
Unknown Speaker: It seems so silly.
Mr. LaJeunesse: --That's--
Unknown Speaker: It achieves nothing--
Mr. LaJeunesse: --That's--
Unknown Speaker: --to say, you have to be partially constitutional.
Mr. LaJeunesse: --The... the problem arises because the bar's procedure addresses only legislative issues.
Unknown Speaker: Well, I can't imagine that that's what... that's what the Florida courts mean.
I mean, it seems to me they're trying to say, you... you can only expend your money in a way that would be entirely constitutional, so that we don't have to play these games about segregating out the funds.
Mr. LaJeunesse: Your Honor, I don't agree that that's correct.
On the face of the bar's procedure, a member has a right to object only to the use of his dues when the bar takes a position on a legislative issue, and in any event, even if the Florida supreme court's Frankel decision were interpreted to be congruent with Keller in all respects, we still have a situation where the State has created a compelled association, the compulsory bar, and given the bar authority to potentially infringe on First Amendment rights by not only using the dues, but by using the dues for political and ideological purposes.
Unknown Speaker: Well, you can't say, though--
Mr. LaJeunesse: And--
Unknown Speaker: --That if a... if a court has ordered the bar to stay within constitutional bounds right across the board, that a... that a bar association that claims it's living up to the law could predict in advance that it's not going to.
Mr. LaJeunesse: --Your Honor--
Unknown Speaker: Now, how could... how could you expect a bar to remit something in advance that it has no intention of owing you?
Mr. LaJeunesse: --Because the bar... as in any circumstance where the State authorizes a situation which makes it possible for First Amendment rights to be infringed upon, the State also has an obligation to provide procedures--
Unknown Speaker: Well, all right--
Mr. LaJeunesse: --that reduce the risk of that infringement.
Unknown Speaker: --But you... but I would think you... you claim that there should be a reduction in advance.
Mr. LaJeunesse: That's correct, Your Honor.
Unknown Speaker: But you... but you can't... even if the... if the bar says we're not going to engage in any of the things that would... would make us refund part of your dues, how can--
Mr. LaJeunesse: --How can--
Unknown Speaker: --How can you ask them to then estimate how much they're going to break the law in advance?
Mr. LaJeunesse: --In the same manner that this Court held that the unions could do it in the compulsory dues cases, that is, based upon prior experience.
If we do not rely upon prior experience, past expenditures, in calculating this year's dues amount, you end up with a naked demand backed up by a bluff, the bluff of the bar that everything we do is chargeable with no appropriate justification, which is what this Court held was required in Hudson.
Unknown Speaker: There's a big difference in the union cases, because there was no prohibition against engaging in the activity.
The only prohibition was against having the members support those activities, and here you've got a prohibition against--
Mr. LaJeunesse: I don't think the case is that different, Your Honor.
In Hudson, under the Illinois statute and under the collective bargaining contract, the bar... excuse me, the union was permitted to charge all nonmembers only a proportionate share of the cost of collective bargaining, that is, a constitutionally chargeable fair share fee... all nonmembers... so you had a State limitation on the substance of what could be collected.
And this Court said in Hudson that it... it's not only a substantive limitation that is necessary, but that the State has an obligation to provide procedural safeguards that make... reduce the risk that the union, or in this case the bar, will go outside those substantive limitations, and those procedural safeguards are very close to the procedural safeguards that are necessary for any taking of property.
Due process safeguards of a prior notice, in this case a prior notice in which the bar would justify the amount of the fee, the compulsory dues that it's charging to a member who wishes to object, an opportunity for a hearing--
Unknown Speaker: --Yes, but supposing they send a notice out to the membership, we... our legislative program for 1992 contains the following 10 items, and we think they're all permissible under the Florida supreme court's decision, there's no reason why everybody shouldn't contribute, and... period.
How are you hurt by that notice, then?
Mr. LaJeunesse: --But that's not the notice here, Your Honor.
The notice here, Your Honor, is a notice that's given after the bar has already taken the legislative position, and as the 11th Circuit recognized, already spent some of the money, so you'll have... the First Amendment right of the objector has already been irreparably harmed, and we... and the only remedy is the rebate remedy, which this Court condemned with regard to the unions in both Ellis and in Hudson.
Unknown Speaker: No, but I'm trying to figure out what happens under the new... new regime in Florida.
If they... if they publicize their legislative program, what else are they supposed to do under your view of the law?
Mr. LaJeunesse: At the beginning of the year, which they don't do now, Your Honor.
Unknown Speaker: They send out a dues request, send in your $ 100, or whatever it is, and by the way here's our legislative program.
They just send that out, period.
What more should they do?
Mr. LaJeunesse: What more should they do, Your Honor?
They should send out a comprehensive breakdown of their budget... when I say budget, I mean prior year's expenditures, which should be the basis for the calculation of the dues amount, showing the major categories of expenditures, and in each category breaking it down between chargeable and nonchargeable expenditures, and a sufficient--
Unknown Speaker: Yes, but... but they don't raise chargeable expenses.
I mean, there are no nonchargeable expenses.
Mr. LaJeunesse: --If... if they're claiming that all of their expenditures are chargeable--
Unknown Speaker: But this is why it says they are going to presume they're going to try and--
Mr. LaJeunesse: --If they're claiming that all of their expenditures are chargeable, then they should not simply make that a boldfaced... as I say, bluff, by saying all of our expenses are chargeable--
Unknown Speaker: --If you presume--
Mr. LaJeunesse: --But they should... they should give some detail.
What types of legislation are we supporting--
Unknown Speaker: --Your suggested hypothesis--
Mr. LaJeunesse: --How much are we spending on that legislation--
Unknown Speaker: --Let me finish my question, please.
Mr. LaJeunesse: --I'm sorry.
Unknown Speaker: Let Justice Stevens finish his question--
--I'm trying to have a little dialogue here.
--before you try to answer.
My question is, assume a notice which tells the membership of the bar what the legislative program is, and it says, we do not... we think all of these are consistent with the Florida supreme court decision in these supplemental briefs.
What more need they do?
Mr. LaJeunesse: They need to at that point also attach some dollars so that when the member objects, that portion which is in dispute can be escrowed.
Unknown Speaker: Yes, but your dispute would be... you would say, you pick out some items on the legislative program and you say, well, this is not germane.
This is not one of those... this is not obeying the law.
This is something outside of their permissible activities, and then you want to... and then you want a hearing on that, and you... and once you make that objection, I suppose you want, then, an escrow?
Mr. LaJeunesse: I don't want... I don't just want it, Your Honor.
This Court held in Hudson--
Unknown Speaker: Yes, yes.
Mr. LaJeunesse: --that an escrow was necessary.
Unknown Speaker: But... but you want it in... you want it before they ever engage in the activity.
Mr. LaJeunesse: That's correct, your Honor, because if they make a mistake... and they admit in their brief that they're not infallible, and we know from Frankel that they're not infallible because in the last fiscal year in fact they did--
Unknown Speaker: But you... you think that... you think the... the bar association should escrow anything you object to?
Mr. LaJeunesse: --No, Your Honor, I don't.
I think they should follow the same type of procedure that this Court prescribed for the unions in Hudson, and that is, when they calculate the chargeable amount of the dues at the beginning of the fiscal year they do it based upon the prior year's experience--
Unknown Speaker: Well, that's fine.
Mr. LaJeunesse: --And--
Unknown Speaker: Yes, but... they're... they claim that everything is chargeable.
The bar, as Justice Stevens says, as the bar says, everything is chargeable to you, and then it's up to you to object if you think--
Mr. LaJeunesse: --It is up--
Unknown Speaker: --it's not chargeable.
Mr. LaJeunesse: --It is up to the... Mr. Gibson to object.
Unknown Speaker: Yes.
Mr. LaJeunesse: It is then up to the bar to justify that charge that they've claimed to an arbitrator and, in the interim, if they are going to escrow less than 100 percent of the dues, they must, as this Court held in Hudson with regard to the unions, verify by an independent auditor--
Unknown Speaker: But in Hudson--
Mr. LaJeunesse: --that escrow of less than 100 percent.
Unknown Speaker: --But in Hudson, it was the premise of the case that the union was going to expend chargeable and nonchargeable amounts.
That is not the premise of this case, based on the questions that we've been asking you so far.
Assume, for the moment, that we read the Frankel opinion as saying that the bar may not engage in any activity which causes a nonchargeable expense.
Assume it says that.
If that is the order of the Supreme Court, what is the necessity for any sort of advance budget or escrow provision?
Mr. LaJeunesse: In order to protect... because, as the bar points out in its brief, the line between chargeable and nonchargeable activities is difficult to draw, and there has to... and the bar can make mistakes.
It has made mistakes.
Unknown Speaker: Due process requires that you have... when lines are difficult to draw, due process requires that you be able to object in advance?
A lot of lines are hard to draw.
We just had a school case.
Now, suppose you think that some of the courses in the school may be going to violate the First Amendment, or going to violate some other provision of the Constitution.
Are you entitled, as a matter of due process, to notice in advance of what the courses are going to be, rather than just objecting when the problem comes up?
Mr. LaJeunesse: I think you are under this Court's due process decisions when the taking of property is involved.
We're talking here about taking a man's property.
Unknown Speaker: They're not proposing to take property.
Now, under the... before the... what was the name of the--
Before Frankel, they were proposing to take property, and you could plausibly say well, let me know in advance how much you're going to take.
But now they are not proposing to take property.
Mr. LaJeunesse: After Frankel, Your Honor, they're still collecting the dues.
Isn't that a taking of property?
Unknown Speaker: Well, Mr. LaJeunesse, in... under your view, I suppose a State withholding of income tax--
Mr. LaJeunesse: No, Your Honor.
Unknown Speaker: --would be improper--
Mr. LaJeunesse: There's a very--
Unknown Speaker: --because the State might violate the First Amendment somehow during the course of the year.
Mr. LaJeunesse: --No, Your Honor, there's a very fundamental distinction between the State taking taxes for the State's general purposes and the bar's taking compulsory dues for the purpose of compelling association with the bar.
That is, the very purpose of the collection of dues is an infringement on First Amendment rights.
Now, this Court has held that to a limited extent that infringement is justified by a compelling governmental interest, but nonetheless there still must be a carefully tailored procedure to ensure that that infringement goes no further than necessary to meet the compelling governmental interest, which is the support of the bar's regulatory functions.
There's no reason... and I must... I must go back in response to Justice Kennedy that we... we also have to consider the constitutionality of this procedure for the 5 years that it operated before Frankel, in which the bar was operating under the assumption that it could engage in nonchargeable activities so long as it had a procedure that met the requirements of Hudson.
So that question is not moot.
Unknown Speaker: Well, weren't they going to give you back your money for that activity?
I would assume that if it is now, as I guess it has been by the Frankel decision, determined that a lot of that activity was unauthorized, I presume that you'd have kind of an automatic right to get you money back?
Mr. LaJeunesse: No, Your Honor.
The... the district court--
Unknown Speaker: Well, I know you--
Mr. LaJeunesse: --denied--
Unknown Speaker: --Under the decisions in this case, but just that under bar procedure--
Mr. LaJeunesse: --And under the bar... the bar's procedure operates only prospectively.
Unknown Speaker: --I see.
Mr. LaJeunesse: It didn't... did not even... they gave a notice of the taking of a position of a legislative issue.
You've got 45 days to object, specifying the issue to which you object, thus violating this Court's holding in Abood that you can only be required to make a general objection.
The procedure which would meet First Amendment due process in this case is one in which at the beginning of the fiscal year the bar would make a comprehensive disclosure based upon prior years' expenses, so that we have actual expenses that can be independently verified, as this Court held was necessary in Hudson to avoid two things; (1) projected expenditures, as the bar uses here, are merely estimates, and the bar does not have to follow those estimates during the course of the fiscal year, and secondly, estimates cannot be audited.
They cannot be verified, and thus you have no independent reliable check on the bar's self-interest in maximizing the amount of the fee.
Unknown Speaker: May I ask just one factual question?
Does the record tell us what percentage of the total dues is in dispute in this?
I mean, how much... if they followed your procedure, does the record tell us what percentage--
Mr. LaJeunesse: Well, Your Honor--
Unknown Speaker: --Of the dues would have been withheld?
Mr. LaJeunesse: --I understand the question, Your Honor.
The bar has never made a disclosure of the kind that would enable me to even estimate what portion in the past was used for chargeable and... for nonchargeable purposes--
Unknown Speaker: It depends on what... what proportion they estimate.
Did they at least... at least tell us that?
Mr. LaJeunesse: --Well, they claim it was only the legislative expenditures--
Unknown Speaker: That amounts to what?
Mr. LaJeunesse: --Which is 5 percent--
Unknown Speaker: 5 percent.
Mr. LaJeunesse: --But publication--
Unknown Speaker: Now, let me ask you this question.
If they gave you prior figures instead of estimates and it proved the 5 or 6 percent was correct, it would satisfy you, I guess, if they just insisted you pay 95 percent of the dues the first time, and then you determine later.
Mr. LaJeunesse: --If they provided the notice justifying the 95 percent, yes.
Unknown Speaker: Would it... would it also... and why would it not also satisfy you if they said well, that's the 5 percent in dispute, so we'll escrow that amount, and you get interest on it?
Mr. LaJeunesse: If... if that breakdown--
Unknown Speaker: And that's what I think the court of appeals--
Mr. LaJeunesse: --Saying that all of these... the 95 percent is arguably chargeable and 5 percent is nonchargeable was audited, the 5 percent--
Unknown Speaker: --Well, that's subject--
Mr. LaJeunesse: --That they concede is nonchargeable shouldn't be escrowed, it should be--
Unknown Speaker: --Well, why should... then I'm asking really... the rest of your question is, what is the constitutional objection to an interest-bearing escrow?
Mr. LaJeunesse: --None, Your Honor, if it is independently verified as this Court required in Hudson.
Unknown Speaker: So you're not arguing that there should be an absolute right to withholding the 5 percent.
Mr. LaJeunesse: If they... if they concede that 5 percent is nonchargeable--
Unknown Speaker: No, no, no.
They concede that there's a legitimate argument.
Say 5 percent of the budget goes for lobbying, and they think it's all proper, but when anybody makes an objection they say, well, we'll set up an escrow as to 5 percent of that objector's dues, and keep paying interest on them if it turns out... then later on we'll work out the arbitration.
Mr. LaJeunesse: --I understand the question now, Your Honor.
Yes, if they say that 5 percent of the amount that they claim is chargeable is reasonably disputable, and that calculation of 5 percent has been independently verified as the Court held was required in Hudson, then only that 5 percent need be escrowed.
Unknown Speaker: But... but really what I'm asking is, does the escrow plus interest satisfy your constitutional objection if all the other requirements are met?
Mr. LaJeunesse: If all the other requirements are met, if the requirement of adequate prior notice, exclusion from the amount collected of all admittedly verified nonchargeable expenses, then the escrow verified of the part that's reasonably in dispute does satisfy constitutional requirements.
Unknown Speaker: But are... are you conceding that they don't have to escrow until someone affirmatively objects?
Mr. LaJeunesse: They... they cannot spend... in other words, they must be... they cannot be permitted to spend monies that they admit are arguably nonchargeable.
Unknown Speaker: What event triggers their obligation to set up the escrow, on your view?
Mr. LaJeunesse: Under a proper procedure, if the notice is given prior to the taking, and the member has an opportunity to object prior to the taking, which is the normal case in due process--
Unknown Speaker: All right, so you're... you're receding from your... maybe I'm misunderstanding you.
You're receding from the argument that it would be a violation to require the member to make an affirmative objection in every case because that would force him to reveal his opinions.
Mr. LaJeunesse: --No, I'm not, Your Honor.
I'm saying that at the beginning of the fiscal year they would give a comprehensive notice explaining the basis for the dues amount.
Unknown Speaker: Okay, so there's... there's no objection to his saying, okay, I want the 5 percent escrowed.
Your objection would simply be if they required him on an issue-by-issue basis later on.
Mr. LaJeunesse: That's correct, Your Honor.
Unknown Speaker: Okay.
Mr. LaJeunesse: I don't think that... this Court in Abood held that that issue-by-issue requirement, objection requirement was unconstitutional for two reasons, first because it requires the member to continually monitor, in this case the bar's publications in order to see what the bar is doing, see whether it's given this notice that it's taken a position on an objectionable issue, and... a potentially objectionable issue... and by requiring him to object to specific positions it invades privacy of belief, because by implication that says you're opposed to those issues to which you object.
And I would add here, there's a further problem that under the bar's scheme you have to participate in more than one arbitration, because under the bar's scheme if you make an objection to a specific legislative issue, that sets in motion a process by which if the bar does not make a refund for that issue, does not agree with your objection, you go to arbitration within a time period on that issue.
So I think the... to summarize, even after Frankel the bar has to justify its proposed taking of property, of the member's money, the dues amount, with a notice that explains that dues amount, and after Frankel justifies its claim that it's all chargeable, that has to be an audited explanation.
The nonmember can then make a single general objection, saying I think you've calculated the dues amount too high, that some of the activities you've included I don't agree with, but he doesn't have to specify what they are at that stage because that would violate the principle of Abood that he does not have to disclose his beliefs.
The portion that then the auditor has determined falls within the arguably... the arguable, the gray area, gets put into escrow while the arbitration occurs.
Unknown Speaker: Do you think what the Florida court ordered in... in the Frankel case is consistent with the First Amendment to the extent that it ordered the bar not to lobby on things outside these certain core subjects?
Mr. LaJeunesse: Your Honor, I don't think the First Amendment requires that result.
Unknown Speaker: Well, I know it doesn't require it, but is... is this injunction that the court issued, is limiting the things the bar could lobby on... lobby about, is that injunction consistent with the First Amendment?
Mr. LaJeunesse: I... I think the Florida bar can establish whatever limits it wants upon the functions in which the bar is engaged.
Unknown Speaker: I know, but here... here the supreme court of Florida ordered them to limit their lobbying to certain subjects.
Mr. LaJeunesse: But on the ground that that did not fall within the statutory purposes of the Florida bar, or the State law purposes of the Florida bar.
Unknown Speaker: So you think it would be consistent with--
Mr. LaJeunesse: Your Honor, I do not think that the Florida supreme court is limited by the First Amendment from voluntarily circumscribing the functions of the State bar.
Now, if that injunction had run against a voluntary section of the bar, or had run against the bar's political action committee, which are separate entities from the State bar, then that would be a question of limiting voluntary associations, but we are talking about the State bar, which is a compulsory bar.
Unknown Speaker: --Do you agree that... that if the Florida supreme court's injunction is followed, and only those subjects are lobbied, at least the lobbying activities will be in compliance with the First Amendment as far as being able to compel the dues are concerned?
Mr. LaJeunesse: Your Honor, this case does not raise the issue of whether the bar's definition of what complies with Keller is proper or not.
I would be giving my personal opinion outside--
Unknown Speaker: You don't have a view on the matter?
Mr. LaJeunesse: --The issues presented by this case, were I to answer that question directly.
Unknown Speaker: Well, we wouldn't want that.
Can I ask you one other question about your issue-by-issue argument?
Mr. LaJeunesse: Yes, Your Honor.
Unknown Speaker: If you follow the procedure you recommended, where you make an objection and you don't specify issue, they escrow some money and then they set up an arbitration and the arbitrator is to decide which matters are chargeable and which are not chargeable, may the arbitrator at that stage of the proceeding ask your client which issues he objects to?
Mr. LaJeunesse: I think at the arbitration hearing the bar has the burden of justifying its expenditures, but once it makes a prima facie case that satisfies the arbitrator, any attorney participating in an arbitration would be foolish not to more specifically give his rebuttal to the bar's prima facie case.
Unknown Speaker: Supposing they come in and they say we've lobbied for these 10 issues, and here's how much we spent on each one, and now does your client have a duty to say which ones he objects to at that point?
Mr. LaJeunesse: I'm not sure he has a duty, Your Honor.
Unknown Speaker: You don't think he does?
Mr. LaJeunesse: He may... he may lose the case before the arbitrator--
Unknown Speaker: You don't think the arbitrator could say--
Mr. LaJeunesse: --Because the arbitrator knows the bar has made a prima facie case--
Unknown Speaker: --You don't think the arbitrator--
Mr. LaJeunesse: --And you haven't rebutted it.
Unknown Speaker: --Could he say to him, I don't want to have to decide ten issues if only two issues are in dispute, will you please tell me which ones you object to?
You don't think that would be a reasonable part of the procedure?
Mr. LaJeunesse: It might be.
I hadn't thought that through that point, Your Honor.
Unknown Speaker: Do you have any constitutional objection to that as a part of the procedure?
Has your issue-by-issue argument taken it that far?
Mr. LaJeunesse: No, that's... I think that's normal to litigation that you--
Unknown Speaker: So your problem on issue-by-issue is purely the timing of your disclosure of what issues you object to?
Mr. LaJeunesse: --Because the bar is infringing on First Amendment rights and it has--
Unknown Speaker: Your answer to my question is yes, the only objection is to the timing of when you must disclose which issues you find objectionable?
Mr. LaJeunesse: --I think some disclosure has to be made in the sense of the process of litigation.
Once you participate in litigation, you sometimes have to disclose things that otherwise you could keep private under the First Amendment.
If there are no further questions, I'd like to reserve the balance of my time.
Argument of Barry Scott Richard
Chief Justice Rehnquist: Thank you, Mr. LaJeunesse.
Mr. Richard, we'll hear from you.
Mr. Richard: Mr. Chief Justice, and may it please the Court:
With the Court's permission, I would like to begin by addressing questions that were raised by Justice Kennedy and Justice White.
With regard to the Frankel decision, counsel has suggested that the Frankel decision was limited solely to legislative positions.
The reason for that is because those were the only positions that were challenged in the Frankel case by the petitioners, just as they are the only petitions... the only positions that have been challenged in this case.
However, it is clear from this Court's decisions that the Abood criteria, the requirements of Hudson, are not limited to legislative lobbying positions, and as far as the Florida bar is concerned, it reads its own Supreme Court decision as being as extensive as are the decisions of this Court in Keller.
It is our opinion that it would make no sense, as Justice Kennedy suggested, for the Florida supreme court to attempt to distinguish between the two and so, as we understand that ruling, we are limited as to all political and ideological purposes to the parameters of Keller and Abood.
With regard to Justice--
Unknown Speaker: That seems to me very perceptive.
Mr. Richard: --I can read, Your Honor.
Unknown Speaker: I'm sorry.
Mr. Richard: Second, Your Honor, with regard to Justice Kennedy's suggestion that perhaps this case is moot if not insignificant, while it may be that with regard to Florida it is moot, the fact is a split continues to exist in the various circuits, and because this Court may want to address this issue, I will address it regardless of whether or not the Florida supreme court had taken the position that it did in the Frankel case, and I will do that in just a moment.
First, however, I would like to also address the question that was raised by Justice White regarding whether or not injunction would be at... whether or not that Florida's interpretation... that Florida's interpretation of the Frankel case... is consistent with this Court's ruling in Keller.
It is our position that it is, indeed, consistent.
As this Court said in Keller, the issue is not the terminology but the manner in which it has been interpreted by the Court.
The reason that this Court struck down the California court's interpretation is because even though, as this Court noted, its language appeared to be the same as the language of this Court, it had so broadly interpreted it that it essentially allowed any lobbying.
Quite the contrary.
In its first test of the criteria that it had earlier established in the Schwarz case, the Florida supreme court gave an extremely narrow interpretation which clearly falls within the scope of Keller, and essentially what the Florida supreme court said in interpreting those additional three criteria was that it must be... that when they say that it must be an issue upon which attorneys have special expertise, that means it must have to do with the administration of the system of justice as opposed to the subject matter of the legislation.
Now, the essential point here is that this Court does not have before it now a case in which the interpretation by the Florida supreme court by anybody's measure is beyond Keller or Abood, and there will be no issue until such time as a petitioner brings a case to this Court or another Federal court in which the Florida courts have interpreted it in an expansive manner that violates those cases.
Now, what I would like to do is to address this question, as I said, in an even broader sense.
I think, as comments from the Justices have already indicated, that there is no question that given the current interpretation by Florida's supreme court, that this case squarely meets the requirements of Abood and of Keller with regard to advance reduction, but I would suggest to this Court that even before the Frankel decision, and even with respect to those States that have not gone so far as Florida, advance reduction which has never been mandated by this Court simply makes no sense.
It rests upon the assumption that there is only one interest here to be served, the interest of the dissenters, and that that interest is to be served and that the convenience of the dissenters is to be served without regard for any other interest, and that flies in the face of what this Court has said consistently when it has cautioned district courts that they are to balance the interests of the dissenters against the right and the necessity for the organization to have the ability to fund those activities which are germane, and there is no way, I would respectfully suggest to this Court, that advance reduction can accomplish that purpose, and I will illustrate.
Let us assume that the dissenters have demanded their escrow and that a determination has been made at some point that it was 10 percent of the budget, and they have received their 10 percent.
Now, in what manner--
Unknown Speaker: You're saying two different things.
They have received their 10 percent, or the 10 percent has been put in escrow?
Mr. Richard: --It's been escrowed, and eventually let's assume it was determined that it was nonchargeable and they received the money.
Let's assume the most extreme circumstance in which the determination was in their favor.
Now, in what manner are you to reduce next year, when what we are talking about... well, let me put it this way, there are some circumstances in which reduction is certainly practicable.
For instance, if you've got a labor union which knows that it is going to allocate 10 percent of its budget to campaign contributions, surely that's a simple matter of reduction.
However, if you're dealing with a legislative situation, then as Justice Souter mentioned in the Chapman case in New Hampshire, it's an extremely complicated and never a wholly satisfactory system to advance reduce, because what do you reduce?
Florida's court is typical.
It budgets a lump sum amount to lobbying.
Because nobody knows what percentage of lobbying is going to go to what issues in any given year.
Nobody knows what issues are coming up, nobody knows how many committees are going to take up a bill, nobody knows until it's all over, and then what you do is you sit down and you allocate it according to the percentage of the time that your lobbyists spent on one issue or another issue.
Unknown Speaker: But Mr. Richard, let me just cut you off, if I may.
As your opponent seems to say, past year's experience would be an adequate basis, and that certainly would be something you could use so you have some basis, and if your lobbying has been 5 percent in the prior year, why would it be... I'm not saying it's constitutionally compelled, but I don't understand the administrative problem with saying if that's what it was last year, why that's the size of the escrow.
Isn't that... in fact, that's what I thought you did.
Mr. Richard: No, it's not what--
Unknown Speaker: You made future estimates, is what you did.
That's a different--
Mr. Richard: --No, what Florida actually does, and counsel has objected it's not in the record, and it's not, but if it's of interest to you, what we do is, because we don't know in advance, we escrow 100 percent of the legislative budget until our auditor determines what it is, because we don't know any other way to do it.
Unknown Speaker: --What percent of the total charge to the lawyer is the legislative budget?
What... what part of the dues are you talking about?
Mr. Richard: The record here reflects that when this case began about 5 years ago it was around $ 1. 50.
I don't know how accurate that is.
Unknown Speaker: 1.50 out of what?
What's the total dues?
I mean, at what percentage?
Mr. Richard: I think my dues are around something between $ 100 and $ 200.
I don't remember exactly.
Unknown Speaker: It's a couple percent of the dues, what you're talking about?
Mr. Richard: That's correct.
Unknown Speaker: And you're only talking about escrowing that amount for those dissidents who object to use it for some lobbying.
Mr. Richard: That would be correct.
Unknown Speaker: So we're not talking about a big escrow.
Mr. Richard: But the problem though, Your Honor, is this.
The problem is one of principle, and if I can illustrate it I'll show you what I mean.
Let's assume that we do what Your Honor has suggested as a hypothet, which is that we reduce in the future years by the previous year's budget.
Unknown Speaker: So you won't reduce, you just escrow that portion of the dissenter's dues?
Mr. Richard: I'm sorry, I misunderstood you.
We do do that.
Unknown Speaker: Yes.
That's what I thought.
Mr. Richard: Well, but we--
Unknown Speaker: I thought he said he doesn't object to it as long as it's based on past year rather than future estimates.
Mr. Richard: --No, no.
We do it more accurately.
Instead of... instead of... instead of escrowing by last year we escrow by the total amount we budgeted this year for the whole legislative budget.
Unknown Speaker: Which is... which is more than he's really entitled to, obviously.
Mr. Richard: That would be correct.
Unknown Speaker: But it's still only a couple of percent of the total dues, as I understand you.
Mr. Richard: That's correct, Your Honor.
Unknown Speaker: Now... and what's wrong with... I mean, I--
Mr. Richard: We have no objection to that.
Unknown Speaker: --I see.
I just don't know what the fight is about here.
Mr. Richard: I'm not sure I do, either.
Unknown Speaker: --Well, I'll tell you what part of the fight is about.
Part of the fight is about you then make the member, in order to get any of this money back, issue by issue, object to the expenditure on this, to the expenditure on that.
Suppose a member is just a cheapskate, and he says, I don't want to spend any money for lobbying.
I don't care what the subjects of the lobbying are going to be, if they are not within that narrow range of things that you have the constitutional right to take it out of my hide, I don't want to contribute, and I want to let you know this up-front, and I don't want to have to follow your... your stupid bulletin that comes around every month and read what you're lobbying about.
I don't want to waste my time on that.
Now, why isn't that entirely reasonable?
Mr. Richard: It is reasonable, Your Honor.
Unknown Speaker: But you don't let him do that.
Mr. Richard: Yes, we do.
Unknown Speaker: In advance he can say, I want no money... no money spent?
Mr. Richard: Yes, he may, Your Honor.
The problem here is... that's not where the problem lies here, or the dispute.
The problem is, what kicks into play escrow and arbitration.
The point here is that we are not dealing, as this Court was in the Abood case with what it referred to as the... shifting... the necessity to sift through shifting and numerous expenditures for nongermane purposes.
Here's what we're dealing with here.
The Florida bar says... and by the way, the rules which are in the record reflect that before the Florida Bar Board of Governors votes to take a position they must, by two-thirds vote, first agree that it is germane to what the Florida supreme court has said is its permissible area, so first they must make that decision so that in every case the board has already determined... has already determined that it is germane.
Now, the petitioner comes along and says, we don't want you to spend our money on any nongermane purposes, and the answer a fortiori is, we're not.
Unknown Speaker: Oh, I don't... so you are really... your answer here is... you are including in your... the Frankel decision in your answer?
Mr. Richard: Well, even before the Frankel decision, Your Honor--
Unknown Speaker: Yes, that's what I'm concerned about.
I'm concerned about before Frankel.
Mr. Richard: --Because we are not saying to the individual, as was the case in Abood, you must tell us what your position is on each individual issue which is nongermane.
All we're saying, as the 11th Circuit recognized is, where do you disagree with us as to what's germane?
If it's nongermane we're not going to spend your money.
If you think we're wrong--
Unknown Speaker: I see.
Mr. Richard: --tell us what's nongermane so that we know what it is that we're disputing.
As this Court said, what's the dispute?
We're saying, what's the dispute.
Now, counsel, in what I think is a highly significant acknowledgement said, as this Court has said, once you get into the litigation process, you have to tell the court what your objection is.
Unknown Speaker: I... I see.
Mr. Richard: I fail to see the distinction.
Again, we thoroughly understand what this Court has said, and endorse it, which is that you cannot make the petitioner take... announce his position on the subject matter one way or the other.
All we're asking him them here is, where do you think we are wrong in our determination that it is germane or nongermane, and then we know how much escrow, we know whether or not to take it to--
Unknown Speaker: Well, if--
--It's already escrowed, you would say?
It is already.
Mr. Richard: --It's escrowed as soon as he tells us, right.
If I might, by the way, go back for just a moment to advance reduction, because there was a point I wanted to make there which I think has broader significance than this.
The problem is this.
If... what I... what in their briefs the petitioners were calling for was in fact not an escrow but an advance reduction the following year in their dues--
Unknown Speaker: But he conceded today that he didn't ask for that.
Mr. Richard: --Well, if that's the case, then I have no problem.
Unknown Speaker: At least, I so understood him because I gave him that very question, and he said the escrow was enough.
Mr. Richard: My main concern with that is it does exactly what this Court's trying to avoid.
It then shifts the burden to all the nondissenters to pick up a percentage that they may not--
Unknown Speaker: Well, you're not going to... under the Frankel decision as you construe it, you're not going to escrow anything until somebody objects.
Mr. Richard: --That's correct, Your Honor.
Unknown Speaker: Well, this... I know that you think the Frankel decision really means to you that you should stay within this... these germane areas in all of your activities, whether it's lobbying or publications.
You include all of your... all of your educational materials, don't you?
Mr. Richard: Yes, Your Honor, that's correct.
Unknown Speaker: Well now, how do we... that's what you say you're going to do, but as a matter of fact the injunction that the Court issued against the bar was limited to those lobbying positions 6(a) through 6(h).
Mr. Richard: That's correct.
Unknown Speaker: So that's the only obligation that the bar must--
Mr. Richard: Well--
Unknown Speaker: --Must observe.
Mr. Richard: --That's correct, because that was the only issue presented to the Court.
Unknown Speaker: Exactly.
Mr. Richard: But again, we read it as being broad and we would have no objection to this Court saying that... that it--
Unknown Speaker: Well, I know, but--
Mr. Richard: --Of course, this Court wouldn't say what the Supreme Court limits--
Unknown Speaker: --But technically... technically you would not be in violation of the Supreme Court order if you... if you lobbied on nongermane things that just didn't happen to be 6(a) through 6(h).
Mr. Richard: --But we would... that's... yes, Your Honor.
Unknown Speaker: I know you say you're not going to do that.
We don't know that.
Mr. Richard: And if the petitioner says we have done it, which our rules provide them an opportunity to say, then we must immediately escrow his funds and eventually if he proves to be correct, either give the money back or... or give it back with interest from the date that the position was taken by the bar.
Unknown Speaker: Well--
Mr. Richard: And we're bound to that by the 11th Circuit's decision.
Unknown Speaker: --Well, you know that... you know that in the past you have engaged in nongermane lobbying.
Mr. Richard: That's correct.
Unknown Speaker: And activities, because as Frankel well illustrates, and are we supposed to just believe that your... that the bar is going to refrain from nongermane activities that don't happen to be within 6(a) through 6(h)?
Mr. Richard: No, sir.
Unknown Speaker: No?
Mr. Richard: That's not the question before the Court.
Unknown Speaker: --Well, I don't know why it isn't.
If... if the bar happened to say... say well, we're going to take these nongermane positions in lobbying which are not within 6(a) through 6(h)... we know that we're going to do that... and you budget something for those activities, don't you think you then would have to escrow that money?
Mr. Richard: Well, I think we certainly would have to escrow it as soon as somebody files an objection, and I think that it would not be inappropriate if we knew in advance what the percentage was to escrow it even if they did not file an objection.
Unknown Speaker: Yes, well, I suppose if you knew in advance and you thought that you were going to spend his money for nongermane activities that were not forbidden to you, you ought to give him his money back right away.
Mr. Richard: Well--
Unknown Speaker: You don't need to escrow if you concede yourself that this is nongermane.
Mr. Richard: --If what Your Honor is saying... and I... I believe I understand you... this Court has said that there always must be an objection raised, that the initial burden is, of course, the petitioner.
I understand, Your Honor, what you're saying is that once the petitioner has said, I file an objection, if the bar then knows that it's going to spend a percentage of money on a nongermane purpose, that it then must return that money to that petitioner and we would agree wholeheartedly with that.
We have no problem with that suggestion.
The difficulty here is--
Unknown Speaker: You've got to have an objection.
You wouldn't know who to pay.
Mr. Richard: --Well, not only that, but what the petitioner, as I understand it, is suggesting, is that he does not even have to advise the bar when he thinks the bar has arrived at an incorrect decision as to whether or not it's germane.
Now... now what does that call upon us to do, then?
Must we escrow automatically all funds, which flies in the face of this Court's continuing suggestion that the organization should not have to have a 100 percent escrow, or are we to send every issue once a single petitioner has objected to costly arbitration, thereby again placing an undue burden upon the nondissenters?
My point is that the Florida bar has adequately and constitutionally fully accommodated all First Amendment requirements as soon as we immediately escrow money which... which accounts for the percentage of the item that the petitioner has suggested is not germane and given him an opportunity in Florida which is twofold, either to go to arbitration or to go directly to the supreme court on a petition.
All I'm suggesting--
Unknown Speaker: Or... or if he objects and you say well, yes, this is a nongermane activity, you're going to give him his money back right then, I suppose?
You're not going to just escrow it.
Mr. Richard: --Well, Your Honor, the... the rule--
Unknown Speaker: Right?
Mr. Richard: --I would say we should.
The rule doesn't speak to that since it doesn't recognize--
Unknown Speaker: You mean you should, but you wouldn't?
Mr. Richard: --Well, no, sir.
The reason I say that is because Florida's rule requires a decision before its ever announced that it's germane, so Florida doesn't recognize its right to allocate that money to a nongermane purpose, so the decision's already been made by the board that it's germane.
Now, the question is whether there's an adequate system for the petitioner to disagree with us, and our position is there is a more than adequate system.
Unknown Speaker: Mr. Richard, could I ask another question?
What about what he paid in in the last few years for activity that has now by the Florida supreme court been determined to have been unauthorized?
Mr. Richard: We have been ordered to refund with interest from the appropriate date all sums that were paid in by those who adequately raised the issue.
Unknown Speaker: So does that mean that as between the dispute between these particular parties insofar as it relates to past payments he's got... he either has or is entitled to his money?
Mr. Richard: That is our understanding.
Past payments as to those issues upon which he gave--
Unknown Speaker: Is it your understanding that somebody's actually paid him?
Mr. Richard: --That somebody has paid him?
Unknown Speaker: Has he got his money back?
Mr. Richard: I don't know, Your Honor.
Unknown Speaker: Because it seems to me if he has maybe... maybe the whole case is moot, or at least not much of a lawsuit.
Mr. Richard: I couldn't honestly tell you whether or not he's gotten his money back.
In light of the fact that the case is not finally adjudicated--
Unknown Speaker: I wonder if his lawyer knows.
I suppose that... I suppose that you could read this opinion... this later opinion in... as at least a declaratory judgment, that the Court says if a lobbying position does not fall within the guidelines set forth in Schwarz, it is outside the ambit of permissible bar lobbying activities, thus a petitioner may enjoin the bar from lobbying on that position.
That is at least... whether an injunction, regardless of how broad the injunction was, this is an opinion by the supreme court that you... that... that it's illegal for you to lobby on anything that doesn't satisfy Schwarz.
Mr. Richard: --Yes, sir.
As a matter of fact, it occurred to me after you asked the question about the injunction before to make another comment that I forgot, so I'm glad you've raised it again.
The Florida supreme court in this case was not acting in an adjudicatory capacity with regard to the injunction.
They were acting as the administrative head of the Florida bar, which in Florida the supreme court is, and they were advising the Florida bar that they could not extend beyond Keller in any case.
The injunction was secondary, because the Court was saying this is an appropriate remedy, but the fact is that it was certainly the intention of the Court to advise the bar of, its administrative limits.
They said, your charter allows you not to go beyond this.
With regard to the issue of notice, Your Honor, the Florida bar publishes all of the notice that I believe is reasonably possible, as well as all of the notice that is constitutionally required.
We have a rule adopted and imposed by the supreme court that requires Florida to give notice of the entire budget process, point by point.
We give notice to the membership as soon as it is adopted of every item in the budget, we give notice as the Court knows of every position taken politically.
There is nothing more to tell the petitioners.
If the petitioners are suggesting that we need to break the budget down into smaller quantities, I know of no constitutional provision that requires the Florida bar or any other agency to break its budget down into any particular size items.
The point is, we're not, as is suggested in the brief of the petitioners, being disingenuous here or being arrogant.
We are simply adopting the only budget that the bar is able to adopt, and we are attempting, as I believe most if not all bars and this Court is, to struggle with the question of how to balance the legitimate rights of the petitioners against the necessity to ensure that the costs involved are evenly spread with regard to legitimate, germane functions.
Unless the Court has additional questions, Mr. Chief Justice, that concludes my remarks.
Unknown Speaker: I'd... I'd be interested in how large the... how large the bar is in Florida.
How many members, do you know?
Mr. Richard: With the Court's permission, I quote 46,000.
I'm advised by cocounsel, who is general counsel for the bar.
I believe, by the way, that is in the record in one of the documents.
Unknown Speaker: Thank you, Mr. Richard.
Mr. LaJeunesse, you have a minute remaining.
Rebuttal of Raymond J. LaJeunesse, Jr.
Mr. LaJeunesse: I'd like to very quickly make two or three points.
One, Justice Stevens, I did not concede that if the bar, as was the case pre-Frankel, engages in constitutionally nonchargeable activities, that advance reduction is not required in addition to escrow.
I think both are required if the bar is not limited by State law to only constitutionally chargeable purposes.
Unknown Speaker: Don't you think it is now?
Mr. LaJeunesse: I don't think so.
I don't think it is now.
I think that ruling and its own procedure applies only to legislative activities.
Now, we've had a statement from counsel here for the first time to this Court in argument that Frankel, and its own procedure, which says on the face you can object to legislative positions, period, only those legislative positions which the bar gives you notice of in its twice-monthly publication.
That's all that procedure covers.
Unknown Speaker: I see.
Mr. LaJeunesse: The second point I'd like to make is that counsel suggested that Mr. Gibson is going to get some restitution as a result of the Frankel decision.
That is simply not true.
The Frankel decision only applies to parties in that case.
Unknown Speaker: Okay, thank you, Mr. LaJeunesse.
Your time has expired.
Mr. LaJeunesse: Thank you, Your Honor.
Chief Justice Rehnquist: The case is submitted.
Argument of Speaker
Mr. Speaker: I have the opinions of the Court to announce in two cases, and the first of them No. 90-1102 Gibson against Florida State Bar.
The writ of certiorari is dismissed as improvidently granted.