FALK
v.
STATE BAR OF MICHIGAN
Docket No. 60722, (Calendar No. 14).
Supreme Court of Michigan.
Argued March 8, 1983. Decided December 29, 1983. Certiorari denied October 29, 1984.Allan Falk, in propria persona.
*277 Bushnell, Gage, Doctoroff & Reizen (by George E. Bushnell, Jr., and John K. Parker) for the respondent.
Decided December 29, 1983. Rehearing denied post, 1203.
Certiorari denied by the Supreme Court of the United States on October 29, 1984.
PER CURIAM:
Disposition of this matter requires us to determine whether petitioner Falk is entitled to the relief he prayed for in his "Petition for Special Relief" originally filed November 30, 1977.
A majority of the Court is not persuaded that he is so entitled and, accordingly, the relief requested in the Petition for Special Relief is denied.
This proceeding has convinced us all, however, that certain practices of the State Bar may warrant closer scrutiny pursuant to our duty to superintend its activities. We will in the near future, therefore, by separate administrative order, appoint a committee to review those practices and activities and make recommendations to the Court.
Petition dismissed.
WILLIAMS, C.J., and KAVANAGH, LEVIN, RYAN, BRICKLEY, CAVANAGH, and BOYLE, JJ., concurred.
BOYLE, J.
Plaintiff Falk began this suit on November 30, 1977, by filing a "Petition for Special Relief" naming the State Bar of Michigan as defendant. Plaintiff raised First Amendment constitutional challenges to various activities of the State Bar based on the funding of those activities from his mandatory dues.[1] This Court appointed former Judge Maurice E. Schoenberger to conduct a hearing and make findings of fact. After receipt of Judge Schoenberger's report and the transcript of the hearing he conducted, and after briefing and oral argument, this Court rendered its first opinion *278 in this case. Falk v State Bar of Michigan, 411 Mich. 63; 305 NW2d 201 (1981) (Falk I).
The members of this Court were unable to agree in Falk I concerning the extent of the relief, if any, that plaintiff should receive. The Court unanimously agreed, however, that further factual findings should be ordered. Therefore, the Court appointed the Honorable James H. Lincoln to conduct additional hearings. The Court ordered further development of the record with regard to the following activities of the State Bar:
"[T]he Young Lawyers Section and Lawyers Wives, the Lawyer Placement Service, the commercial sale of the bar's mailing list, and bar activities addressed to influencing legislation." 411 Mich. 83.[2]
We now have the results of those extensive hearings. Both sides have again briefed and argued the relevant issues.
At the outset, I agree with the opinion of Justice RYAN in Falk I, pp 84-87,[3] concerning our jurisdiction to hear and dispose of this case. That is, I agree that plaintiff's petition most closely resembles and is properly treated as a complaint for a writ of superintending control under GCR 1963, 851(6); MCL 600.215, 600.219; MSA 27A.215, 27A.219. I note also that Justice WILLIAMS in his opinion in Falk I, supra, p 122, fn 4, reached this issue and concurred with Justice RYAN'S treatment *279 of the petition as a complaint for a writ of superintending control. Because five members of this Court have previously reached and disposed of this issue, it is properly viewed as the law of the case. Therefore, I agree that this case is properly within this Court's original jurisdiction.
I. THE EFFECT OF FALK I
As pointed out in the several opinions in Falk I, it is undisputed that the State Bar of Michigan is an "integrated bar". "[T]he State of Michigan, through the combined actions of this Court, the Legislature, and the State Bar, compels all licensed attorneys to associate in and provide financial support for the integrated State Bar." Falk I, supra, p 87 (opinion of RYAN, J.).
Plaintiff challenges the use of his mandatory dues to finance various activities of the bar. Justice WILLIAMS listed those activities in Falk I:
"(1) lobbying and other political activity, (2) compulsory membership in Young Lawyers Section, (3) promoting prepaid legal services, (4) lawyer referral, (5) lawyer placement, (6) Client Security Fund, (7) public education about legal services, (8) funding of Lawyers Wives of Michigan and Children's Charter of Michigan activities, (9) giving and paying for social functions, including those where the Supreme Court Justices are guests of honor, (10) appearing before the State Officers Compensation Commission in support of higher Supreme Court and other judicial salaries, and (11) sale of use of State Bar mailing roster." 411 Mich. 120.
Upon analysis of the several opinions in Falk I, it appears that some of these challenged activities have passed constitutional muster. The Court unanimously rejected plaintiff's challenge to the use of his dues for support of the bar's lawyer *280 referral service.[4] The Court was also unanimous in rejecting the challenge to expenditures for public education about legal services.[5] A majority of the Court also upheld the use of bar dues to finance a Client Security Fund.[6] By application of the law-of-the-case doctrine, we are foreclosed from reconsideration of those items here.
In addition, two other challenges are now moot. At the present time, the bar provides an opportunity to its members to remove their names from the mailing list which is offered for sale to interested parties. Similarly, otherwise eligible members of the Young Lawyers Section may disassociate themselves from membership in that organization.[7] Therefore, neither of these issues presents a constitutional question requiring resolution at this time.
To summarize, plaintiff's challenges to the following activities remain undecided after Falk I: (1) certain activities of the Young Lawyers Section, (2) promotion of prepaid legal services, (3) lawyer placement services, (4) certain activities of the Lawyers Wives, (5) social functions, (6) appearing before the State Officers Compensation Commission, and (7) lobbying and other political activity.
*281 II. THE CONSTITUTIONAL TEST
As indicated above, there was no agreement among a majority of the members of this Court in Falk I concerning the proper constitutional standard to be applied to test plaintiff's challenges to expenditures of the integrated State Bar of Michigan. Three members of the Court believed that relevant First Amendment[8] decisions of the United States Supreme Court required that bar activities be subjected to strict scrutiny:
"We therefore conclude that, in light of the controlling First Amendment principles as hereinabove discussed, the State of Michigan, through the combined actions of this Court, the Legislature, and the State Bar, may compulsorily exact dues, and require association, to support only those duties and functions of the State Bar which serve compelling state interests and which cannot be accomplished by means less intrusive upon the First Amendment rights of objecting individual attorneys." 411 Mich. 112 (opinion of RYAN, J.).
Two other members of the Court believed a different constitutional test was applicable:
"We find that the First Amendment is not absolute but will give way to certain state activities which are germane to a compelling state interest. The state has a compelling interest in promoting improvements in the administration of justice and advancing the science of jurisprudence in order to fulfill its function of protecting the health, safety and welfare of its citizens. The *282 state may employ activities which are germane to this compelling state interest." 411 Mich. 132 (opinion of WILLIAMS, J.).
The remaining two members found it unnecessary to decide what the appropriate standard of judicial scrutiny was because of the inadequately developed record.[9] See Falk I, supra, p 175 (opinion of LEVIN, J.).
I am unable to agree that either of the formulations of the constitutional test in Falk I is correct. I am brought to this conclusion by a careful analysis of the precise First Amendment interest to be protected under these circumstances and by an examination of the cases in which the United States Supreme Court has discussed such an interest.
A. The Interest
The most familiar First Amendment claim is a challenge to state action in which a citizen complains of some interference by the government with an attempt to exercise, in an affirmative way, protected rights to speak or to associate with others. Typical First Amendment cases involve persons who wish to express themselves in a particular manner in the face of limiting or prohibitory government regulation.[10] Other typical cases involve individuals who wish to associate with others and who claim that governmental action in some manner inhibits their ability to do so.[11]
This case does not fit the typical mold. Rather, *283 what plaintiff complains of here is, in essence, government action which compels him to associate and compels him to participate in certain forms of expression.[12] The right that plaintiff asserts is a right of non-association and of non-expression.
Because the individual seeks, in effect, to remain silent, the right of non-association cannot logically be based on the policy of maintaining a "free marketplace for ideas" which is usually advanced in connection with rights of unfettered expression. However, compelled association can reasonably be seen as an infringement upon more personal individual interests such as freedom of conscience. See Gaebler, First Amendment Protection Against Government Compelled Expression and Association, 23 BC L Rev 995, 1004 (1982). Professor Laurence Tribe has described this interest more completely:
"The Constitution has enumerated specific categories of thought and conscience for special treatment: religion and speech. Courts have at times properly generalized from these protections, together with the guarantees of liberty in the due process clauses of the fifth and fourteenth amendments, to derive a capacious realm of individual conscience, and to define a `sphere of intellect and spirit' constitutionally secure from the machinations and manipulations of government." Tribe, American Constitutional Law, § 15-5, pp 899-900.
Recognition of the nature of plaintiff's interest is the analytical sine qua non for resolution of the issues currently before the Court and also the appropriate vehicle for understanding and harmonizing the relevant United States Supreme Court *284 decisions. Once harmonized, these cases produce a test which can be applied to the facts of the case at bar.
B. The Cases
The Supreme Court of the United States has recognized a constitutional right of non-association in several cases.[13] The first of these was West Virginia State Bd of Ed v Barnette, 319 U.S. 624; 63 S. Ct. 1178; 87 L. Ed. 1628 (1943). In that case, the school board required all students and teachers to salute the flag and recite the pledge of allegiance in the classroom. Failure to do so constituted grounds for expulsion or dismissal. Plaintiffs, who were Jehovah's Witnesses, refused to salute the flag because of their religious beliefs. The Court invalidated the statute on First Amendment grounds.[14]
The next case decided by the Court which involved negative First Amendment rights was Wooley v Maynard, 430 U.S. 705; 97 S. Ct. 1428; 51 L. Ed. 2d 752 (1977). Mr. and Mrs. Maynard, Jehovah's Witnesses, objected to the display of the New Hampshire state motto, "Live Free or Die", on the license plate of their automobile. When they covered *285 the motto with tape, they were cited for a misdemeanor. Eventually, the Maynards sued in federal court to enjoin enforcement of the misdemeanor statute on First Amendment grounds.
The Court held that the Maynards had a protected right to remain silent and to refuse to be associated with the message behind the motto:
"We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. See West Virginia State Bd of Ed v Barnette, 319 U.S. 624, 633-634; 63 S. Ct. 1178; 87 L. Ed. 1628 (1943); id., p 645 (Murphy, J., concurring). A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of `individual freedom of mind.' Id., p 637." 430 U.S. 714.[15]
The next case dealing with negative First Amendment interests was Abood v Detroit Bd of Ed, 431 U.S. 209; 97 S. Ct. 1782; 52 L. Ed. 2d 261 (1977). Plaintiff Falk relies heavily on this case to support his challenge. The opinions of Justices RYAN and WILLIAMS in Falk I agreed that Abood controlled the issues raised here, but disagreed concerning the standard of review called for by that case.
Abood involved a challenge by public school teachers to a statutorily mandated union shop provision of their collective-bargaining agreement. Non-union teachers were required to pay service fees equal to union dues as a condition of their employment. The teachers maintained that the *286 exaction of such fees to support the costs of collective bargaining and to support the political activities of the union violated their First Amendment rights.
The Court found that compelling payment of the fees for either purpose implicated First Amendment interests.[16] It upheld the exaction as it related to collective bargaining, but struck down the use of the fees for political and ideological activities unrelated to collective bargaining or contract administration.
The most recently decided case involving negative First Amendment interests is PruneYard Shopping Center v Robins, 447 U.S. 74; 100 S. Ct. 2035; 64 L. Ed. 2d 741 (1980). That case involved the right of citizens to peacefully distribute political material in a privately owned shopping center. The California Supreme Court held that such a right existed under the California Constitution.
The shopping center owners appealed to the United States Supreme Court, arguing inter alia that their First Amendment right of non-association was violated by the California decision, which in effect compelled the use of their property for political expression.
The Court rejected the owners' claim. It distinguished Wooley on several grounds. The Court found that because of the character of the property involved, i.e., a public shopping center, reasonable persons would not be likely to connect the political views expressed there with the owners. The Court also noted that the content of the speech permitted was not prescribed by the government and that the owners were free to disavow the views expressed.
*287 Finally, most directly on point for purposes of this case is the United States Supreme Court opinion in Lathrop v Donohue, 367 U.S. 820; 81 S. Ct. 1826; 6 L. Ed. 2d 1191 (1961). In that case, plaintiff challenged the state's power to require him to belong and pay dues to the Wisconsin State Bar. The plaintiff objected to both the fact of mandatory membership and the use of his mandatory dues for political purposes.
A majority of the Court agreed that Wisconsin had a sufficiently significant interest in maintaining an integrated bar to justify compelling plaintiff's membership. There was no majority view, however, on the political expenditure question. Four members of the Court found that the issue had not been properly raised in the courts below. 367 U.S. 846 (Brennan, J., plurality opinion). However, Justice Harlan, joined by Justice Frankfurter, found the question properly presented and found no First Amendment violation. 367 U.S. 848 (Harlan, J., concurring).[17]
C. The Test
While the decisions of the Supreme Court make it clear that under certain circumstances there is a constitutional right to be free from compelled association or expression, the Supreme Court has not clearly articulated a test to be applied to determine the extent of that right.
However, it is clear that the Supreme Court does not consider the strict scrutiny applied in other First Amendment cases to be appropriate in cases involving negative First Amendment rights. Even the facts of Barnette did not prompt the *288 Court to engage in the traditional test which involves a compelling state interest and the least restrictive regulatory alternative. Because such analysis is conspicuous by its absence from negative First Amendment cases, we are unable to conclude that the Supreme Court would apply it to resolve the case at bar.
However, when examined carefully, the cases discussed above reveal a consistent pattern of analysis. This close examination indicates that in resolving the various claims the Court has balanced the severity of the injury to the individual interest against the magnitude of the government interest sought to be served by the requirement or regulation. In this manner, the Court has decided whether the complained-of government action constitutes an impermissible First Amendment infringement.[18]
"Whenever a government requirement is challenged on the basis that it compels expression the initial inquiry must be whether the requirement does in fact infringe upon negative First Amendment interests and if so how seriously. The judicial task does not end here, however. It is also necessary to consider what government interests may be served by the requirement in question, and under what circumstances advancement of a government interest might outweigh the concomitant infringement of individual negative First Amendment interests." Gaebler, supra, p 1014.
The first step in this analysis is a determination whether the asserted claim implicates the First Amendment at all. It is only when the conduct regulated can fairly be characterized as expression that the First Amendment can be cited as a source of protection. Once a determination is made that *289 the government requirement infringes on a First Amendment interest, the key factor in determining the severity of the infringement is the intimacy of the connection between the individual and the compelled expression. If there is only a very attenuated link between the individual and the compelled expression, the government interest advanced to justify the requirement need not be substantial. This seems to be the import of Justice Harlan's concurring opinion in Lathrop, supra, p 858.
Conversely, the more directly the compelled expression relates to the individual, the more important must be the government interest advanced to justify it. For example, in Barnette, the government required the individual to salute the flag and verbally pledge national allegiance. A requirement which entails such intimate personal action has a direct impact on the individual's freedom of conscience and constitutes a severe invasion of the protected sphere of intellect and spirit. The individual is required to personally and directly proclaim a belief which is repugnant to him.
The Court in Barnette made it clear that some interest much more urgent and immediate than a general interest in national unity would have to be advanced to justify such a First Amendment infringement. 319 U.S. 633. In fact, the Court expressed doubt about whether such an interest might ever exist. 319 U.S. 642.
In Wooley, the government intrusion was less personal and direct than in Barnette. Being forced to display a personally offensive motto on the license plate of a vehicle requires less intimate expression than does a compulsory pledge of allegiance. Accordingly, the Court in Wooley devoted significantly more discussion to the asserted government *290 interests behind the compelled expression. Nevertheless, it found the state interests to be insufficient in relation to the infringement.
In Abood, the Court held that First Amendment interests were implicated in compelling non-union teachers to pay service fees equal to union dues. However, the Court found that the government interest in preserving labor peace and the elimination of "free riders"[19] outweighed the infringement. In reaching this conclusion, the Court did not carefully examine the government interest. Arguably, this can be explained as an implicit finding that the infringement of individual interests was not severe. See Gaebler, supra, p 1015. Certainly, the same degree of compelled personal expression involved in Barnette and Wooley was not present in Abood. Non-union teachers were asked to support the right of the union to exist only through the relatively indirect method of financial support. The direct relation of the compelled support to the government interest in peaceful collective bargaining justified the infringement.
However, use of government-mandated fees for political or ideological purposes unrelated to collective bargaining was held to be an invalid infringement of a protected interest. The plurality did not specifically explain why this result was necessary. Nevertheless, because the plurality emphasized the absence of a link to collective bargaining, the result seems to turn on the insufficiency of the government interest in this aspect of the compelled contribution.
Justice Harlan engaged in similar analysis in his concurring opinion in Lathrop, supra, p 848, *291 although he arrived at a different result. He found that Wisconsin had a "most substantial state interest" in hearing "the views of the members of its Bar `on measures directly affecting the administration of justice and the practice of law'". 367 U.S. 864. He acknowledged that the compelled-expression rationale in Barnette was relevant, but distinguished that case as involving a more concrete and intimate expression of belief:
"What seems to me obvious is the large difference in degree between, on the one hand, being compelled to raise one's hand and recite a belief as one's own, and, on the other, being compelled to contribute dues to a bar association fund which is to be used in part to promote the expression of views in the name of the organization (not in the name of the dues payor), which views when adopted may turn out to be contrary to the views of the dues payor. I think this is a situation where the difference in degree is so great as to amount to a difference in substance." 367 U.S. 858.
Balancing is also implicit in the PruneYard case. As discussed above, the Court indicated that the negative First Amendment rights of the shopping center owners were not seriously infringed by the indirect form of compelled expression in that case. Because such a minor injury was involved, the Court paid little attention to the magnitude of the government interest.[20]
In summary, when these cases are considered together, a balancing test for asserted violations of negative First Amendment rights emerges.
*292 "In other words, negative First Amendment cases require a sliding scale approach to balancing. The more serious the infringement of individual interests, the more vital the asserted advancement of government interests must be to outweigh the infringement and vice versa. The question in each case must be whether the compelled participation in expression infringes unduly upon individual interests." Gaebler, supra, p 1016.
It is this test which should be applied to decide the merits of Falk's objections to the expenditures of his compelled bar dues.
III. THE CONSTITUTIONAL TEST APPLIED
As mentioned in Part I, this Court has not decided the merits of plaintiff's constitutional objections to the following activities of the State Bar: (1) certain activities of the Young Lawyers Section, (2) promotion of prepaid legal services, (3) lawyer placement services, (4) certain activities of the Lawyers Wives, (5) social functions, (6) appearing before the State Officers Compensation Commission, and (7) lobbying and other political activity.
In applying the constitutional test which has been articulated above, it is necessary to further examine the precise nature of plaintiff's objections to these activities.
In connection with the volunteer legal assistance rendered by the Young Lawyers Section, plaintiff argues that such activity is more properly conducted by government and funded by tax revenues. Plaintiff makes a similar argument concerning the lawyer placement services of the bar.
Plaintiff objects to the bar's promotion of prepaid legal services because, as an employee of the public sector, he receives no benefit from such promotion. Similarly, plaintiff objects to the bar's *293 support of the Lawyers Wives because he is unmarried and receives no benefit from the activity.
In addition, plaintiff objects to the social functions conducted by the bar and its sections and groups because the food and drink served at these gatherings violates his religious beliefs and those of other members of the bar.
Finally, plaintiff objects to the "political" activities of the bar. More specifically, he objects to the participation of the bar in legislative drafting and in more typical lobbying efforts. Additionally, plaintiff challenges the appearance of representatives of the bar at meetings of the State Officers Compensation Commission. Bar representatives appear before the commission to argue on behalf of increased judicial compensation.
We will apply the constitutional test separately to the political and non-political challenges raised by plaintiff.
A. Non-Political Activities
As discussed above, our first task in deciding the negative First Amendment claims raised by plaintiff is to determine if the government requirement infringes upon any negative First Amendment interests. If no infringement has occurred, the inquiry goes no further.
In connection with plaintiff's challenges to nonpolitical activities of the bar, we find that plaintiff has not met his burden of proof in showing an injury to a protected First Amendment interest.[21] Plaintiff has not pointed out to this Court any *294 aspect of those activities which can fairly be characterized as compelled expression. Indeed, we doubt whether these activities contain any message at all.
In objecting to most of these activities, plaintiff has not argued that his governmentally required dues are being spent in a manner which compels his support of some belief, ideology, or position which is repugnant to him or on which he would prefer to remain silent. Rather, for the most part, plaintiff has argued that his governmentally required dues are spent in a manner which returns no economic benefit to him. If such an argument has a constitutional base, it is not in the First Amendment.
Even if the activities could be characterized as encompassing some ideological content, any asserted connection with plaintiff would be too attenuated to constitute a burden on the freedom of conscience that underlies negative First Amendment protection.
For example, plaintiff's objections to the food and drink served at social functions of the bar could conceivably be framed as an objection to a compelled expression of support for a religious message. However, if such compelled expression is present, it does not have the intimate connection with plaintiff that is necessary for it to reasonably be seen as an invasion of plaintiff's freedom of conscience. Plaintiff is not being forced to consume the food, nor is he being forced to attend the functions at which it is served. Compare Barnette and Wooley, supra. No reasonable person could attribute a religious message to plaintiff by virtue of the fact that a small portion of his mandatory bar dues is used to purchase pork or shellfish for consumption at cocktail parties sponsored by the *295 bar. The connection between plaintiff and any conceivable message is simply too attenuated to be protected by the First Amendment. See Lathrop, supra (Harlan, J., concurring), and PruneYard, supra, pp 87-88.
Alternatively, we find that the non-political activities challenged by plaintiff are fairly within the normal functions of an integrated bar. The concept of an integrated bar was constitutionally validated in Lathrop. Thus, the activities discussed here share in that validation. Cf. Abood, supra, pp 222-223 (activities which promote the cause which justified bringing the group together are permissible).
We hold therefore that plaintiff has failed to identify a protected First Amendment interest in connection with the use of his mandatory dues to support the non-political activities of the Young Lawyers Section and the Lawyers Wives. In addition, we hold that plaintiff has not shown that bar expenditures used to promote prepaid legal services, to provide lawyer placement services, or to conduct social functions violate his First Amendment rights.
B. Political Activities
Plaintiff's challenge to the use of his mandatory dues in connection with the political activities of the bar requires a more complete application of the constitutional test. Plaintiff objects to several aspects of the political activity of the bar. He objects to the technical expertise which the bar provides to the state Legislature by assisting in drafting legislation and giving advice to the Legislature on the substantive content of the law. Plaintiff also objects to the bar's lobbying activity as conducted in the Legislature and in appearances before the State Officers Compensation Commission. *296 Specifically, plaintiff claims that when the bar takes a position in support of or opposition to a piece of legislation, it infringes on his negative First Amendment interest to remain silent on that issue.
The first step in the constitutional test is to determine if the government action infringes upon a protected First Amendment interest. Plaintiff has carried his threshold burden of proof in connection with the bar's political activities. The bar's legislative and political involvement clearly involves a message. By rendering advice on content or supporting or opposing legislation, the bar engages in expression. To the extent that plaintiff's mandatory dues are used to support such activity, plaintiff is compelled to participate in such expression. Even if plaintiff is opposed to the bar's position, or would choose to take no position at all, he is forced to contribute to the advancement of the bar's position. His freedom of conscience and intellect have been invaded.
Plaintiff has thus suffered some cognizable First Amendment related injury. It remains to be seen, however, whether plaintiff is protected from that injury in connection with this government activity.
The next step in determining the answer to this ultimate question is to further analyze the nature of plaintiff's injury to determine its severity. As described above, the key factor in this analysis is the intimacy of the connection between plaintiff and the compelled expression.
This is not a case where plaintiff is being forced to personally express his own agreement with the political positions of the bar. Compare Barnette, supra. Plaintiff is also not being forced to display the bar-approved message in his home or on his automobile. Compare Wooley, supra. Plaintiff is *297 free to take a public position which is directly opposed to that taken by the bar. See PruneYard, supra. Plaintiff is required only
"to contribute dues to a bar association fund which is to be used in part to promote the expression of views in the name of the organization (not in the name of the dues payor), which views when adopted may turn out to be contrary to the views of the dues payor". Lathrop, supra, p 858 (Harlan, J., concurring).
Thus, although the government action complained of here has in fact infringed upon plaintiff's First Amendment interests, the severity of the injury is not great. Plaintiff is required to support the legislative positions taken by the bar only through indirect financial contributions. Reasonable persons are not likely to associate the bar's expressed position with plaintiff merely because he is forced to pay dues to the bar in order to practice law. Thus, the invasion of plaintiff's freedom of conscience and sphere of intellect occasioned by the bar's political activity is, in reality, not great.
Our next task is to weigh the government's interest in the bar's political activity to determine whether it outweighs this First Amendment injury. There can be little doubt that the government has an interest in receiving the input of the State Bar into the legislative process. The State Bar is, of course, made up of lawyers whose business necessarily entails knowing, understanding, utilizing, and interpreting the law.
In this sense, the State Bar is quite different from the labor union involved in Abood. It is true that the government might have a keen interest in the legislative participation of a labor union in specialized areas of the law touching directly on *298 the field of employment of the union members or on the area of collective bargaining. But lawyers are involved with the law in almost all its forms. Therefore, their input is of broader interest to the Legislature.
In addition, the bar brings its collective experience in working with the law to the lobbying efforts and technical advice which it offers the Legislature. Certainly, the Legislature is greatly aided by the collective wisdom of the practitioners who make up the Taxation Section of the bar when it revises state taxation provisions. Similarly, the input of the Criminal Law Section is invaluable to the Legislature in its task of revising Michigan's Criminal Code.
In addition, the government has an interest in hearing the collective majority opinion of the bar on the matter of judicial compensation. Members of the bar are best able to inform the State Officers Compensation Commission what level of compensation is required in order to attract and keep qualified lawyers on the bench.
State Bar Rule 1 provides:
"The state bar of Michigan shall, under these rules, aid in promoting improvements in the administration of justice and advancements in jurisprudence, in improving relations between the legal profession and the public, and in promoting the interests of the legal profession in this State." 340 Mich. xxxviii.
The political lobbying and input currently conducted by the State Bar of Michigan clearly serves those purposes.
As the foregoing discussion indicates, the government has a substantial interest in the political activity of the bar. Although this activity infringes upon plaintiff's negative First Amendment interest, *299 we believe the government interest in the activity outweighs plaintiff's injury. We therefore hold that the State Bar of Michigan may constitutionally use the mandatory dues of its members to support the lobbying and other legislative activities of the State Bar as they are currently conducted.
IV. CONCLUSION
Plaintiff has failed to establish his right to relief in connection with any of the undecided constitutional challenges raised by his complaint and briefs. Therefore, plaintiff's request for relief is denied.
No costs, a public question being involved.
WILLIAMS, C.J., concurred with BOYLE, J.
KAVANAGH, J.
Justice LEVIN expressed our view in Falk v State Bar, 411 Mich. 63, 166-167, fn 1; 305 NW2d 201 (1981):
"Falk commenced this action as an original proceeding in this Court denominating it `Petition for Special Relief'. No statute or court rule expressly authorizes such a petition. If the petition were an ordinary lawsuit claiming violations of Falk's constitutional rights, it should have been filed in a circuit court. If regarded as an action for a writ of mandamus against a state officer, it should have been commenced in the Court of Appeals, or the circuit court for Ingham County or other county in which venue was proper. MCL 600.4401; MSA 27A.4401. This Court has elected to treat Falk's petition as a request to exercise the Court's statutory power to regulate the conduct and activities of the bar. MCL 600.904; MSA 27A.904.
"As such, this proceeding is more in the nature of a rule-making proceeding than a lawsuit; what character it has as a lawsuit is the result of this Court's action in *300 appointing a judge to conduct a hearing and make findings of fact.
"Since this is not a lawsuit, or even an action whose procedure is delineated by statute, court rule or precedent, it is inappropriate to limit our consideration of the issues presented in this proceeding according to the rules circumscribing lawsuits. To determine the scope or content of an order regulating the bar according to burdens of proof or inadequate showings in the record we ordered would be to treat this proceeding as the lawsuit it clearly is not."
While we are edified by the scholarly opinions of our colleagues, we are still persuaded that we should await a proceeding wherein it is necessary for decision to reach the constitutional issues. Accordingly, we express no opinion thereon, but wholeheartedly join in the Court's disposition of this proceeding.
LEVIN, J., concurred with KAVANAGH, J.
RYAN, J.
In our previous consideration of this case,[1] we examined the extent to which an individual attorney may be required, over his First Amendment[2] objections, to pay dues to and associate himself with the integrated State Bar of Michigan. Three opinions resulted, but there was no majority for final disposition of the case.
Two members of the Court, Justice WILLIAMS and Chief Justice COLEMAN, were of the opinion that the plaintiff was entitled to no relief and would have denied his petition. Justices LEVIN and KAVANAGH were of the opinion that, while some of *301 the issues before the Court might have been resolved on the record as presented, others required further factual development. In an opinion signed by Justice FITZGERALD and the late Justice MOODY, I expressed the view that, while the plaintiff was entitled to partial relief and that such relief should have been ordered, several issues could not be decided without further factual development. While Justice LEVIN and I differed as to specific bar association activities which needed further record explication, a majority of the justices agreed that the matter should be remanded to the Honorable James H. Lincoln for an evidentiary hearing to develop a more complete record with regard to the following activities of the bar association:
"(1) the Young Lawyers Section and Lawyers Wives,
"(2) the Lawyer Placement Service,
"(3) the commercial sale of the bar's mailing list, and
"(4) bar activities addressed to influencing legislation." 411 Mich. 63, 83; 305 NW2d 201 (1981). (Numeration added.)
Extensive hearings were held for 12 days between August 24, 1981, and December 18, 1981. Eighty-three witnesses testified and numerous exhibits were introduced. Since we have the benefit of a supplemental record, we may now dispose of the originally stated issue.
Upon careful examination of the record as augmented, and after reconsideration of our prior opinions as well as the briefs and arguments of the parties, we adhere to my previous opinion and the holding therein that:
"The State of Michigan, through the combined actions of the Supreme Court, the Legislature, and the *302 State Bar, may compulsorily exact dues, and require association, to support only those duties and functions of the State Bar which serve a compelling state interest and which cannot be accomplished by means less intrusive upon the First Amendment rights of the objecting individuals affected." Id., p 84.
Before addressing the particular activities for which a remand was made, a brief summary of the facts and my previously expressed views is in order.
Plaintiff Allan Falk filed a pleading in this Court on November 30, 1977, entitled "Petition for Special Relief", naming the State Bar of Michigan as defendant, thereby initiating an original proceeding in this Court. He claimed that many of the expenditures of the State Bar of Michigan, to which he must belong and pay dues, violated his First Amendment rights. I found it uncontroverted that the State Bar financed, in varying measure, certain bar activities to which the plaintiff objected, including legislative lobbying, the Prepaid Legal Services program, the Lawyer Referral Service programs, the Lawyer Placement Service, and the Client Security Fund.
After analyzing several decisions of the United States Supreme Court, I concluded that the result in Abood v Detroit Bd of Ed, 431 U.S. 209; 97 S. Ct. 1782; 52 L. Ed. 2d 261 (1977), provided the constitutional framework for the views I expressed. Abood was read as holding:
"(1) that, as in Hanson [Railway Employees' Dep't v Hanson, 351 U.S. 225; 76 S. Ct. 714; 100 L. Ed. 1112 (1956)], the State of Michigan's authorization of agency shop agreements in the public sector served a sufficiently *303 compelling state interest in the achievement of labor stability to permit impingement on public employees' First Amendment rights to the extent of requiring payment of service fees for purposes germane to the collective bargaining duties of the teachers' union; and (2) that to the extent that agency fees were exacted and used for purposes beyond or apart from those activities related to collective bargaining, the plaintiffs had stated a claim upon which relief could be granted under the First Amendment." 411 Mich. 105. (Footnote omitted.)
Unfortunately, Abood failed to clearly indicate its analytical basis, depending more on its similarity to earlier decisions than on a particular test. Consequently, I relied upon Elrod v Burns, 427 U.S. 347; 96 S. Ct. 2673; 49 L. Ed. 2d 547 (1976), which clearly employed the traditional "less intrusive means" balancing approach, applying it to the First Amendment area of freedom of association and freedom of belief, both of which were also implicated in Abood. 411 Mich. 111. Under this test, First Amendment values may be impinged upon only when the infringement serves a compelling state interest which cannot be accomplished by less intrusive means.
After an explication of the relevant principles of law and consideration of the record presented, the opinion concluded with specific findings of fact and conclusions of law. Of signal importance was the finding that "the regulation of the practice of law, the maintenance of high standards in the legal profession, and the discharge of the profession's duty to protect and inform the public are * * * purposes in which the State of Michigan has a compelling interest" justifying "unavoidable intrusions on the First Amendment rights of objecting attorneys". 411 Mich. 114.
I also concluded that the State of Michigan had shown a compelling state interest in certain functions *304 of the bar which could not be advanced by less intrusive means. These consisted of all regulatory activities, all continuing legal education activities, the publication of the Michigan Bar Journal to the extent it is devoted to informing members on current matters related to regulation of the profession and the improvement of professional standards, the Client Security Fund, activities designed to educate the public concerning the use of legal services and the relationship between individuals and the legal system generally, and activities designed to make legal services more accessible such as the Lawyer Referral Service and legal aid organizations.
On the other hand, the political and legislative activities of the bar were held to be impermissible intrusions upon First Amendment rights. Legislative or policy choices are the result of ideological beliefs, and such beliefs, and association to promote or oppose such beliefs, are essential values protected by the First Amendment. Given the alternatively "less intrusive" methods available to the Legislature to obtain expert legal advice, such functions were held not to serve a state interest identified as compelling.[3]
Similarly, activities designed to further the commercial and economic interests of the members of the bar were found to be improper, since they do not serve compelling state interests such as those identified. Thus, activities such as lawyer placement were held to violate the plaintiff's First Amendment rights.
Nothing which has been presented in the supplemental *305 record, or advanced in the briefs and oral arguments, or discovered upon reconsideration of my colleagues' written opinions has persuaded me to alter my original views, and they are, therefore, reaffirmed.
We find it unnecessary and unproductive to examine in this opinion every activity of the State Bar, including those of the bar's numerous committees, to determine whether they serve a compelling state interest in an unavoidably intrusive manner. Rather, we rely upon my earlier comments on the inappropriateness of political and legislative activities and those designed to promote commercial and economic interests, as opposed to those serving an educative or regulatory function as previously identified, to provide sufficient standards to determine whether specific bar activities pass or fail the petitioner's First Amendment challenge.
Attention is particularly invited to findings and conclusions Nos. 10 and 11 of my prior opinion, 411 Mich. 116-118, wherein two of the bar activities which my colleagues thought required further evidence and record explication, the political and legislative activities of the bar and the Lawyer Placement Service, were discussed and found to be constitutionally unsustainable.
However, we will specifically examine those activities enumerated in the Court's remand order which have not already been addressed.[4] Given the supplemental record, we conclude that:
*306 The Bar's Mailing List
1. The parties have agreed and we find that the issue concerning the commercial sale of the bar's mailing list is moot. The State Bar offers members the opportunity to remove their names from the mailing list being used for commercial purposes. No right of privacy or First Amendment issue need be decided.
The Young Lawyers Section
2. Although membership in the Young Lawyers Section is still "automatic" by virtue of age or years since admission, the State Bar clearly gives notice to all members upon admission, and periodically in the Bar Journal and in Inter Alia, the Young Lawyers Section publication, that they may disassociate themselves. We agree that the issue of compelled membership in the Young Lawyers Section is, therefore, likewise moot and need not be examined further.
Because the bar provides a measure of financial support to the Young Lawyers Section, however, its activities must be examined under the same principles as any bar activity. Here we specifically adopt Judge Lincoln's finding. Those activities that are legislative or political, or designed primarily to further the economic opportunities of "young" lawyers, are impermissible. In particular, those activities of the State Bar Juvenile Law Committee which include, among other things, rendering advice to the House of Representatives and proposing enactment of a revised juvenile code are political *307 or legislative in nature.[5] On the other hand, purely educative activities by the Child Advocacy Committee are "directed to the maintenance of high professional standards among Michigan attorneys" and, as such, are not prohibited. 411 Mich. 115.
The funding of Prison Legal Services of Michigan, Inc., which provides free legal counsel to Michigan prisoners in civil matters, as well as the Committee for Provision of Legal Services to the Elderly, are activities designed to make legal services more accessible. As indicated originally, "[t]hese activities represent a part of the service every attorney owes the public and hence compelling support for them cannot be deemed constitutionally obnoxious". Id., p 116.
One final activity of the Young Lawyers Section that cannot be continued as presently conducted is the Prepaid Legal Services Committee. To some extent, promotion and development of such plans make legal services more accessible and promote the discharge of the profession's duty to protect and inform the public. Yet, the plans differ in a constitutionally significant way from the Lawyer Referral Service or the service of the legal aid organizations. Prepaid legal service plans benefit a narrow category of individuals; only those who can afford such a plan and who have contracted for it may use its services. The Lawyer Referral Service, however, benefits any member of the public who *308 requests the name of a lawyer. Any citizen who is in need of legal advice can contact the referral service, but he can avail himself of the prepaid plan only if he has a contract for such services.
Prepaid legal service plans differ from legal aid not in the number of potential beneficiaries, but in the cost of services. Legal aid is charitable in character; legal service plans are designed as profit-making enterprises. The distinguished chairman of the Prepaid Legal Services Committee testified that he became involved in the bar program to promote and develop prepaid legal service plans out of fear of losing clients to automobile manufacturers and labor union prepaid service plans out of fear of losing income. Such plans are primarily designed to further the altogether legitimate economic interests of lawyers, despite the incidental benefit of making legal services more accessible to the middle class. Since prepaid legal service plans are designed primarily to further lawyers' economic interests rather than make legal services more accessible to the public in general, or those without money, they serve no compelling state interest.
Lawyers Wives of Michigan
3. The State Bar asserts that the Lawyers Wives of Michigan, as an adjunct to the State Bar, is designed to "educate the general public concerning the use of legal services and the relationship between individuals and the legal system generally". 411 Mich. 115. The supplemental record indicates that the activities of the Lawyers Wives organization include art exhibits, essay contests, brochures, publications such as "You and the Law", and Law Day activities designed to promote public education. The mere fact that Law Day may be a *309 substitute for International Labor Day ("Red May Day") and thus may have political overtones is unsubstantiated and, in any event, irrelevant. Law Day activities are designed to educate the public about our legal system, not incite rebellion. Consequently, under the standard quoted above, the Lawyers Wives organization is a constitutionally permissible activity.
4. All the activities for the consideration of which remand was ordered have been examined by this Court either in my previous opinion or in this one.
Consequently, we would grant the relief as announced in my original opinion, but modified to take account of the final character of the disposition of the case. We would order:
a. That the State Bar be enjoined from disbursing compulsorily exacted dues for any functions or purposes other than those described in findings and conclusions No. 9A to 9F of my prior opinion, 411 Mich. 114-116, and conclusions Nos. 2 and 3 above, and that the bar poll its members to identify those willing to support such other activities on a voluntary basis and permit solicitation of contributions from those members for such purposes.
b. That the State Bar of Michigan determine the proportion of dues paid by each member which does not relate to the above-declared and aforementioned constitutional purposes and functions, and that the amount of dues as of and after October 1, 1983, the beginning of the fiscal year of the State Bar of Michigan, be reduced accordingly.
c. That plaintiff Allan Falk be advised of the portion of his excused bar dues which relates to the purposes of the State Bar described in findings and conclusions No. 9A to 9F of our first opinion, *310 411 Mich. 114-116, and conclusions Nos. 2 and 3 above, and that he pay to the State Bar that amount within 30 days after he is so notified.
BRICKLEY and CAVANAGH, JJ., concurred with RYAN, J.
NOTES
[1] Plaintiff has not contested the validity of expenditures in support of the Attorney Grievance commission, the Character and Fitness Committee, and the Institute for Continuing Legal Education.
[2] In connection with the Lawyers Wives activities, the Court advised that no further evidence was necessary concerning the preparation and distribution of the Juror's Manual, the distribution of the "You and the Law" booklet, and funding of the Children's Charter. 411
[3] I do not, however, adopt the disposition of plaintiff's invasion of privacy claim made by Justice RYAN in Falk I, 411 Mich. 85, fn 3. Nor do I adopt his disposition of plaintiff's First Amendment challenge to bar expenditures for certain social functions, id. See discussion below.
[4] Falk I, supra, pp 115-116 (opinion of RYAN, J.); pp 153-156 (opinion of WILLIAMS, J.); pp 175-176 (opinion of LEVIN, J.).
[5] Falk I, supra, p 115 (opinion of RYAN, J.); pp 157-158 (opinion of WILLIAMS, J.); pp 175-176 (opinion of LEVIN, J.). I also find that the combined opinions of Justices WILLIAMS and LEVIN have validated bar expenditures which relate to the public education activities of the Young Lawyers Section and the Lawyers Wives, specifically the publication and distribution of the Juror's Manual, the "You and the Law" booklet, and the funding of the Children's Charter. Falk I, supra, pp 151-153, 157-158 (WILLIAMS, J.); p 176 (LEVIN, J.).
[6] Falk I, supra, p 115 (opinion of RYAN, J.); pp 153-156 (opinion of WILLIAMS, J.). The opinion of Justice LEVIN, which was joined by Justice KAVANAGH, was silent on this issue.
[7] Some funded activities of the Young Lawyers do continue to present a live controversy. See discussion below.
[8] We recognize that it is technically a violation of the Fourteenth Amendment that plaintiff asserts has occurred through the action of the State of Michigan. It is through the Due Process Clause of the Fourteenth Amendment that First Amendment freedoms are protected from infringement by the states. See Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc. 425 U.S. 748, 749, fn 1; 96 S. Ct. 1817; 48 L. Ed. 2d 346 (1976). We will refer to the First Amendment for the sake of convenience.
[9] However, Justice LEVIN did find that certain activities of the bar were clearly permissible even under the strictest standard of review. Falk I, supra, pp 175-176. See discussion in Part I.
[10] See, e.g., Shuttlesworth v City of Birmingham, 394 U.S. 147; 89 S. Ct. 935; 22 L. Ed. 2d 162 (1969).
[11] See, e.g., Keyishian v Board of Regents of University of State of New York, 385 U.S. 589; 87 S. Ct. 675; 17 L. Ed. 2d 629 (1967).
[12] Such rights have been referred to as "negative" First Amendment rights. Gaebler, First Amendment Protection Against Government Compelled Expression and Association, 23 BC L Rev 995, 996 (1982).
[13] One case which is not discussed here is Elrod v Burns, 427 U.S. 347; 96 S. Ct. 2673; 49 L. Ed. 2d 547 (1976). In that case, the Court struck down a job requirement which forced employees of the county sheriff to belong to the political party of the sheriff in office. The Court applied strict scrutiny to invalidate the requirement as an impermissible infringement on First Amendment rights except as applied to policy-making employees. However, the application of strict scrutiny in Elrod can be traced to typical affirmative (as opposed to negative) speech and association concerns. The sheriff's employees could not choose to belong to the opposing political party and keep their jobs. As further analysis will show, such a restriction on protected affirmative exercises is not present on the facts of the case at bar.
[14] A plurality of the Court came to that decision without relying on an infringement of the Free Exercise Clause of the First Amendment 319 U.S. 635, 642 (opinion of Jackson, J.).
[15] As in the Barnette plurality, the Court did not rely on the free exercise of religion to support its holding.
[16] The Court did not reach the teachers' challenge to the use of the fees to support union social activities because of an inadequate record. 431 U.S. 236, fn 33.
[17] Justice Whittaker concurred in the judgment because he believed that no constitutionally protected interest was implicated. 367 U.S. 865. Justices Black and Douglas dissented. 367 U.S. 865, 877.
[18] See the invaluable analysis contained in Gaebler, supra, pp 1006-1014.
[19] The term "free riders" refers to those who reap the benefits of collective bargaining without bearing a proportionate share of the cost. Abood, supra, pp 221-222.
[20] Arguably, the Court believed that there was no First Amendment injury at all:
"Eventually a point is reached where the level of personal involvement is so minimal and the resulting nexus between the individual and the message so remote that no legally cognizable infringement of negative first amendment interests occurs." Gaebler, supra, p 1014.
[21] We construe plaintiff's complaint and briefs in a light most favorable to him when we view his challenges as based upon asserted First Amendment violations. Plaintiff's arguments based on art 4, § 24 of the Michigan Constitution of 1963 (title-object clause), the Commerce Clause, US Const, art I, § 8, and other constitutional provisions are devoid of merit. See discussion in Falk I, supra, pp 141-142 (opinion of WILLIAMS, J.).
[1] Falk v State Bar of Michigan, 411 Mich. 63; 305 NW2d 201 (1981).
[2] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." US Const, Am I.
[3] For example, just as it is inappropriate for the State Bar to adopt and publish an official position on proposed legislation, it is also improper for it to devise legislation and arrange to have it proposed. Our prior disapproval of a professional lobbyist would imply this result as well.
[4] It is also unnecessary for us to address all of plaintiff's arguments. Some have already been discussed and others have been answered implicitly.
For example, plaintiff objects to unpaid solicitations in the Michigan Bar Journal for LAWPAC (Lawyers Political Action Committee), the political arm of the State Bar of Michigan. He sees it as a "backdoor method of using compulsory dues" to finance LAWPAC. We agree that such a use of the Bar Journal is improper. This conclusion logically follows from our disapproval of political and legislative activities by the bar, 411 Mich. 116, as well as our approval of the Bar Journal as a bar activity when limited to matters on regulation of the profession and the improvement of professional standards. Id., p 115.
[5] In addition to the testimonial record and exhibits produced at the hearing upon remand, we have considered the summary of the testimony by plaintiff Falk which was submitted in his brief on reargument as his Statement of Facts. Plaintiff's brief was filed long before defendant's, yet defendant failed to file a counter-statement of the facts or to contest the summary. See GCR 1963, 814.2, 854. Thus, defendant is taken to have accepted plaintiff's summary. Our acceptance of plaintiff's statement, however, does not imply acceptance of any opinions or conclusions which might have been incorporated in the summary.