In re Chapman , 128 N.H. 24 ( 1986 )

Brock, J.

(with whom Souter and Johnson, JJ., concur). The petitioner, William L. Chapman, Esq., invokes the original jurisdiction of this court, Sup. Ct. R. 11, in requesting an order directing the New Hampshire Bar Association (the Association) to comply with the terms of its constitution and with the limitations as to its legislative activities placed upon it by In re Unification of the New Hampshire Bar, 109 N.H. 260, 248 A.2d 709 (1968) and In re Unified New Hampshire Bar, 112 N.H. 204, 291 A.2d 600 (1972). The petitioner specifically requests that we enjoin the Association from continuing actively to oppose the so-called “tort reform” legislation currently pending before the General Court.

On January 9, 1986, the Board of Governors of the Association (the Board) voted to oppose several bills, collectively known as “tort reform” legislation. These bills comprise a package of provisions which is designed to change procedural and substantive tort law as it affects the rights of persons to recover for their injuries and also the attorney-client relationship generally. The petitioner requested reconsideration of that vote in a letter dated January 23, and was notified on January 30 that the Board had done so and had voted to continue opposing the legislation. He thereafter filed his petition with this court on February 5.

We consider first the Association’s procedural challenges to the petition. We are of the opinion that Attorney Chapman’s request for reconsideration was sufficient to exhaust his administrative remedies in that if the Board reaffirmed its position on the tort law package, it would have been unlikely to call a special meeting of the Association as a whole or to permit a referendum. A party is not required to pursue administrative remedies when to do so would likely be a useless act and result in delays that might make his or her claim moot. See R. Wiebusch, 5 New Hampshire Practice, Civil Practice and Procedure § 2083 (1984). The petitioner — presented his grievance to the Board, thereby affording it an opportunity to reconsider its position, and to alter it if the BoardfelTcompelled to do so. In addition, we find that the petitioner pfeieñEéd~his views to the Board with sufficient specificity Tor usNcT reach the merits of his claim. See Abood v. Detroit Board of Education 431 U.S. 209, 241 (1977).

The petitioner makes two arguments in support of his position. First, he argues that the Board exceeded its authority in deciding to oppose tort revision legislation before the legislature. The Association, he asserts, is limited in its legislative activities by the provisions of its constitution and by decisions of this court. Article I of the Association’s constitution states that “[t]he Association shall confine its activities before the General Court to those matters which are related directly to the administration of justice; the composition and operation of the courts; the practice of law and the legal profession.” N.H. Bar Assn. Const. art. I. The petitioner claims that the Association has violated this standard in the fact of, and in the manner by which it has manifested, its opposition to the legislation at issue here.

The purposes of the Association

“are to improve the administration of justice; to foster and maintain high standards of conduct, integrity, competence and public service on the part of those engaged in the practice of law; to safeguard the proper professional interests of the members of the Bar; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform and the relations of the Bar to the public; to carry on a continuing program of legal research and education, and to encourage cordial relations among members of the Bar; all to the end that the public responsibility of the legal profession may be more effectively discharged.”

Id. Article V, section 4 states:

“Between meetings of the Association the Board of Governors shall be the governing body of the Association, and shall have the power and authority to do and perform all acts and functions which the Association might itself do or perform, not inconsistent with the Rules of the Supreme Court, this Constitution and the By-laws or with any action taken by the Association.”

Id. at art. V, sec. 4. The issue with which we are confronted, then, is whether the Board’s decision to oppose tort reform is “inconsistent” with the powers and authority conferred upon the Association.

In In re Unification of the New Hampshire Bar, 109 N.H. 260, 248 A.2d 709, a divided court recognized the constitutionality of an integrated bar and ordered a trial unification period of three years. In its opinion, the majority recognized the concerns of opponents to unification that an integrated bar could take positions on legislation pending before the General Court. In response to those concerns, the court stated that

“[t]he Association’s brief recognizes that because of this prerogative of the unified Bar ‘officers and other leaders have an obligation to be more circumspect in respect to “political” issues that are not clearly within the realm of the administration of justice.’ . . . [W]e are of the opinion that a unified Bar . . . should confine its activities in this sphere to legislation dealing with administration of justice, the operation of the courts, the practice of law, and the legal profession....

The views expressed in those domains being those of the organization, an individual attorney is still free to voice his own views on any subject in any manner he wishes. ... In addition thereto, if the activities of the unified Bar deviate substantially from the fields previously mentioned, an individual member, or a group thereof, can always seek judicial relief.”

Id. at 266, 248 A.2d at 713 (citations omitted).

In this court’s later decision to continue unification of the bar, over qualms expressed in the dissent of Grimes, J., a majority of the court, clearly intending to set limits on the permissible legislative activities of the Association, emphasized that, “there is no purpose to engage in purely partisan matters before the legislature, but rather to confine the activities of the association to issues related to the ‘particular interests and competence’ of lawyers.” In re Unified New Hampshire Bar, 112 N.H. at 207, 291 A.2d at 601 (citation omitted).

In resolving the issue before us, we begin our analysis by delineating a spectrum along which the legislative activities of the Association could conceivably fall. At one end are purely partisan issues, upon which the Association qua Association may not take a position before the legislature. For example, the Association could not take an official position on a bill to repeal the so-called “antiCWIP” law. At the other end are matters which clearly affect access of the public to the courts through the legal profession, such as proposed limitations on contingent fees, see HB 329-FN, and upon which the Association may therefore quite legitimately take a collective position. The ends of the spectrum are more easily defined than the point within it marking the limit of legitimate lobbying activity. No magic word or phrase or even discussion will fully resolve the problem presented. Words and principles are not self-limiting by their very nature. They require interpretation and application for their meaning to become clear. But an exercise of judgment will always be necessary when an individual case comes close to the more generally defined limitation.

Moreover, we note that it must be understood by the Association that a unified or integrated bar is qualitatively different from a voluntary bar. Quite obviously, the distinction between the two is that membership in the former is compulsory, whereas membership in the latter is voluntary. In effect, one is not at liberty to resign from a unified bar; by doing so, one loses the privilege to practice law.

As a result, other than resorting to whatever opportunities are available for internal dissent, the only avenue effectively open to the attorney who wishes to disassociate himself or herself from a position taken by the unified bar is to publicly express his or her personal opposition to that position. By contrast, a dissenting member of a voluntary bar association may either resign from the association or express openly his or her opposition to its position, or both, as circumstances may warrant. Thus,

“the leadership of the bar would be wise to remember that the bar is a ‘unified’ bar, not a voluntary bar, and that a unified bar has more limited functions and different responsibilities than a voluntary bar. Before voting for any expenditure or any project, the leaders of the bar should ask themselves whether they can justify that expenditure or project as a professional obligation of all lawyers. An expenditure or project appropriate for a voluntary association of lawyers is not necessarily appropriate for a ‘unified’ bar.”

Report of the Committee to Review the State Bar, 112 Wis. xix, xxxix, 334 N.W.2d 544, 555 (1983) (Abrahamson, J., concurring).

It is here that the petitioner’s second argument, a federal constitutional claim, becomes relevant. He asserts that, by taking a position on the tort package, the Association has violated his right to freedom of speech and what he terms his “rights of conscience” under the Federal and State Constitutions, U.S. Const. amends. I, XIV; N.H. Const. pt. I, arts. 4 (1970), 22 (Supp. 1985). The federal right that he asserts is part of that category known as “negative first amendment rights,” which may be defined as the right to be free from “government action [compelling one] to associate and ... to participate in certain forms of expression.” Falk v. State Bar, 418 Mich. 270, 282-83 & n.12, 342 N.W.2d 504, 507 & n.12 (1983), cert. denied, 105 S. Ct. 315 (1984); see also Gaebler, First Amendment Protection Against Government Compelled Expression and Association, 23 B.C.L. Rev. 995, 995-96 (1982).

At the outset, we note that the constitutionality of the integrated, or unified, bar is not at issue here. In addition to the fact that the history of the unified bar since its creation is one of impressive accomplishment and service to the public and lawyers of our State, the success of such a challenge is made all the more unlikely by decisions of both the United States Supreme Court and this court. See Lathrop v. Donohue, 367 U.S. 820 (1961); In re Unification of the New Hampshire Bar, 109 N.H. at 264, 248 A.2d at 712; see also Note, First Amendment Proscriptions on the Integrated Bar: Lathrop v. Donohue Re-examined, 22 Ariz. L. Rev. 939, 940 (1980). The Association has played a crucial role in maintaining and upgrading the quality of the bar in New Hampshire. The lawyer referral network has increased the availability of, and access to, lawyers in this State. Its public education and information efforts have been exemplary, and its continuing education program is among the best. The various committees of the Association provide substantive and procedural assistance both to the bar and to the courts. Unification of the bar may not be the sole reason for these successes, but we are confident that it has played a substantial role in contributing to these accomplishments.

The gravamen of the petitioner’s federal constitutional argument is that this legislative activity by the Association is unrelated to the Association’s legitimate aim of promoting “the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people of the State, without any reference to the political process[,]” Lathrop, supra at 843, and violates the first amendment. The petitioner asserts that no compelling governmental interest is served by allowing the Association to take a position in favor of or against this tort legislation. See Arrow v. Dow, 544 F. Supp. 458, 463 (D.N.M. 1982). Further, he argues, even if the taking of a position on tort reform by the Association serves a compelling State interest, his first amendment rights are still violated because that interest could be served through less drastic means, such as the appearance of Association members before the legislature, either individually or as members of voluntary groups of attorneys, and not as representatives of the Association.

The constitutional claim that the petitioner raises is a serious one. See Schneider v. Colegio de Abogados de Puerto Rico, 546 F. Supp. 1251, 1261-62 (D.P.R. 1982). It involves the delicate balance between the free speech rights of an individual and those of an organization of which he is required to be a member. As such, he has only limited input into legislative positions taken by the Association. Nonetheless, whatever his level of influence within the organization, the most extreme form of protest, withdrawal, is not open to him. On the other hand, requiring silence on the part of the Association would pose serious prudential questions. The problem we face is how to accord proper weight to each substantial, and in this case conflicting, interest.

In Lathrop, the United States Supreme Court upheld the constitutionality of integrated State bar associations, but did not decide whether a dissenter from the positions espoused by such an association could constitutionally be compelled to finance those positions through the payment of dues. Lathrop, 367 U.S. at 847-48. In later cases concerning agency shop arrangements whereby an employee is required to contribute dues to the union representing him or her, but is not required to be a formal member of it, the Court held that employees could not constitutionally be forced to contribute dues to ideological activities unrelated to collective bargaining, see, e.g., Abood, 431 U.S. at 234-35. More recent federal cases have centered around the adequacy of procedural schemes designed to deal with this problem, see, e.g., Ellis v. Railway Clerks, 466 U.S. 435 (1984). However, the petitioner here argues strenuously that dues abatement of the sort suggested by the United States Supreme Court in various union shop cases, see, e.g., Machinists v. Street, 367 U.S. 740, 774-75 (1961), is an inadequate remedy because the Association would still be able to engage in the complained of legislative activity. The relief sought by the petitioner is therefore an order forbidding the Association to actively oppose tort reform.

We note that once the United States Supreme Court decided that the elimination of the free rider problem and the maintenance of labor peace were sufficiently important to justify the allowance of union or agency shop agreements, but that dissenters could not be compelled to support financially the promotion of ideological positions to which they were opposed, the only issue remaining was how to fashion an appropriate remedy. By contrast, we have a greater freedom and a greater responsibility in the case before us because of our authority to regulate the legal profession. In interpreting language in the Association’s constitution describing its purposes, we can craft a standard which will at once recognize the negative first amendment rights of dissenting Association members and achieve consistency with the Association’s core responsibilities. Thus, we base our decision in this case upon our inherent constitutional obligation to avoid infringement, and the serious risk of infringement, of first amendment liberties. Moreover, because we believe not only that the Association has exceeded its constitutional authority in its present opposition to tort reform, but that fairness to its Board requires that it be given more specific guidance in the area of what legislative activities before the General Court are permissible, we choose to take this opportunity to promulgate clearer guidelines in this area.

This court, in the exercise of its inherent constitutional power to regulate the practice of law, ordered the integration of the bar and retains continuing supervisory authority over the Association and its activities, see In re Unification of the New Hampshire Bar, 109 N.H. at 263-64, 248 A.2d at 711-12. In the exercise of that authority, the court is obligated to interpret the limits on bar activities so as to preclude the first amendment infringement that would result if the Association were to take positions on issues outside the scope of those responsibilities that justify compelling lawyers to belong to it. The line that we draw below is intended to divide issues that are within the scope of the Association’s objectives, and on which official positions abridge no negative first amendment rights, from those that fall outside those objectives, such that official comment would risk first amendment infringements.

Given these preliminary observations, we will endeavor to define more clearly than we have before the standard which should govern the Association’s activities before the General Court. In view of the Association’s special status as a unified bar, we conclude that concerns for first amendment liberties require a narrower view of its permitted legislative activities than the Association has taken. Hence, the Association should limit its activities before the General Court to those matters which are related directly to the efficient administration of the judicial system; the composition and operation of the courts; and the education, ethics, competence, integrity and regulation, as a body, of the legal profession. The Board’s opposition to tort revision as a whole is not within the mandate of the Association’s constitution. In essence, to interpret the phrase “administration of justice” in the Association’s constitution as broadly as the dissenters do would be to eliminate any limitation on the legislative activities of the Association, where one was clearly intended.

We believe that circumspection is the watchword to be observed by the Board. Where it can reasonably be argued that an issue is outside the scope of its authority, the Board should take no position on the matter. Where substantial unanimity does not exist or is not known to exist within the bar as a whole, particularly with regard to issues affecting members’ economic self-interest, the Board should exercise caution. Positions taken by the Association and its Board should be tailored carefully and limited to issues clearly within the Association’s constitutional mandate. Of course, nothing prevents officers and members of the Board from appearing before the General Court to express their views as individuals, as members of voluntary associations or as representatives of clients.

Application of this standard to specific provisions of the “tort reform” package will help to clarify its scope. For example, the Board in its official capacity could properly support or oppose the following measures: creation of an enforcement mechanism for rights of contribution (SB 78); promulgation of standards for qualification of expert witnesses (HB 329-FN); creation of a periodic payment scheme for cases in which future damages are found to exceed $50,000 (HB 329-FN); and the allowance of double costs where the court finds that an action is clearly frivolous (HB 338). By contrast, the Board should take no position on the following matters: establishment of a substantive right of contribution (SB 78); allowance of limited contribution from employers (SB 78); creation of ceilings on municipal liability and damages for non-economic losses (SB 78); and establishment of standards for negligence actions against public entities and employees arising from so-called “pollutant incidents” (SB 78).

Although petitioner requests that we issue an order enjoining the Association through its Board from exceeding its mandate in opposing tort reform, we do not find such relief either appropriate or necessary under the circumstances of this case. See O’Neil v. Thomson, 114 N.H. 155, 165, 316 A.2d 168, 173-74 (1974); Tirrell v. Johnston, 86 N.H. 530, 532, 171 A. 641, 642, aff’d, 293 U.S. 533 (1934).

So ordered.

Johnson, J., concurred; Souter, J., concurred specially; Batch-elder, J., and King, C.J., concurred in part and dissented in part.