In a U.S. Supreme Court case, Keller v. State Bar of California, the Court ruled that a bar association may not use mandatory member fees to support political or ideological activities that are not reasonably related to the regulation of the legal profession or improving the quality of legal services. The bar is required to identify that portion of mandatory license fees that go to such "nonchargeable" activities and establish a system whereby objecting members may either deduct that portion of their fees or receive a refund. This year (2016), objecting members may deduct up to $6.40 if paying $385; $3.20 if paying $192.50; $3.32 if paying $200; $1.60 if paying $96.25; or $0.83 if paying $50.
Under Keller v. State Bar of California, the WSBA cannot use the compulsory membership fees of objecting WSBA members for political or ideological activities that are not reasonably related to the regulation of the legal profession or improving the quality of legal services. These activities are considered "nonchargeable." The WSBA may use compulsory membership fees for all other activities.
WSBA members may deduct a specified amount from their membership fee payment that represents each member's pro rata portion of fees devoted to nonchargeable activities. The method used to calculate the fee reduction is based on the method approved by the U.S. Supreme Court in Chicago Teachers Union v. Hudson. In that case, the Court indicated that it was appropriate to use the year for which the most recent audit report is available as the base line period for determining chargeable and nonchargeable activities and for calculating the cost of the nonchargeable activities. To calculate the 2016 fee reduction, the WSBA used its fiscal year 2015 budget and activities.
Based on the decision of the Impartial Decision maker in Popejoy v. New Mexico Board of Bar Commissioners, the Board of Governors of the WSBA has concluded that the largest portion of the activities in the WSBA budget that are "political or ideological" are a portion of those activities funded as legislative activities. To calculate the 2016 fee reduction for the nonchargeable portion of legislative activities, the WSBA used its fiscal year 2015 legislative budget.
Deadline for Arbitration Requests
Any member who wishes to call for arbitration of the amount of the fee reduction permitted for 2016 should deliver a request in writing to the Executive Director of the WSBA by February 1, 2016. For details of the arbitration process, see "Arbitration Process" below.
Detailed Calculation of the Fee Reduction
The Executive Director reviewed all of the fiscal year 2015 activities in accordance with the opinion of the Impartial Decision maker in Popejoy v. New Mexico Board of Bar Commissioners, a case where all of the activities of the State Bar of New Mexico were challenged, and determined the activities that would include political or ideological activities not reasonably related to the regulation of the legal profession or improving the quality of legal services.
The fiscal 2016 budget for the WSBA's legislative activities is divided by the total number of license fee paying members of the WSBA at the time this notice was prepared to arrive at the amount of each member's fee attributable to legislative activities. That amount is then apportioned by the percentage of time spent by WSBA staff on specific legislative activities in the most recent legislative session, plus a proportionate share of the legislative general administrative activity. Based on records from the 2015 legislative session, we estimate that 77.1% of staff legislative time was spent on nonchargeable activities.
The WSBA has used an extremely "conservative" test for determining whether individual issues would be included in the deduction, i.e., the WSBA has erred on the side of considering issues nonchargeable even when a reasonable argument could be made that such issues were reasonably related to regulating the legal profession or improving the quality of legal services.
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