March 25, 2010 – Graduates of Wisconsin's two law schools will retain the diploma privilege created by SCR 40.03 under a March 20 settlement reached between the state and Attorney Christopher Wiesmueller of Waukesha. The settlement ends a constitutional challenge brought by Wiesmueller over three years ago.

The rule specifies that a diploma from an ABA-accredited law school whose curriculum includes the specific study of Wisconsin law is sufficient evidence of competency to practice in Wisconsin without a bar examination. Currently, only graduates of the law schools at Marquette and the University of Wisconsin are asserting the diploma privilege, although the rule is written to theoretically encompass others.

Under the terms of the settlement, Wiesmueller accepted $7,500 on behalf of himself and his wife, who will take the bar exam in July, and the pair agreed to not participate in any future challenge of the bar admission rule.

Wiesmueller had originally brought the suit, naming the Wisconsin Supreme Court and the Board of Bar Examiners as defendants, while he was a law student in Oklahoma on his own behalf, but later amended the complaint after he passed the bar exam and his case became moot. The suit, Wiesmueller v. Kosobucki, 08-2527, disputed the premise of special instruction in Wisconsin law for this diploma privilege and charged that SCR 40.03 impermissibly discriminates against out-of-state law school graduates.

The case had been certified as a class action on behalf of recent graduates from ABA-accredited schools outside Wisconsin who seek a law license in Wisconsin, but late last year U.S. District Judge Barbara Crabb decertified the class, leaving Wiesmueller to represent only his wife, also an out-of-state law school graduate.

Focus on commerce clause

The plaintiffs had argued that the diploma privilege violates the U.S. Constitution’s dormant commerce clause, which prohibits a state from discriminating against similarly-situated articles of commerce simply because they come from outside the state. But the Wisconsin Attorney General, representing the state, responded that given that other law schools do not teach Wisconsin law, there is no discrimination within the meaning of the commerce clause because the educations in question are not similar.

Wiesmueller also asserted that the bar exam is a burden faced by graduates of out-of-state law schools. Specifically, he noted that: 1) the fees for admission by bar exam are roughly double the fees for admission by diploma privilege; 2) the bar examination requires study of all the subjects listed in SCR 40.03 because all are potentially tested, but a Wisconsin law student can graduate without taking classes in all of them; and 3) out-of-state applicants face delays because the exam is administered only twice a year.

The attorney general disputed this characterization of the bar exam, noting that 89 percent of the graduates of an ABA-accredited law school passed in 2007. The fees and the delay in admission are merely functions of the time-intensive grading of the exam, the attorney general commented. Additionally, the defense remarked that the plaintiffs do not claim the bar exam puts them at a disadvantage in the legal market. Moreover, the attorney general said the Seventh Circuit had previously characterized the bar examination as a “small” burden.

The plaintiffs also charged that there is no evidence that Wisconsin law is actually taught and required at Wisconsin law schools. For additional background on both this and the commerce clause issues raised in the case, see the WisBar article from May 28, 2009: Constitutionality of ‘diploma privilege’ scrutinized in legal challenge.

Settlement unlikely to be the final word on the diploma privilege

Media reports indicate that Wiesmueller decided to settle the case when it appeared that all it would accomplish is to force everyone to take the bar exam, which he said was not his original objective. He was also quoted as stating that others may still take up the issue. “If someone else wants to take this up, more power to them," he reportedly said.

Meanwhile, a petition filed on Sept. 25, 2009 with the Wisconsin Supreme Court by Atty. Steven Levine, a past State Bar of Wisconsin president, and 70 other State Bar members aims to extend the “diploma privilege” to graduates of all ABA-approved law schools or abolish it entirely by amending SCR 40.03 to remove the words “in this state” wherever they appear in the rule so that the diploma privilege would extend to all graduates of ABA-approved law schools. The court should then review the effects of the change after a 10-year trial period, the petition states. In the alternative, the court should repeal SCR 40.03 entirely, the petition proposes.

The court has not yet acted on the petition.

Related stories:

Challenge to 'diploma privilege' reinstated by U.S. Court of Appeals -- July 9, 2009 
Plaintiffs’ brief filed in challenge to Wisconsin’s ‘diploma privilege’ -- Sept.16, 2009
Petition filed with Wisconsin Supreme Court aims to extend ‘diploma privilege’ to out-of-state law school grads -- Sept. 29, 2009
Crabb considers decertifying class challenging Wisconsin’s ‘diploma privilege’ -- Nov. 5, 2009
Crabb decertifies class challenging diploma privilege-- Dec. 3, 2009

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