Vol. 82, No. 5, May 2009
Believe me when I tell you I used to know something about constitutional law. As a second-year law student in 1975, I coauthored a published law review comment about a First Amendment issue. That same year, for reasons still not at all clear to me, instead of failing constitutional law (which I was sure I had), I won the book, meaning I earned the top grade in the course and was rewarded with the Am. Jur. book on constitutional law.
Back in 1975, the First Amendment cases I studied were associated with topics like protesting war by wearing black armbands (flag burning came later) and regulating pornography, including the regulation of provocative entertainment in establishments serving alcohol. Shortly after I got out of law school, the ethical rules against lawyer advertising were declared unconstitutional, based on First Amendment rights.
But then, first as a general practitioner and next as a family lawyer, I lost track of the First Amendment. And now, here I am, serving my term as president of the State Bar, looking at the First Amendment nearly every day.
Judicial campaign controversies, recusal rules, proposals for public financing of campaigns, and the Siefert litigation are all examples of First Amendment issues currently facing the bar. The judicial commission has decided to appeal Judge Barbara Crabb’s decision in Siefert, which holds that the judicial code violates judges’ First Amendment rights and thus that judges may join political parties, endorse candidates, and personally raise campaign funds. The Board of Governors will again consider whether to file an amicus brief in the case.
The First Amendment is a critical consideration for our mandatory bar association. The decision in Keller v. State Bar of California allowed mandatory membership in bar associations provided that the First Amendment rights of members are protected by prohibition of the use of compulsory dues for “political or ideological activities that are not reasonably intended for the purpose of regulating the legal profession or improving the quality of legal services.”
In light of the Keller case, every State Bar activity is scrutinized for its political or ideological content. The Executive Committee determines whether each activity is germane to the purpose of either regulating the legal profession or improving the quality of legal services, and if not, the expense associated with the activity is calculated and each member is allowed to opt out of paying his or her respective portion of the Bar’s so-called Keller expenses. Members may resort to arbitration if they believe the expenses are not correctly determined. This year, three members filed for arbitration. The arbitrator upheld the Bar’s determination. These members have now filed two lawsuits against the Bar claiming that the Keller test is misapplied when the Bar does not exempt all activities that are not connected to regulation of the legal profession or improving the quality of legal services, regardless of whether those activities are political or ideological.
Finally, a special committee of the Board of Governors is developing amendments to the State Bar bylaws that would limit the right of an officer of the State Bar to go to the Wisconsin Supreme Court or Legislature and advocate against official positions of the State Bar. A draft of this proposed rule has been criticized as a prior restraint on free speech.
Legal positions aside, I don’t have to do any research at all to come up with my personal theory about my duty of loyalty to the organization that I represent as president. If the supermajority (which is required for public policy positions) voted against my position and I felt I as a private person could not appear in support of that position before the legislature or the supreme court, I would ask a proponent of the position to address those bodies.
The rules being proposed are consistent with my view of the appropriate duty of loyalty to the organization, but it saddens me that the duty of loyalty needs to be articulated in a rule, or worse, condemned. I respect the right of all officers to their opinions and to private speech about their opinions. Keller, black armbands, and protections for free speech are extremely important to me. I just can’t grasp the reasons an officer, as an officer, would feel the need to attack the opinion of the supermajority of the Board of Governors in the legislature or at the supreme court. Such an attack is disrespectful of the organization, its members, and its process.