May 15, 2019 – Recently, 14 lawyers filed a petition to the state supreme court, requesting rule changes to make State Bar of Wisconsin membership voluntary.
The petition, filed May 2, follows a federal lawsuit filed last month by two Wisconsin lawyers alleging the mandatory status of the State Bar violates their constitutional rights.
The lawsuit and the petition rely on a recent U.S. Supreme Court decision in a public union case, Janus v. AFSCME, 138 S.Ct 2448 (2018), to argue that lawyers should not be compelled to pay mandatory dues.
However, the majority opinion in Janus does not mention Keller v. State Bar of California, 466 U.S. 1 (1990), in which the U.S. Supreme Court upheld mandatory bar dues so long as members are not compelled to fund political or ideological activities not germane to the regulation of the legal profession or improving the quality of legal services.
The Wisconsin Supreme Court, which has promulgated rules that govern the State Bar and the State Bar membership, requires lawyers to be State Bar members as a condition of practicing law in Wisconsin but follows Keller’s holding. That is, the rules specifically state that the State Bar cannot compel members to fund certain activities.
Currently, dues are $260 per year for full, active members. Inactive and first-year lawyers pay $130 in annual dues. Emeritus members (over age 70) are not required to pay dues. The State Bar also collects other assessments on behalf of the supreme court.
One of the petitioners, former State Bar President Steve Levine, filed a petition last year to further curtail the types of activities the State Bar could fund with mandatory dues, beyond what is required by Keller. The petition called for a bifurcated budget process to separate mandatory dues. However, the Wisconsin Supreme Court denied the petition.
In a final order, the supreme court upheld the current budgeting structure under the process that allows objecting members to obtain annual refunds that relate to activities the State Bar cannot fund with mandatory dues, known as the Keller rebate amount.
“On balance, the court was not persuaded that granting this rule petition would serve the best interests of Wisconsin’s citizens, the lawyers of this state, or the court,” the court’s order states. However, the new petition now seeks a voluntary bar.
Petition 19-14 has not been scheduled for a hearing, but the petitioners have requested a public hearing before the end of the year.