Inside Track: Petitioners resubmit call for voluntary bar, ask to void or replace recent bylaw amendment:

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  • Petitioners resubmit call for voluntary bar, ask to void or replace recent bylaw amendment

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    By org tsolberg wisbar Tom Solberg, Media Relations Coordinator, State Bar of Wisconsin

    July 6, 2011 – Former State Bar president Steven Levine and other members have recently filed two petitions with the Wisconsin Supreme Court addressing the bar’s status as a mandatory association and pending State Bar bylaw changes affecting dues arbitration procedures.

    An amended petition was filed on June 30 asking the court to convert the State Bar from mandatory (“integrated”) to voluntary status by amending and repealing portions of Supreme Court Rule (SCR) Ch. 10, by repealing State Bar bylaw Article I, Section 5 and by making “whatever other rule changes are necessary to create a voluntary State Bar of Wisconsin.”

    Addressing the bylaw matter on July 1, Levine and 24 other members petitioned the court to review a proposed State Bar bylaw amendment affecting the association’s Keller-related dues reduction arbitration process.

    Amended voluntary State Bar petition

    Levine and James Thiel, both members of the State Bar Board of Governors (board), filed an amended petition seeking the conversion of Wisconsin’s integrated bar into a voluntary association. This step follows the rejection of their original Petition 11-01, filed in February 2011, by the Supreme Court on June 1, 2011.

    Voting 4-3 in open administrative conference, the justices cited the original petition’s failure to meet the court’s minimum standards for such filings in turning down the proposal. The court has not yet issued its order disposing of the petition.

    In April 2011, the Board voted to take no position on the original petition.

    However, the court’s action left the petitioners free to file a revised petition addressing the same issue. The amended petition includes language addressing removal of the requirement that attorneys admitted to practice in Wisconsin pay mandatory dues to the State Bar, elimination of the Keller dues rebate rule and bylaw (which would be unnecessary for a voluntary bar), and retention of the current structure of the State Bar of Wisconsin “in all other respects.”

    Keller-related arbitration by-laws

    The bylaw petition reprises long-standing divisions related to the Keller-related dues arbitration process. At an April 11 open administrative conference, all seven Supreme Court justices agreed that State Bar rules must be amended to eliminate language linking the Keller calculation to a requirement that only “political and ideological activities” are germane.

    This change was made necessary by a September 2010 ruling by the U.S. Court of Appeals for the Seventh Circuit (Kingstad, et al. v. State Bar of Wisconsin,No. 09-4080), which departed from an earlier ruling in Thiel v. State Bar of Wisconsin, 94 F.3d 399, 405 (7th Cir. 1996) that had centered on whether membership dues were used to finance political and ideological activities as a key step in making the determination.

    Members of the court agreed in principle on key elements of a bylaw amendment proposed by the State Bar but could not reach consensus on proposed language that would define the burden of proof the State Bar must meet when its members challenge the Keller determination.

    Attorney Roberta Howell, representing the State Bar, favored retention of the current burden of proof standard specified in the association’s bylaws. The court deferred further action pending a review of the relevant bylaws.

    The pending bylaw change modifying the dues reduction arbitration process was approved by the Board in April 2011 and published in the May 2011 Wisconsin Lawyer.

    The new petition filed by Levine and 24 other State Bar members calls for a different burden of proof standard, specifying that “the burden shall be on the State Bar to prove by a preponderance of the evidence that a challenged expenditure was intended for purposes of regulating the legal profession or improving the quality of legal services.”

    Petitions for review of any change in the bylaws are entertained by the court if signed by 25 or more active State Bar members and filed with the clerk of court within 60 days after publication of the notice of change.

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