Oct. 31, 2017 – The Wisconsin Supreme Court held a public hearing yesterday on a petition that seeks to change how the State Bar of Wisconsin uses mandatory dues.
In April, attorney Steve Levine filed petition 17-04, which seeks to establish a bifurcated State Bar budget consisting of both mandatory and voluntary dues. Mandatory dues would fund specific activities; voluntary dues (if available) would fund all other activities.
For instance, mandatory dues could only fund a lawyer assistance program, an ethics compliance program, rulemaking activities, administration of the Client Protection Fund, and other “regulatory” programs the Wisconsin Supreme Court specifically approves.
All other State Bar programs and activities, such as the Access to Justice Commission, lawyer referral and pro bono programs, High School Mock Trial, Wisconsin Lawyer™, and Fastcase - the online legal research service provided as a member benefit - would likely be funded with voluntary dues, to the extent members elect to pay for them.
Under Levine’s plan, State Bar groups that advance and shape the legal profession on issues such as diversity and inclusion, leadership, and local bar relations, may not exist.
The State Bar’s Board of Governors, a representative body elected by the State Bar membership, opposes Levine’s petition, concurring with a response letter that the organization’s three presidents submitted in opposition to Levine’s proposal.
Yesterday, numerous parties, including current and former State Bar presidents, appeared to debate the merits of Levine’s plan, which he submitted in his individual capacity. The court later announced that it will hold any decision until Dec. 4.
Levine, a former State Bar president (2006-07) who has challenged the integrated bar as a party to and/or counsel more than 15 times since 1980, views his proposal as a "compromise" between those who want a voluntary bar – a complete choice to disassociate – and those who advocate for an integrated, collective bar.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
That is, those who want complete disassociation would still be required to join the State Bar. Compelled dues would fund specific “regulatory” activity, but not much of the State Bar’s current activities. About 45 percent of the State Bar’s budget is funded by dues.
Many State Bar programs and activities are designed to aid the courts and to educate the public about the legal system, in addition to serving the needs of lawyers.
In addition, the Wisconsin Supreme Court has delegated to the State Bar various activities that directly and indirectly assist the court’s regulatory function.
For instance, the State Bar collects supreme court assessments and fees, publishes official notices, maintains official attorney records and license status, and processes LLC and LLP registrations in accordance with supreme court rules.
Current and former State Bar presidents, including George Burnett (2003-04) and Steve Sorenson (1997-98), said the State Bar represents the collective effort to level the playing field for attorneys and to achieve a higher purpose, such as access to justice.
“We are not a trade association,” Burnett told the court. “We take an oath that differentiates us.” Burnett said lawyers have a higher obligation to society, and a mandatory State Bar allows the legal profession to collectively meet those obligations.
“I appear on behalf of the silent majority,” Sorenson said. “Seventy percent of the membership are solo and small-firm practitioners in this state. Seventy percent of the bar relies on the State Bar of Wisconsin and those programs that are essential to them.”
But others don’t feel that way. “I want the freedom to make the choice for myself,” said former State Bar President Doug Kammer (2009-10), referring to his association with the bar. He supports the petition but has long argued for a voluntary bar.
The Mandatory Bar under Keller
The State Bar, created by the Wisconsin Supreme Court, may use mandatory dues to fund activities reasonably intended for the purposes of the association.1
One limitation applies. State Bar “activities that are not necessarily or reasonably related to the purposes of regulating the legal profession or improving the quality of legal services” cannot be funded with the mandatory dues of those who object.2
The U.S. Supreme Court imposed this limitation in Keller v. State Bar of California, 496 U.S. 1 (1990), which addresses the free speech concerns of mandatory bar members while recognizing the substantial public interest that is served by a mandatory bar. The test is whether a given activity is “germane” to the purposes noted in Keller.
Every year, the State Bar – through an extensive accounting and review process – calculates nonchargeable dues, which are the cost of State Bar activities that could potentially fall outside the purposes noted in Keller. Every year, objecting State Bar members may opt to receive a “Keller rebate amount” on their annual dues statements.
For instance, full-dues paying members currently pay mandatory dues of $254 per year. For fiscal year 2017, the Keller rebate amount was set at $7.25 per member.
An arbitration process governs challenges to the Keller rebate amount.3 Most recently, Levine challenged the 2016 rebate amount. He argued it did not include certain lobbying activities on issues the State Bar supported or opposed through its Board of Governors, elected officers and members from 16 districts and each of the four State Bar Divisions.
But an arbitrator ruled that the challenged lobbying activities were reasonably related to the purposes of regulating the legal profession or improving the quality of legal services, under Keller and subsequent court decisions, including a recent one involving Levine.4
Levine filed petition 17-04 to the Wisconsin Supreme Court following the arbitrator’s decision. He argues that State Bar members should not be required to pay for certain activities, even if such activity is reasonably related to the purposes identified in Keller.
Thus, Levine is not basing his proposal on any change in constitutional law – Keller and its progeny still allow state bars to fund certain activities with mandatory dues. Instead, he is asking the Wisconsin Supreme Court to take Keller out of the equation.
The Nebraska Model
Levine’s petition is largely based on the bifurcated dues system the Nebraska Supreme Court imposed on the Nebraska State Bar Association (NSBA) in 2013.
Now, mandatory dues can only pay for NSBA activities related to the “regulation of the legal profession.”5 Voluntary dues (if available) must support all other activities.
The Nebraska court decided this, in large part, to settle the free speech concerns of the petitioner and to “avoid embroiling this court and the legal profession in unending quarrels and litigation over the germaneness of an activity” under Keller.6
Unlike the State Bar of Wisconsin, however, the NSBA did not have adequate accounting and arbitration procedures in place to ensure compliance with Keller.
“In short, while Nebraska chose a bifurcated structure like that proposed by the Petition, the reasons for that choice simply do not exist in Wisconsin,” notes the State Bar of Wisconsin’s response letter, supported by the board of elected governors.
At the public hearing, former State Bar President Michelle Behnke (2004-05) explained the State Bar’s exhaustive Keller tracking and review process, which occurs every year. Behnke participated in the Keller review process over the course of seven years.
“We want to make sure that we are protecting the rights of those who may elect to withhold their dues for the speech or activity that they disagree with, but we are also rigorous in our process” under Keller and other decisions, Behnke told the court.
In the Court’s Hands
The Wisconsin Supreme Court is not bound by any legal decision. The supreme court, which created the mandatory State Bar, could decide to limit its existence and/or its functions. But advocates for a mandatory bar say that would be a mistake.
“We take an oath to further the cause of justice, to help the people of this state to better use our system,” said current State Bar President Paul Swanson. “This is an obligation. And this is an obligation that this petitioner does not want to help pay for. The cost of improving the profession should be borne by all those who take the oath.”
Various justices raised concerns about the fiscal impact that Levine’s proposal may have for the Wisconsin Supreme Court if certain State Bar functions revert to the court.
But the justices made no indications on how they might rule. A decision is expected Dec. 4, when the court is scheduled to hold an administrative rules conference.
1 SCR 10.02(2). “The purposes of the association are to aid the courts in carrying on and improving the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence and public service and high standards of conduct; to safeguard the proper professional interests of the members of the bar; to encourage the formation and activities of local bar associations; to conduct a program of continuing legal education; to assist or support legal education programs at the preadmission level; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform and the relations of the bar to the public and to publish information relating thereto; to carry on a continuing program of legal research in the technical fields of substantive law, practice and procedure and make reports and recommendations thereon within legally permissible limits; to promote the innovation, development and improvement of means to deliver legal services to the people of Wisconsin; to the end that the public responsibility of the legal profession may be more effectively discharged.”
2 SCR 10.03(5)(b)1.
3 State Bar Bylaws, Art.1, section 5 (Dues reduction arbitration procedure).
4 Kingstad v. State Bar of Wisconsin, 622 F.3d 708 (7th Cir. 2010).
5 In re Petition for a Rule Change to Create a Voluntary State Bar of Nebraska, 286 Neb. 1018, 841 N.W.2d 167 (Neb. 2013).