Dec. 3, 2009 – Federal District Judge Barbara Crabb decertified today the class challenging the constitutionality of Wisconsin’s diploma privilege, but said the litigation could continue with its named plaintiffs.
During a show cause hearing, Crabb said the decision arises from her doubts regarding the ability of class counsel Chris Wiesmueller to adequately represent all graduates of out-of-state law schools who seek a Wisconsin law license without taking a bar exam just as graduates of Wisconsin law schools are exempted from the test.
“It worries me considerably that you are a brand new attorney, you are just starting out in the practice of law, you have no federal court experience other than this case and, granted, this has been a good experience for you,” Crabb said. “But that doesn’t mean that you – or for that matter, 99 percent of the new graduates of any law school – are equipped to handle a class action lawsuit in federal court when you are a one-person practice."
Crabb remarked that “class actions are by their nature difficult, complex, and expensive” and questioned whether this case presented a serious mismatch of resources.
“The defendants have all the resources of the attorney general and the State of Wisconsin,” Crabb said. “If they wanted to, defendants could hold depositions in three different cities at the same time. That would be rather a low blow and I doubt they would stoop to that, but theoretically they could do that. I really think that I would be derelict in my responsibility to the class to continue to certify it as a class.”
Crabb noted that if Wiesmueller lost the class action, all members of the class would be bound by the result and could not relitigate the issue on their own. “I have to look out for the interests of people that you represent,” Crabb said. “They could lose their rights if you represent them poorly.”
The lawsuit has a named plaintiff, Corrine Wiesmueller, and that is sufficient for the case to continue, Crabb said. She remarked that this development is unlikely to undermine the purpose of the lawsuit.
“You probably would have the same effect as if you had represented the class,” Crabb told Wiesmueller. “If this court or the Court of Appeals found it was unconstitutional for Corrine Wiesmueller to have to take the bar exam, I suspect the Supreme Court of Wisconsin would find it unconstitutional for anyone to have to take the bar exam.”
Crabb said that other events had led her to conclude that Wiesmueller should not continue as class counsel, including Wiesmueller’s Nov. 27 motion to seek Crabb’s recusal from this case.
In that motion, Wiesmueller alleged various grounds for suspecting Crabb’s impartiality, including her receipt of a distinguished service award from a group of U. W. Law School graduates. The motion also took issue with Crabb’s Oct. 30 order denying Wiesmueller’s request for summary judgment against the state’s continued administration of the Multistate Bar Exam to out-of-state law school graduates. In that order, Crabb first expressed her doubts regarding Wiesmueller’s competency to serve as class counsel.
Crabb denied the motion for recusal on Wednesday, rejecting each of Wiesmueller’s charges. Regarding the service award, Crabb wrote, “Plaintiffs might have a point if I had received an award from a group that was dedicated to preserving the diploma privilege, but the award had nothing to do with the issues in this case.
“Plaintiffs do not suggest that the group is involved in advocacy for maintaining the diploma privilege or even that it has taken a position on the issue,” Crabb continued. “After all, as plaintiffs point out themselves, members of the group have already received the benefit of the privilege.”
Addressing her earlier ruling against Wiesmueller’s motion, Crabb noted that unfavorable rulings are often the reason a party seeks recusal, but it is very rare that a judicial opinion provides grounds to disqualify a judge.
Voluntary withdrawal of a claim
Crabb agreed to permit Wiesmueller to withdraw his claim that the diploma privilege promotes effectual discrimination against interstate commerce. Wiesmueller said that he lacked the resources to sort through the particulars of the Wisconsin law school curriculum to prove the claim.
The litigation continues with the claim that SCR Chapter 40, taken as a whole, facially discriminates against interstate commerce. Wiesmueller said he would like to have the words “in this state” struck from the rule so that an out-of-state law student could complete a Wisconsin curriculum and benefit from the diploma privilege, assuming the court finds there is a Wisconsin-specific law requirement.
Alex De Grand is the legal writer for the State Bar of Wisconsin.