Part 1: Practicing Law in 20th Century Wisconsin: The Courts and the Bar Grapple with Growth

By Joseph A. Ranney

The practice of law in Wisconsin changed tremendously from territorial days to the end of the 19th century. The first generation of Wisconsin lawyers (1836-1860) devoted as much time to molding the state's government and economy as to legal practice. Subsequent generations (1860-1900) concentrated on shaping the state's legal culture and trying to establish the bar itself as a permanent institution. ¹

Any thought at the end of the 19th century that the practice of law had finally stabilized was quickly dispelled. The dramatic expansion of Wisconsin's population and economy during the 20th century increased demand for legal services to an extent that Wisconsinites could not have imagined in 1900. The modern history of the Wisconsin bar consists largely of how it has responded to the problems and opportunities created by growth.

This article discusses how Wisconsin's chief legal institutions, the courts and the State Bar have responded to growth and have tried to control it. The article focuses on the ongoing debate over bar integration since the 1930s and the reorganization of the court system in the 1950s and 1970s to meet ever-increasing caseloads. A later article will discuss changes in the day-to-day practice of law created by growth, particularly the steady diversification of workplaces and types of practice throughout the 20th century and the explosion in the number of women lawyers since the 1970s.

Growth of the bar

Just how fast has the Wisconsin bar grown during the 20th century? It grew slowly but steadily from about 1,700 lawyers in 1900 to 4,000 lawyers in 1950. The depression of the early 1930s affected lawyers fully as much as other occupations and slowed the bar's growth. World War II also slowed growth temporarily, as many attorneys entered military service. Unlike many other fields, there were few women available to replace departing attorneys. ²

The second half of the 20th century brought two periods of sharp growth of the bar: the 1950s, and the period from 1970 to 1985. The bar expanded from about 4,000 lawyers in 1950 to 6,953 in 1960 (an average annual growth of 6 percent, compared to annual population growth of 2 percent) and from 8,302 lawyers in 1970 to 14,198 lawyers in 1985 (average annual growth of 4 percent, compared to annual population growth of less than 1 percent). Since 1985, the bar has grown at an average annual rate of about 2.5 percent. Today there are 18,993 lawyers licensed to practice in Wisconsin; 13,517 reside in Wisconsin. ³

The growth periods of the 1950s and 1970-85 were spurred by cultural changes and increased economic demand. In the late 1940s and early 1950s many students who had postponed their professional education because of the war returned to law school, and the GI Bill probably encouraged many students to enter law school who would not have considered it otherwise. In the wake of the civil rights, women's rights and environmental movements of the 1960s and 1970s, many students viewed law as a career in which one could both do social good and do well financially. As American political culture became more conservative and the economy slowed in the 1980s, the expansion of the Wisconsin bar also moderated. ⁴

The debate over bar integration

In 1900 the State Bar Association of Wisconsin was a small, voluntary organization to which only about 25 percent of Wisconsin lawyers belonged. It performed no significant activities outside of its annual meetings. ⁵ As the number of Wisconsin lawyers grew, State Bar leaders became increasingly concerned about the lack of a mechanism for keeping track of lawyers, effectively disciplining dishonest lawyers and advocating the Bar's position on matters of concern to the entire profession. State Bar president Claire B. Bird of Wausau first proposed integrating the bar - that is, requiring all Wisconsin lawyers to join - as a solution to these problems in 1914. The idea received scant support at first. Many lawyers opposed integration, mainly because they resented being compelled to join any organization. ⁶

Support for integration slowly grew during the next two decades. In 1943 the Legislature passed a bill integrating the bar, and in Integration of the Bar Case (1943) the Wisconsin Supreme Court gave qualified approval to the law and rejected an argument that integration violated lawyers' "freedom not to associate" under the due process clause of the 14th Amendment. Because so many lawyers were in military service at the time, the court deferred implementing the law until after World War II. ⁷

In 1946, to the general surprise of the bar, the court changed its mind and refused to implement integration. The court worried that administering an integrated bar would be too large a drain on its time and resources, and it reasoned that "a free and voluntary bar, even though embarrassed by lack of funds, is to be preferred to one that is or feels itself to be dominated by the court." ⁸

The State Bar spent the next decade building its strength and carrying out a massive public relations campaign in support of integration. In 1956 it again petitioned the court for an integrated bar, and this time it was successful. The court concluded that because of the increasing size of the bar and increasing disciplinary, continuing education and other needs, integration should be tried as an experiment for two years. It also stated there was a real need for the functions which the State Bar was performing, and that without integration the State Bar might not survive financially. In 1958 the court made integration permanent. ⁹

Opponents of integration, led by Trayton Lathrop of Madison, did not accept the court's decision quietly. They mounted another challenge, arguing that the State Bar should not be allowed to take political positions and lobby for them on behalf of all lawyers. In Lathrop v. Donohue (1960), the Wisconsin Supreme Court dismissed the challenge after warning the State Bar to limit its lobbying to matters related to the administration of justice. The court rejected as overwrought the opponents' argument that integration smacked of totalitarianism. ¹⁰

The court's decision was appealed promptly to the U.S. Supreme Court. In 1961 a deeply divided high court upheld both integration and lobbying. Four justices declined to address the validity of lobbying because integration opponents had failed to specify exactly which State Bar lobbying activities they found offensive. Three justices broadly affirmed the validity of lobbying and complained that the plurality's indecisiveness placed integration "under a cloud of partial unconstitutionality." ¹¹

Justices Hugo Black and William O. Douglas opposed integration altogether. Black argued that integration inherently limits lawyers' freedom of speech, that the Wisconsin Supreme Court and his colleagues were balancing free speech against regulatory needs, and that such balancing would jeopardize free speech in the long run. "I do not believe," said Black, "that the practice of law is a 'privilege' which empowers Government to deny lawyers their constitutional rights. ... [O]ne of the great purposes underlying the [Bill of Rights] was to give independence to those who must discharge important public responsibilities." Douglas took Lathrop's complaint that integration smacked of totalitarianism more seriously than did the Wisconsin court. He complained that, "We practically give carte blanche to any legislature to put at least professional people into goose-stepping brigades" which would use integration, along with fee schedules and prohibition of the unauthorized practice of law, to make war on both free speech and free competition. ¹²

Although Black and Douglas did not prevail, their concerns, together with the concerns expressed by the Wisconsin Supreme Court in 1946 and 1960 and continuing opposition to integration by a significant segment of the bar, have played a large role in shaping the State Bar since Lathrop. In 1976 the State Bar set off a furor when it asked the supreme court to approve a dues increase from $40 to $100 per year to shore up the Bar's finances and fund new Bar activities. After extensive study, in 1977 the court granted a limited increase and imposed some controls on the State Bar's future activities. ¹³

Soon after the court issued this order, integration opponents mounted another drive to end integration. In 1978 they petitioned the State Bar to hold a referendum on integration; the State Bar refused. The opponents then conducted their own poll that showed 60 percent of lawyers opposed integration. Based on the poll results, integration opponents petitioned the court to end integration. In 1980 the court, by a 5-2 vote, rejected the petition. However, it suggested that the Bar's lobbying activities had gone further than authorized and indicated that its next review of the Bar, scheduled for 1982, would be exacting. ¹⁴

Recognizing that a real threat to integration now existed, the State Bar made a massive effort to explain the need for an organized bar to the court and public. When the court's 1982 review committee recommended various reforms, including terminating the Bar's political action committee (LAWPAC) as an official Bar agency, the State Bar leadership endorsed most of the reforms. A few months later the court again affirmed integration, but it severed LAWPAC from the Bar and established a procedure whereby lawyers who wished could receive a rebate of the portion of their dues to be allocated to lobbying activities. ¹⁵

Six years later integration opponents, now led by Steven Levine of Middleton, mounted another attack and won a temporary victory. In Levine v. Supreme Court of Wisconsin (1988) federal judge Barbara Crabb accepted the opponents' argument that both the bar and the law had changed since Lathrop. ¹⁶ She noted that state agencies rather than the State Bar now supervised lawyer education, and concluded that since 1960 the U.S. Supreme Court had narrowed the scope of permissible state regulation of free speech. In particular, she noted that the high court in 1976 had ruled that financial contributions to an organization can constitute speech. ¹⁷ Accordingly, Judge Crabb held that mandatory bar membership violated the First Amendment. She demonstrated just how deep and enduring is the concern over bar integration's effect on individual freedom when she concluded that "lawyers and courts have been willing to watch over others' First Amendment rights but have seldom trained their eyes on the constitutional implications of their own activities." ¹⁸

The Wisconsin Supreme Court suspended integration pending appeal of Levine and resolution of several bar integration cases before the U.S. Supreme Court. Late in 1988 the Seventh Circuit reversed Judge Crabb, concluding that the bar and the law had not changed so much as to render Lathrop obsolete. ¹⁹ In 1990 the U.S. Supreme Court rejected a broad challenge to integrated bar lobbying activities and held that lawyers could be compelled to pay for activities that were primarily "professional advice" to regulatory bodies rather than "political or ideological" activities. ²⁰

In the wake of these decisions, the Wisconsin Supreme Court reinstated integration in In Matter of State Bar of Wisconsin (1992). ²¹ A majority reemphasized the court's belief that lawyers have a special duty to the public that can only be carried out effectively through an integrated bar, but responded to opponents by providing a mechanism for arbitration of disputes as to whether particular bar activities were impermissibly political in nature. Justice (now Chief Justice) Shirley Abrahamson, in a vigorous dissent, argued that free speech concerns were more important than the practical advantages of integration and that the State Bar was now sufficiently well established that most lawyers would join without compulsion. ²²

The enormous growth of the bar in the 20th century has been a double-edged sword for the State Bar. Growth created the conditions that made an integrated, influential bar possible, but the size of the bar makes it likely there will always be enough lawyers to sustain a continuing even if generally unsuccessful opposition to integration. The recent opinions of Judge Crabb and Justice Abrahamson, together with a continuing series of challenges related to integration, ²³ suggest that the intellectual battle between proponents of free speech and proponents of an integrated bar will continue indefinitely.

Expanding and streamlining the courts

Wisconsin's population growth also has created continuing challenges for the state's court system. At statehood in 1848, Wisconsin's founders created a relatively simple statewide system of justices of the peace, county and circuit courts, and a state supreme court. Each component served a distinct function: justices of the peace were to handle small disputes informally, county courts primarily were to handle probate matters, circuit courts were trial courts of general jurisdiction, and the supreme court was the state's sole appellate court. ²⁴ During the late 19th century, as new counties were created and the state was fully settled, the Legislature added a patchwork of special courts in response to local needs and demands. It gave many of the courts overlapping jurisdiction and made almost no effort to coordinate their work. ²⁵

The patchwork system of the late 19th century reflected strong popular support for local autonomy, and it was workable as long as caseloads remained relatively low. But after 1900 the system came under heavy attack from several directions. First, demand grew rapidly for new and more efficient courts to meet increasing caseloads. Many bar leaders called for eliminating overlapping jurisdiction among the courts and creating multi-branch local courts run under a single administrative system. In 1907 the Legislature created a uniform statewide system of municipal courts and in 1909 it created a multi-branch civil court for Milwaukee County, which was affected most acutely by the patchwork system's inefficiencies. ²⁶

During the early 20th century the courts also came under attack from Progressive reformers. Progressives in Wisconsin and throughout the United States contended the courts were unjustifiably obstructing reform and were allowing themselves to become instruments of reaction. The Progressives proposed such remedies as popular recall of judges, limiting court powers by constitutional amendment and creating entirely new, more responsive court systems. This component of the Progressive movement was muted in Wisconsin because the Wisconsin Supreme Court was less prone to strike down Progressive laws than were many other state's courts. Still, the complaints of Progressives were serious enough that Chief Justice John Winslow urged his colleagues to support moderate reforms before more radical changes were forced upon the courts. In particular, Winslow urged that rules of procedure and evidence be simplified, and he advocated a unified state court system more than 40 years before it finally was adopted:

"There is no good reason why there should be so many courts of varying jurisdictions, some busy and some idle a good part of the time, but all doing business in lofty disregard of each other; there is no good reason apparent to my mind why the courts of a state cannot be unified and made into practically one or two agencies under an administrative head or heads who shall, like the business manager of a department store, have power to direct the conduct of the court's business of the state, assigning judges to the branches where they are needed and where they can do the best work as occasion arises." ²⁷

In 1913 the Legislature created a special commission, headed by Winslow, to examine court reorganization. The Winslow commission recommended substantial reforms, including the wholesale elimination of special courts, the creation of a statewide court system with multiple branches rather than special additional courts in large counties, and creation of local "courts of conciliation" to handle small disputes at minimal cost. Local municipalities and judges persuaded the Legislature to preserve many of their special courts, but the Legislature expanded the number of circuit courts and decreased their geographical size. In 1921 the Legislature also created a statewide small claims court system to ease caseload pressure on other courts. ²⁸

A new challenge to the court system arose in the 1930s. At statehood Wisconsin was one of the first states to reject an appointive system and make its judiciary entirely elective. Elective judicial systems found favor in much of 19th century America, but in the 20th century a reaction set in, mainly due to disenchantment with excessive partisanship in many states. In the 1930s and 1940s the "Missouri Plan," which replaced contested elections with periodic referenda on whether to retain sitting judges, gained popularity. There was much discussion about adopting the plan in Wisconsin, and the State Bar's Judicial Selection Committee formally recommended it in 1934:

"Any system which tends to limit the choice of selection to a field composed largely of self-appointed aspirants, called upon to meet no test or qualification, and which compels all who seek judicial office to assume the position of a supplicant for the favors of the voters or of an executive who may or may not feel the demands of political influence and expediency, does not deserve the favor of support of an enlightened bar." ²⁹

The movement, however, went nowhere. Wisconsin had recognized the problems of partisanship in judicial elections as early as the 1860s, and by the end of the 19th century a strong tradition of retaining competent judges regardless of party was well established. For this reason, the Missouri Plan was not seriously considered by the Legislature. Indeed, the State Bar withdrew its support for the plan four years after recommending it, and no movement for an appointive judiciary has surfaced since. ³⁰

In the early 1950s a new movement to create a unified court system began. The newly created Judicial Council, supported by the State Bar, compiled the first accurate caseload statistics and demonstrated that in many parts of the state there were either far too many or far too few courts to handle local caseloads. In 1953 the council and the State Bar, led respectively by Jack DeWitt of Madison and E. Harold Hallows of Milwaukee, began a systematic drive to reorganize the courts. The council proposed a constitutional amendment that would expand the circuit courts and abolish most county and local courts.

The amendment passed the 1955 Legislature but failed in the 1957 session, largely because of widespread indifference and skepticism among the state's lawyers and judges. The council and the State Bar, led now by Marygold Shire Melli of Madison and Francis Wilcox of Eau Claire respectively, proposed a more moderate law that would preserve some local courts but make all courts of record full-time courts and create a statewide court administrative system. After an intensive campaign by the Council and the State Bar, the 1959 Legislature adopted the plan. ³¹

Reformers pressed for more streamlining of the court system in the late 1960s and also advocated reforms in the Wisconsin appeals process as concerns about the supreme court's caseload increased. Since statehood the supreme court had been the only court of appeal from circuit and county court decisions, and virtually all cases decided at those levels were appealable to the supreme court as of right. Proposals were made in the late 1920s and again in the late 1930s to relieve the supreme court's burden by creating an intermediate court of appeals or dividing the court into panels and allocating cases between them. In 1938 Chief Justice Marvin Rosenberry went so far as to urge the State Bar to support a panel system but made clear that the supreme court would not adopt such a system unless the bar favored it. The 1939 assembly of the State Bar recommended a panel system but the proposal was narrowly defeated in an advisory referendum of the bar, and went no further. Rosenberry also was one of the leaders of a movement, popular in the 1930s, to relieve courts of the burden of reviewing administrative agency decisions by creating a special administrative court of review. However, he did not press the idea vigorously in Wisconsin and it attracted little interest, possibly because it had its origins in continental European jurisprudence rather than in the common-law tradition with which Wisconsinites were familiar. ³²

The supreme court's caseload expanded substantially after 1940. In the 1930s the court averaged 250-300 written decisions per year. By the mid-1970s that number had increased to more than 400. The number of cases filed with the court doubled from 356 in 1960 to 709 in 1975, and in the mid-1970s Chief Justice Horace Wilkie indicated that this increase, together with the court's administrative duties, was stretching the court's capacities to the breaking point. ³³

A blue-ribbon committee on judicial reorganization was created in 1973; it recommended that an intermediate appeals court be created to handle the bulk of appeals and that the supreme court be allowed to choose the cases it would hear. This time there was little opposition to reform. The 1975 and the 1977 Legislature passed constitutional amendments to implement the committee's proposals, and the amendments were ratified and went into effect in 1977. ³⁴ The 1977 Legislature also abolished county courts and created a unified circuit court system, in large part because reformers were able to convince county judges and other local judges that many of their offices would be preserved as circuit judgeships under the new system. ³⁵

The 1959 and 1977 reforms alleviated but did not completely eliminate caseload problems in the trial courts: Caseloads have continued to increase steadily since the late 1950s. In recent years reformers have focused on alternative dispute resolution mechanisms such as mediation and arbitration as a possible new solution, and in 1993 the supreme court adopted rules requiring trial courts to actively encourage the use of alternative dispute resolution. It remains to be seen how successful the new rules will be. ³⁶

Endnotes

¹ Ranney, The Practice of Law in 19th Century Wisconsin, 67 Wis. Law. 10 (March 1994).

² P.S. Habermann, A History of the Organized Bar in Wisconsin (1986) ("Organized Bar in Wisconsin" ), 16-17, 30-32; Garrison, A Survey of the Wisconsin Bar, 20 Wis. L. Rev. 129, 146-47 (1935).

³ State Bar of Wisconsin, membership records (Feb. 7, 1997).

⁴ Habermann, Organized Bar in Wisconsin, 30-32; R.L. Abel, American Lawyers (1989), 7-10.

⁵ Habermann, Organized Bar in Wisconsin, 14; see generally, Reports of the Meetings of the Wisconsin State Bar Association, 1878-1885 (Madison, 1904) and Reports of the Meetings of the Wisconsin State Bar Association, 1886-1899 (Madison, 1900).

⁶ Habermann, Organized Bar in Wisconsin, 38-39.

⁷ L. 1943, c. 315; 244 Wis. 8, 11 N.W.2d 604 (1943).

⁸ In re Integration of Bar, 249 Wis. 523, 530, 25 N.W.2d 500 (1946).

⁹ In re Integration of Bar, 273 Wis. 281, 77 N.W.2d 602 (1956); In re Integration of Bar, 5 Wis. 2d 618, 93 N.W.2d 601 (1958).

¹⁰ 10 Wis. 2d 230, 244-45, 102 N.W.2d 404 (1960).

¹¹ Lathrop v. Donohue, 367 U.S. 820, 865 (1961).

¹² Id. at 876, 884.

¹³Habermann, Organized Bar in Wisconsin, 48-50; In re Regulation of the Bar of Wisconsin, 81 Wis. 2d xxxv (1977).

¹⁴ Habermann, Organized Bar in Wisconsin, 50-51; Matter of Discontinuation of State Bar of Wisconsin as an Integrated Bar, 93 Wis. 2d 685 (1980). Justices Roland Day and William Callow voted to end integration.

¹⁵ Habermann, Organized Bar in Wisconsin, 51-52; Report of Committee to Review the State Bar, 112 Wis. 2d xix (1982).

¹⁶ 679 F. Supp. 1478 (W.D. Wis. 1988).

¹⁷ Id. at 1494-97, citing Buckley v. Valeo, 424 U.S. 1 (1976).

¹⁸ Id. at 1495.

¹⁹ Levine v. Heffernan, 864 F.2d 457 (7th Cir. 1988).

²⁰ Keller v. State Bar of California, 496 U.S. 1, 15 (1990).

²¹ 169 Wis. 2d 21, 485 N.W.2d 225 (1992).

²² Id. at 38, 44, 485 N.W.2d at 232, 235.

²³ See, e.g., Crosetto v. State Bar of Wisconsin, 12 F.3d 1396 (7th Cir. 1993).

²⁴ D.P. Kommers, "The Development and Reorganization of the Wisconsin Court System," Ph.D. thesis (Univ. of Wisconsin, 1963) (hereinafter "Reorganization of Wisconsin Court System"), 202-06, 228.

²⁵ Id., 202-304.

²⁶ Id., 264-65, 271-74; L. 1907, c. 651; L. 1909, c. 549.

²⁷ Manuscript speech (undated, ca. 1915), Winslow Papers, State Historical Society of Wisconsin (hereinafter "SHSW"), 13. See also Winslow, A Legislative Indictment of the Courts, 29 Harv. L. Rev. 395 (1915); Winslow, "The Judicial Recall: Is It A Remedy or A Nostrum?" Address to Kansas Conference on Charities and Correction, (pamphlet, undated, ca. 1914) and Winslow, "The Twentieth Century Lawyer," Address to Northwestern University Law School Alumni Ass'n (pamphlet, April 25, 1912), both in Winslow Papers, SHSW.

²⁸ Winslow, manuscript speech (undated, ca. 1915), supra n.27, at 13-19; L. 1921, c. 538.

²⁹ 24 Reports of Wisconsin Bar Association 37-38 (1934), quoted in Kommers, "Reorganization of Wisconsin Court System," 456.

³⁰ Kommers, "Reorganization of Wisconsin Court System" 457-58; see generally J.B. Winslow, The Story of a Great Court, 379-86 (1912).

³¹ L. 1959, c. 315; W.F. Thompson, The History of Wisconsin, Vol. VI: Continuity and Change, 1940-1965 (Madison, 1988), 628-34; see generally Kommers, "Reorganization of Wisconsin Court System," 542-621, 631.

³² Kommers, "Reorganization of Wisconsin Court System," 437-44; Rosenberry, Administrative Law and the Constitution, 23 Am. Pol. Sci. Rev. 32, 43-44 (1929).

³³ Wilkie, "Address to Wisconsin Judicial Conference," Jan. 14, 1976 (pamphlet, SHSW Collections); Wilkie, "Address to Joint Session of Wisconsin Legislature," Jan. 23, 1975 (pamphlet, SHSW Collections); Wisconsin Judicial Planning Committee, 1977-78 Annual Judicial Plan (pamphlet, SHSW Collections), 18.

³⁴ 1975 Assem. Jt. Res. 11, Jt. Res. 13; 1977 Sen. Jt. Res. 9, Jt. Res. 7.

³⁵ Wilkie, "Address to Wisconsin Judicial Conference," Jan. 14, 1976.

³⁶ 180 Wis. 2d xv (1993).

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