POSTED: Monday, December 14th, 2009 at 1:00 am

BY: dmc-admin

Christopher L. Wiesmueller is in a class of his own, so to speak.

Last week, U.S. District Court Judge Barbara B. Crabb decertified the attorney’s class action challenging the state’s diploma privilege.

Wiesmueller is now left to pursue the case on behalf of his wife Corrine. Both are graduates of Oklahoma City University Law School, though Wiesmueller has since passed the bar exam in Wisconsin.

In the Dec. 3 decertification order, Crabb wrote, “as well intentioned as Mr. Wiesmueller is, his pleadings and his lack of familiarity with federal court procedures demonstrate that he is not yet ready to prosecute a constitutional class action.”

Wiesmueller took issue with Crabb’s assertion, but said the comments will motivate him to continue the case.

“Having had my ability criticized really makes me want to win it,” he said.

In November, Wiesmueller petitioned to have Crabb removed from the case, alleging a lack of impartiality, based in part on a recent award from a University of Wisconsin Law School alumni group.

Crabb, who is on the verge of senior status, denied the recusal motion. She has questioned Wiesmueller’s ability to handle such a complex case in the past, including in her denial of his request for summary judgment on Oct. 30.

In her order decertifying the class action, Crabb stated that Wiesmueller can still pursue his challenge of the diploma privilege “so long as one person is willing to challenge that privilege.”

Wiesmueller said he plans to continue the case with his wife as the sole plaintiff. He added that he doesn’t like his chances at the trial court level, and would appeal to the 7th Circuit.

“At this point, I’d be surprised if I won in district court,” he said.

The matter has already been to the 7th Circuit twice before.

First, early last year the court remanded the case back to the district court for class certification. Crabb granted the certification, but dismissed the dormant commerce clause claim.

Wiesmueller appealed again. This July, the 7th Circuit rejected the state’s argument that the study of law at a Wisconsin law school is a reasonable substitute for passing the bar exam.

If Wisconsin law is no greater part of the curriculum of Marquette and Wisconsin than at other national law schools, the diploma privilege creates an arbitrary distinction that burdens interstate commerce, the court concluded.

Judge Richard Posner wrote for the court, “It is enough that an aspiring lawyer’s decision about where to study, and therefore about where to live as a student, can be influenced by the diploma privilege to bring this case within at least the outer bounds of the commerce clause; for the movement of persons across state lines, for whatever purpose, is a form of interstate commerce.”

Diploma privilege

Wisconsin is currently the only state which grants automatic admission to the bar for all graduates of its two accredited law schools, Marquette and the University of Wisconsin-Madison.

Under Supreme Court Rule 40.03, “an applicant who has been awarded a first professional degree in law from a law school in this state that is fully, not provisionally, approved by the American Bar Association shall satisfy the legal competence requirement by presenting to the clerk certification of the board,” provided established credit components are met.

Wiesmueller argues that the phrase “in this state” should be struck from the rule so that law students in other states can complete a Wisconsin curriculum and be eligible for the diploma privilege.

“I think a high number of people apply to the Wisconsin Bar who have gone to law school in the Twin Cities or Illinois,” he said. “Maybe those schools would be interested in developing a diploma privilege curriculum, if given the opportunity.”

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