Justices raise concerns over State Bar bylaw (UPDATE)

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Wisconsin Supreme Court justices appeared skeptical Tuesday about a State Bar bylaw that several said potentially could give the bar’s governing board broad power to remove a dissenter from office.

Several justices – in questioning bar President Pat Fiedler, Executive Director George Brown and others during a public hearing – said a new bylaw that gives the Board of Governors a mechanism to remove a governor from office is written very vaguely.

The bylaw in question is the subject of two pending rule petitions before the court. The bar is asking the court to modify its rules to fall in line with the bylaw, while Steve Levine, a BOG member who voted against the new bylaw, is asking the court to overturn the bylaw itself.

Once the hearing ended Tuesday, the justices did not discuss or vote on the petition, instead deciding to discuss committees that would participate in the court’s budgetary process. The justices, who are not required to adhere to their agendas, are expected to take up the petitions at another rules conference.

Levine has said he is concerned that a governor may be ousted for speaking his or her mind on an issue about which the rest of the board may feel differently.

“Giving the State Bar this carte blanche authority to remove a member for the board for any reason, including exercising First Amendment rights, is one of the most dangerous things that I hope the court has ever heard …” Levine said during the hearing.

And during the hearing, a few justices pointed to a provision that states someone can be removed when he or she “engages in conduct which is contrary to the best interest of the State Bar.”

Fiedler and BOG member Ray Dall’Osto, when pressed, said that using their leadership role as an ideological platform or openly opposing a bill the bar has voted to support could possibly fall under that definition.

Chief Justice Shirley Abrahamson said she was particularly troubled by the BOG – which passed the new bylaw during a meeting in June – electing not to add a provision that states a governor will not be removed for exercising his or her free speech rights.

“This First Amendment issue troubles me because it’s state action,” Abrahamson said. “I’m surprised you didn’t put that in.”

Still, Fielder insisted that stifling dissenters is “not the intent” of the new bylaw. Instead, as he has said in interviews and the bar has detailed in briefs, the point is to give the board the ability to remove somebody when something serious arises – such as a governor committing a crime.

Fiedler and BOG member Ray Dall’Osto testified that the mechanisms the bylaw put in place – which include a call for a vote and the approval of 39 of the 52 governors currently in office – would provide a safeguard from the power being abused.

Dall’Osto said it would only be used as a “last gasp … for somebody who refused to go.”

Still, that didn’t seem to alleviate the justices’ concerns.

Justice David Prosser pointed out that this issue first came up when past bar President Douglas Kammer was elected in 2008.

Kammer, who served as president from July 2009 to May 2010, was, along with Levine, a vocal opponent of a voluntary bar; something that many at the bar bristle at when the issue periodically comes up. He testified Tuesday that the bylaw is the result, generally, of the threat he posed to the establishment of the bar after being elected.

Kammer called the bylaw “an attempt by the State Bar to thwart any democracy that may creep into the system.”

Prosser said it’s “a little hard for me to accept these proposed rules changes … as merely concern in the abstract or as a response to things that happened in other states.”

Levine also pointed out that the BOG has never found itself in need of the ability to remove a governor, and that the examples the bar used to support its move happened in other states.

“Whatever the examples, none of it has ever happened in Wisconsin,” Levine said.

Still, those testifying for the bar said that broad-sounding provision in the bylaw was put in instead of a list that would need to be changed over and over.

Roberta Howell, an attorney with Foley & Lardner LLP who was hired by the bar to defend their bylaw, said that “over time, expectations change,” and it was designed so the BOG could address any potential problem that comes their way.

“If you have a catch-all to begin with,” Howell said, “you’ll end up in the same place.” Follow @eheisigWLJ