BOG discusses amicus issue

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“I felt very strongly that the Executive Committee was not only authorized, but required, to consider member feedback before deciding whether to move forward.” Patricia K. Ballman

Members of the State Bar’s ruling body engaged in a lengthy discussion March 21 over the Executive Committee’s decision not to join an amicus brief in a case against the University of Michigan Law School.

The Board of Governors was divided over whether it was appropriate for the Executive Committee to have chosen not to pursue joining an amicus brief supporting the law school and its use of racial information in its admissions process.

At its Jan. 17 meeting, the Board of Governors had approved by a two-thirds vote a motion to seek an appropriate brief for the State Bar to join. Since the deadline for filing a brief in the case did not allow enough time for the board to revisit the issue at its March meeting, the Executive Committee was given responsibility for approval of an appropriate brief.

The Executive Committee also was charged with contacting members about the board’s action. Following a strong negative response from members — 666 of 978 e-mailed responses opposed joining an amicus brief in the case — the committee decided to cease efforts to find an appropriate brief. Many of those e-mail messages indicated that the mandatory bar should not be taking positions on such highly charged issues.

The Executive Committee is a subgroup of the Board of Governors, including the top bar officers, which is given the responsibility of acting on behalf of the board between board meetings.

Mary E. Triggiano

State Bar President Patricia K. Ballman said the Executive Committee had an obligation as part of the original motion and through the bar’s bylaws to consider the strong negative member feedback.

“I felt very strongly that the Executive Committee was not only authorized, but required, to consider member feedback before deciding whether to move forward.”

Ballman indicated that at the end of the January board meeting, she understood the committee would solicit and consider feedback from bar members before joining an amicus brief.

The original motion stated: “provided an appropriate brief is presented to the Board of Governors or the Executive Committee for review, and authorized, the State Bar of Wisconsin join as amicus in support of the respondent, University of Michigan Law School in Grutter v. Bollinger, a case before the U.S. Supreme Court challenging the use of race in law school admissions.” During the January board meeting, many governors emphasized the importance of seeking member feedback.

Ballman noted that Article VII of the State Bar Bylaws makes that a part of filing amicus briefs. The article states in part:

R. George Burnett

“1. Whenever practicable prior to authorizing or filing a brief amicus curiae, notice of the proposed action shall be published in the State Bar Wisconsin Lawyer or Newsletter inviting comment and recommendations from the State Bar Member-ship.

“2. All comments and recommendations from the membership timely received under (e)(1) shall be considered by the Board of Governors or Executive Committee prior to taking the proposed action.”

During the March meeting, Ballman observed that there had been a difference of opinion among bar leaders regarding the appropriate interpretation of the bylaws pertaining to the relationship between the Executive Committee and
the Board of Governors, as well as questions regarding the process for filing amicus briefs. She indicated that the bar’s Rules & Bylaws Review Committee would take a look at those issues.

While acknowledging the need to inform members of what was taking place, not all of the State Bar governors agreed with the Executive Committee’s decision. Some noted that members supporting the board’s action might not have felt a need to respond. Others raised questions about the committee’s authority.

“The [State] Bar and the Board of Governors may have paid a very heavy cost because of what the Executive Committee did,” Gov. Daniel L. Shneidman said during the March discussion.

Shneidman, of Shneidman Law S.C. in Milwaukee, said that the Executive Com-mittee action had the effect of changing the direction supported by the board at its January meeting. He also indicated he did not see a need to change the bylaws.

Nicholas C. Zales

“Certainly the rules that contemplate the Executive Committee acting in an emergency situation arising out of a request to file an amicus is not what happened here,” Shneidman said. “Whether or not you say there was insufficient notice or insufficient education or insufficient debate, on Jan. 17, we did have a motion, we had a discussion and we had a vote.”

In a later statement, Gov. Nicholas C. Zales, another Milwaukee attorney, also challenged the committee’s decision. When he left the meeting, Zales said, he expected the bar would be moving forward with the plan unless it was unable to find an appropriate brief.

“I don’t think the Executive Committee has the authority to overturn a decision of the Board of Governors,” Zales said.

Ballman explained that the Executive Committee had wrestled with that decision and with the question of how much weight to give member feedback.

“Some members of the Executive Committee felt that even if the bylaws did not require consideration of member comments that the motion itself gave the Executive Committee authority to change the result,” she told the board. She also noted that the committee’s authority to act between board meetings was not limited to emergency situations.

President-elect R. George Burnett noted that any time the bar addresses the issue of filing amicus briefs, it will be facing tight deadlines. “On issues of political or ideological significance, it is paramount that a mandatory bar consider its members’ views, Burnett said.

Gov. Robert W. Swain Jr. addressed the issue of the committee’s decision to act based on the strong negative response from members.

“If I see the Board of Governors doing something I support, I don’t normally send someone an e-mail saying that I support it,” said Swain, of Peterson, Berk & Cross S.C. in Appleton. “You could assume that something like 20,000 members agreed with the Board of Governor’s decision to seek an amicus.”

Gov. Mary E. Triggiano had supported joining the brief at both the board and committee levels. Triggiano, who works with Legal Action of Wisconsin Inc., noted that diversity was a key issue for her when running for the board.

“Our role on the Executive Committee is to support what the Board of Governors decides,” She said, agreeing with the idea that the bar should review the relationship between those two bodies.

Andrew J. Chevrez, of Shneidman, Hawks & Ehlke S.C., serves as a liaison to the Hispanic lawyer groups. He asked what kind of message the State Bar was sending to specialty bars when it changed direction following the January board vote.

“I have to express that we have serious doubts as to whether or not the Board of Governors is seriously committed to this issue,” Chevrez told the board.

Ballman responded that the bar is committed to diversity. She noted that diversity is one of the nine goals in the bar’s Strategic Plan, which was approved last November.

“The fact that the Executive Committee chose not to join an amicus [supporting the University of Michigan Law School] does not mean the Executive Committee is against diversity.”

Bar leaders also noted the challenges associated with finding an appropriate brief to join. State Bar Executive Director George Brown explained that he and Public Affairs Director Dan Rossmiller worked with
the University of Michigan to locate a brief from another association for the Wisconsin bar to join.

	Links State Bar of Wisconsin

“There were no state bar briefs known at that time or subsequent to that supporting the University of Michigan,” Brown said.

He raised the question among colleagues during a recent national conference of bar leaders and found that none of their groups were taking steps to draft briefs in the case.

“Nobody had even discussed this issue at the board level, let alone worked on a brief,” Brown said.

Tony Anderson can be reached by email.