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Challenge to diploma privilege revived

A lawsuit challenging the Wisconsin diploma privilege only for graduates of Marquette’s and Wisconsin’s law schools is headed back to district court, after the Seventh Circuit held on Jan. 29 that the lower court improperly declined to consider whether the suit should have been certified as a class action.

But the attorney who filed the suit (before passing the exam), Christopher L. Wiesmueller, of Waukesha, expects the case to be back in the Seventh Circuit soon, inasmuch as U.S. District Court Judge John C. Shabaz has already ruled against him on the merits of the claim.

Challenging Privilege

According to court records, Wiesmueller, a 2007 graduate of Oklahoma City University’s law school, brought suit against the Wisconsin Board of Bar Examiners and the Supreme Court of Wisconsin, claiming that the diploma privilege violated the dormant Commerce Clause, and seeking injunctive relief.

Wiesmueller moved for summary judgment, and the defendants moved to dismiss. After the district court denied Wiesmueller’s motion, but while the defendants’ motion to dismiss was still pending, Wiesmueller moved to certify a class consisting of other graduates of out-of-state law schools who want to practice law in Wisconsin.

Judge Shabaz then granted the defendants’ motion to dismiss, and having done so, denied as moot the motion to certify the class.

Wiesmueller appealed, and the Seventh Circuit reversed the denial of the motion to certify a class, in a decision by Judge Richard A. Posner (the court did not address the merits of the Commerce Clause claim).

A Moot Question?

Because Wiesmueller passed the bar exam after filing his notice of appeal, the court first considered whether the appeal is moot, and concluded that it is not.

The court noted that, when a class in a class-action suit is certified before the named plaintiff’s claim becomes moot, the mooting of his claim does not doom the lawsuit, because the suit cannot be moot unless the claims of all the unnamed class members have also become moot.

In contrast, where a plaintiff’s claim becomes moot before the class is certified, the whole suit is moot, because no one other than the plaintiff has a legally protected interest in the litigation.

The court found that neither rule governs the case at bar, however, asking, “what if the district court denies the plaintiff’s motion to certify a class, the plaintiff appeals from that denial, and his appeal is pending when his substantive claim evaporates?”

Citing Guaranty National Bank v. Roper, 445 U.S. 326, 335-37 (1980), the court concluded that the case is not moot, because, “until the appellate court affirms the denial of the motion to certify a class, there may be people other than the plaintiff with a legally protected interest in the suit — namely the unnamed members of the class.”

The court rejected the district court’s assumption that, once the claim was rejected on the merits, there was no reason to consider whether to certify a class.

Consider Class First

The court concluded that, when the motion for class certification was filed, prior to a decision on the defendants’ motion to dismiss, the court should have decided the motion for class certification before deciding the case on the merits.

Accordingly, the court reversed, and remanded the case for further proceedings.

Because Wiesmueller has already passed the bar, he said that he intends to add his wife, who also graduated from an out-of-state law school, and other named plaintiffs to the suit, as named representatives.

Whether certification is granted in the district court or not, Wiesmueller said he expects to be back in the Seventh Circuit soon; even if the district court certifies a class action, it has already ruled on the merits, and that decision would be appealed. Judge Shabaz’ opinion on the Commerce Clause is available at 492 F.Supp.2d 1036 (W.D.Wis.2007).

As for the merits of the Commerce Clause question, Wiesmueller stated that there are no U.S. Supreme Court precedents applying the dormant Commerce Clause to the legal profession, but there are two Seventh Circuit cases.

In Scariano v. Justices of the Supreme Court of the State of Indiana, 38 F.3d 920 (7th Cir. 1994), the court held that Indiana’s exemption of out-of-state practitioners from the bar exam, only if they practice predominantly in Indiana for five years, did not violate the Equal Protection Clause or dormant Commerce Clause.

In Sestrick v. Clark, 765 F.2d 655 (7th Cir. 1985), the court held that Illinois did not violate the constitution by requiring non-resident attorneys to take the bar exam, while admitting new residents who had practiced law during five of the last seven years, on motion alone.

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