Keller dues arbitration does not address constitutionality

Listen to this article

Steven A. Levine may have lost the battle, but the determined attorney said he could still win the war.

An arbitrator ruled against Levine and two other attorneys who argued that the State Bar of Wisconsin’s expenditures on its latest public image campaign should qualify for the Keller dues rebate.

However, arbitrator Christopher Honeyman did not rule on the broader issue of whether the charges are constitutional, which means Levine could challenge the issue in court.

“If he had decided that the State Bar’s public image campaign was germane to improving the quality of legal services, I would be out of luck as far as going to court,” Levine said.

“He only decided whether the campaign was political or not.”

“He basically said, ‘I’m not getting involved in the constitutional issue at all,’” Levine said.

Right down the line

In his decision, Christopher Honeyman determined that the public image campaign was “neither political nor ideological and that the germaneness test therefore does not apply.”

Attorney Roberta F. Howell, who represented the State Bar, said she was pleased by the ruling, but had no expectations as to what issues Honeyman would address in his decision.

“I think the ruling was right down the line with the arguments that were made,” Howell said. “He followed the Supreme Court rule, which is what he was asked to do.”

Language in the bar’s brief stated that SCR 10.03(5)(b)(1) permits the organization to “engage in and fund any activity that is reasonably intended for purposes of the association.”

This summer, the bar ran a television ad during the Olympics more than 700 times on three cable channels as part of its most recent public image campaign. According to the bar, the cost of the television ad campaign was approximately $9,700. The cost of the entire public image campaign for fiscal year 2007 was about $97,000, or the equivalent of $5.16 per member of the bar.

Levine and fellow objectors James S. Thiel and Jon E. Kingstad argued that the campaign had more to do with promoting the State Bar than educating the public and therefore does not meet the rule requirements established after Keller v. State Bar of California in 1990.

The second “test” set forth by Keller, states that public image expenditures must be used with the intent of improving the quality of legal services, something which Levine said the bar’s recent initiative failed to do.

“The bar’s logic is that they are really doing these public image campaigns for the benefit of the public and not the bar,” Levine said. “The arbitrator said that was a stretch.”

Honeyman stated that he had “doubts” about the germaneness of the public image campaign in his decision, but ultimately ruled that the issue was irrelevant because the initiative was neither political nor ideological.

Potential suit

Since Honeyman did not rule on the constitutionality of the public image campaign, Levine said it is possible that he may take the case to court.

“Whether I take that next step is something I’ll have to think about,” Levine said.

If he does decide to pursue the matter, Levine said it will come sometime in early 2009.

Howell declined to speculate on whether she anticipates a suit against the bar.