Attorney asks Supremes to remand arbitration

Listen to this article

Attorneys never like to lose, but Steven A. Levine was content with a defeat he suffered last December.

An arbitrator ruled against him and two other lawyers who claimed the State Bar of Wisconsin’s recent public image campaign should qualify under the Keller dues rebate in fiscal years 2009 and 2010 because it served as a propaganda tool for the bar.

Last summer, the bar ran a television ad during the Olympics as part of its most recent public image campaign. According to the bar, costs of the campaign were approximately $9,700, or the equivalent of $5.16 per member of the bar.

Left undecided was whether the charges are constitutional under Supreme Court Rule 10.03(5)(b), which indicates that the bar can “engage in and fund any activity that is reasonably intended for purposes of the association.”

Since the ruling only held that the campaign was not political, Levine filed a petition for an original action with the state Supreme Court in January, asking that the decision be remanded to the arbitrator to rule on the constitutionality of the expenditures.

In the petition, Levine states that the rule conflicts with the 2001 United States Supreme Court decision in United States v. United Foods, which said that advertising funded by mandatory assessments must be subject to First Amendment scrutiny even if considered not political.

“It would be a two-for-one victory if it is decided the rule doesn’t meet the U.S. Supreme Court standard and also whether the bar has to look at all expenses, not just political ones,” Levine said.

Levine said he expects the state Supreme Court will decide to address the matter, possibly sometime in April, but in a response filed by the State Bar, attorney Roberta F. Howell argued that the courts have already decided this issue.

In the bar’s March 9 request that the Supreme Court dismiss Levine’s petition, Howell points out that the 7th Circuit Court of Appeals 1996 decision in Thiel v. State Bar of Wisconsin upheld the constitutionality of the rule.

Levine represented attorney James S. Thiel, who is also a petitioner of the current action, along with attorney Jon E. Kingstad.

Howell said the petition is simply “the latest chapter in the seemingly never-ending battle between [certain] Wisconsin attorneys and the Wisconsin State Bar.”

In the bar’s response, Howell also noted that the petitioners are just looking for another “kick at the cat” by raising arguments which have been rejected for the last 15 years and said the request is a “back-door” attempt at re-writing SCR 10.03(5)(b).

At its Feb. 27 meeting, the bar’s Board of Governors met in closed session to discuss the petition, and President Diane S. Diel declined to comment on the pending action.
But Levine said if the court sends the ruling back to an arbitrator and that person determines the current rule is unconstitutional, it could prompt the bar to re-evaluate mandatory expenses for members.

“It’s not an attack of the whole bar, but what it can spend its money on,” Levine said.