Supreme Court denies review of Keller case against State Bar

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They may have lost the battle, but a trio of attorneys fighting the State Bar of Wisconsin about its use of mandatory membership dues hope to still win the war.

On June 17, the Wisconsin Supreme Court dismissed both a motion to remand and a petition for original action filed by attorney Steven A. Levine and two other lawyers. The petitioners requested that the court assign an arbitrator to decide whether the Bar’s exclusion of costs associated with a 2008 public image campaign from its Keller dues rebate was unconstitutional.

While Levine said he was “a little miffed” by the decision of the court, he noted that the petitioners still have a case dealing with the same issues pending at the federal level.

But Levine also questioned the reasoning behind the decision given that previous case law has dictated that challenges to rules regulating the State Bar can only be brought to the Supreme Court.

“I have no idea what went through their minds,” said Levine, who has long advocated for more transparency in the court. “I think this is another great example of why Supreme Court conferences on contested issues should be open to the public.”

Though the court did not have to divulge its reasons for the denials all of the justices participated in the decision and none issued dissents, according to Court Information Officer Tom Sheehan.

Attorney Roberta F. Howell, who represented the State Bar, said the decision affirmed the organization’s stance that the constitutionality issue had been resolved years ago, though she did not speculate on the court’s reasoning for its denial.

In the bar’s March 9 request for dismissal, Howell pointed out that the Seventh Circuit Court of Appeals 1996 decision in Thiel v. State Bar of Wisconsin upheld the constitutionality of 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.”

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

Last December an arbitrator ruled against the petitioners, who argued that approximately $9,700 in expenses associated with a 2008 summer public image campaign should be eligible for the Keller dues rebate in fiscal year 2009 and 2010.

State Bar President Diane S. Diel said the Supreme Court’s decision, coupled with the arbitrator’s ruling, showed that the bar is operating in accordance with the rule.

“This has been a question of how the bar does its Keller process and the answer is we do it just fine,” Diel said.

Levine said he is still optimistic that a favorable outcome can be reached in the Western District federal court and has aspirations that the case will eventually make its way to the United States Supreme Court.

He indicated that his goal is to have the State Bar evaluate mandatory expenses for members.

Diel said she expects the federal case will be “resolved quite expeditiously.” A scheduling conference is scheduled for next month.

“I would hope that we can keep legal costs to the minimum, but I don’t see the bar not aggressively defending these lawsuits,” Diel said.

Bar spokesperson Tom Solberg did not immediately have an estimate on how much the organization had spent on legal costs.