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Commentary: Voluntary Bar? Not our call

For better or worse, government has been intruding into our lives for years. The government knows our income, tells us what we can build on our property, and even knows how much we inherit from our families. I am truly amazed how much the government cares about me and my money.

And what does the government do with my money? It spends it as it sees fit. Can we create a voluntary group of taxpayers that only supports causes that we believe in? We can, but we will probably end up in federal prison like Richard Hatch from Survivor. As taxpayers, we have no discretion as to how our tax dollars are spent. If we disagree with those dollars going to one place or another, all we can do is complain and try to elect someone who will funnel the money either back into our pockets, or in the alternative to some other cause.

As a society the trend has been to embrace the culture of the government intruding into our lives. We do this by consistently voting for candidates who approve bills that allow the government to act in just that way. No matter your politics, there is no dispute that we have accepted government and quasi-government institutions meddling in our lives, and accepted these institutions as entities that cannot be eliminated.

Like many other institutions, the State Bar of Wisconsin was started by its members as a voluntary organization on Jan. 9, 1878. For 70 years, it functioned as such. It was not until December of 1958 that the Wisconsin Supreme Court ordered the creation of the integrated State Bar of Wisconsin.

Since that time, members have been suing the State Bar with regularity, alleging that it improperly requires membership in an organization. The core issue for those who favor a voluntary bar is that no one should be forced to join and support an association that he or she opposes.

That is really not an unreasonable demand. After all, if we disagree with the policies of a certain corporation, we can choose not to patronize that business. If we decide that we are unsatisfied with the position of our local civic organization, we can leave and withdraw our funding. The only organization that forces you to contribute to its efforts no matter your personal opinion of those efforts is the government.

As an organization, the Board of Governors has a duty to address issues about which its members voice concern. At the Board meeting in February, the governors reviewed the latest position on the mandatory/voluntary issue in the form of a report from the Strategic Planning Committee. That report outlines a process for putting the issue before the Supreme Court again.

The BOG knows that members want this issue resolved so that we can put it behind us once and for all. But ultimately, we as members lack the power to decide whether we have a mandatory or voluntary bar. The real decision maker on this issue is the Supreme Court, not the members of the Bar. And the Court has continuously upheld the mandatory nature of the Bar on constitutional grounds, despite two obvious problems. The first is that we have mandatory dues going towards discretionary spending. The second is that we are essentially forced to support public policy positions the Bar advocates in front of governmental bodies.

At the end of the day, the voters elected our state Supreme Court Justices, and those justices have found, and seem inclined to continue to find, that the Bar is constitutional in its current structure. The court has created an essentially quasi-governmental entity that commits what many consider the ultimate constitutional sin of requiring membership and support despite acting contrary to the interests of its members in many instances.

It’s clear that Wisconsin attorneys do need an organization that will perform a great number of the functions of the current Bar. There will always be fees attorneys will pay and we need an agency to collect those fees. We also need a professional organization for lawyers. The question is: do these two organizations need to be one and the same?

If the court were being honest about the Constitution, it would restrict the functions of a mandatory bar to educating lawyers, providing needed legal services to those lawyers, and collecting fees and surcharges for the court. These core activities make up the majority of what the Bar does exceedingly well right now. But the court may, and probably will, find a way to keep the current Bar afloat despite the desires of its members. If we truly want a voluntary bar, we need to cast our votes not in the election for State Bar President, but the elections for the State Supreme Court.

Theodore J. “TJ” Perlick-Molinari is an associate with the Birdsall Law Offices S.C. in Milwaukee, where he has committed himself to the defense of people charged with serious criminal and drunk driving offenses. He represents Dist. 2 on the Board of Governors of the State Bar of Wisconsin. He can be reached at tjpm@birdsall-law.net.

One comment

  1. I wonder how the author is going to vote on the Strategic Planning Committee proposal?

    Going to the article, it minimizes the immense amount of effort required to get this proposal in front of the Board of Governors. It was not simply that lawyers complained and the Board acted by any means. For example, in 2005 Steve Levine was elected president on the basis of his support for a voluntary bar. Nothing happened. Now, five years later, something has happened. The Board does have a duty to respond to its members but it refused to do so for almost five years. It took the election of Doug Kammer to move this from fantasy to reality. It was a herculean task. We should be proud of this current Board, president Kammer and Strategic Planning Committee Chair John Macy of Waukesha for making it happen.

    As a member of the Board of Governors, I plan to vote for this proposal. I served on this committee which heard from 3,000 lawyers and bar entities and entertained three days of pro and con live testimony. Whether one favors a voluntary bar or not, it’s time to move this issue from the Board of Governors to the Wisconsin Supreme Court. If the bar does not, it will simply be bogged down in more complaints and animosity towards a Board which, as the author notes, does not have the final say. I truly hope the Board does the right thing and supports this petition.

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