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Arguments begin in public image campaign spat

Chicago — The latest iteration in the never-ending battle between Wisconsin lawyers and the Wisconsin State Bar opened in the Seventh Circuit on Thursday, with 43 lawyers challenging the legality of the Bar’s public image campaign.

In the eyes of the Bar, as argued by Foley & Lardner LLP attorney Roberta Howell, the Bar is free to spend dues as it pleases, provided it is not for political or ideological purposes.

But in the eyes of the objectors, as presented by former Bar President Steve Levine, dues may only be used for “germane” purposes such as regulating the profession and improving legal services.

Judges Ilana Diamond Rovner, William J. Bauer, and David Hamilton heard the oral arguments. Of the three, Judge Hamilton appeared the most skeptical of the Bar’s position.

Hamilton peppered Howell with questions such as “Why would the court want to allow mandatory groups to make non-germane expenditures?” At one point, he snidely asked Howell “Why (is) the Bar integrated?”

Both Rovner and Hamilton questioned whether the position of the Bar recognized any limits on its expenditures. “Could the Bar compel its members to buy insurance?” Rovner asked.

Howell replied that the Wisconsin Supreme Court’s limitations on the use of Bar dues would probably not allow that, but that it would not raise a constitutional problem.

Hamilton then questioned whether attorneys could be forced to support literacy campaigns or medical research. Again, Howell said it would pose no constitutional issue, although Wisconsin Supreme Court rules would likely not allow funds to be used in that way.

Repeatedly, Howell stressed the speech at issue was non-political and non-ideological, and therefore did not implicate the First Amendment.

But Hamilton repeatedly countered that freedom of association was also at issue in the case.

The issue, as argued by Levine, is whether the Seventh Circuit’s opinion in Thiel v. State Bar of Wisconsin, 94 F.3d 399 (7th Cir. 1996), has been superseded by the U.S. Supreme Court opinion in U.S. v. United Foods, Inc., 533 U.S. 405 (2001).

In Thiel, the court upheld the Bar’s use of dues for non-germane purposes.

ImageBut in United Foods, the court held that forced advertising by a mandatory agricultural group was unconstitutional.

The core holding of United Foods, according to Levine, is that speech need not be political or ideological to implicate the First Amendment.

But Judge Rovner questioned whether United Foods was on point, noting that the mandatory group at issue in that case had no purpose but advertising, while the State Bar performs other purposes.

Levine countered, “The Supreme Court said its opinion applies to all compulsory membership groups.”

The case is Kingstad v. State Bar of Wisconsin, No. 09-4080

David Ziemer can be reached at [email protected].

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