Supreme backlog

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When attorney Steven A. Levine petitioned the Supreme Court last September to amend or repeal Wisconsin law that allows graduates from the state’s two law schools to bypass the bar exam, he hoped to have the issue addressed by this summer.

Non-resident lawyers seeking licensure in Wisconsin can take the state bar exam on July 27-28 and Levine said it would be nice to know if those individuals could instead look forward to being admitted via the “diploma privilege.”

“There is a sense of urgency for those people being forced to take the bar exam,” Levine said of having the petition reviewed by the court sooner, rather than later.

The petition, filed by Levine and others, seeks to amend Supreme Court Rule 40.03 by removing the words “in this state” wherever they are found in the rule, or simply repeal the rule entirely. The proposed changes would extend the diploma privilege to graduates of all ABA-accredited law schools or abolish it. Levine’s goal is to level the playing field for law school graduates inside and outside of Wisconsin: either all of them would be admitted to the Wisconsin Bar by diploma privilege, or none of them would.

“I’d like to see the court extend the diploma privilege to everyone for a 10-year trial period and see if it works,” Levine said.

As it stands, the Supreme Court has yet to even schedule the petition for a public hearing and it may not be put on the calendar until sometime this fall at the earliest.

In a letter to the Supreme Court, Levine questioned the delay and said in his “37 years of observing and attending rulemaking proceedings” he has never seen the court hold a petition so long without setting a hearing date.

But court officials said the delay has nothing to do with reluctance by the court to address the issue. Instead, a combination of increased volume and complexity of petitions filed, as well as more meticulous review by the justices, is the cause of the delay.

According to Supreme Court Commissioner Julie A. Rich, the court encountered a surge in rules petition filings in 2008 and that has had a long-term effect on its ability to schedule everything in a timely manner.

After receiving 15 petitions in 2007, the court was flooded with 28 the following year, a number partially inflated by a series of proposed updates to admission standards filed by the Board of Bar Examiners.

So far 12 rules petitions have been filed in 2010, the same number as all of last year. Rich said 2008 was the first year since she began handling rules petitions in 2002 that the court was unable to consider everything in one term.

“It was such a bumper crop [in 2008] that it has taken longer to reach what we would normally reach within a term,” she said.

In addition, rules petitions are increasingly substantive, noted Rich, which means that the court is dedicating more time to review certain topics.

The court has recently addressed hot issues like judicial recusal. The diploma privilege petition, filed by Levine and 70 others, deals with another controversial subject.

Once a rules petition is scheduled for review, the court holds a public hearing at which interested parties can voice their opinion, followed by an open administrative conference where the justices debate whether to adopt or dismiss the petition.

In some cases petitions can return to the court several times. On June 1, the court adopted a petition first filed in 2007 to define the practice of law after two public hearings and three administrative conferences.

Given the growing investment of time involving review of rules petitions, Justice Patience D. Roggensack is looking into ways to make the process more efficient.

During the June 1 conference, she informed the court that she recently surveyed every state and the United State Supreme Court on how each handles rules petitions.

Roggensack plans to circulate the research to the court in June and discuss any potential changes to the Wisconsin procedure for rules petitions.

“The way we are doing it has to be one of the least efficient mechanisms,” she told her fellow justices.

In Levine’s case, a federal lawsuit challenging the diploma privilege was also a factor in the delay, noted Rich.

She added that it is common for the court not to schedule a hearing date if there is pending litigation related to matters contained in a petition.

A federal lawsuit brought by a Wisconsin attorney, challenging the constitutionality of the diploma privilege, was dismissed pursuant to a settlement on March 20, after two trips to the Seventh Circuit Court of Appeals.

Levine conceded that the ongoing litigation likely contributed to the delay, but now that it has concluded, he hopes the issue will be addressed by the court this fall.

“It could have a huge impact on people and obviously, it would take a while to implement, but whatever the court does, it will affect a lot of people’s lives,” he said.

Jack Zemlicka can be reached at [email protected].

Correction: Supreme backlog
An article in the June 14 issue of the Wisconsin Law Journal incorrectly stated a federal lawsuit brought by a Wisconsin attorney, challenging the constitutionality of the diploma privilege, originated in the Seventh Circuit Court of Appeals. The lawsuit was dismissed pursuant to a settlement on March 20 after two trips to the Seventh Circuit.