State justices seek rewrite on bylaw change for dues challenges (UPDATE)

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The State Bar will have to do some rewriting in order to get Wisconsin Supreme Court approval of a proposed bylaw change altering the path for challenges to dues spending.

State justices voted 5-2 Wednesday not to approve the bylaw change as written.

The proposed change, which the bar’s Board of Governors approved last year, seeks de novo, or judicial review, of arbitration rulings in challenges to how the bar spends dues. Bar bylaws allows members to use an arbitration process when challenging bar expenses that are not for regulating the legal profession or improving the quality of legal services.

Madison attorney Steve Levine filed a challenge with the state Supreme Court that prevented the changes from taking effect after the BOG’s approval. In his argument before the court Wednesday during a public hearing on the matter, Levine argued arbitrators’ rulings should be the final word in challenges to how the State Bar spends mandatory dues.

“If you are going to add de novo review,” Levine said, “you might as well repeal the entire arbitration process because nobody is going to use it and it will just force people into litigation. The entire purpose of arbitrations is that it is supposed to be an alternative to litigation, not an addition to litigation. De novo review runs contrary to that.”

Levine asked that the court void or modify the proposed bylaw, but the court cannot rewrite State Bar bylaws, and instead sent the matter back to the bar so it can reword the proposed change for further consideration.

State Bar attorney Roberta Howell said the bylaw is designed to conform to federal law and, as written, would only have allowed de novo review in situations where there are constitutional issues at play.

“The point of this is to make clear what people can do,” Howell said, “so that people are educated about the process.”

Justice Ann Walsh Bradley voted in the minority to endorse the bylaw as drafted and agreed with the bar’s position that de novo review is appropriate in arbitration rulings. She said the bylaw, as proposed, provided an explanation of federal law.

“What is put forth here was merely a statement of the law,” Bradley said. “I think de novo review is appropriate and I think this just states it.”

After the court’s ruling, Howell said the bar will wait to see the court’s order before proceeding.