The Wisconsin Supreme Court unanimously struck down a State Bar bylaw Friday that would have allowed the Board of Governors to remove one of its own, with one justice saying the rule as written was “insane.”
The court also struck down a bar proposal to restructure how much new and senior attorneys would have to pay in dues.
The removal bylaw – passed by the BOG in a 38-2 vote in June – was the subject of heavy scrutiny by the justices during a public hearing in January. At that time, justices expressed serious concern that the new bylaw stated a BOG member could be removed if he or she “engages in conduct which is contrary to the best interest of the State Bar.”
Bar leadership later compared the justice’s questioning that day to “a wildcat pouncing on a porcupine.”
The court’s concern carried over to its rules conference Friday afternoon. The justices adopted a petition filed by BOG member Steve Levine and 26 other attorneys asking for the justices to overturn the BOG’s decision.
They also effectively denied a petition from the bar to amend the Supreme Court rules to work in accordance with the bar’s new bylaw.
Several justices said the free-speech concerns that were implicit with the bylaw outweighed any intention it may have.
“For me,” Justice Annette Ziegler said, “the First Amendment concerns are significant here.”
Justice Michael Gableman noted the high turnover on the BOG and that the rule “may pave the way for mischief,” explaining that the board could use the rule to remove a member who doesn’t agree with the majority.
Justice David Prosser went even further, saying it would be “insane” to uphold the bylaw.
“Wake up,” Prosser said. “We weren’t going to approve that.”
Justices Ann Walsh Bradley and Prosser said they were not opposed to giving the BOG the ability to remove a governor, provided it’s for the right reasons. And Chief Justice Shirley Abrahamson said other parts of the bylaw, which state that a BOG member may be removed “if the officer is unable or unwilling to fulfill his or her duties,” seemed to make sense.
Levine said after the hearing that he was happy because “they did what I wanted.”
The bar had insisted that stifling dissenters was not the intent of bylaw. Bar President Patrick Fielder has said it was meant to give the board the ability to remove somebody when something serious arises – such as a governor committing a crime. He has also said that the mechanisms the bylaw put in place – which include a call for a vote and the approval of 39 of the 52 governors currently in office – would provide a safeguard from the power being abused.
Fiedler, who was not at the rules conference, said Friday that he, on behalf of the bar and the BOG, is disappointed by the court’s decision, “but obviously it’s the Supreme Court’s call to make.”
The controversy surrounding the bylaw further flared after the bar confirmed it spent $27,688 to hire Bobbi Howell of Foley & Lardner LLP to represent the bar for its rules petition and to challenge Levine’s. The decision to hire Howell was made by Fiedler at the request of bar Executive Director George Brown.
Fiedler said the issue will be discussed at the BOG’s next meeting, which is April 25-26 in La Crosse.
The court was not unanimous in its 4-3 vote to strike down another bar proposal Friday.
The bar sought to change how much new and senior attorneys would have to pay in dues and assessments. If passed, the proposed changes would have resulted in $94,640 a year in lost income for the bar.
The proposal, which was the result of several years of work on the bar’s part, would have effectively moved full emeritus status – at which point members no longer pay dues – from age 70 to 75. It would have required attorneys between the ages of 70 and 75 who bill for more than 800 hours a year to pay full dues and assessments. Attorneys who billed for fewer than 800 hours a year would have been required to pay half of normal dues and court assessments, as well as $20 into the client protection fund and $50 into the Wisconsin Trust Account Foundation Inc.
The proposal also would have allowed attorneys who have been members of the bar for five years or less to pay half dues. Currently, that break is extended to members who have three years or less in experience.
Abrahamson joined the justices in shooting down the proposal; the court then directed the bar to come back with another proposal.
Fiedler has said the petition was meant, at least in part, as a sign of goodwill to acknowledge that it is tough economically for a new attorney. Abrahamson said Friday that she understands that concern, but that there may be a better way to address those who may struggle to pay their dues.
Ziegler noted that it’s possible the money the bar will save with the proposal being shot down could be used to pay for the Access to Justice Commission – which is searching for a way to sustain itself past the next fiscal year.
Fiedler said Friday that he hadn’t yet seen the court’s denial, but that the bar will “decide what action, if any, we’ll take on that.”
Bar members who pay full dues and assessments pay $460 a year, and half dues are $265. Those numbers may change by July 1, though, as the BOG will vote at its meeting later this month on whether to increase full dues by $30.Follow @eheisigWLJ