The latest development in a long-festering dispute over mandatory dues finds the Wisconsin State Bar once again preparing to go to the arbitration table to fight off a challenge of its ability to collect money for purposes that members might object to.
In June, three lawyers asked arbitrators to intervene in a dispute concerning the dues they have been charged to support the bar during its 2016 fiscal year, which started July 1. Specifically, the lawyers are raising objections to the $5.25 that they are allowed to withhold in order to avoid supporting the bar’s various lobbying and political endeavors.
All three argue that the amount should be higher. At least one, Steve Levine, a former member of the bar’s board of directors and a frequent critic of the organization, is suggesting that it should be more in the neighborhood of $20.
Although that amount would still be less than 10 percent of the $254 in total dues that are being charged for the 2016 fiscal year, the bar is refusing to go along.
At the heart of the dispute is what are commonly referred to as Keller dues. In the case of Keller vs. State Bar of California, the U.S. Supreme Court held that state bars may not use mandatory dues to pay for political purposes unless the money is put, in some way, toward regulating the profession or improving legal services.
Every time Wisconsin lawyers learn what they owe the bar for the coming fiscal year, they are given the choice of not paying the part of their dues that is designated for supporting political candidates or pushing for various pieces of legislation. This system, simple enough on its face, is complicated only by the fact that it is the bar itself which decides what the Keller portion of the dues should be.
The current request for arbitration is just the latest skirmish in a decades-long fight between various legal professionals and the State Bar. Disputes of this sort have been going on since at least 1943, when membership in the bar was made mandatory for lawyers.
In the early years, lawyers’ goal was often simply to prevent the use of dues for political purposes. The Keller decision, handed down in 1990, was in part meant to eliminate that cause of grievance.
With Keller, lawyers were supposed to have gained an easy means of ensuring that their dues go only to endeavors related directly to the legal profession. Those who didn’t want to pay for lobbying or similar activities could simply elect to withhold a portion of their dues.
Instead of an end to litigation, though, the result has been a new crop of disputes over the boundary lines drawn by the Keller decision.
The latest request for arbitration more or less fits into that mold. In June, the State Bar received objection letters from Levine, whose main office is in Madison; Jon Kingstad, a lawyer with his main office in Oakdale, Minn.; and John Sobotik, a lawyer at the Wisconsin Department of Transportation.
All three complained of the bar’s previous use of dues money for lobbying purposes. Among the examples cited was spending related to the state’s current budget, to a proposed overhaul of the rules governing criminal procedures and to a constitutional amendment that would increase the length of state Supreme Court justice terms to 16 years.
Seeing arbitration as likely inevitable, the bar’s Board of Directors agreed at a meeting on June 24 to take $75,000 in surplus money and transfer it to the organization’s legal services budget. Long experience had taught board members that fighting these sorts of challenges is not cheap.
At the Board of Governor’s meeting, State Bar Executive Director George Brown said that arbitration almost always leads to an appeal in court. The last time a case did not follow that route was in 1995, and the bar still spent $80,000 defending itself.
Taking the fight before a judge is even more expensive.
Before the current dispute, the previous request for arbitration in 2008 eventually turned into the case of Kingstad vs. State Bar of Wisconsin, which was finally decided in 2010 in the federal Seventh Circuit Court of Appeals. In the end, the State Bar spent more than $100,000, according to Brown.
Cost of fighting
$5.25 Amount lawyers can choose to withhold from their dues. The figure was calculated by taking what the bar spent on lobbying and other political activities in 2014 and dividing that number by an adjusted tally of the bar’s total membership
$254 Dues the State Bar is charging for its 2016 fiscal year, which started July 1
25,149 Number of lawyers who were members of the State Bar on July 1
One likely reason the bar is willing to shell out so much to fight dues challenges is the possibility that defeat will prove even more costly. In the current dispute, Levine and his fellow objectors are arguing that all expenses related to lobbying and government relations, including the salaries of some bar employees, should be included in the Keller portion of bar dues.
According to State Bar officials, that would push the amount covered to between $18 and $22. At the upper end, that would amount to a quadrupling of what the bar is now offering. Still, the higher dues, taken by themselves, are not necessarily the main cause for concern.
More troubling, according to Brown, is that the larger the Keller amount, the greater the incentive members would have to not pay that part of their dues. The real threat to the bar would be that lawyers, suddenly finding they have much more to gain, would begin withholding their Keller dues in greater numbers.
As things stand today, the $5.25 Keller amount set for 2016 was arrived at using a fairly simple formula. First, bar officials took into account the $104,946 that was spent in its 2014 fiscal year on purposes other than those permitted by the Keller decision. Next, they divided the total by 20,661 — a figure used as a proxy for the number of members who pay full dues. (The tally is adjusted to account for the fact that emeritus members and others pay slightly lower amounts).
Echoes of yesterday
As in many recent disputes, the arguments raised in the latest one concern the boundaries that the Keller ruling has set on spending. Levine’s points, in particular, bear a resemblance to many of the questions that he had posed years before, in the case of Thiel vs. State Bar of Wisconsin.
That case, decided in 1996, saw two Wisconsin lawyers, James Thiel and Barbara James, contend that mandatory fees were going toward purposes not permitted by Keller. The pair, who were represented by Levine, objected to the bar’s relying on mandatory dues to cover a variety of expenses, including awards given to journalists who write about the law and a program called Lawyers Concerned for Lawyers, which assists lawyers dealing with alcohol problems.
The 7th Circuit, agreeing with the U.S. district court, found that the expenditures were in fact related to improving the quality of legal services throughout the state. In other words, they were permitted by Keller.
This time, though, Levine, Kingstad and Sobotik are raising questions specifically about lobbying expenses. The spending they are objecting to — including that on the state budget — could easily be construed to be more related to politics and less to regulating the legal profession or improving legal services in the state.
The bar, for its part, maintains that its 2016 Keller amount was set by the book.
“The Kingstad decision (of 2008) established the parameters and the bar has complied with those parameters,” said Bobbi Howell, a lawyer who represents the State Bar. “I don’t think the law has changed with that regard.”
A hotbed of controversy
The American Bar Association lists 32 states as having a mandatory bar. Of those, not a single one has ever permanently moved to allow voluntary membership.
Wisconsin was the temporary exception from 1988 and 1992; Levine was once again involved.
The state Supreme Court suspended its enforcement of mandatory membership when a U.S. district court ruled in his favor in Levine vs. Supreme Court of Wisconsin, a case that examined whether the State Bar’s rules violated First Amendment rights. Levine’s victory was short lived, though. The 7th Circuit Court of Appeals eventually reversed the decision, paving the way for the state Supreme Court to reinstate the mandatory bar.
Levine has been a plaintiff in at least two other cases against the State Bar or its officials, and, as happened in the Thiel case, has also represented other lawyers in challenges. In 2011, he and Thiel unsuccessfully attempted to petition the state Supreme Court to have the institution abolished.
The long history of litigation between the State Bar and Wisconsin attorneys is well-known enough to be noted from time to time in the court record. For example, in Thiel, the 7th Circuit’s decision made reference to the ”seemingly never-ending battle between Wisconsin attorneys and the Wisconsin State Bar.”
And yet, Wisconsin’s mandatory bar appears to be held in high regard by other states.
“There have been other states where the issue has come up,” Howell said, “and interestingly in those cases, the Wisconsin Bar is held up as sort of an example of the way things should be done in those states. So it’s a little bit ironic that there’s such an active objectors group.” Follow @erikastrebel