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Arbitrator sides with State Bar in dues dispute (UPDATE)

By: Erika Strebel, [email protected]//February 25, 2016//

Arbitrator sides with State Bar in dues dispute (UPDATE)

By: Erika Strebel, [email protected]//February 25, 2016//

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An arbitrator has sided with the Wisconsin State Bar in a dispute over the dues owed to the organization.

In June, three lawyers formally disputed the dues they had been charged to support the bar during its 2016 fiscal year, which started July 1.

Specifically, the lawyers raised questions about the $5.25 that they were allowed to withhold in order to avoid supporting the bar’s various lobbying and political efforts. All three argued the amount should have been higher.

A federal judge over the summer chose Howard Bellman, a Madison attorney who specializes in mediation, to serve as an arbitrator and resolve the dispute.

Bellman, in a decision issued on Monday, found that the specific lobbying activities that the attorneys took exception to were in fact covered under Keller v. State Bar of California, particularly as that case’s precedents were applied by  the 7th Circuit in Kingstad v. State Bar of Wisconsin.

The plaintiff lawyers cited other U.S. Supreme Court cases, such as Harris v. Quinn and Knox v. SEIU. But the arbitrator found those did not apply, because they concerned mandatory support for labor unions, not mandatory support for an integrated bar, according to the decision.

“In neither matter were the purposes of regulating a profession or improving the quality of its services discussed,” Bellman wrote. “While First Amendment rights in matters of forced group speech is certainly an overarching and pervasive concern, those two purposes, specified in both Keller, above, and the Supreme Court Rules, seem very far afield from the facts of those cases.”

In Keller, the 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.

Some of the activities the plaintiff lawyers took exception to included the bar’s lobbying activities for legislation that would have placed limits on the number of terms Wisconsin Supreme Court justices could serve. Also questioned was lobbying for pay progression for district attorneys and for pay increases for private attorneys who take cases for the State Public Defender.

State Bar President Ralph Cagle said Thursday he thought Bellman’s decision was consistent with existing law and the specific facts of the dispute.

“The Supreme Court in Keller has set forth the process in deciding this issue. It’s a tortuous process to sort out expenses that are exempt under Keller … The bar has been doing that for a number of years. I think the whole purpose of the arbitration process was to bring some formality to this.”

“It was a well thought-out decision by the arbitrator, and I’d like to think this might bring some resolution to this issue,” he said.

Steve Levine, one of the lawyers who requested the arbitration, said Monday’s decision was hard to accept. He said it will have some attorneys footing the bill for speech they don’t agree with.

“The State Bar can basically lobby the Legislature on anything it wants,” he said.

That leeway, Levine said, raises a First Amendment question that might eventually have to be dealt with by the Wisconsin Supreme Court, which regulates the bar. Levine also noted that the U.S. Supreme Court has ruled in many cases that people have a right under the First Amendment to not engage in any speech if they so choose.

Levine said the arbitration decision will not  be binding on state courts, giving him the opportunities to take his dispute to other venues. Even so, he said he will turn to the courts, although he has a few years to contemplate such a move before the statute of limitations runs out.

“It was a reasonable decision …” he said. “I was disappointed but not surprised.”

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