The same week that the Wisconsin State Bar’s Board of Governors approved a $2 increase in mandatory bar dues, two attorneys filed a lawsuit against the bar challenging the constitutionality of those same dues.
Adam Jarchow and Michael Dean allege that having to pay mandatory bar dues violates their First and 14th Amendment rights to freely associate themselves with whatever groups or individuals they choose.
The State Bar issued the following statement to the Wisconsin Law Journal on April 18:
“In response to the lawsuit filed against it, the Board of Governors of the State Bar of Wisconsin voted to defend the authority of the Wisconsin Supreme Court to regulate the profession of law in Wisconsin as an integrated Bar association, a form of association that the Court most recently affirmed in 2018. As an integrated association, the State Bar of Wisconsin serves the public and the Court by working to enhance the delivery of legal services, to ensure a well-qualified community of lawyers, to educate the public about the law, their rights and the court system, and to promote the development of the law.”
The grievances listed in the lawsuit are not new ones – and other lawyers around the country are challenging mandatory bar associations. Similar cases are pending in the 8th Circuit and in the District of Oregon.
At the heart of Jarchow and Dean’s lawsuit is the contention that Wisconsin Supreme Court rules requiring them to pay dues in effect force them pay for speech that they disagree with.
That’s the reason Steve Levine, a Madison attorney and frequent critic of the State Bar, has been pushing for a voluntary bar—and has taken the bar to court in the past.
“I wish the lawsuit all the success it can get, but litigation is totally unpredictable,” he said. “You never know what courts are going to do.”
Levine had brief success when a U.S. district court ruled in his favor in Levine v. Supreme Court of Wisconsin. From 1988 to 1992, the justices suspended mandatory bar membership until the 7th Circuit Court of Appeals reversed the decision, leading the Wisconsin high court to reinstate the mandatory bar.
Levine has been a plaintiff in at least two other cases against the State Bar and represented other lawyers in challenges. In 2011, he and another lawyer unsuccessfully attempted to petition the state Supreme Court to abolish the State Bar.
Most recently, Levine in 2017 sent the Wisconsin Supreme Court a rule-change petition that would have put stricter limits on how the bar spends mandatory bar dues and require the Bar to prepare two budgets, one for expenditures of mandatory dues and the other for voluntary dues.
“I just don’t think anybody should be forced to join any organization,” Levine said. “Lawyers have different opinions and nobody should be forced to financially support an organization whose views they disagree with.”
Meanwhile, the Milwaukee attorney Ray Dall’Osto, who is also a member of Illinois’ voluntary bar, is in favor of Wisconsin keeping a mandatory bar. In addition to his Wisconsin bar dues, he pays certain fees to the Illinois Supreme Court and its lawyer-regulation arm and separate fees to the Illinois State Bar Association.
“I think Wisconsin has a standout system,” Dall’Osto said. “I think it has a real commitment to improving legal the legal profession and mentoring. Not that this doesn’t happen in Illinois, but it happens more so in the integrated bar system.”
While Jarchow and Dean’s contentions about the State Bar are not new, they have a new U.S. Supreme Court decision to bolster their position.
Last year, the U.S. Supreme Court decided Janus v. AFSCME. Janus overturned a decades-old decision, Abood v. Detroit Board of Education, that let states require public employees to pay some fees to unions even though those workers had chosen not to join the unions.
The Madison employment law attorney Victor Forberger noted that the broad language of the decision in Janus made it inevitable that someone would cite it as a reason to challenge mandatory bars.
“Janus undoing Abood opens up this whole area,” Forberger said. “The question is going to be how broadly or narrowly will the Supreme Court apply its own precedent.”
Despite the new grounds for questioning Wisconsin’s mandatory bar, the latest challenge is nothing the long-time bar member Dall’Osto hasn’t seen before.
“It’s déjà vu all over again,” said Dall’Osto. “We’ve had several attempts to do the same thing in the past. One of those went to the Supreme Court.”
That case was Keller v. State Bar of California, in which the justices held that state bars may not use mandatory dues to pay for political activities unless the money is used to regulate the profession or improve legal services. Because of that decision, mandatory bars around the country, including Wisconsin’s, must let lawyers choose every year to take back part of their dues. The exact amount to be refunded is calculated by tallying up the bar’s spending on lobbying and other activities that fall outside the fair uses listed in the Keller case.
And Keller remains good law. So if Jarchow, Dean and their lawyers are to prevail in their lawsuit, they will have to persuade the U.S. Supreme Court to overturn Keller.
Although Levine and Dall’Osto don’t agree on whether Wisconsin’s bar should be mandatory, they do agree that the Jarchow and Dean will lose at the district-court level. In upending Abood, Janus did use broad language condemning coerced speech. But the court’s decision in Keller remains in palce.
Levine and Dall’Osto noted that this case will take time to work its way through the system. If the case has to go all the way to the U.S. Supreme Court, getting a result will take years.
“There’s always risks in litigation because you never know what a court is going to do,” Levine said. “So, it’s possible they’ll follow Janus. If they don’t want to, then they’ll find a way to distinguish Janus from Keller.”