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CROSETTO v. STATE BAR OF WISCONSIN

August 24, 1992

JOHN CROSETTO, et al., Plaintiffs,
v.
STATE BAR OF WISCONSIN and STEPHEN L. SMAY, Defendants.


MAHONEY


The opinion of the court was delivered by: P. MICHAEL MAHONEY

REPORT AND RECOMMENDATION

Before the court are assorted motions (twelve to be exact) in various stages of briefing. The district court has referred this case to the Magistrate Judge for a report and recommendation. For the reasons set forth herein, it is the report and recommendation of the Magistrate that Defendants' motion for summary judgment be granted and Plaintiffs' second motion for a preliminary injunction be denied. All others matters are, therefore, rendered moot.

 Plaintiffs, John Crosetto, Kenneth J. Doran, Scott N. Herrick and Douglas W. Kammer, are attorneys licensed to practice law in the State of Wisconsin. Defendant, the State Bar of Wisconsin, is an association of lawyers headquartered in Madison, Wisconsin. Defendant, Stephen L. Smay, is the Executive Director of the State Bar of Wisconsin. Plaintiffs filed suit in the United States District Court, Western District of Wisconsin on May 19, 1988 seeking declaratory and injunctive relief as well as monetary and punitive damages for alleged violations of 42 U.S.C. § 1983. Plaintiffs allegations will be set out more fully below.

 On June 15, 1989 this cause of action was ordered reassigned to a District Court Judge who was not sitting in Wisconsin and who had no membership ties to the Wisconsin State Bar Association. Hence, this case was reassigned to this court on June 22, 1989. Jurisdiction of this court is based upon 42 U.S.C. § 1983 and 28 U.S.C. § 1443(a)(3). In February of 1991, both the District Court Judge and the Magistrate informed the parties to this cause of action that the Local Rules of the Northern District of Illinois would apply in this case.

 The court notes initially that Plaintiffs have failed to file a Local Rule 12(n) response to Defendants' Local Rule 12(m) statement of facts. Under Rule 12(n), a party opposing a motion for summary judgment must "state separately and with supporting documentation his disagreement with any factual assertions in the [moving party's statement of facts] on pain of having the asserted facts deemed admitted." Maksym v. Loesch, 937 F.2d 1237, 1240 (7th Cir. 1991); Cooper v. Lane, No. 90-2013 (7th Cir. July 22, 1992). Nevertheless, in order to dispose of this case that has generated innumerable documents and has taken this court's time for over three years, the court will overlook Plaintiffs' failing and proceed to the merits of the case. In doing so, the court will try and work with Plaintiffs' somewhat jumbled statement of facts set forth in Plaintiffs' response to Defendants' motion for summary judgment as well as with Defendants' Local Rule 12(m) statement and Defendants' brief in support of their motion for summary judgment.

 In 1943, the Wisconsin legislature enacted a bill directing that there "shall be an association to be known as the 'State Bar of Wisconsin' composed of persons licensed to practice law in [Wisconsin], and membership in the association [was to] be a condition precedent to the right to practice law in Wisconsin." Ch. 315, 1943 Wis. Laws (codified as Wis. Stat. § 256.31 (1943)). The Wisconsin Supreme Court construed the statute as an advisory legislative declaration that integration of the Bar would promote the general welfare of the State. Integration of Bar Case, 244 Wis. 8, 11 N.W.2d 604 (1943). *fn1" The court acknowledged its authority and responsibility to regulate the practice of law in the State and its discretionary power as to both the time and form of integration. The court nevertheless deferred the decision to integrate.

 Three years later, in a short opinion, the Wisconsin Supreme Court again declined to integrate the Bar. The court intimated that the objectives sought to be obtained by integration could be attained by an adequately supported voluntary association. As such, the court urged the support of the voluntary association by individual members of the Bar. In re Integration of the Bar, 249 Wis. 523, 25 N.W.2d 500 (1946).

 Ten years passed. The Wisconsin Supreme Court once again reviewed its decision regarding integration in In the Matter of the Integration of the Bar, 273 Wis. 281, 77 N.W.2d 602 (1956). The court noted that "too many lawyers have refrained or refused to join [the voluntary association], that membership in the voluntary association has become static, and that a substantial minority of the lawyers in the state are not associated with the State Bar Association." Id. at 603. Accordingly, following a review of the merits of integration, the court ordered integration of the Bar on an interim basis. Id. at 604.

 After a "two-year trial period", the Wisconsin Supreme Court made the integrated State Bar "permanent". In re Integration of the Bar, 5 Wis. 2d 618, 93 N.W.2d 601 (1958). In reaching this result, the court noted that "under integration the State Bar has increased its services to the lawyers of this state, promoted the high standards of the members of the profession, and increased its contribution to public service and to the administration of law and justice." Id. at 602. In answer to the suggestion that integration of the Bar was undemocratic, the court observed:

 
It is not undemocratic to require those who are privileged to practice law and are entrusted with the duty to secure or protect the property, rights and liberties of others to become bound together in a united effort to increase their own capabilities, to maintain the high standards of the group and to increase the effectiveness of their service to the public. The integrated Bar has been defined as "the process by which every member of the Bar is given an opportunity to do his share in carrying out the public service of the Bar and obliged to bear his portion of the responsibility." Most objections have centered around the obligation to bear a portion of their responsibility. In the nature of things every privilege has a correlative obligation.

 Id. at 603.

 In 1960, the Wisconsin Supreme Court had occasion to review the constitutionality of the integrated State Bar. In Lathrop v. Donohue, 10 Wis. 2d 230, 102 N.W.2d 404 (1960), the court upheld the Bar's constitutionality explaining that "the only limitation upon the state's power to regulate the privilege of the practice of law is that the regulations adopted do not impose an unconstitutional burden or deny due process." Id. at 408. The court recognized that "the State Bar is a public and not a private agency." Id. at 411. As such, the court found that the integration rule and the by-laws of the State Bar "do not compel the plaintiff to associate with anyone[,] . . . the only compulsion to which he has been subjected by the integration of the bar is the payment of the annual dues. . . ." Id. at 408. The court explained that "the dues payable by a lawyer to an integrated bar imposed by state action are in the same category as an annual license fee imposed upon any occupation or profession which is subject to state regulation." Id. Finally, noting the benefits of the integrated Bar, including its function of "securing and publicizing the composite judgment of the members of the bar of the state on measures directly affecting the administration of justice and the practice of law," the court determined that an integrated Bar promotes the public interest in a way that "far outweighs the slight inconvenience to the plaintiff resulting from his required payment of the annual dues." Id. at 409, 411.

 The United States Supreme Court reviewed the Wisconsin Supreme Court's decision. In Lathrop v. Donohue, 367 U.S. 820, 6 L. Ed. 2d 1191, 81 S. Ct. 1826 (1961), the U.S. Supreme Court upheld the mandatory membership requirement. In so doing, the Court stated:

 
Both in purport and in practice the bulk of State Bar activities serve the function, or at least so Wisconsin might reasonably believe, of elevating the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people of the State, without any reference to the political process. It cannot be denied that this is a legitimate end of state policy. We think that the Supreme Court of Wisconsin, in order to further the State's legitimate interests in raising the quality of professional services, may constitutionally require that the costs of improving the profession in this fashion should be shared by the subjects and beneficiaries of the regulatory program, the lawyers, even though the organization created to attain the objective also engages in some legislative activity.

 Id. at 843 (plurality opinion) (footnote omitted).

 
I can only regard as entirely gratuitous a contention that there is anything less than a most substantial state interest in Wisconsin having the views of the members of its Bar "on measures directly affecting the administration of justice and the practice of law."

 Id. at 864 (Harlan, J., concurring).

 Since Lathrop, the structure, purposes and activities of the Wisconsin State Bar have undergone repeated review by the Wisconsin Supreme Court and by special committees the court appointed for the purpose of review. In July of 1976, for example, the Wisconsin Supreme Court appointed a committee, chaired by Judge Andrew Parnell (hereinafter "the Parnell Committee"), to study and report on the Bar's activities and on the question of whether to continue integration of the Bar. The Parnell Committee submitted its findings and report to the Wisconsin Supreme Court.

 The Wisconsin Supreme Court delivered its opinion on the Parnell Committee's report in In re Regulation of the Bar of Wisconsin, 81 Wis. 2d xxxv (1978). The court agreed with the Committee's reasons for recommending continuation of the integrated Bar, namely: "(1) mandatory membership and dues give the best assurance that the Bar will have the resources necessary to carry out its programs and (2) each attorney has an individual obligation to support the bar in fulfilling its collective responsibilities to society, and the unified Bar is the best means to accomplish this." Id. at xxxvi. Commenting on the Parnell Committee resolutions, the court expressed approval of the Bar's legislative activities, including "traditional lobbying." Id. The court, however, advised the State Bar to bring "major issues of legislative policy" before the membership at annual and midwinter meetings, whenever possible. Finally, recognizing the presence of "issues raised in Lathrop," the court delineated the Bar's authority in legislative activities to include "matters concerning the administration of justice and the practice of law, including matters of substantive law on which the views of lawyers have special relevance. The guiding principle . . . must always be the public interest." Id. at xxxix-xi.

 In 1979, in the case of State ex rel. Armstrong v. Board of Governors, 86 Wis. 2d 746, 273 N.W.2d 356 (1979), certain State Bar members requested a referendum on continued integration. The Wisconsin Supreme Court rejected this request and reaffirmed its exclusive authority over the matter of integration of the Bar.

 The Wisconsin Supreme Court again addressed the issue of the integrated Bar in In the Matter of the Discontinuation of the State Bar of Wisconsin as an Integrated Bar, 286 N.W.2d 601 (1980). Oral argument was held on this matter and several State Bar members appeared and argued against continued integration. Following oral argument, the court again reaffirmed its approval of the Bar's activities and rejected the petitioners' request to make the State Bar of Wisconsin voluntary.

 The court did, however, express hesitance about the State Bar's involvement with the Wisconsin Lawyers Political Action Committee (hereinafter "LAWPAC"). LAWPAC was a separately formed political action committee that permitted members of the State Bar to voluntarily contribute financially in order to express political views. Id. at 602 (noting that LAWPAC was "organized as a voluntary, non-profit, unincorporated political association . . . not supported by State Bar membership dues"). The court ordered that a second committee be formed in order to study the propriety of mandatory membership, whether the Bar's involvement with LAWPAC was permissible and the possible alternatives to the integrated bar. Id. at 603. The committee, chaired by Attorney John Kelly (hereinafter "the Kelly Committee"), submitted its report to the Wisconsin Supreme Court on October 1, 1982.

 Following a public hearing on the Kelly Committee's report, the court, for a third time, reaffirmed its commitment to the integration of the Wisconsin State Bar. Report of Committee to Review the State Bar, 334 N.W.2d 544 (1983). The Wisconsin Supreme Court explained that mandatory support of the Bar's public purposes is proper and that the unified Bar is "better suited than a voluntary bar to accomplish [these public purposes]." Id. at 546. The court stated that "it is our opinion, as it has been for more than 25 years, that a bar association in which membership is mandatory is the best means for the profession to fulfill its obligations to the public." Id. at 546-547. Accordingly, the court rejected the proposal of a voluntary bar as not a "practicable alternative." Id.

 In relation to the Bar's legislative activities, the Wisconsin Supreme Court reiterated its approval of the Parnell Committee resolutions. The court declined to require that the Board of Governors obtain a specified percentage of membership support prior to taking a position on particular legislation. The court deemed it preferable that the Board attempt to determine the composite judgment of the members of the Bar. Id. at 547-48.

 The court did, however, order that the Bar disassociate itself from LAWPAC and ordered the State Bar to institute a system of rebates for State Bar lobbying activities. In so doing, the Wisconsin Supreme Court approved the concept of a dues rebate procedure for those members dissenting from legislative positions taken by the State Bar. The court considered the rebate procedure to be "an acceptable and adequate response to any claimed infringement on the rights of those association members who oppose the association's position on specific legislation." Id. at 548. The court did recognize that the Bar's involvement in the legislative arena raised the specter of potential infringement of an individual attorney's constitutional rights. The court, however, did not find that any infringement had, in fact, occurred. The rebate procedure was simply viewed as a preventive measure. Id. at 548.

 The Wisconsin Supreme Court did not specify how the rebate procedure was to be implemented. Instead, the court ordered public hearings to be held on the matter, the first of which was held on September 17, 1984. In the Matter of the Amendment of State Bar Rules: SCR 10.03(5), slip op. (Wis. Sup. Ct. Jan. 21, 1986). On February 28, 1985, the court ordered the Bar to consider four alternative rebate plans. An additional hearing was then held on May 23, 1985. Id. Ultimately, the court adopted a "dues reduction" plan that permitted objectors to deduct their pro rata share of Bar dues expended for legislative activities at the outset of each fiscal year. Id. Such a plan was ...


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