Dec. 12, 2019 – The U.S. District Court for the Western District of Wisconsin has dismissed a lawsuit against the State Bar of Wisconsin. Two State Bar members filed the lawsuit, challenging rules that require all attorneys to be members of the State Bar.

Wisconsin Supreme Court (SCR) Rule 10.01 and 10.03 require all attorneys admitted to practice in Wisconsin to be members of the State Bar and pay State Bar dues and Supreme Court assessments in accordance with their particular class of membership.

Two attorneys, Adam Jarchow and Michael Dean – represented by the Wisconsin Institute for Law & Liberty – filed a lawsuit earlier this year, arguing that compelled membership and compelled dues violates their free speech and association rights because they do not agree with State Bar activities or lobbying efforts.

However, in Keller v. State Bar of California, 469 U.S. 1 (1990), the U.S. Supreme Court upheld mandatory dues so long as members are not compelled to fund activities not germane to regulation of the legal profession or improving the quality of legal services.

The State Bar maintains an annual Keller dues reduction process that allows members to withhold from their dues the amount used to fund activities that are not germane to the purposes identified in Keller.

More specifically, expenditures deemed nonchargeable to mandatory dues – the Keller rebate amount – includes 1) expenditures relating to activities that are not germane to regulating the legal profession or improving the quality of legal services and, in addition; 2) expenditures relating to activities that constitute direct lobbying on policy matters before the Wisconsin Legislature and U.S. Congress regardless of whether they would otherwise qualify as germane and, therefore, chargeable under Keller.

In other words, the State Bar’s annual Keller rebate calculation goes above and beyond what Keller may otherwise permit as chargeable to mandatory dues in an effort to ensure that members are not compelled to fund lobbying activity they oppose.

U.S. District Judge Barbara Crabb, in dismissing the case against the State Bar, noted plaintiff’s argument that the recent U.S. Supreme Court decision in Janus v. Am. Fed'n of State, Cty., & Mun. Employees, Council 31, 138 S. Ct. 2448, (2018) may have eroded the foundation of Keller but “Keller still binds this court.” Thus, Judge Crabb dismissed the case. The plaintiffs will have 30 days to appeal.

State Bar President Jill Kastner, State Bar Executive Director Larry J. Martin, and the individual justices of the Wisconsin Supreme Court, are facing a similar lawsuit in the U.S. District Court for the Eastern District of Wisconsin, which is still pending.

Attorney Schuyler File of Pewaukee – represented by the Chicago-based Liberty Justice Center and local counsel – is the sole plaintiff in the civil action.

File also contends that the State Bar’s mandatory status is a violation of his First Amendment right of association.

The State Bar maintains an integrated bar litigation page with links to pleadings and motions in both lawsuits, including the one that has now been dismissed.