Nov. 5, 2009 – In an Oct. 30 order denying a motion for partial summary judgment, U.S. District Judge Barbara Crabb raised the prospect of decertifying the class of plaintiffs challenging the constitutionality of Wisconsin’s “diploma privilege” in Wiesmueller v. Kosobucki, 07-CV-211.

The district court refused to enjoin the Wisconsin Board of Bar Examiners from administering the Multistate Bar Exam (MBE) and examination questions testing federal law, the Uniform Commercial Code, or common law principles. The court criticized the plaintiffs’ motion for raising an issue not included in its complaint and for failing to await development of the evidentiary record.

Further, the court criticized the performance of plaintiffs’ class counsel, Chris Wiesmueller, and set a hearing for Dec. 3 at which plaintiffs are to show cause why their class should not be decertified.

Series of suits

Wiesmueller is the counsel for a class of graduates from out-of-state law schools who allege that the Constitution’s commerce clause forbids graduates of Wisconsin’s law schools from gaining a license to practice under SCR 40.03 without taking the bar exam required of them.

In 2007, Wiesmueller had sued as an individual to challenge the diploma privilege, but the district court dismissed the action for failure to state a claim and the court deemed moot a motion for class certification because Wiesmueller passed the bar exam. In 2008, the Seventh Circuit Court of Appeals reversed and remanded the case to allow the district court to rule on the motion for class certification.

Upon remand, the challenge featured new named plaintiffs, Heather Devan and Corinne Wiesmueller. The district court certified a class for the plaintiffs, but then entered judgment in favor of the defendants. The Court of Appeals again reversed the district court, holding that the plaintiffs had stated a claim upon which relief may be granted and that the evidentiary record should be further developed on remand.

Summary judgment denied

Within weeks of the remand order, the plaintiffs asked the district court to find that if knowledge of Wisconsin law is the basis for the diploma privilege, there is no reason to test out-of-state law school graduates with the MBE or essay questions drawing on law not specific to Wisconsin.

In its order, the district court faulted the plaintiffs for raising an entirely new claim, depriving the defendants of notice. “Plaintiffs’ sole challenge in their complaint is to SCR 40.03, which establishes the diploma privilege; plaintiffs did not include a claim challenging SCR 40.04, which outlines the requirements for the bar examination,” the court wrote.

“Plaintiffs argue that they do not need to amend their complaint because their new claim is related to the old one, but this argument cannot prevail in light of this circuit’s stringent notice requirements,” the court wrote, noting that a plaintiff could not assert a claim for discrimination on the basis of AIDS when the complaint alleged discrimination on the basis of being HIV positive in EEOC v. Lee’s Log Cabin Inc., 546 F. 3d 438 (7^th Cir. 2008).

But in addition to that defect, the court criticized the motion as premature when the court of appeals directed both sides to develop the evidentiary record.

Dismissing the plaintiffs’ argument that no factual development is necessary because the court of appeals had already decided the relevant underlying issues, the district court wrote, “[T]he court of appeals could not have resolved the issues raised by plaintiffs’ motion because plaintiffs did not raise those issues before the court of appeals.”

The court of appeals’ decision to remand did “not conclude that the plaintiff will prevail, only that the plaintiff may go forward with his claims,” the district court added.

Reconsider the class certification

In light of this motion, the court questioned whether Wiesmueller can adequately represent the class.

“Unfortunately, counsel’s inexperience is apparent in his motion for partial summary judgment,” Crabb said. “That motion shows counsel’s zeal to obtain relief for his clients, but it also suggests a lack of understanding of the law, procedure and appropriate litigation strategy.”

The court criticized Wiesmueller for submitting his own affidavit in which he described his experiences in taking the bar examination. “As defendants point out in their motion to strike, it is well established that ‘counsel is barred from acting as both an advocate and a witness in a single proceeding except under special circumstances,’” the court wrote.

Further, the court remarked that Wiesmueller did “not cite a single case or piece of evidence” in development of the motion’s argument. In particular, the court observed that Wiesmueller did not address the factors that permit injunctive relief. A failure to meaningfully develop an argument could result in a waiver of the claim, the court warned.

“A constitutional challenge to a longstanding state rule is not a matter to be taken lightly,” the court wrote. “The issues raised by this case are important ones that could have significant implications for any law school graduate who wishes to practice law in Wisconsin … Although lawyers should be thoughtful and diligent in any case, counsel’s obligations are significantly heightened in a class action because he represents not just the named plaintiffs but all members of the class, who will lose their ability to assert their rights if counsel is not successful.”

Citing the court’s duty to protect the class, Crabb wrote, “I believe it is necessary to intervene now before it is too late. Counsel has demonstrated promise as a young lawyer through his creativity and tenacity, but he may be in over his head.”

The court set a hearing date before which, Crabb said, “I strongly encourage counsel to associate himself with another practitioner or practitioners who have the necessary experience and resources to adequately represent the class.”

Reached for comment, Wiesmueller said, "Even assuming that I was deficient in filing the motion, I do not believe that decertifying the class is appropriate.  The rules of civil procedure were changed in that regard recently, and I do not believe that cause for removal of class counsel would necessarily mean the class should be decertified, it would simply mean that someone new needs to be appointed."

·         Related: Attorney general responds to partial summary judgment motion filed in ‘diploma privilege’ suit

·         Related: Petition filed with Wisconsin Supreme Court aims to extend ‘diploma privilege’ to out-of-state law school grads (Sept. 29, 2009)

·         Related: Plaintiffs’ brief filed in challenge to Wisconsin’s ‘diploma privilege’ (Sept.16, 2009)

·         Related: Challenge to 'diploma privilege' reinstated by U.S. Court of Appeals (July 9, 2009)

·         Related: Constitutionality of ‘diploma privilege’ scrutinized in legal challenge (May 28, 2009)