Starlyn Tourtillott, Native American Liaison to the Board of Governors, raises a point for discussion during the State Bar Board of Governors meeting on Feb. 9, 2018. Tourtillott urged support for an amendment to a pending petition that would exempt nonresident lawyers providing representation in Wisconsin Indian Child Welfare Act cases from the pro hac vice fee.

Feb. 9, 2018 – The State Bar of Wisconsin’s Board of Governors (board) today adopted a new policy on the pro rata amount members can withhold from annual State Bar dues tied to direct lobbying activities, known as the “Keller dues rebate amount.”

Members will now have the option to withhold, from annual State Bar dues, a pro rata portion of all expenditures incurred for direct State Bar lobbying activity.

Under Keller v. State Bar of California, 496 U.S. 1 (1990), and subsequent rulings, mandatory bar associations can use compulsory dues to fund activities “necessarily or reasonably related to the purposes of regulating the legal profession or improving the quality of legal services.” Keller is codified in Wisconsin SCR 10.03(5)(b)1.

Under Keller, the State Bar is permitted to fund lobbying and other activities related to these purposes with mandatory dues. But lobbying and other activities not germane to those purposes cannot be funded with the compulsory dues of objecting members.

Thus, the State Bar annually calculates the Keller dues rebate amount – the amount used for activities that cannot be funded with mandatory dues – and objecting members can choose to withhold the rebate amount on their annual dues statements.

Judge Randy Koschnick, Director of State Courts, spoke to the board about the Circuit Court Access Program (CCAP) and other state court administrative topics. Koschnick noted an action plan relating to CCAP, under which misdemeanor and felony criminal cases will be removed from CCAP display after two years if the case resulted in dismissal or acquittal.

Today, however, the board unanimously adopted a policy to include all direct lobbying activity within the Keller rebate calculation, even lobbying activity deemed germane to regulating the legal profession and improving the quality of legal services.

In the past, members have challenged the State Bar’s use of mandatory dues for any direct lobbying activity on First Amendment and other grounds. Those challenges have consistently failed because of Keller and subsequent rulings.

The board’s unanimous decision to include all direct lobbying activity in the rebate amount, as a State Bar policy moving forward, recognizes the concerns of members who object to the use of mandatory dues for any direct lobbying activity, regardless of what Keller permits.

Specifically, the annual calculation of expenditures deemed non-chargeable to mandatory dues will include expenditures that relate 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 chargeable under a Wisconsin Keller dues analysis.”

The board also approved a Keller dues rebate amount of $9.95 for fiscal year 2019 (July 1, 2018 to June 30, 2019), which is $2.20 more than the rebate amount for FY 2018. This amount includes all expenditures that constitute direct lobbying on policy matters.

Board Chair Deanne Koll conducts her third meeting of the fiscal year.

Board Supports Pro Hac Vice Fee Exemption for Indian Child Welfare Cases

At the request of the State Bar’s Indian Law Section, the board unanimously voted to support an amendment to a pending petition that would increase Wisconsin’s pro hac vice fee by $50 to support the work of Wisconsin’s Access to Justice Commission.

The board previously voted to support petition 17-09, submitted to the Wisconsin Supreme Court, which proposes a $50 increase to the current $250 fee imposed on out-of-state lawyers who petition to temporarily practice law in Wisconsin state courts.

But the Menominee Indian Tribe of Wisconsin subsequently requested an amendment that would exempt nonresident lawyers appearing in Wisconsin Indian Child Welfare Act (WICWA) proceedings from the pro hac vice fee and from a requirement that nonresident counsel associate with an active member of the State Bar of Wisconsin.

The Menominee Indian Tribe of Wisconsin, in a letter to the court, noted that nonresident military counsel are exempt from the pro hac vice fee and counsel association requirements and requested similar treatment for WICWA counsel.

The Tribe said the exemption would address a “particularly ominous burden” that can negatively impact lawyers attempting to protect the best interests of Indian children, and other states with Indian tribes, including Michigan, have enacted similar exemptions.

District 9 Governor Anthony Gray of Middleton, smiles during a light moment in the meeting.

Starlyn Tourtillott, counsel for the Menominee Indian Tribe of Wisconsin and the Native American liaison on the State Bar board, appeared before the board to strongly urge the board's support for the proposed exemption.

She said the exemption would impact a small amount of cases but will make a significant difference on tribal communities and tribal lawyers with few resources for litigation costs.

The Indian Law Section requested the board’s support for the exemption, which the Wisconsin Access to Justice Commission also supports.

Board Discusses Proposed FY 2019 Budget

The board discussed (but took no action) on a proposed budget for fiscal year 2019 (July 1, 2018 to June 30, 2019). The State Bar’s proposed budget of $11.5 million, a $165,000 reduction from this year’s budget, would be funded with $5.2 million in membership dues. Projected sales and registrations of $4.6 million and other revenue streams, such as advertising, fund the remainder of the State Bar’s proposed budget.

The State Bar projects the loss of approximately 200 full-dues paying members, about $51,000 in dues, based on shifts in the composition of the membership. But reduced personnel and related overhead expenses, as well as other cost savings and the use of specified reserve funds allowed the State Bar to present a balanced budget with no dues increase. The board will likely vote on the proposed budget in April.

Other Business

• The board adopted amendments to its “access to records” policy, which will allow requesting members to receive information regarding the State Bar employee salary bands, as well as job titles within those bands.

• Racine attorney Gretchen Rosenke will serve the balance of Dist. 15 Gov. Kelly Mould’s term on the board. Mould, whose term expires June 30, 2019, resigned.

• The board approved the Taxation Law Section’s request to amend the section’s bylaws.

Upon request, interested members may obtain a copy of the minutes of each meeting of the Board of Governors. For more information, contact State Bar Executive Coordinator Jan Marks by email or by phone at (608) 250-6106.