Oct. 21, 2009 – Reminding the federal district court of the need to develop an evidentiary record in the constitutional challenge to Wisconsin’s “diploma privilege,” the state attorney general criticized the plaintiffs’ motion for partial summary judgment and permanent injunctive relief as premature.
Last month, a class comprising graduates of ABA-accredited law schools outside Wisconsin who must take a bar exam to receive a Wisconsin law license asked the U.S. District Court for the Western District of Wisconsin to enjoin administration of the Multistate Bar Exam (MBE) and examination questions testing federal law, the Uniform Commercial Code, or common law principles.
The plaintiffs’ motion is part of their larger challenge to the diploma privilege in Wiesmueller v. Kosobucki, 07-C-0211. The diploma privilege is codified in SCR 40.03, which sets out a law school curriculum purportedly inclusive of Wisconsin-specific law as well as general legal principles. The state contends that successful completion of this curriculum satisfactorily demonstrates competency to practice law in Wisconsin without a bar examination. But the plaintiffs allege that this exemption discriminates against out-of-state law school graduates in violation of the U.S. Constitution’s commerce clause.
After the federal district court dismissed the plaintiffs’ challenge, the Seventh Circuit Court of Appeals remanded the case this summer for further development of the evidentiary record.
Not identical educations
The attorney general criticized the plaintiffs for misunderstanding the rationale of the diploma privilege.
“Plaintiffs’ contention that Wisconsin violates the Constitution by testing general legal principles on its bar exam is based on the erroneous presumption that only instruction in Wisconsin law justifies the diploma privilege,” the attorney general wrote. “From this premise, plaintiffs ask the Court to reach the erroneous conclusion that the bar exam can only test Wisconsin law.”
“The premise and the conclusion are wrong,” the attorney general argued. “The diploma privilege is only extended to graduates who have completed a curriculum mandated by the Wisconsin Supreme Court, which includes instruction in particular legal subject areas, as well as in Wisconsin law, and whose completion of that curriculum has been certified by the deans of the University of Wisconsin or Marquette University law schools.”
Accordingly, the attorney general said, the plaintiffs make a second erroneous assumption that all graduates of ABA-accredited law schools have received an identical education. No out-of-state law school is directed by the Wisconsin Supreme Court to certify that all of its graduates have successfully completed the curriculum set forth in the supreme court’s rules. The attorney general informed the court of its intention to elaborate further on the curricular differences in the course of developing its evidentiary record.
State’s broad authority to regulate
The attorney general noted that in its remand order, the Seventh Circuit Court of Appeals remarked that the state prevails if the diploma privilege is found to be “at least minimally reasonable.” This is because the state’s power to regulate admission to the practice of law is subject only to “narrow” constitutional limitation, the attorney general asserted.
“‘Minimally reasonable’ is a low hurdle,” the attorney general said. “The Justices’ greater familiarity with graduates of Wisconsin law schools, their greater familiarity with the deans and faculty at these schools, their practical ability to ensure compliance with SCR 40.03’s curriculum requirements at those schools, and their greater involvement in educational activities at those schools are alone sufficient to surmount it.”
“The Wisconsin Supreme Court is entitled to take the view that, unless new law school graduates from out-of-state schools pass a bar exam that tests both general and Wisconsin-specific legal principles, it cannot be sure that they are minimally competent to represent clients in Wisconsin,” the attorney general said, citing Sestric v. Clark, 765 F.2d 655 (7th Cir. 1985)
In their reply brief, the plaintiffs contend the Seventh Circuit decision precludes this argument from the attorney general. The plaintiffs quote the Court of Appeals decision in which it considered whether the diploma privilege is justified because the Wisconsin Supreme Court trusts only the local law schools to prepare its students for the practice of law in Wisconsin.
Specifically, the plaintiffs refer to the Court of Appeals’ comment on this proffered rationale for the diploma privilege: “But that cannot make any sense if indeed the curriculum of these schools is no more weighted to Wisconsin law than that of countless schools in other states, including the ones the plaintiffs and the members of their class attended.”
“The Court of Appeals clearly has stated that the only evidentiary issue is whether Wisconsin law schools teach Wisconsin law more or better than law schools outside of Wisconsin,” the plaintiffs wrote.
“What makes this issue ripe for summary judgment is simple: Knowledge of Wisconsin law is the only possible minimally reasonable basis for distinction between in-state and out-of-state ABA law school graduates,” the plaintiffs argued. “Therefore, there is no minimal rational basis for testing non-Wisconsin specific law on the Wisconsin bar exam, because in-state law school graduates do not have to take a bar exam on non-Wisconsin law.”
Premature motion
Noting that the Seventh Circuit’s remand order called for development of a complete factual record for the proper resolution of the case, the attorney general said that it plans to present testimony and documentary evidence to show that Wisconsin’s bar admission system is minimally reasonable under the interstate commerce clause.
But that record is not ready yet, the attorney general said.
The attorney general chastised the plaintiffs for attempting to rush a decision on this issue “ignoring the factual disputes involving whether the diploma privilege is justified by legitimate state interests.”
“Plaintiffs’ current motion for summary judgment, which was filed five months before the dispositive motion deadline and before any significant discovery has been conducted, should, at a minimum be denied without prejudice to its later submission after the parties are able to develop the evidentiary record as instructed by the Court of Appeals,” the attorney general wrote.
The attorney general reported that the scheduling order in this case provides for a dispositive motion deadline of April 2, 2010, and that the state has until March 19, 2010, to disclose its expert witnesses.
In their reply brief, the plaintiffs discount the attorney general’s request for time as unnecessary given that “the only remaining factual dispute and possible basis for making a showing of minimal reasonableness is whether Wisconsin law schools teach Wisconsin law.”
No basis for injunctive relief
The attorney general noted that the plaintiffs failed to address the four-part test for permanent injunctive relief. Specifically, a petitioner must show irreparable injury, that remedies available at law are inadequate to compensate for that injury, that a remedy in equity is warranted after balancing the hardship on the moving and nonmoving party, and that the public interest is not disserved.
Arguing that the plaintiffs cannot show irreparable injury, the attorney general noted that the plaintiffs “would have to take a multistate component of a bar examination or some similar examination testing general legal principles” wherever they go to practice in the United States.
Without showing irreparable harm, the attorney general argued the plaintiffs cannot show that legal remedies are inadequate. “Admission by passing the bar exam remains available to them in Wisconsin, just as in every other state,” the attorney general wrote.
Likewise, the attorney general discounted the hardships asserted by the plaintiffs in the third and fourth factors of the test. “Plaintiffs’ only alleged ‘hardship’ lies in having to take a bar examination that tests general legal principles, just like new graduates who wish to practice in any other state,” the attorney general wrote.
“Rather than viewing the bar exam as a hardship, the law has recognized it as the most commonly accepted means of evaluating recent law school graduates’ competence,” the attorney general added, citing Scariano v. Justices of the Supreme Court of Indiana, 38 F. 3d 920 (7th Cir. 1994).
Weighing against this, the attorney general said the injunction would impose “unmanageable burdens on the Wisconsin Supreme Court, the Board of Bar Examiners, and, potentially, this Court” in the effort to scrub test questions of non-Wisconsin law.
“Plaintiffs’ contemplated injunctive relief would somehow allow testing such concepts as Wisconsin comparative negligence law, as long as the question did not examine common law tort principles; would allow testing Wisconsin’s statute of limitations, as long as common law principles of contract or torts are not considered; allow testing governmental immunity, as long as the question avoids any federal law issue; and allow inquiry into Wisconsin criminal law and procedure, as long as the question implicates no issue of federal constitutional law,” the attorney general wrote.
In their reply brief, the plaintiffs argue that they can satisfy the test for injunctive relief.
“The irreparable injury is unreasonably having to spend time studying, taking a bar exam, and waiting for bar exam results, none of which are required of the class’ in-state counterparts,” the plaintiffs wrote. “Monetary damages are not available in this context due to qualified immunity (the Plaintiffs do not assume that the Defendants knew or should have known that they were violating the constitution based on prior legal precedent).
“The Plaintiffs have a tremendous hardship, the Defendants have none,” the plaintiffs continued. “The public interest is best served by a permanent injunction, lest the Defendants feel free to violate the Constitution once more in this manner.”
Alex De Grand is the legal writer for the State Bar of Wisconsin.
