Sept. 16, 2011 – The Wisconsin Supreme Court addressed five pending petitions at its first administrative conference of the term yesterday, including one that asks for a voluntary bar and another that addresses the burden of proof standard in Keller-related mandatory dues reduction arbitrations.

The court also addressed proposals advanced by Chief Justice Shirley Abrahamson regarding civility and public confidence issues and discussed other petitions involving continuing legal education credit for certain teaching presentations, electronic bar applications, and proposed new standards affecting court security.

Voluntary bar petition 

After discussing the merits of further analyzing petition 11-04, which would effectively authorize transition to a voluntary bar, the court voted to keep the issue alive for further consideration by the court.

Attorneys Steven Levine and James Thiel proposed the petition in June 2011 after a previous petition (petition 11-01) to abolish the mandatory status of the State Bar was rejected by a court majority on procedural grounds (i.e., it did not contain proposed rule language to effect the policy proposal).

The current petition includes specific proposed rule language to effectuate such a transition from mandatory to voluntary status and asks the court to make whatever other changes are necessary to accomplish that result.

Supreme Court Commissioner Julie Rich stated that the petition raises highly significant policy issues for the court and indicated that many consequential matters involving, for example, disposition of assets in the context of a transition to a voluntary bar, would have to be examined in detail.

Abrahamson noted that the current petition was advanced by individual State Bar members because the Board of Governors had voted to take no position on the previous petition. She indicated her support for the development of additional background materials by Rich on the issue and for conducting a public hearing on the matter.

Rich said that developing a comprehensive memorandum on the issue would take several weeks. She also noted that a public hearing would likely result in comments from individual attorneys that restate positions already documented by the State Bar through reports and member surveys.

Justice David Prosser responded that the petition raises issues “that have been discussed many times before” and that further research and public input is not required.

Justices Annette Ziegler and Michael Gableman voiced support for conducting a hearing on the matter but voiced reservations about investing additional staff time researching the issue if subsequent action by the court is unlikely.

Justice N. Patrick Crooks was skeptical about the underlying merits of the petition, but he endorsed Rich’s recommendation and moved that a detailed memorandum be prepared and that the court then hold a conference to determine if the petition should be scheduled for public hearing.

That motion was adopted on a 4-3 vote. A date has not been set for the conference, but several justices urged that the matter be brought back before them as soon as feasible.

Dues reduction arbitration 

The court also discussed petition 11-05, submitted by Steven Levine, James Thiel, and 23 other State Bar members. The petition seeks to void or replace a recent revision to State Bar Bylaw Art. I, Section 5, relating to the burden of proof standard in mandatory dues reduction arbitrations. The court voted unanimously to schedule it for open hearing. The date of the hearing is not set, but several justices requested scheduling it for the earliest available date.

Rich reported that court rules require a public hearing when 25 or more State Bar members petition for a rule change. However, Rich also raised questions regarding the authority of the court to amend State Bar bylaws. She proposed that the public hearing be set to generate input on that issue from the State Bar.

Under SCR 10.03(5)(b)1, State Bar members can challenge, through arbitration, mandatory dues assessment amounts they believe are not reasonably related to the State Bar’s dual purposes of “regulating the legal profession” or “improving the quality of legal services.”

In April 2011, the State Bar Board of Governors voted to amend Art. I, Section 5 of the State Bar’s bylaws to provide that any arbitration award is subject to de novo review. The petition asked the court to strike this amendment.

It also asked the court to amend Art. I, Section 5 to impose on the State Bar a burden to prove by a “preponderance of the evidence” that a challenged expenditure was intended for the purposes of regulating the legal profession or improving the quality of legal services.

The preponderance of the evidence burden is a departure from Kingstad et al. v. State Bar of Wisconsin, 622 F.3d 708 (7th Cir. 2010), which states that the State Bar must show a challenged expenditure is reasonably related to the legitimate interests of regulating the legal profession or improving the quality of legal services. 

Other matters discussed 

The court discussed several proposals advanced (but not necessarily endorsed) by Chief Justice Abrahamson to promote greater civility, and public trust and confidence in the court. These included proposals to open court deliberations to the public in various ways and to retain a conflict resolution specialist to assist members of the court in examining ways they can work together to restore public confidence in the institution. The latter concept gained preliminary support from several justices and will be further reviewed at the court’s administrative conference on Sept. 28. 

The court voted unanimously to consider petition 11-06, submitted by 13 State Bar members, at a future open administrative conference (without a public hearing). The petition would allow one hour of continuing legal education credit for each hour of presentation for teaching a legal specialty course in a paralegal program approved by the American Bar Association.

Currently, SCR 31 only allows teaching credit for ABA-approved law school presentations. Rich indicated that the Board of Bar Examiners has not yet reviewed or commented on the proposed change but is expected to review it this month.

The court unanimously approved petition 11-02, which had been submitted by the Board of Bar Examiners, to allow the electronic submission of bar applications.

Finally, the court voted to schedule petition 11-03, filed by the Director of State Courts on behalf of the court’s Planning and Policy Advisory Committee, for open administrative conference at a time to be determined later. The petition seeks a new chapter (SCR ch. 68) dealing with court security issues. The intent is to “promote communication among circuit courts, county officials, court planners, architects and contractors concerning court facilities issues.” The proposal, which is designed to preserve flexibility at the county level, also addresses security issues related to staffing, court operations and other items.

A recording of the session is available on WisconsinEye.

Joe Forward, the State Bar's legal writer, contributed to this report.