Lathrop v. Donohue

• Decision Date: 05 April 1960
• Citation: 10 Wis.2d 230,102 N.W.2d 404
• Parties: Trayton L. LATHROP, Appellant, v. Joseph D. DONOHUE, Respondent.
• Court: Wisconsin Supreme Court

Page 404

102 N.W.2d 404

10 Wis.2d 230

Trayton L. LATHROP, Appellant, v. Joseph D. DONOHUE, Respondent.

Supreme Court of Wisconsin.

April 5, 1960.

Trayton L. Lathrop, Madison, Leon E. Isaksen, Madison, of counsel, for appellant.

Joseph D. Donohue, Fond du Lac, Gordon Sinykin, Madison, of counsel, for respondent.

CURRIE, Justice.

This court has determined to consider the constitutional issue raised on its merits and not to dispose of the appeal upon procedural grounds.

While we are of the opinion that the learned trial court properly determined that the circuit court was without jurisdiction to pass upon the validity of an order of this court which regulates the practice of law, we will treat the action as though it had been originally and properly brought in this court. The reason for so doing is that this action is one public juris in which we have had the benefit of most thorough and adequate briefs and oral argument upon the constitutional issue presented. Under such circumstances we deem it would work an injustice to dismiss the action and compel the plaintiff to commence a new proceeding in this court to relitigate the same issue.

The other procedural ground upon which the trial court sustained the demurrer to the complaint was that there was a defect of parties defendant. In so holding, the trial court determined that the State Bar is an indispensable party to this litigation under sec. 260.19(1), Stats. However, we deem that there may be some merit to the plaintiff's contention that in order to rule that there is a defect in parties defendant it is necessary to decide the constitutional issue. This is because, if the orders of this court creating the State Bar an entity are void, then it has no standing which would require it to be made a party. We are satisfied that counsel for the defendant Donohue has so competently marshaled the facts and the law in support of the constitutionality of the orders creating the State Bar that its interests do not require that it be made a party. Both the trial court and this court possess the power to have compelled, on the court's own motion, the impleading of it as a party defendant, if its interests were deemed to require that this be done, as an alternative to dismissal of the action because of failure of the plaintiff to have joined it as a party.

The plaintiff bottoms his contention, that the integration of the bar is unconstitutional, upon the thesis that such integration violates the First Amendment freedoms of free speech, press, assembly, and petition which are inherent in the dueprocess and equal-protection-of-the-laws clauses of the Fourteenth Amendment. He also claims that there is a violation of these same freedoms as stated in various sections of art. I of the Wisconsin constitution. However, such provisions of the Wisconsin constitution are substantially the equivalent of the due-process and equal-protection-of-the-laws clauses of the Fourteenth Amendment. Boden v. City of Milwaukee, 1959, 8 Wis.2d 318, 324, 99 N.W.2d 156, and Pauly v. Keebler, 1921, 175 Wis. 428, 185 N.W. 554. We are satisfied that if the orders creating and continuing the State Bar violate the provisions of art. I of the state constitution they also violate the Fourteenth Amendment. We will, therefore, confine our consideration of the constitutional issue to whether there exists a violation of the Fourteenth Amendment.

In Integration of Bar Case, 1943, 244 Wis. 8, 11 N.W.2d 604, 12 N.W.2d 699, 151 A.L.R. 586, the argument was advanced that the statute enacted by the legislature (ch. 315, Laws of 1943), which provided for this court integrating the bar, violated the Fourteenth Amendment. Mr. Chief Justice Rosenberry in his opinion for the court dealt with such argument at pages 41 to 44 of 244 Wis., at pages 619, 620 thereof. It was there determined that an integration of the bar would not violate the Fourteenth Amendment.

While we might ground our decision of the instant case on this sound precedent authored by one of the great chief justices of this court, we choose not to do so. This is because the plaintiff has advanced some arguments that were not presented to the court when it previously considered the constitutional issue in 1943.

The plaintiff commences his argument with the sound premise that the right of any person to belong to an association embodies certain First Amendment freedoms protected by the Fourteenth Amendment. As the United States supreme court recently declared in Bates v. City of Little Rock, 1960, 80 S.Ct. 412, 416, 4 L.Ed.2d 480, 485:

'And it is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion of the States. De Jonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; National Ass'n for Advancement of Colored People v. State of Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488.'

This court held to the same effect in Lawson v. Housing Authority, 1955, 270 Wis. 269, 274, 70 N.W.2d 605.

From this premise the plaintiff argues that the converse is also true, i. e., the right not to belong to an association is also a freedom protected by the Fourteenth Amendment. In support thereof he cites the following statement from the opinion of the Maine court in Pappas v. Stacey, 1955, 151 Me. 36, 116 A.2d 497, 500: 'Freedom to associate of necessity means as well freedom not to associate. * * *' ¹

However, decisions of serious questions of constitutional law ought not to be ground upon chiche.

The rules and by-laws of the State Bar, as approved by this court, do not compel the plaintiff to associate with anyone. He is free to attend or not attend its meetings or vote in its elections as he chooses. The only compulsion to which he has been subjected by the integration of the bar is the payment of the annual dues of $15 per year. He is as free as he was before to voice his views on any subject in any manner he wishes, even though such views be diametrically opposed to a position taken by the State Bar.

The right to practice law is not a right but is a privilege subject to regulation. Petition for Integration of the Bar of Minnesota, 1943, 216 Minn. 195, 12 N.W.2d 515, 518. As the Arizona court well stated in In re Greer, 1938, 52 Ariz. 385, 81 P.2d 96, 98:

'The right to practice law is not a natural nor constitutional one, in the sense that the right to engage in the ordinary avocations of life, such as farming, the industrial trades and the mercantile business is. It has always been considered as a privilege only, bestowed upon certain persons primarily for the benefit of society, and upon such terms and conditions as the state may fix. The final determination as to what these conditions are, and who has satisfactorily complied therewith, is, and always has been, in the courts before which the individual practices his profession, and from time immemorial such individuals have been considered essentially and primarily as officers of the court admitting them.'

The only limitation upon the state's power to regulate the privilege of the practice of law is that the regulations adopted do not impose an unconstitutional burden or deny due process. Schware v. Board of Bar Examiners, 1957, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796.

Mr. Chief Justice Rosenberry declared in the Integration of Bar Case (1943), supra, that the dues payable by a lawyer to an integrated bar imposed by state action are in the same category as an annual license fee imposed upon any occupation or profession which is subject to state regulation. This is also the holding of the Florida and Louisiana courts in Petition of Florida State Bar Association, Fla.1949, 40 So.2d 902, and In re Mundy, 1942, 202 La. 41, 11 So.2d 398. The fact that a license fee exacted by the courts is not deposited in the public treasury but is disbursed by the court created agency to which paid, does not militate against the validity of such license fee. Laughlin v. Clephane, D.C.D.C.1947, 77 F.Supp. 103.

The plaintiff grounds his argument, that the compulsory dues of the State Bar do impinge upon First Amendment freedoms, on the fact that the State Bar does take a stand on legislation pending before the legislature. He points out that he personally is opposed to some of the legislation supported by it. Because of this he contends his rights guaranteed by the First Amendment are violated because part of his dues money is used to support causes to which he is opposed.

Whatever activity in the legislative field in which the State Bar does engage is limited by its rules and by-laws promulgated by this court. Two of the standing committees which the board of governors is directed to establish by Rule 4 are the Committee on Administration of Justice and the Committee on Legislation. Secs. 4 and 9 respectively of the by-laws define the duties of these two committees and read as follows:

'Section 4. Committee on administration of justice. This Committee shall study the organization and operation of the Wisconsin judicial system and shall recommend from time to time appropriate changes in practice and procedure for improving the efficiency thereof; and in that connection shall examine all legislative proposals for changes in the judicial system.

'Section 9. Committee on legislation. This committee shall study all proposals submitted to the Wisconsin Legislature or the Congress of the United States for changes in the statutes relating to the courts or the practice of law, and shall report thereon to the board of governors; and with the approval of the board of governors may represent the State Bar in supporting or opposing any such proposals.'

This court takes judicial notice of the activities of the State Bar in the legislative field since its creation by this court in 1956. In every instance the legislative measures advocated...