Lathrop v. Donohue

• Citation: 367 U.S. 820,6 L.Ed.2d 1191,81 S.Ct. 1826
• Decision Date: 19 June 1961
• Docket Number: No. 200,200
• Parties: Trayton L. LATHROP, Appellant, v. Josephine D. DONOHUE
• Court: United States Supreme Court

367 U.S. 820

81 S.Ct. 1826

6 L.Ed.2d 1191

Trayton L. LATHROP, Appellant,

v Josephine D. DONOHUE.

No. 200.

Argued Jan. 18, 1961.

Decided June 19, 1961.

Rehearing Denied Oct. 9, 1961.

See 82 S.Ct. 23.

[Syllabus from 820 intentionally omitted]

Mr. Trayton L. Lathrop, pro se, and Mr. Leon E. Isaksen, Madison, Wis., for appellant.

Messrs. Gordon Sinykin, Madison, Wis., and John W. Reynolds, Green Bay, Wis., for appellee.

Mr. Justice BRENNAN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice CLARK and Mr. Justice STEWART join.

The Wisconsin Supreme Court integrated the Wisconsin Bar by an order which created 'The State Bar of Wisconsin' on January 1, 1957, under Rules and Bylaws promulgated by the court. In re Integration of the Bar, 273 Wis. 281, 77 N.W.2d 602; id., at page vii. The order originally was effective for a two-year trial period, but

[Amicus Curaie intentionally omitted] in 1958 was continued indefinitely. In re Integration of the Bar, 5 Wis.2d 618, 93 N.W.2d 601. Alleging that the 'rules and by-laws required the plaintiff to enroll in the State Bar of Wisconsin and to pay dues to the treasurer of the State Bar of Wisconsin on the penalty of being deprived of his livelihood as a practicing lawyer, if he should fail to do so,' the appellant, a Wisconsin lawyer, brought this action in the Circuit Court of Dane County for the refund of $15 annual dues for 1959 paid by him under protest to appellee, the Treasurer of the State Bar. He attached to his complaint a copy of the letter with which he had enclosed his check for the dues. He stated in the letter that he paid under protest because 'i do not like to be coerced to support an organization which is authorized and directed to engage in political and propaganda activities. * * * A major portion of the activities of the State Bar as prescribed by the Supreme Court of Wisconsin are of a political and propaganda nature.' His complaint alleges more specifically that the State Bar promotes 'law reform' and 'makes and opposes proposals for changes in * * * laws and constitutional provisions and aruges to legislative bodies and their committees and to the lawyers and to the people with respect to the adoption of changes in * * * codes, laws and constitutional provisions.' He alleges further that in the course of this activity 'the State Bar of Wisconsin has used its employees, property and funds in active, unsolicited opposition to the adoption of legislation by the Legislature of the State of Wisconsin, which was favored by the plaintiff, all contrary to plaintiff's convictions and beliefs.' His complaint concludes: 'The plaintiff bases this action of his claim that the defendant has unjustly received, held, and disposed of funds of the plaintiff in the amount of $15.00, which to the knowledge of the defendant were paid to the defendant by the plaintiff unwillingly and under coercion, and that such coercion was and is entailed in the rules and by-laws of the State Bar of Wisconsin continued in effect by the aforesaid order of the Supreme Court of the State of Wisconsin * * *; and the said order insofar as it coreces the plaintiff to support the State Bar of Wisconsin, is unconstitutional and in violation of the Fourteenth Amendment of the Constitution of the United States * * *.'

The appellee demurred to the complaint on the ground, among others,¹ that it failed to state a cause of action. The demurrer was sustained and the complaint was dismissed. The Supreme Court of Wisconsin, on appeal, stated that the Circuit Court was without jurisdiction to determine the questions raised by the complaint. However, treating the case as if originally and properly brought in the Supreme Court, the court considered appellant's constitutional claims, not only on the allegations of the complaint, but also upon the facts, of which it took judicial notice, as to its own actions leading up to the challenged order, and as to all activities, including legislative activities, of the State Bar since its creation.² The judgment of the Circuit Court dismissing the complaint was affirmed. 10 Wis.2d 230, 102 N.W.2d 404. The Supreme Court held that the requirement that appellant be an enrolled dues-paying member of the State Bar did not abridge his rights of freedom of association, and also that his rights to free speech were not violated because the State Bar used his money to support legislation with which he disagreed.

An appeal was brought here by appellant under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), which authorizes our review of a final judgment rendered by the highest court of a State 'By appeal, where is drawn in question the validity of a (state) statute * * *.' We postponed to the hearing on the merits the question whether the order continuing the State Bar indefinitely under the Rules and Bylaws is a 'statute' for the purposes of appeal under § 1257(2). 364 U.S. 810, 81 S.Ct. 57, 5 L.Ed.2d 41.

We think that the order is a 'statute' for the purposes of § 1257(2). Under that section, the legislative character of challenged state action, rather than the nature of the agency of the State performing the act, is decisive of the question of jurisdiction. It is not necessary that the state legislature itself should have taken the action drawn in question. In construing the similar jurisdictional provision in the Judiciary Act of 1867, 14 Stat. 385, we said: 'Any enactment, from whatever source originating, to which a State gives the force of law is a statute of the State, within the meaning of the clause cited relating to the jurisdiction of this court.' Williams v. Bruffy, 96 U.S. 176, 183, 24 L.Ed. 716. We likewise said of the provision of the Act of 1925, 43 Stat. 936, which is the r esent § 1257(2): '* * * the jurisdictional provision uses the words 'a statute of any state' in their larger sense and is not intended to make a distinction between acts of a state legislature and other exertions of the State's law-making power, but rather to include every act legislative in character to which the state gives its sanction.' King Manufacturing Co. v. City Council, 277 U.S. 100, 104—105, 48 S.Ct. 489, 490, 72 L.Ed. 801. Thus this Court has upheld jurisdiction on appeal of challenges to municipal ordinances, e.g., King Manufacturing Co. v. City Council, supra; Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869; certain types of orders of state regulatory commission, e.g., Lake Erie & Western R. Co. v. State Public Utilities Comm., 249 U.S. 422, 39 S.Ct. 345, 63 L.Ed. 684; and some orders of other state agencies, e.g., Hamilton v. Regents, 293 U.S. 245, 257—258, 55 S.Ct. 197, 201, 202, 79 L.Ed. 343. It is true that in these cases the state agency the action of which was called in question was exercising authority delegated to it by the legislature However, this fact was not determinative, but was merely relevant to the character of the State's action. The absence of such a delegation does not preclude consideration of the exercise of authority as a statute.

We are satisfied that this appeal is from an act legislative in nature and within § 1257(2). Integration of the Bar was effected through an interplay of action by the legislature and the court directed to fashioning a policy for the organization of the legal profession. The Wisconsin Legislature initiated the movement for integration of the Bar in 1943 when it passed the statute, chapter 315 of the Wisconsin Laws for that year, now Wis.Rev.Stat. § 256.31, providing:

'(1) There shall be an association to be known as the 'State Bar of Wisconsin' composed of persons licensed to practice law in this state, and membership in such association shall be a condition precedent to the right to practice law in Wisconsin.

'(2) The supreme court by appropriate orders shall provide for the organization and government of the association and shall define the rights, obligations and conditions of membership therein, to the end that such association shall promote the public interest by maintaining high standards of conduct in the legal profession and by aiding in the efficient administration of justice.'

The State Supreme Court held that this statute was not binding upon it because '(t)he power to integrate the bar is an incident to the exercise of the judicial power * * *.' Integration of Bar Case, 244 Wis. 8, 40, 11 N.W.2d 604, 619, 12 N.W.2d 699, 151 A.L.R. 586. The court twice refused to order integration, 244 Wis. 8, 11 N.W.2d 604, 12 N.W.2d 699, 151 A.L.R. 586; 249 Wis. 523, 25 N.W.2d 500, before taking the actions called in question on this appeal, 273 Wis. 281, 77 N.W.2d 602; 5 Wis.2d 618, 93 N.W.2d 601. Nevertheless, the court in rejecting the first petition, 244 Wis. at pages 51—52, 11 N.W.2d at pages 623—624, recognized that its exercise of the power to order integration of the Bar would not be adjudicatory, but an action in accord with and in implementation of the legislative declaration of public policy. ³ The court said:

'It is obvious that whether the general welfare requires that the bar be treated as a corporate body is a matter for the consideration of the legislature. * * * While the legislature has no constitutional power to compel the court to act or, if it acts, to act in a particular way in the discharge of the judicial function, it may nevertheless, with propriety and in the exercise of its power and the discharge of its duty, declare itself upon questions relating to the general welfare which includes the integration of the bar. The court, as has been exemplified during the entire history of the state, will respect such decla- rations and, as already indicated, adopt them so far as they do not embarrass the court or impair its constitutional functions.'

Integration of the Bar in Wisconsin bore no resemblance to adjudication. The State Supreme Court's action disposed of no litigation between parties. Rather the court sought to regulate the...