Thiel v. State Bar Of Wis.
| Decision Date | 09 September 2010 |
| Docket Number | No. 09-4080.,09-4080. |
| Citation | 622 F.3d 708 |
| Parties | Jon E. KINGSTAD, Steve Levine and James S. Thiel, Plaintiffs-Appellants, v. STATE BAR OF WISCONSIN, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Steven A. Levine (argued), Madison, WI, for Plaintiffs-Appellants.
Steven A. Levine, Madison, WI, pro se.
Roberta F. Howell (argued), Foley & Lardner LLP, Madison, WI, for Defendant-Appellee.
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
To practice law in the State of Wisconsin, lawyers must join the Wisconsin State Bar. To join the State Bar, lawyers must pay State Bar dues. For more than fifty years, this system has been generating First Amendment litigation, and this case is the latest installment. In 2007, the State Bar used a portion of members' dues to conduct a public image campaign with the goal of improving the public's perception of Wisconsin lawyers. Petitioners Jon Kingstad, Steven Levine, and James Thiel (collectively, the “Objectors”) objected to the State Bar's use of their mandatory dues to fund the campaign as a violation of their rights under the First Amendment. Their objection was first heard by a state arbitrator, who ruled in favor of the State Bar. The Objectors appealed to a state trial court, and the State Bar removed their appeal to the federal courts. The parties consented to having their case heard by Magistrate Judge Stephen Crocker, who upheld the arbitrator's determination. The petitioners now appeal to this court.
We hold that to withstand scrutiny under the First Amendment, State Bar expenditures funded by mandatory dues must be germane to the legitimate purposes of the State Bar. In doing so, we overrule one of the alternative holdings of Thiel v. State Bar of Wisconsin, 94 F.3d 399, 405 (7th Cir.1996), in light of more recent teachings. Because the public image campaign at issue in this case is germane to those constitutionally legitimate purposes, however, we affirm the judgment in favor of the State Bar.
The State Bar of Wisconsin is a creation of the Wisconsin Supreme Court, which also governs bar activities under its rules. See Wis. S.Ct. R. 10.01. Membership in the State Bar is a “condition precedent to the right to practice law in Wisconsin.” Rule 10.01(1). The stated purposes of the State Bar are to:
aid the courts in carrying on and improving the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence and public service and high standards of conduct; to safeguard the proper professional interests of the members of the bar; to encourage the formation and activities of local bar associations; to conduct a program of continuing legal education; to assist or support legal education programs at the preadmission level; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform and the relations of the bar to the public and to publish information relating thereto; to carry on a continuing program of legal research in the technical fields of substantive law, practice and procedure and make reports and recommendations thereon within legally permissible limits; to promote the innovation, development and improvement of means to deliver legal services to the people of Wisconsin; to the end that the public responsibility of the legal profession may be more effectively discharged.
Rule 10.02(2). To serve these broad purposes, the Wisconsin Supreme Court rules permit the State Bar to engage in and fund “any activity that is reasonably intended” to further the State Bar's purposes. Rule 10.03(5)(b)1. However, the Rules make clear that the State Bar may not use the compulsory dues of any objecting member “for political or ideological activities that are not reasonably intended for the purpose of regulating the legal profession or improving the quality of legal services.” Id. Those activities must be funded by voluntary dues or other sources of revenue.
A bar member may choose to withhold his or her pro rata portion of dues that were budgeted for activities that cannot be supported by compulsory dues. See Rule 10.03(5)(b)2. To enable members to assert their rights, the State Bar must publish each year a written notice of the activities that can and cannot be supported by compulsory dues, including each member's pro rata portion of each. If a member contends that the State Bar has allocated dues incorrectly between compulsory and voluntary activities, the member may demand that the question be settled by an arbitrator. See Rule 10.03(5)(b)3. In this case, the Objectors objected to the State Bar's expenditure of mandatory dues on a public image campaign for lawyers in fiscal year 2007.
The State Bar launched the public image campaign in response to signs that some bar members saw a need for such a program. In the State Bar's 1998 Membership Survey, when asked what they needed from the State Bar, 15 of 145 members responding indicated that they would like the State Bar to improve the image of the legal profession in the community. 1 One member wrote that the State Bar needed “better involvement in addressing the public's perception of lawyers.” Another commented that “the Bar needs to do more to improve the image of lawyers and the legal profession in general.” A third noted that members needed “an aggressive public relations program.” In 2000, a poll of all State Bar division, section, and committee chairs and local bar presidents showed that 78% believed a State Bar-led message development campaign was necessary. And in 2001, 89% of respondents to the State Bar's Bench Bar survey indicated that they believed the reputation of the legal profession had declined in the eyes of the public.
In the midst of these studies, the Office of the Chief Justice of the Wisconsin Supreme Court, the Director of State Courts, the League of Women Voters of Wisconsin, and the State Bar established the Public Trust Steering Committee to address issues of public trust and confidence in the Wisconsin justice system. The project had three phases: first, to research and identify issues concerning public trust and confidence; second, to gather input from public focus groups; and third, to create an action plan. The action plan was finalized in October 2000. The Committee reported, among other points, that judges and attorneys needed to be encouraged to be involved in the community. The Committee found that increasing public confidence in the justice system depended on people knowing and trusting the decision-makers and understanding the legal process, and that judges and attorneys who were active in the community were perceived to be more trustworthy. The Committee recommended increased judicial and attorney participation in and connection to their communities.
The State Bar formed a Public Image Committee to address some of these concerns. Its purpose was to “educate the public about the legal profession and develop a common theme about how lawyers contribute to the community.” President's Message, 74 Wis. Law. 11 (Nov.2001). The effort focused on the expertise, problem-solving skills, and service to the community of Wisconsin lawyers.
In 2002 the Public Image Committee unveiled a public image campaign that carried the slogan Examples of the materials developed and aired include:
• television spots featuring lawyers from the Green Bay and Fox Valley area involved in a number of community projects to improve the lives of senior citizens and the Hmong population, elementary and high school students involved in mock trial efforts, and other community groups and activities;
• television spots featuring Dane County area lawyers volunteering their time to the Dane County Bar Association's Family Law Assistance Center; and
• television spots featuring La Crosse and Eau Claire area lawyers using their legal skills to assist the La Crosse County Bar's Free Legal Clinic, a free legal clinic for homeless veterans in Tomah, and the La Crosse area bar's support for “Jim's Grocery Bag,” eleven La Crosse School District food pantries.
In fiscal year 2007-the year on which the fiscal year 2009 reduction was based and the focus of this lawsuit-the State Bar spent $97,886 of mandatory dues on the public image campaign. That amounted to $5.16 per member.
Pursuant to Wisconsin Supreme Court Rule 10.03(5)(b), the Objectors' claim was first heard by an arbitrator. The Objectors argued that the State Bar's expenditure of mandatory dues on the public image campaign violated their rights under the First Amendment because the expenditures were not related to either the regulation of lawyers or improving the quality of legal services, and were ideological in nature. Cautioning that under the State Bar bylaws he had “no authority to add, subtract, set aside or delete from any Supreme Court Rule or State Bar bylaw,” the arbitrator ruled in favor of the State Bar. Arb. Dec. at 6, citing Wis. State Bar Bylaws, Art. I, Sec. 5(e)(vi). Although the arbitrator expressed “doubts about the ‘germaneness' of the public image campaign,” he concluded that having a good reputation was a proper professional interest for any profession and that the public image campaign appeared to fit into the State Bar's statutory purposes to “provide a forum for the discussion of subjects pertaining to the practice of law, ... and the relations of the Bar to the public and to publish information relating thereto.” See Rule 10.02(2).
The arbitrator, however, ultimately was convinced that “germaneness” was irrelevant unless the challenged expenditure was political...
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