The U.S. Supreme Court has denied certiorari to an appeal of a decision from the U.S. Court of Appeals for the Seventh Circuit that upheld the State Bar of Wisconsin’s mandatory status.
The U.S. Supreme Court’s decision on the petition for certiorari in File v. Hickey et al, 598 U.S. 22-95, was announced in an order issued on Monday, Jan. 23.
Schuyler File, a State Bar of Wisconsin member, filed a federal lawsuit challenging the State Bar’s mandatory status. File named, as defendants, the State Bar’s executive director, the State Bar president, and the seven justices of the Wisconsin Supreme Court.
File claimed that requiring him to join the State Bar as a condition of practicing law in Wisconsin, under Wisconsin Supreme Court rules, violated his free-speech and associational rights under the First Amendment to the U.S. Constitution.
But under Keller v. State Bar of California, 496 U.S. 1(1990), and subsequent rulings, mandatory bar associations can use compulsory dues to fund activities “necessarily or reasonably related to the purposes of regulating the legal profession or improving the quality of legal services.” Keller is codified in Wisconsin SCR 10.03(5)(b)1.
Under Keller, the State Bar is permitted to fund lobbying and other activities related to these purposes with mandatory dues. But lobbying and other activities not germane to those purposes cannot be funded with the compulsory dues of objecting members.
Every year, the State Bar – through an extensive accounting and review process – calculates nonchargeable dues, which are the cost of State Bar activities that could potentially fall outside the purposes noted in Keller.
Every year, objecting State Bar members may opt to receive a “Keller dues rebate amount” on annual dues statements, which is a pro rata amount that reflects activities, including lobbying, that potentially fall outside of what is permissible underKeller
In addition, the annual Keller dues rebate amount, under State Bar policy established by its Board of Governors, includes expenditures that relate to activities that constitute direct lobbying on policy matters before the Wisconsin Legislature and U.S Congress, “regardless of whether they would otherwise qualify as chargeable under a Wisconsin Keller dues analysis.”
The petitioner argued that Keller should be overruled. But on Monday, the U.S. Supreme Court declined to hear the case. The U.S. Supreme Court previously acted to decline taking similar mandatory bar cases in multiple other states.