From a post by Counselor Michael Plaisted regarding an event earlier this week that considered the Wisconsin Judicial Campaign Integrity Committee:
The State Bar is a “quasi-public agency” declared [Jim] Bopp, which I’m sure comes as a surprise to everyone in the state of Wisconsin. You’d expect this kind of amateur mistake to be made by a too-willing-to-please law student, but not by a grown-up like Bopp – not to mention [Rick] Esenberg, who at least is from here and repeated the baseless claim. …
But Bopp knows the State Bar is not a public agency, quasi or otherwise. Maybe he even tried to draft the complaint and fell down laughing when he tried to define the defendant as a state agency. That certainly would have been the reaction of any judge who saw such nonsense in print. In my only contribution to the program, I laughed out loud when he said it the second time.
This is a claim Atty. Plaisted has made before, defending Atty. Basting’s characterization of the WJCIC as a “group of private citizens.” Contra Attorney Plaisted, the evidence shows that Mr. Bopp and Prof. Esenberg are quite correct in their description of the State Bar as a public agency.
The foundational case holding that the State Bar is a state actor is the Wisconsin Supreme Court’s decision in Lathrop v. Donohue. Holding that the integrated State Bar did not offend a member’s free association rights, the Court said:
Furthermore, the State Bar is a public and not a private agency. In the annotation entitled, ‘State bar created by act of legislature or rules of court; integrated bar,’ 114 A.L.R. 161, the author states:
‘While the statutes or court rules under which they have been organized differ to some extent, integrated bars have the common characteristics of being organized by the state or under the direction of the state, and of being under its direct control, and in effect they are governmental bodies.’State Bar of California v. Superior Court, 1929, 207 Cal. 323, 278 P. 432, 434, and In re Gibson, 1931, 35 N.M. 550, 4 P.2d 643, 653, support the above-quoted statement. … The State Bar is a public agency the same as the Judicial Council. One has been created by the court and the other by the legislature but each was created by state action as a state agency to serve a public purpose.
Lathrop, 10 Wis.2d 230, 242-43 (Wis. 1960).
The Lathrop decision was appealed by the plaintiff to the Supreme Court of the United States. In upholding the Wisconsin Supreme Court’s decision, the U.S. Supreme Court did not directly address the public agency question. It did, however, classify the Bar as serving a “legitimate end of state policy” to hold that the Wisconsin Supreme Court may require an integrated bar. Lathrop v. Donohue, 367 U.S. 820, 843 (plurality) (1961).
The Lathrop standard of “public agency” was undermined by Judge Barbara Crabb of the Western District of Wisconsin in 1988, when she rejected a claim of state sovereign immunity for the Bar. She found the Bar’s “overall independence,” particularly the separation of its funds from the state treasury, meant it was “not a public agency for purposes of the Eleventh Amendment.” Levine v. Supreme Court of Wisconsin, 679 F.Supp. 1478, 1487-88 (W.D.Wis., 1988). Judge Crabb’s decision in Levine was overruled by the U.S. Court of Appeals for the Seventh Circuit. Levine v. Heffernan, 864 F.2d 457 (C.A. 7, 1988). The Court of Appeals held that Lathrop was still good law, but it did not directly address the immunity question.
Another federal district court judge, ruling after Crabb, granted qualified immunity to the State Bar’s director as a public official. A lawsuit against the State Bar was moved to the Northern District of Illinois to give the case a fair hearing before an unbiased judge. Judge Roszkowski adopted entirely the report of Magistrate Judge Mahoney, who wrote:
The defense of qualified immunity is available to public officials. Abel v. Miller, 824 F.2d 1522, 1530 (7th Cir.1987). The defense is intended to provide public officials with the ability to “reasonably anticipate when their conduct may give rise to liability for damages.” Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 3042, 97 L.Ed.2d 523 (1987). The doctrine of qualified immunity extends to individuals as well as to the institutions for whom these individuals work. Abel v. Miller, 824 F.2d 1522, 1530 (7th Cir.1987). In Werle v. Rhode Island Bar Ass’n, 755 F.2d 195 (1st Cir.1985), the First Circuit Appellate Court held that the defense of qualified immunity is available to a Bar Association. …
Crosetto v. Heffernan, 810 F.Supp. 966, 976-78 (N.D.Ill., 1992). Judge Mahoney granted the State Bar’s executive director his defense of qualified immunity.
The U.S. Court of Appeals for the Seventh Circuit accepted an appeal of the decision and specifically affirmed the qualified immunity defense, labeling the State Bar executive director a public official. Crosetto v. State Bar of Wisconsin, 12 F.3d 1396, 1403-04 (C.A.7, 1993), cert. denied, 511 U.S. 1129 (1994). Sua sponte, the Court of Appeals asked whether the suit against the Bar was barred by the doctrine of state sovereign immunity. The Court pointed out that the U.S. Supreme Court had held that another state’s bar constituted state action:
The Supreme Court has never directly addressed the sovereign immunity of state bars, but its approach in related areas may be helpful to the analysis. For example, in holding that the actions of a state bar association constituted enough official state action to exempt a state bar from antitrust law, the Supreme Court has noted that “the regulation of the activities of the bar is at the core of the State’s power to protect the public…. Few other professions are as close to the core of the State’s power to protect the public. Nor is any trade or other profession as essential to the primary governmental function of administering justice.” Hoover v. Ronwin, 466 U.S. 558, 569 n. 18, 104 S.Ct. 1989, 1996 n. 18, 80 L.Ed.2d 590 (1984) (citations omitted). The Court concluded that because of this close relationship, “although only the State Bar was named as a defendant in the suit, the [plaintiff's] complaint was with the State.” Id. at 571, 104 S.Ct. at 1977.
Crosetto v. State Bar of Wisconsin, 12 F.3d at 1401. Thus, the Court remanded the question to the district court. “We agree that a suit against a state bar association, as a general matter, may constitute a suit against the state for sovereign immunity purposes. Whether the Wisconsin State Bar, in particular, is vested with sufficient state characteristics to qualify for sovereign immunity is a factual question, however, that cannot be answered now on the record before us.” Id. at 1402.
On remand, the District Court held that the State Bar was, in fact, a state agency entitled to sovereign immunity. No published memorandum. In an unpublished opinion, the Seventh Circuit affirmed this decision, citing another panel’s recent decision in Thiel v. State Bar of Wisconsin. Crosetto v. State Bar of Wisconsin, 97 F.3d 1454 (Table) (C.A. 7, 1996), cert. denied, 519 U.S. 1116 (1997). In Thiel, the Seventh Circuit specifically held that the State Bar was a state agency for purposes of Eleventh Amendment immunity. Thiel v. State Bar of Wisconsin, 94 F.3d 399, 400-03 C.A.7 (Wis.), 1996. The Thiel decision was reaffirmed as recently as 2005, in an opinion by Judge Posner. “The first two factors are certainly sound and the decision in Thiel is unquestionably correct. The state bar is a limb of the Supreme Court of Wisconsin…” Takle v. University of Wisconsin Hosp. and Clinics Authority, 402 F.3d 768, 772 (C.A. 7, 2005).
From Lathrop to Takle, the law is clear: the State Bar of Wisconsin is a public agency, an arm of the state Supreme Court. This reality has important consequences for the free speech police at the WJCIC.
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Thanks for contributing, Daniel. Here is the update on my post.
UPDATE: Daniel Suhr, Rick Esenberg’s research assistant who has been spending much of his time researching legal issues that just happen to be favorable to the Federalist Society/WMC/Gableman forces, was good enough to post a comment below with a link to his latest post, claiming to establish through legal research that the State Bar is a “state agency”. Although I wasn’t planning on doing any heavy legal research this afternoon, I guess I asked for it.
I have looked the cases he cites. There are two kinds of cases — those having to do with mandatory bar dues and those having to do with sovereign immunity (having to do with whether the State Bar can be sued in federal court when doing things they are required to do by the State Supreme Court — if the Bar is acting as an arm of the Court, it can’t be). I want to be careful and accurate in addressing Suhr’s analysis and reserve the right to expand on this later, but it seems to me that both instances are fairly limited to their facts and that the courts (the language of the 48-year-old Lathrop case notwithstanding) reached their conclusions based on the fact that the State Bar was an “‘arm’ or ‘alter ego’ of the state”, as opposed to an actual state agency, a phrase not used that I can see in Theil (and not necessary for a finding of immunity). From Theil:
“Given these considerations, we held in Crosetto that the effect on the state treasury was the least important of the three factors, and would be irrelevant if the first two weigh in favor of Eleventh Amendment immunity. 12 F.3d at 1402. The other two factors are: (1) The extent of control the Wisconsin Supreme Court exercised over the Bar; and (2) whether the Bar acted as the agent of the Wisconsin Supreme Court when it promulgated the rule in question.” [Emphasis added]
Bottom line: Good work by Suhr in pointing out that the courts have recognized that the Bar acts on behalf of the state when the Supreme Court requires it (such as enforcing mandatory dues, which is a Supreme Court rule, not a State Bar rule). But the courts in all these cases also recognize the State Bar’s completely independent funding and the other duties — such as education of the public and lobbying — that the Bar takes on its own. An “arm” of the State in some functions required by the Supreme Court? Yes. A state agency, quasi or otherwise? Not nearly. Since the ad-hoc WJCIC is not related to any direction by the Supreme Court, the Bar does not act as an arm of the state in any way when it advocates for a clean judicial election. My chuckle at Bopp’s heated rhetoric stands.
Reserving the right to revise and extend my remarks…have a nice weekend.
Mr. Plaisted responds that my various citations are limited to the instances in which they were raised. In other words, the State Bar is enough of a state agency to receive qualified immunity and sovereign immunity, but not enough of a state agency to be a state actor in the free speech context. Put another way, the Bar is only a state agency when it acts pursuant to the direct orders of the Supreme Court. When it acts on its own volition, such as when its president creates an ad hoc committee, then it is not a state agency.
I don’t think that Mr. Plaisted’s distinction holds. The Bar IS a state agency, period. For this, I unveil my secret weapon: The Brief of the State Bar itself in Crosetto (1997 WL 33561200).
The State Bar cannot have it both ways. It cannot receive all the benefits of being a state agency – immunity from suit, property, sales, and income tax exemptions, indemnification, LRB and AG legal services – and at the same time not shoulder the responsibilities of a state agency, such as not chilling the free speech of citizens.
This line from Mr. Plaisted’s response seems particularly problematic:
The State Bar is a creation of the Supreme Court, and it is funded by the mandatory dues ordered by the Supreme Court. The State Bar’s funds are state funds, whether they are spent on a board of governors meeting required by an SCR or an ad hoc committee not required by the SCRs. The State Bar’s funds and property are exempt from taxation, whether they are spent on a statewide referendum as authorized or if they are spent on an ad hoc committee not required. The Bar does not switch on and off from being a state agency when undertaking some activities and not a state agency when undertaking other activities. If the WJCIC is not related to any direction of the Supreme Court, what authorizes the Bar to undertake the activity? Conversely, is the purpose not written so broadly as to encompass the WJCIC? “[T]he 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.” SCR 10.01(2).
I don’t think Mr. Plaisted’s distinction stands. The State Bar is a state agency,, and that has implications for how it approaches free speech issues.
By this reasoning, Marquette would be a federal agency since they take federal dollars for ROTC, student aid, research, etc. They are also a state agency because of the state funding for the dental school.
All this reminds me of the entanglements deciphered in situations involving other quasi-governmental agencies such as economic development groups. In many of those cases, groups wanted to claim they weren’t arms of the state so they could hide from open records and open meetings inquiries. Yet their creation, funding or appointed membership might otherwise link them to generally their only “client”, the government that created them. It does not surprise me that the powerful and the protected want to preserve their positions.