# Appendix — Crosetto v. Wisconsin State Bar

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0353%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1116

## Text

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APPENDIX A
United States Court of Appeals
For the Seventh Circuit

Chicago, Illinois 60604
Submitted September 16, 1996*

September 17, 1996.

Before
Hon. HARLINGTON WOOD, JR., Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

JOHN CROSETTO, et al., ) Appeal from the
Plaintiffs-Appellants, ) United States
) District Court for the
) Western District of
Nos. 96-1118 & 96-1211 vv. ) Wisconsin.
)
STATE BAR OF WISCONSIN, ) No. 88-C-433
Defendant-Appellee. ) StanleyJ.Roszkowski,
) Judge.
Order

A prior decision, 12 F.3d 1396 (1993), affirmed the bulk of
the district court’s conclusions in this case but remanded a
single issue for reconsideration: "whether the suit against the
Wisconsin State Bar Association is properly considered a suit
against the state qua state." On remand, the district court held

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that the State Bar is indeed part of the state and therefore
dismissed under the eleventh amendment what remained of the
suit.

After the appellate briefing in this case had been completed,
another panel of this court held, in Thiel v. State Bar of
Wisconsin, No. 95-3442 (7th Cir. Sept. 3, 1996), that the State
Bar is part of the state, and that a federal court accordingly
lacks jurisdiction to entertain a suit against it for either
damages or prospective relief. See Seminole Tribe of Florida v.
Florida, 116 S. Ct. 1114, 1124 (1996) ("the relief sought by a
plaintiff suing a State is irrelevant to the question whether the
suit is barred by the Eleventh Amendment”). The decision in
Thiel resolves this case, too, adversely to the appellants.

Only one other matter calls for comment. After we remanded
the case, plaintiffs sought to amend their complaint to drop the
request for damages, to add defendants in order to facilitate
claims under Ex Parte Young, 209 U.S. 123 (1908), and to add
additional theories of liability. The district court denied this
motion for two principal reasons: First, it would fundamentally
alter the litigation many years after its inception; second, it
would make this case a close cousin to Thiel, without good
reason, for the plaintiffs in this case could take advantage of
any victory in Thiel. This decision did not abuse the discretion
a district court possesses Over such matters. Amendment would
have been inconsistent with our mandate, which required the
resolution of one specific issue. And now that Thiel has been
decided--adversely to the plaintiffs on all issues, not just the
eleventh amendment--there is even less reason to go back to

Square One.
AFFIRMED

* Originally scheduled for oral argument, this case was taken
off the calendar and submitted for prompt decision after
another panel released an opinion resolving the principal issue.

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APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
JOHN CROSETTO, et al.,
Plaintiffs,
CASE NO. 88 C 433
Vv.

STATE BAR OF WISCONSIN,

Defendant.

ORDER

This matter comes before the court on the defendant's
Motion for Summary Judgment. For the reasons that follow,
defendant’s motion is granted.

Background

In 1988, plaintiffs brought this action pursuant to 42 U.S.C.
§ 1983 against the State Bar of Wisconsin, the Bar’s executive
director, Stephen Smay, and the Justices of the Wisconsin

Supreme Court. They challenged the mandatory bar in

Wisconsin and certain activities conducted by the bar. The

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complaint sought compensatory and punitive damages, as well
as declaratory and injunctive relief. On November 16, 1990, the
claims against the Justices of the Wisconsin Supreme Court
were dismissed. Crosetto v. Hefernan, 771 F. Supp. 224 (W.D.
Wis. 1990).

On October 22, 1992, this court granted the defendants’
motion for summary judgment. The Seventh Circuit affirmed

that order in all respects except one. Crosetto v. State Bar of

Wisconsin, 12 F.3d 1396 (1993). The Court questioned whether
the federal courts had jurisdiction over the State Bar under the
Eleventh Amendment,! and thus did not reach the merits of
the dismissal of the claims for past damages against the bar. Id.
at 1402. The Court stated:

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

Iw in the absence of consent a suit in which the state or
one of its agencies or departments is named as the defendant
is proscribed by the Eleventh Amendment.” Papasan v. Allain,
478 U.S. 265, 276 (1986), citing, Pennhurst State School &

Hospital v. Halderman, 465 U.S. 89, 100 (1984). This bar exists
whether the relief sought is legal or equitable. Id.

Sa

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 on the record before us. We therefore vacate
that part of the district court’s decision holding for the
State Bar of Wisconsin, and remand this case for a
determination of the State Bar’s sovereign status.
Id.

The Court went on to say that if after an analysis of the facts,
this court "finds that a suit against the Wisconsin State Bar is
a suit against the State, then unless one of the recognized
exceptions to a state’s sovereign immunity applies here, [the
district court} must dismiss all of Piaintiffs’ claims against the
Wisconsin State Bar for lack of subject matter jurisdiction.” Id.
at 1402-03.

Discussion

A summary judgment motion will be granted only if the
pleadings and supporting documents indicate that there is no
genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986); Fitzsimmons v. Best, 528 F.2d

692, 694 (7th Cir. 1976). The dispute of a material fact is

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genuine if the evidence is such that a reasonable jury could
return a verdict for the non-moving party. Anderson, 477 U.S.
at 248. However, the district court is not required to evaluate
every conceivable inference that can be drawn from the
evidence, but only those inferences that are reasonable. Parker

v. Federal Nat’] Mortgage Ass’n, 741 F.2d 975, 980 (7th Cir.

1984).

This court has been directed by the Seventh Circuit to
determine whether the State Bar is an agency of the state of
Wisconsin. In Crosetto, the Court outlined the relevant factors
to be considered in determining the Bar’s sovereign status. 12
F.3d at 1402. First, the court should consider the extent of
control exercised by the Wisconsin Supreme Court over the
Bar. Id. If the Wisconsin Supreme Court had the ultimate
authority to adopt and enforce the Bar’s rules in question, then
a Suit against the Bar challenging those rules would not be that
different than a suit directly against the Supreme Court. Id.

Second, this court should consider whether the Bar has a role

completely defined by the Wisconsin Supreme Court. Id. That

Se ee

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is, “whether the Bar was acting as an agent of the Wisconsin
Supreme Court when it promulgated the rules in question.” Id.
And finally, this court should consider whether a judgment
against the State Bar would ultimately be paid by the state’s
treasury. Id. However, if the first two factors indicate that the
Bar is an agent of the state, then this factor is irrelevant
because the state is immune to suit even where there is no

impact to the state treasury. Id. (citing Zych v. Wrecked Vessel

Believed to be the Lady Elgin, 960 F.2d 665, 669 (7th Cir.

1992); Green v. Mansour, 474 U.S. 64, 72 (1985)).

An analysis of the facts indicates that the Wisconsin Supreme
Court has "ultimate control over the Bar." The Bar was created
by the Court in 1956 pursuant to its constitutionai authority
over the administration of justice. Wis. Const. Art. VII; SCR
10.02(1). See also, Lathrop v Donahue, 10 Wis. 2d 230, 243
(1960). The Court has provided for the organization and
government of the association. SCR 10.01(2). The Court

requires the Bar to include in membership dues the amount

necessary to pay the costs of the Board of Attorneys of

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Professional Responsibility and the continuing legal education
functions of the Board of Bar examiners. SCR 10.03(5)(a). The
Court retains authority over any increase in bar dues. SCR
10.03(5). It limits the use of dues for ideological and political
activities. SCR 10.03(5)(b). It requires the Board of Governors
to procure an annual audit of the Bar’s books. SCR 10.09(1).
The Court sets the deadlines within which members must enroll
and pay dues, and establishes the penalties for nonpayment of
Bar dues. SCR 10.03(2), 10.03(6). The Court establishes the
manner in which the Bar conducts its daily activities, establishes
its governing bodies and offices, and defines their powers,
functions and duties. SCR 10.04-.08. The Court has the ultimate
authority to review amendments to the Bar’s bylaws. SCR
10.05(4)(a)(8). Also, the Wisconsin Supreme Court has the
exclusive, inherent power to take remedial action against the
Bar on sufficient showing that the activities or policies of the
Bar are not in harmony with the objectives of integration or are

otherwise contrary to the public interest. In re Integration of

the Bar, 5 Wis. 2d 618, 92 N.W. 2d 601 (1958). Furthermore,

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under Wis. Stat. § 70.11(1), property owned by the Wisconsin
State Bar is exempt from real and personal property taxation as
property owned by the state, and the Bar also does not pay
Wisconsin income or "sales tax.”

The facts also indicate that the Bar "was acting as an agent
of the Wisconsin Supreme Court when it promulgated the rules
in question." The rule challenged here, SCR 10.03(5)(b),
concems the collection and use of mandatory dues. The Bar’s
authority to collect and use those dues are explicitly conferred
and regulated by Supreme Court orders. The Supreme Court
has the ultimate authority over SCR 10.03(5)(b), and has the
sole authority to amend it. The Court has taken an active role
in limiting the use of Bar dues for legislative, political or
ideological activities.

Finally, because the first two factors compel the conclusion

that the Bar is an agency of the state, this court need not

consider whether a judgment against the Bar would impact the

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state treasury.

As the Court of Appeals noted in its opinion, other federal
courts addressing this issue have found unanimously that state
bars are entitled to sovereign immunity as agencies of the
particular state. Crosetto, 12 F.3d at 1401-02 (citing Lewis v.

Louisiana State Bar Ass’n, 792 F.2d 493 (Sth Cir. 1986); Bishop

2In Crosetto, the Seventh Circuit stated:

We hasten to note, however, that even when there is no
risk to the state treasury, the state is immune when sued
in its own name. See Zych v. Wrecked Vessel Believed
to be the Lady Elgin, 960 F.2d 665, 669 (7th Cir. 1992)
(rejecting the notion that an absence of financial impact
on the state is a per se pass from the Eleventh
Amendments purview); see also Green v. Mansour, 474
U.S. 64, 72 (1985). Thus even without any impact on
the state’s treasury, the district court must consider
whether the Bar occupies the position of a public
agency or Official, necessarily forbidding any suit in
federal court. See Lewis, 792 F.2d at 497 (discussing
Bates, 433 U.S. at 361, 97 S.Ct. at 2696; Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71, 109
S.Ct. 2304, 2311 (1989) (Sovereign immunity forbids a
Suit against an individual or entity who occupies the
position of a state office--even if there is no impact on
state funds--just as if the state had been named directly
as a party to the suit).

Crosetto, 12 F.3d at 1402.

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y. State Bar of Texas, 791 F.2d 435 (Sth Cir. 1986); Lupert v.

California State Bar, 761 F.2d 1325 (9th Cir. 1986); Ginter v.

State Bar of Nevada, 625 F.2d 829 (9th Cir. 1980); Doyle v.

Oklahoma, 787 F. Supp. 189 (W.D.Okl. 1992)). See also

Kaimowitz_ v. The Florida Bar, 996 F.2d 1151, 1155 (1993)

("The Eleventh Amendment prohibits actions against state
courts and state bars."). In addition, in a well reasoned and
persuasive opinion, Judge Shabaz of the Western District of
Wisconsin recently held that the Wisconsin State Bar is immune

from suit under the Eleventh Amendment. Thiel v. State Bar of

Wisconsin, 95 C 0103-S.

The plaintiffs contend that even if the defendant is entitled
to sovereign immunity, it has waived that defense. They assert
that under Wisconsin law sovereign immunity is a matter of
personal jurisdiction and thus can be waived by conduct, such
as defending a case on the merits, without authorization from
the state legislature. This argument is clearly misplaced.

Whether or not sovereign immunity is a matter of personal

jurisdiction in the state courts of Wisconsin is irrelevant. Under

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Hans and its progeny, sovereign immunity deprives federal

courts of subject matter jurisdiction over a case. Hans v.
Louisiana, 134 U.S. 1 (1890). As the Seventh Circuit stated in
Crosetto, if this court finds that the Bar is an agent of the state,
then "all plaintiffs’ claims against the Wisconsin State Bar" must

be dismissed "for lack of subject matter jurisdiction.” 12 F.3d at

1402-03 (emphasis added).

Sovereign immunity can be waived only under limited
circumstances. Congress may abrogate the States’ sovereign
immunity in certain cases, or states may consent to suit in

federal court. Port Auth. Trans-Hudson v. Feeney, 495 U.S.

299, 304 (1990). State officials can waive a state’s sovereign
immunity, but only if they are specifically authorized to do so
by the state’s constitution, statutes, or decisions. Estate of

Porter _v. State of Illinois, 36 F.3d 684, 690 (7th Cir. 1994)

(citing Ford Motor Co. v. Department of Treasury of State of

Indiana, 323 U.S. 459, 467 (1945). See also Silver v. Baggiano,

804 F.2d 1211, 1214 (11th Cir. 1986) ("[R]emoval by state

Officials of a suit containing state law claims to federal court

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does not amount to waiver of Eleventh Amendment immunity
unless those state officials are authorized to waive such
immunity."). Thus, this court must look to the laws of Wisconsin
to determine whether the State Bar had the authority to waive
the State’s sovereign immunity.

Under the Wisconsin Constitution, the legislature has the
authority to direct by law the manner in which suits may be
brought against the state. Wis. Const. Art. IV, § 27. This
provision gives the state legislature sole authority to consent to

suit. Cords v. Wisconsin, 214 N.W.2d 405, 409 (Wis. 1974);

Forseth v. Sweet, 38 Wis. 2d 676, 689, 158 N.W.2d 370, 376

(1968) ("[The legislature] has the absolute right to proscribe the

boundaries of its sovereign immunity."); Townsend v. Wisconsin

Desert Horse Ass’n, 167 N.W.2d 425, 429 (Wis. 1969) ("It is for

the legislature to declare pursuant to the mandate in sec. 27,
Art. IV of the Wisconsin Constitution how and in what respect
the state can be sued by a citizen."). Zhe Wisconsin Supreme

Court has interpreted Art. IV, § 27 as meaning that a state

agency or Officer may not waive the state’s sovereign immunity

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without specific authorization. Lister v. Board of Regents, 240

N.W.2d 610, 618 (Wis. 1976). Furthermore, principles of
estoppel will not be applied to deprive a state of its right to
sovereign immunity. Lister, 240 N.W.2d at 619.

There is no Wisconsin statute authorizing suits against the
State Bar or giving the Bar authority to consent to suit in
federal court. Although the Wisconsin Supreme Court has given
the Bar the power to sue and be sued,” this does not give the
Bar authority to consent to suit in federal court. In order to
waive the Eleventh Amendment defense, a statute or
constitutional provision must do so in explicit language, stating
not "merely whether [the state] may be sued, but where it may

be sued.” Atascadero State Hospital v. Scanlon, 473 U.S. 234,

241 (1985) (citing Pennhurst State School and Hospital v.

Halderman, 465 U.S. 89, 99 (1984)). "In order for a state

Statute or constitutional provision to constitute a waiver of

3Wisconsin SCR 10.02(1) states in part: "The state bar may,
for the purpose of carrying out the purposes for which it is
organized, sue and be sued, enter into contracts, acquire, hold,
encumber and dispose of real and personal property.”

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Eleventh Amendment immunity, it must specify the State’s

intention to subject itself to suit in federal court.” Id. at 241

(emphasis in original). Thus, even if Wisconsin SCR 10.02 (1)
allows suits against the Bar in state court, it does not authorize
the Bar to waive the State’s sovereign immunity in federal
court. Because there has been no legislative authorization to
waive sovereign immunity, defendant is entitled to assert that
defense in this case.

Plaintiffs further argue that since defendant did not raise the
sovereign immunity defense in previous proceedings, it cannot
raise it now. This argument is without merit. Because it is in the
nature of a jurisdictional bar, sovereign immunity can be raised
at any time, even after the state has defended a matter on the

merits. Friendship Medical Center v. Yorke, 710 F.2d 1297,

1300 (7th Cir. 1983) ("[B]ecause the agency could have raised
the [sovereign immunity] defense on appeal, there is no merit
to the appellant’s contention that IDPA waived the defense by
defending on the merits instead of resting exclusively on the

[Eleventh] Amendment.”); Edelman v. Jordan, 415 U.S. 651,

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678 (1974) ("[T]he Eleventh Amendment defense sufficiently
partakes of the nature of a jurisdictional bar so that it need not
be raised in the trial court.”)

Conclusion

For the reasons stated, defendant’s Motion for Summary
Judgment is granted and the cause is dismissed.

ENTER:

Stanley J. Roszkowski /s/
STANLEY J. ROSZKOWSKI, JUDGE
UNITED STATE DISTRICT COURT

DATE: _ Dec. 15, 1995 /s/

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APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
JOHN CROSETTO, et al.,
Plaintiffs,
CASE NO. 88 C 433
, 4

STATE BAR OF WISCONSIN,

Defendant.

Nee Nee ee” ee” See” See See” ee ee”

ORDER
This matter comes before the court on the plaintiffs’ Motion
for Leave to Supplement the Complaint pursuant to Federal
Rule of Civil Procedure 15(a). For the reasons that follow,
leave to amend is denied.

Background

In 1988, Plaintiffs filed this suit raising constitutional

challenges to Wisconsin’s integrated bar, including the

procedure used to calculate mandatory bar dues. In 1992, this

court granted summary judgment in favor of the defendants on

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all counts. Plaintiffs appealed, and the Seventh Circuit affirmed
in part, reversed in part and remanded the case. The mandate
from the Seventh Circuit leaves only a few issues remaining:
whether this court has subject matter jurisdiction over a suit
against the State Bar Association under the 11th Amendment;
whether there was an effective waiver of sovereign immunity;
whether a qualified immunity defense is available to the State
Bar; and, if defendant is not entitled to any immunity, whether
the plaintiffs are entitled to compensatory and punitive
damages.

The plaintiffs now seek to amend the complaint by, inter alia,
adding the individual members of the State Bar of Wisconsin’s
Board of Governors as defendants; dropping their request for
compensatory and punitive damages for other State Bar
members; and requesting declaratory and injunctive relief
prohibiting the State Bar from enforcing the dues reduction-
arbitration plan that has been in effect since July 1, 1993.

Discussion

Any time after a responsive pleading has been filed, a party

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must seek leave from the court or consent of the adverse party
to amend a pleading. Fed. R. Civ. P. 15(a). It is within the
district court’s sound discretion to grant or deny leave to amend
at that point in the litigation. Perrian v. O’Grady, 958 F.2d 192,
194 (7th Cir. 1992). Pursuant to Rule 15(a), leave to amend
should be freely given unless there is "undue delay, bad faith,
dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, or futility of the amendment." Id. (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). Undue prejudice has been
found when a proposed amendment would bring new claims
and add new parties, and when it would require significant

additional preparation. Conroy Datsun Ltd v. Nissan Motor

Group, 506 F. Supp. 1051 (N.D. Ill. 1980); See also, Troxel
Mfg. Co. v. Schwinn Bicycle, 489 F.2d 968 (6th Cir. 1973).

Plaintiffs’ proposed amendments would add 46 new parties to

this litigation. They would add a completely new claim that is

dissimilar to the issues remaining, thus expanding the scope of

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this lawsuit. Since this case was remanded, discovery has been
conducted on the issues left open by the Seventh Circuit’s
opinion. At this point, adding new parties and substantially
changing the theory upon which the case is based would
undoubtedly require significant additional preparation on the
part of the defendant, and would impose a greater burden on
this court.

The current dues reduction-arbitration plan that the plaintiffs
now seek to challenge was promulgated severa] years after the
commencement of this lawsuit and is not appropriately a part
of this lawsuit. Furthermore, the constitutionality of the current

rules is the subject of a lawsuit, Thiel v. State Bar of Wisconsin,

Case No. 95 C 103 S, now pending in the Western District of
Wisconsin. That action seeks the same declaratory and
injunctive relief as plaintiffs’ proposed supplemental complaint.
Since the relief sought in Thiel is declaratory and injunctive,
plaintiffs will benefit from any relief granted. And if they so

desire, they can seek to intervene in that case. Plaintiffs,

therefore, will not be prejudiced by a denial of their motion.

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Conclusion
This litigation has been pending for seven years. To add
claims upon which this case proceeds at this point in time
would be unduly prejudicial to the defendants. It is time to
conclude this litigation, not change gears and proceed anew.

Therefore, plaintiffs motion to amend is denied.

ENTER:

Stanley J. Roszkowski /s/_
STANLEY J. ROSZKOWSKI, JUDGE
UNITED STATE DISTRICT COURT

DATE: _ May 1, 1995 /s/

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APPENDIX D
In the

United States Court of Appeals
For the Seventh Circuit

No. 92-3899
JOHN CROSETTO, ET AL.,
Plaintiffs-Appellants,
Vv.
STATE BAR OF WISCONSIN, ET AL.,
Defendants-Appellees.

Appeal from the United States District Court for the
Western District of Wisconsin
No. 88 C 433—Stanley J. Roszkowski, Senior District Judge.

ARGUED SEPTEMBER 29, 1993—-DECIDED
DECEMBER 20, 1993

Before FLAUM, EASTERBROOK, and KANNE, Circuit
Judges.

FLAUM, Circuit Judge. In this case Wisconsin lawyers, John
Crosetto, Kenneth Doran, and Douglas Kammer ("Plaintiffs"),
have alleged that the State Bar of Wisconsin, Stephen Smay

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(the Executive Director of the Wisconsin Bar), and the Justices
of the Wisconsin Supreme Court ("Defendants"), violated
Plaintiffs’ First Amendment rights by requiring Plaintiffs both
to join the Wisconsin State Bar and to contribute money for
certain political causes in order to practice law in the State. The
district court granted Defendants’ motion for summary
judgment finding that Defendants acted in good faith and
holding that Defendants were entitled to qualified immunity.
Furthermore, the district court denied Plaintiffs’ motion for a
preliminary injunction, upholding the cocnstitutionality of
Wisconsin’s integrated bar and compulsory membership dues.
We affirm in part, vacate in part, and remand this case to the
district court for a factual finding.

I. Background

The issue presented here is not wholly new to this court and
we are mindful of the long history of litigation surrounding
Wisconsin’s mandatory bar rule. In 1943, the Wisconsin
legislature enacted a bill directly that 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 the association shall be a condition precedent to
the right to practice law in Wisconsin.” Wis. Stat. § 256.31
(1943). Construing the statute to be merely advisory, the
Wisconsin Supreme Court initially declined to integrate! the
State’s bar, and allowed the bar association membership to
remain voluntary. See Integration of Bar Case, 244 Wis. 8, 11
N.W.2d 604 (1943); In re Integration of the Bar, 249 Wis. 523, 25
N.W.2d 500 (1946).

By 1956, the Wisconsin Supreme Court had become
concemed that "too many lawyers have refrained or refused to
join [the voluntary bar association], that membership in the

lan integrated bar is one requiring both membership and the payment of
dues as conditions of practicing law within the state.

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voluntary association [had] become static, and that substantial
minority of the lawyers in the state [were] not associated with
the State Bar Association." Jn the Matter of the Integration of the
Bar, 273 Wis. 281, 77 N.W.2d 602 (1956). The Court ordered
integration of the State’s bar on an interim basis, id. 77 N.W.2d
at 604, and after a two year trial period, the Court permanently
integrated the State’s bar.

A significant portion of Wisconsin lawyers opposed the
Wisconsin Supreme Court’s decision and filed a lawsuit alleging
that Wisconsin’s integrated bar violated the First Amendment.
This lawsuit ultimately reached the Supreme Court of the
United States. Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826,
6 L.Ed.2d 1191 (1961). In Lathrop, six justices employed a
legitimate state interest test and concluded that Wisconsin’s
integrated bar did not violate a Wisconsin lawyers’ First
Amendment rights. But Lathrop hardly settled the opposition to
Wisconsin’s integrated bar. By the late 1970s, resistance to
Wisconsin’s integrated bar became so pronounced, as the State
Bar became increasingly involved in advocating various political
policies, that the Wisconsin Supreme Court decided to allow all
attorneys who objected to the Bar’s political expenditures to
reduce their membership dues according to that portion of dues
spent on the objectionable political activities. See Matter of
Discontinuation of Wis. State Bar, 93 Wis.2d 385, 286 N.W.2d
601 (1980).

Unsatisfied by the Wisconsin Supreme Court’s dues-reduction
compromise, a Wisconsin lawyer filed a federal class action suit
challenging the facial constitutionality of Wisconsin’s integrated
bar. Levine v. Supreme Court of Wisconsin, 679 F.Supp. 1478
(W.D. Wis. 1988) (hereinafter "Levine I"). In Levine I, the
plaintiff contended that compulsory membership dues facially
violate a Wisconsin lawyer’s speech and association rights under
the First Amendment. Jd. at 1489. Alternatively, the plaintiff
argued that the Bar’s use of compulsory dues to fund political
advocacy violated the First Amendment and that Wisconsin’s

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dues-reduction compromise failed to cure this defect. Jd. at
1502. Without addressing the plaintiff's alternative argument,
the district court declared that Wisconsin’s mandatory bar
membership rule and its Bar dues requirement facially violated
all Wisconsin lawyers’ First and Fourteenth Amendment rights.
Id. The district court awarded the plaintiff both compensatory
and punitive damages, and enjoined the State Bar’s from
enforcing its mandatory bar-membership rule. /d. In its analysis,
the district court questioned the continued viability of Lathrop,
the cornerstone upon which the defendant's legal arguments for
an integrated bar rested. To comply with Levine J, the
Wisconsin Supreme Court suspended enforcement of the
mandatory membership rule. Following the victory in Levine J,
the opposition lawyers filed the case here before us—Crosetto
v. State Bar of Wisconsin—hoping to curb further the State’s
integrated bar.

The district court stayed all its proceedings pending the
outcome of Levine I’s appeal which was then before the Seventh
Circuit. Subsequently, we reversed Levine I on appeal, holding
that Lathrop still controlled the constitutionality of integrated
bars and allowed Wisconsin to enforce its integrated bar. See
Levine v. Heffernan, 864 F.2d 457, 458 (7th Cir.1988)
(hereinafter "Levine Ir)? After Levine II, the Crosetto district
court lifted its stay and the parties briefed fully Plaintiffs’
motion for class certification. Judge Crabb denied Plaintiffs’
motion without prejudice and then recused herself, noting that
as a member of the Wisconsin bar, she would be affected by the
case’s outcome. The Chief Judge of the Seventh Circuit
designated Judge Roszkowski from the Northern District of
Illinois, to preside over Crosetto. Thereafter, the proceedings of
Crosetto were again stayed pending the decision from the
United States Supreme Court in Keller v. State Bar of California,
496 US. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990) (posing

2Notwithstanding Levine II the Wisconsin Supreme Court continued its
suspension of the bar integration rule until July 1, 1992.

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questions regarding the constitutionality of California’s
integrated bar).

After the Court in Keller upheld California’s integrated bar,
the Wisconsin Bar began the process of re-integrating. In
March 1991, the State Bar approved a petition to the Wisconsin
Supreme Court to reinstate the State Bar as a mandatory
organization. Following a public hearing, the Wisconsin
Supreme Court reestablished the integrated bar, effective J uly
1, 1992, under a new set of Court rules and State Bar by-laws.

3See Wisconsin SCR 10.03(5)(b) and Wisconsin State Bar Bylaws, art. I,
sec. 5. The newly-enacted Wisconsin Supreme Court Rule 10.03(5)(b)
provides the following:

1. The state bar may use compulsory dues only for activities reasonably
intended for the purpose of regulating the legal profession or improving
the quality of legal services offered by members of the state bar. Other
activities must be supported by voluntary dues, user fees or other sources
of revenue.
2. Prior to the beginning of each fiscal year, the state bar shall publish
written notice of the activities that can be supported by compulsory dues
and the activities that cannot be supported by compulsory dues. The notice
shall indicate the cost of each activity, including all appropriate indirect
expense, and the amount of dues to be devoted to each activity. The notice
shall set forth each member’s pro rata dues to be devoted to activities that
cannot be supported by compulsory dues. The notice shal] be sent to every
member of the state bar along with the annual dues statement. A member
of the state bar may withhold the pro rata portion of dues budgeted for
aciivpties that cannot be supported by compulsory dues.
3. A member of the state bar who contends that the state bar incorrectly
set the amount of dues that can be withheld may deliver to the state bar
a written demand for arbitration. Any such demand shal] be delivered
within 30 days of receipt of the members’s dues statement.
4. If one or more timely demands for arbitration are delivered, the state
bar shall promptly submit the matter to arbitration before an impartial
arbitrator. All such demands for arbitration shal] be consolidated for
hearing. The costs of the arbitration shall be paid by the state bar.
5. In the event the decision of the arbitrator results in an increased pro
rata reduction of dues for members who have delivered timely demands for
(continued...)

A ee OS eRe SS A ne

27a

See In Matter of State Bar of Wisconsin: Membership, 169 Wis.2d
21, 485 N.W.2d 225 (1992).

Meanwhile, Plaintiffs’ continued pressing their constitutional
objections through this case, Crosetto. In Crosetto, Plaintiffs
alleged that before Keller, (1) Defendants had forced Plaintiffs
to financially support the State Bar’s political and other
legislative activities contrary to the First and Fourteenth
Amendments, (2) confiscated Plaintiffs’ property without due
process of law, and after Keller (3) Defendants implemented a
dues reduction plan that still failed the most recent
pronouncements of the Supreme Court of the United States. In
support of their allegations, Plaintiffs contend that among other
things, Defendants commingled resources between the State Bar
and its political action committee failed to keep adequate
records so that dissenting bar members may obtain a proper
refund, and used dues money for political activities unrelated to
the regulation of the legal profession.

The Justices of the Wisconsin Court filed a motion to dismiss
Plaintiffs complaint against them in that, as J ustices, they were
absolutely immune from suit for the quasi-legislative conduct,
and further, that Plaintiffs lacked any immediate threat of
injury. The District Court granted the Justices’ motion
dismissing them from the case. Then the remaining defendants
filed a motion for summary judgment. The district court granted
the motion, dismissed the rest of Plaintiffs’ case, and denied
Plaintiffs’ counter motion for a preliminary injunction against
the State’s integrated bar rule, 810 F ‘Supp. 966. After reviewing
the district court’s grant of summary judgment de ovo,
McMillan v. Svetanoff, 878 F.2d 186, 188 (7th Cir.1989), we

3(...continued)

arbitration for the fiscal year, the state bar shall offer such increased pro
rata reduction to members first admitted to the state bar during that fiscal
year and after the date of the arbitrator’s decisions.

28a

vacate and remand in part, affirming the rest of the district
court’s judgment.

Il. Analysis

In their appeal, Plaintiffs argue the following: (A) the federal
courts have subject matter jurisdiction over Plaintiffs’ claims
against (1) the State Bar Association as an entity, and (2) the
Justices of the Wisconsin Supreme Court, (B) the doctrine of
qualified immunity does not bar Plaintiffs’ damage claims
against the defendant Smay (the Bar’s Executive Director) for
his alleged official misconduct, and (C) both Wisconsin’s
present integrated bar and dues reduction plan fail to pass
constitutional muster thus entitling Plaintiffs to injunctive relief.
We shall address these arguments serially.

A. Subject Matter Jurisdiction

Plaintiffs arguments focus on the merits of a qualified
immunity defense with respect to both Smay and the State Bar.
In so doing, Plaintiffs apparently have assumed that the State
Bar, as an entity, is entitled to raise the qualified immunity
defense. In fact, the question of whether a non-natural person,
such as the State Bar, may raise a qualified immunity defense
has yet to be settled.4 Today we need not grapple with this
question because the Constitution of the United States may not
grant us any judicial power to hear either Plaintiffs’ claims
against the State Bar or those against the Wisconsin Justices.

1. The State Bar Association

[1-4] In our federalist system of dual sovereignty the
jurisdiction of the federal courts is limited to the grants of

4Not only was the non-natural person issue not briefed for us, but
Plaintiffs resisted discussing this possible objection even after several pointed
queries from this court during oral argument.

ane non

29a

power declared in the Constitution. Plaintiffs having brought
their suit in a federal court must endeavor to surmount one of
the Constitutions’ unavoidable jurisdictional hurdles, that of
state sovereign immunity. While we note that a state’s sovereign
immunity sets a constitutional lid on the exercise of federal
judicial power, we must also be mindful that when a citizen sues
his home state the Constitution’s Eleventh Amendment is
evidence, but not the origin of this doctrine.’ Hans v.
Louisiana, 134 US. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). In
developing the Hans doctrine, the Eleventh Amendment has
served as a historical framework for the Supreme Court’s
teaching that the Constitution never granted federal courts any
judicial power over suits by a citizen against his own state.

*We mention this fact only because, in explicating the Hans doctrine,
some courts have used "the Eleventh Amendment" as a short-hand substitute
for the Hans doctrine’s authority and origin. While convenient, this
characterization is imprecise. The text of the Eleventh Amendment clearly
does not provide for immunity when a citizen sues his resident state. U.S.
Const. amend. XJ. ("The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.”).

°The States passed the Eleventh Amendment in reaction to the Supreme
Court’s decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440
(1793), and constitutionally overruled Chisholm which had allowed federal
subject matter jurisdiction over a suit against a state by a citizen of another
state. Nearly a hundred years later, when a resident citizen attempted to sue
his own state in federal court, the Court in Hans held that federal courts
lacked subject matter jurisdiction over such a suit. The Court reasoned as
follows:

"Can we suppose that, when the Eleventh Amendment was adopted, it
was understood to be left open for citizens of a State to sue their own
state in the federal courts, while the idea of suits by citizens of other
states, or of foreign states, was indignantly repelled? Suppose that
Congress, when proposing the Eleventh Amendment, had appended to
it a proviso that nothing therein contained should prevent a State from

(continued...)

30a

Without some affirmative constitutional grant the federal courts
lack any judicial power to decide a case. See Hans, 134 US. at
15, 10 S.Ct. at 507; see also Pennhurst v. Halderman, 465 U.S.
89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984). Therefore,
when a state citizen sues an entity that happens to be an arm of
that citizen’s home state, then a federal court, under Hans and
its progeny,’ ordinarily lacks subject matter jurisdiction.® Of
course for the Hans doctrine to forbid federal jurisdiction, a
suit against the state bar association must appropriately be
considered a suit against an arm of the state. While the actual
State status of "state" bar associations will vary from state to
state, the case law confirms that in several instances state bar
associations will be protected by sovereign immunity.

6(._.continued)
be=.g sued by its own citizens in cases arising under the Constitution or
laws of the United States; can we imagine that it would have been
adopted by the States? The supposition that it would is almost an
absurdity on its face.

"The truth is, that the cognizance of suits and actions unknown to the law,
and forbidden by the law, was not contemplated by the Constitution when
establishing the judicial power of the United States.” Hans, 134 US. at 15, 10
S.Ct. at 507.

Though criticized, especially by the academy, the Hans doctrine has been
repeatedly affirmed. Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78
L.Ed. 1281 (1934); Employees v. Dep’t of Pub. Health & Welfare, 411 U.S. 279,
93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Atascadero v. Scanlon, 473 U.S. 234, 105
S.Ct. 3142, 87 L.Ed.2d 171 (1985); McKesson v. Div. of Alcoholic Beverages &
Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L_Ed.2d 17 (1990).

8We say ordinarily because there are exceptions to this bar which
concededly make the Eleventh Amendment and Hans immunity peculiar
jurisdictional rules. For example, Congress can abrogate state sovereign
immunity, see Welch v. Texas Department of Public Transport~tion, 483 U.S.
468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987); Fitzpatrick v. Bitzer, 427 U.S. 445,
96 S.Ct. 2666, 49 L_Ed.2d 614 (1976); Furthermore, a state can consent to suit
in federal court, see infra note 11 and accompanying text.

3la

[5] 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.

*Neither Keller, 496 U.S. 1, 110 S.Ct. 2228, the Court’s most recent bar-
association case, nor Bates v. State of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 55
L.Ed.2d 810 (1977) (where the court also decided claims against a state bar
on the merits imply that a suit against a state bar association is not a suit
against the state for the purposes of sovereign immunity. The doctrine of
sovereign immunity does not apply when, as in Keller or Bates, the Supreme
Court exercises its appellate jurisdiction over a case arising from state court.
McKesson, 496 U.S. at 27, 110 S.Ct. at 2245.

Nor can the Supreme Court’s review in either Goldfarb v. Virginia State
Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), or Hoover v. Ronwin,
466 US. 558, 104 S.Ct. 1989, 80 L-Ed.2d 590 (1984), represent an implicit
holding that the jurisdictional bar of sovereign immunity does not apply when
&@ state bar is sued in federal court. In Goldfarb, the Court explicitly noted:
“The State Bar also contends that it is protected by the Eleventh Amendment.
Petitioners dispute this contention, and the District Court had no occasion to
reach it in view of its holding. Given the record before us we intimate no view
on the issue, leaving it for the District Court on remand.” Jd. 421 U.S. at 792
n. 22, 95 S.Ct. at 2016. (citations omitted). In Hoover, the state bar association
was already dismissed from the suit by the district court before the case
reached the Court. 466 U.S. at 565 n. 12, 104 S.Ct. at 1993 n. 12; see also
Lathrop, 367 U.S. 820, 81 S.Ct. 1826.

32a

With respect to state bar associations and sovereign immunity
the lower federal courts that have addressed this issue
unanimously have found particular state bars entitled to the
sovereign immunity defense. See Lewis v. Louisiana State Bar
Ass'n, 792 F.2d 493 (Sth Cir.1986) (holding that federal courts
lacked jurisdiction to hear a suit by a Louisianian against the
Louisiana State Bar); Bishop v. State Bar of Texas, 791 F.2d 435
(Sth Cir.1986) (holding the Texas State Bar could not be sued
by a Texan); Lupert v. California State Bar, 761 F.2d 1325 (9th
Cir.1986), cert. denied, 474 U.S. 916, 106 S.Ct. 241, 88 L.Ed.2d
251 (1986) (holding that the federal courts lacked jurisdiction
to hear a suit by a Californian against the California State Bar);
Ginter v. State Bar of Nevada, 625 F.2d 829, 830 (9th Cir.1980)
(holding the Nevada State Bar was immune from suit by a
Nevadan); Doyle v. Oklahoma Bar Ass'n, 787 F.Supp. 189 (W.D.
Okl. 1992) (holding that the Oklahoma state bar association
was an instrumentality of the state, and thus, federal courts
lacked jurisdiction to hear a suit for damages by an
Oklahoman).

[6] 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.!9 We

10The parties never addressed the issue of sovereign immunity, but
because it is jurisdictional, we raise it sua sponte. See Pennhurst, 465 US. at
99 n. 8, 104 S.Ct. at 907 (“The limitation deprives federal courts of any
jurisdiction to entertain such claims, and thus may be raised at any point in
a proceeding.”); Edelman v. Jordan, 413 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39
L.Ed.2d 662 (1974) (holding that a state’s sovereign immunity “sufficiently
partakes of the nature of a jurisdictional bar so that it need not be raised in
the trial court.”); Shabazz v. Coughlin, 852 F.2d 697, 699-700 (2d Cir.1988);
see also Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction 2d § 3524 at 170 n. 83 (2d ed. 1984), discussing Patsy v. Board of
Regents of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1981).

33a

therefore vacate that part of the district court’s decision holding
for the State Bar of Wisconsin, and remand this case for a
determination of the State Bar’s sovereign status.

[7,8] After additional briefing along with any other
discovery deemed appropriate, the district court must ultimately
determine whether the suit against the Wisconsin State Bar
Association is properly considered a suit against the state qua
state. In making its finding the district court should consider the
extent of control exercised over the Bar by the Wisconsin
Supreme Court (or the State at large). See Lewis, 792 F.2d at
497 discussing Bates, 433 U.S. at 361, 97 S.Ct. at 2697, and
Hoover, 466 US. at 569 n. 18, 571, 104 S.Ct. at 1995 n. 18,
1996. In this matter we agree with Lewis, that the analysis
presented in both Bates and Hoover is applicable to questions
of sovereign immunity. If the Wisconsin Supreme Court had the
ultimate authority to adopt and enforce the Bar's rules in
question, then a suit against the Bar challenging those rules
may be not that different from a suit directly against the
Wisconsin Supreme Court. See Lewis, 792 F.2d at 497. The
district court should also consider, as additional indication of
state control, whether the Wisconsin State Bar has a role
completely defined by the Wisconsin Supreme Court—that is
whether the Bar was acting as the agent of the Court when it
promulgated the rules in question. /d. Also relevant is whether
a judgment against the State Bar would ultimately be paid by
the state’s treasury. See Paschal v. Jackson, 936 F.2d 940 (7th
Cir.1991); Cannon v. University of Health Sciences, 710 F.2d 351,
356 (7th Cir.1983); see also Lewis, 792 F.2d at 498 (holding
that since the dues of the Louisiana Bar Association, an
integrated bar, are actually state license taxes levied by the
express authority of the state legislature, they are thus
unavailable as damages under the doctrine of sovereign
immunity). We hasten to note, however, that even when there
is no risk to the state treasury, the state is immune when sued
in its own name. See Zych v. Wrecked Vessel Believed to be the
Lady Elgin, 960 F.2d 665, 669 (7th Cir.1992) (rejecting the

34a

notion that an absence of financial impact on the state is a per
se pass from the Eleventh Amendment’s purview); see also
Green v. Mansour, 474 U.S. 64, 72, 106 S.Ct. 423, 427, 88
L.Ed.2d 371 (1985). Thus, even without any impact on the
State’s treasury, the district court must consider whether the Bar
occupies the position of a public agency or official, necessarily
forbidding any suit in federal court. See Lewis, 792 F.2d at 497
(discussing Bates, 433 U.S. at 361, 97 S.Ct. at 2697); Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304,
2311, 105 L.Ed.2d 45 (1989) (Sovereign immunity forbids a suit
against an individual or entity who occupies the position of a
state office—even if there is no fiscal impact on state
funds—just as if the state had been named directly as a party to
the suit.).

If after its analysis the district court finds that a suit against
the Wisconsin State Bar is a suit against the State, then unless
one of the recognized exceptions to a state’s sovereign
immunity applies here,!! it must dismiss all of Plaintiffs’
claims against the Wisconsin State Bar for lack of subject
matter jurisdiction.

For example, while we recognize that a general appearance by an
authorized representative of the state may constitute an implied consent to
suit under some circumstances, thus waiving the sovereign immunity defense,
see, e.g, Hankins v. Finnel, 964 F.2d 853 (8th Cir.1992), cert. denied, _ US.
_» 113 S.Ct. 635, 121 L_Ed.2d 566 (1992), the Wisconsin State Bar may not
have had the authority to effectuate such an important waiver unilaterally. See
Employees, 411 U.S. at 285, 93 S.Ct. at 1618. The Wisconsin Constitution, art.
IV § 27 provides [“t}he legislature shall direct by law in what manner and in
what court suits may be brought against the state.” In interpreting this
language, the Wisconsin Supreme Court has held that "a state agency or
Officer may not waive the state’s sovereign immunity without specific
authorization nor will principles of estoppel be applied 30 as to deprive a
state of its sovereign rights.” Lister v. Board of Regents, 72 Wis. 2d 282, 240
N.W.2d 610 (1976). In some circumstances even “the attorney general may
appear on behalf of the state . . . without waiving the state’s sovereign
immunity to suit.” WisStat. § 895.46(1)(a) (1983). Whether under the
circumstance of this case the state bar waived any sovereign immunity it may
have had is an issue possibly worthy of exploration on remand.

35a

2. The State Court Justices

[9,10] Plaintiffs’ claims against the Justices of the
Wisconsin Supreme Court must be dismissed for jurisdictional
reasons. Plaintiffs concede that any prayer for retrospective
relief against the Justices "in their official capacity" would lack
subject matter jurisdiction.!4 However, the limited jurisdiction
of the federal courts not only bars any possible retrospective
claims against the Justices, but also mandates that we dismiss
Plaintiffs’ prayer for injunctive relief because it fails to present
an Article III case or controversy.

(11, 12] Article III of the Constitution extends the judicial
power of the United States only to real cases or controversies.
U.S. Const. art. III, § 1. As a result federal courts lack the
power to give advisory opinions in hypothetical cases.
Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435
(1806). Plaintiffs argue that because the Justices might someday
enforce the Bar’s rules, Plaintiffs have a ripe claim. We
disagree. Before a plaintiff may obtain an injunction against a
future enforcement he must show some substantial
hardship—the enforcement must be certain and the only
impediment to the case’s ripeness is a delay before its eventual
prosecution. Steffel v. Thompson, 415 U.S. 452, 462. 94 S.Ct.
1209, 1217, 89 L.Ed.2d 505 (1974) (allowing an injunction
against police when the plaintiff or his friends had twice before
been arrested for distributing the same handbills at the same
shopping center.) When pressed by the panel during oral
argument Plaintiffs’ counsel conceded that he was unaware of
any Wisconsin lawyer ever being disciplined by the Justices for
that lawyer's failure to pay dues to the integrated bar. In the
absence of any real threat of harm resulting from

\2Brief for Appellant at 42, Crosetto v. State Bar, No. 92-3899 (7th
Cir.1993). See also supra pp. 1400-02. Only prospective relief can be sought
against the Justices sued in their official capacity. See Ex Parte Young, 209
U.S. 123, 28 S.Ct. 441, 52 LEd. 714 (1908,

36a

noncompliance with the dues requirement, Plaintiffs’ immediate
claim is not ripe against the Justices, and must be dismissed for
lack of subject matter jurisdiction. Therefore, we affirm the
district court’s decision to dismiss Plaintiffs’ case against the
Justices.

B. Qualified Immunity

Federal courts have subject matter jurisdiction over Plaintiffs’
claims against Mr. Smay, the Executive Director of the
Wisconsin State Bar, sued in his individual capacity for
allegedly violating Plaintiffs’ First and Fourteenth Amendment
rights. 28 U.S.C. § 1331. However, as an individual serving in a
state office, Smay may be entitled to qualified immunity. Abel
v. Miller, 824 F.2d 1522, 1580 (7th Cir.1987).

[13-15] The doctrine of qualified immunity "is intended to
provide governmental officials with the ability ’to anticipate
reasonably when their conduct may give rise to liability for
damages.” Jd. at 1533 (quoting Anderson v. Creighton, 483 U.S.
635, 646, 107 S.Ct. 3034, 3042, 97 L.Ed.2d 523 (1989)). In
Harlow v. Fitzgerald, the Supreme Court explained that
defendants are shielded from liability by the doctrine of
qualified immunity "insofar as their conduct doe not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known." 457 U.S. 800, 818, 102
S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Williams v.
Anderson, 959 F.2d 1411, 1414 (7th Cir.1992). Where the
affirmative defense of qualified immunity is properly raised,
"the plaintiff bears the burden of establishing the existence of
the allegedly clearly established constitutional right.” Rakovich
v. Wade, 850 F.2d 1180, 1209 (7th Cir.1988), cert. denied, 488
U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988) (citations
omitted). For the qualified immunity defense to fail, “what is
required is a ’sufficient consensus,’ based on all relevant case
law, indicating that the official’s conduct was unlawful."
Landstrom v. Illinois Dep’t of Children, 892 F.2d 670 676 (7th

tb oon me

37a

Cir.1990). Since Smay properly raised this defense, unless
Plaintiffs can show that a sufficient consensus clearly established
the existence of a violated constitutional rigtit, Smay will receive
qualified immunity from Plaintiffs’ damage claims.

[16] Plaintiffs have not begun to meet their burden. The
constitutional rights allegedly breached by Smay were not
clearly established to a sufficient legal consensus at the time of
the alleged violation. Far from being clearly established in 1990,
Keller, 496 U.S. at 1, 110 S.Ct. at 2228 (which extended the
rules of Hudson, 476 U.S. 292, 106 S.Ct. 1066, to bar
associations), represented the first definitive legal statement
that mandatory bar dues had the same restrictions on their use
as compulsory union dues. See Schneider v. Colegio, 917 F.2d
620, 624 (1st Cir.1990), cert. denied, _ U.S. __, 112 S.Ct. 865,
116 L.Ed.2d 772 (1992); see also, supra notes 9, 12-14 and
accompanying text discussing Keller and integrated bar dues. As
the district court found, before the Keller decision "even the
basic issue of the applicability of First Amendment protections
to lawyers in an integrated bar was open to question.” Crosetto
v. State Bar, No. 88 C 433 C, Mag. Report and
Recommendation at 33 (Magis.Ct., N.D.Ill., W.Div., 1992)
(hereinafter, "Magistrate’s Report"). Notably, the California
Supreme Court was reversed by the Supreme Court of the
United States on this point of law as late as 1990. See generally,
Keller, 496 U.S. at 1, 110 SCt. at 2228. The doctrine of
qualified immunity is designed to relieve public officials from
having to predict, at their own financial peril, how judges might
decide future close cases. As this circuit has stated, "government
employees must obey the law in force at the time but need not
predict its evolution”. Greenberg v. Kmetko, 922 F.2d 382, 385
(7th Cir.1991). Because the law confronting Smay before 1990
did not clearly establish to a sufficient legal consensus that his

\3Hudson prohibited, as a violation of the First Amendment, a labor
union from using union dues for political contributions against union
member’s will.

38a

activities would subject him to any liability, Smay is entitled to
qualified immunity for his conduct during this period. We
affirm the district court’s dismissal of Plaintiffs’ damage claims
against Smay.

C. Integrated Bar Dues

[17] All that remains of Plaintiffs’ case is their prayer for an
injunction "to prevent the reintegration of the Wisconsin State
Bar under the revised Wisconsin Supreme Court rules and State
Bar by-laws governing legislative activities.". Magistrate's Report
at 40. After considering the merits of Plaintiffs’ argument, the
district court concluded that the Wisconsin rules and by-
laws!4 readily met the requirements established by the
Supreme Court in Keller and therefore denied Plaintiffs’ motion.
We agree.

Plaintiffs assert that the compulsory dues plan set out in the
State Bar’s bylaws and the Wisconsin Supreme Court’s rules is
facially invalid for failing to comply with Keller (which expanded
Hudson to the arena of state bar associations).! However, as
noted by the district court, the requirements of Keller and
Hudson were the foundation on which the Wisconsin rules were
promulgated. See Magistrate’s Report at 40. The language of
Wisconsin’s SCR 10.03(5)(b) follows the language of Keller in

14See supra note 3 and accompanying text discussing SCR 10.03(b) and
State Bar Bylaws.

15 See supra note 9 discussing Keller. The Keller decision singularly rejected
the notion that the "[s}tate [bjar, considered as a government agency, may use
dues for any purpose within the scope of its statutory authority,” 496 U.S. at
7, S.Ct. at 2232, and did not represent any type of implicit recognition that
the Eleventh Amendment (or the Hans doctrine) is inapplicable to suits
against state bar associations when the Court reversed a case arising from the
California Supreme Court. Keller, 496 U.S. at 17, 110 S.Ct. at 2237; see also
generally Bates, 433 U.S. 350, 97 S.Ct. 269.

39a

definin, ing what activities may be funded with compulsory
dues.! Finally, as the district court found, the new Wisconsin
rules and by-laws seem _ to incorporate all the Hudson
procedural requirements.!7 In Hudson, the Supreme Court
held that in order to protect the rights of dissenting union
employees, a union collecting a fair-share or agency fee must
provide procedural safeguards to prevent “compulsory
subsidization of ideological activity by employees who object
thereto without restricting the Union’s ability to require every
employee to contribute to the cost of collective bargaining
activities.” 475 U.S. at 302, 106 S.Ct. at 1074. The Court went
on to state that such procedures must include "an adequate
explanation of the basis of the fee, a reasonable prompt
Opportunity to challenge the fee before an impartial decision
maker, and an escrow for the amounts reasonably in dispute
while such challenges are pending.” Jd. at 310, 106 S.Ct. at 1077.
As the district court found in Crosetto, each of these
requirements is included in the in the new Wisconsin
procedure. Magistrate’s Report at 37-44.

The Wisconsin rules follow the law of Keller and Hudson in
the following ways: (1) SCR 10.03(5)(b)(2) requires that the Bar
provide written notice to all members before the beginning of
each fiscal year, describing those activities the Bar has
determined are chargeable and those which are non-chargeable,
informing members as to the cost of those activities and
describing how those amounts were calculated; (2) SCR

161n Keller the Supreme Court opined that "the guiding standard must be
whether the challenged expenditures are necessarily or reasonably incurred
for the purpose of regulating the legal profession or improving the quality of
the legal service available to the people of the State", which compares closely
to the language from SCR 10.03(5)(b), "[t]he state bar may use compulsory
dues only for activities reasonably intended for the purpose of regulating the
legal profession or improving the quality of legal services offered by members
of the state bar.”

17 See supra note 3 and accompanying text.

40a

10.03(5)(b)(3)-(S) sets up a procedure whereby those who
contend that the calculation is incorrect may challenge the
calculation and have their challenge promptly determined by an
impartial arbitrator; (3) State Bar Bylaws Article 1, Section 5(b)
provides that a member demanding arbitration need not pay
any dues until October 31 or 15 days following the arbitrator’s
decision, whichever is later. Therefore because Plaintiffs have
failed to identify any defect in the Wisconsin Bar’s compulsory
dues plan, we hold this plan constitutional both facially and as
applied, and thus affirm the district court’s denial of Plaintiffs’
motion for injunctive relief.

Ill. Conclusion

For the foregoing reasons we affirm that part of the district
court’s judgment to dispose of Plaintiffs’ suit against *he
Justices of the Supreme Court and defendant Smay, vacating in
part and remanding this case back to the district court for a
factual determination of the status of Plaintiffs’ suit with respect,
to the state.

AFFIRMED in part, VACATED in part, and REMANDED.

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APPENDIX E
ite tituti
AMENDMENT I

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the
Government for a redress of grievances.

AMENDMENT XI

The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign
State.

AMENDMENT XIV provides in pertinent part:

Section 1. All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are citizens of
the United States and of the state wherein they reside. No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

Statutes
42, U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ***, subjects, or

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causes to be subjected, any citizen of hte United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress.

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APPENDIX F

Wisconsin Supreme Court Rule 10.03(5)(b) (1992)

1. The state bar may use compulsory dues only for activities
reasonably intended for the purpose of regulating the legal
profession or improving the quality of legal services offered by
members of the state bar. Other activities must be supported by
voluntary dues, user fees or other sources of revenue.

2. Prior to the beginning of each fiscal year, the state bar
shall publish written notice of the activities that can be
supported by compulsory dues and the activities that cannot be
supported by compulsory dues. The notice shall indicate the
cost of each activity, including all appropriate indirect expense,
and the amount of dues to be devoted to each activity. The
notice shall set forth each member’s pro rata portion, according
to the class of membership, of the dues to be devoted to
activities that cannot be supported by compulsory dues. The
notice shall be sent to every member of the state bar along with
the annual dues statement. A member of the state bar may
withhold the pro rata portion of dues budgeted for activities
that cannot be supported by compulsory dues.

3. A member of the state bar who contends that the state
bar incorrectly set the amount of dues that can be withheld may
deliver to the state bar a written demand for arbitration. Any
such demand shall be delivered within 30 days of receipt of the
member’s dues statement.

4. If one or more timely demands for arbitration are
delivered, the state bar shall promptly submit the matter to
arbitration before an impartial arbitrator. All such demands for
arbitration shall be consolidated for hearing. The costs of the
arbitration shall be paid by the state bar.

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5. In the event the decision of the arbitrator results in an
increased pro rata reduction of dues for members who have
delivered timely demands for arbitration for a fiscal year, the
state bar shall offer such increased pro rata reduction to
members first admitted to the state bar during that fiscal year
and after the date of the arbitrator’s decision.

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APPENDIX G

State Bar Bylaw Article I, Section 5 (1992)

(a) Demands for arbitration of the dues reduction under
SCR 10.03(5)(b) shall be made in writing and shall be delivered
to the Executive Director of the State Bar within 30 days of
receipt of the member’s dues statement. Delivery may be made
in person or by first class mail, and mailed demands will be
deemed delivered upon mailing. Demands shall include the
name and address of the member or members demanding
arbitration, a brief statement of the claim or objection, and the
signature of the member or members.

(b) If one or more timely demands for arbitration are
delivered, the State Bar shall agree to submit the matter
forthwith to arbitration. All timely demands for arbitration shall
be consolidated for hearing before the arbitrator appointed, and
the provisions of sec. 788, Stats., shall apply as if the parties had
entered into a written agreement for arbitration. A member
demanding arbitration is required to pay his or her dues by
October 31 or 15 days following the arbitrator’s decision,
whichever is later. Failure to pay dues by such date shall
automatically suspend the delinquent member.

(c) Upon receipt of all demands for arbitration, the State
Bar shall apply for appointment of an impartial arbitrator to the
Chief Judge of the Federal District Court for the Western
District of Wisconsin.

(d) Members demanding arbitration shall have access to the
financial records upon which the State Bar based the
determination of the amount of dues that can be withheld.
These records shall be available for inspection and copying
during normal business hours. Copying shall be at the member’s

expense.

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(e¢) The arbitrator shall determine the date, time and
location of the arbitration hearing(s) and shall so notify the
parties at least 15 days prior to said hearing(s). The arbitrator
will promptly hold hearings in which the parties will be
permitted to participate personally or through a representative.
The State Bar shall bear the burden of proof regarding the
accuracy Of the determination of the amount of dues that can
be withheld. All parties will be given the opportunity to present
evidence and to present arguments in support of their positions.
The following rules shail apply to the arbitration proceedings:

i. There will be no transcripts or post-hearing briefs.

ii, The arbitrator will issue an award stating the reasons
for the decision within five business days of the closing of the
hearing. The opinion will be brief, and based on the evidence
and arguments presented.

iii, The arbitrators will charge a maximum of $100 per
hour for services, including the hearing, preparation and study
time, and shall be reimbursed for all necessary expenses of the

arbitration.

iv. The hearing shall be held within 30 days of the
appointment of the arbitrator.

v. The arbitrator shall not be deemed a necessary party
in judicial proceedings relating to the arbitration.

vi. The arbitrator shall have no authority to add, subtract,
set aside or delete from any Supreme Court Rule, or State Bar

Bylaw.

(f) Members first admitted to the State Bar after the date
of notification to members shall be given that notification with
their initial dues statements. Such members shall be further
notified that they may deliver a demand for arbitration within

en

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30 days following receipt of the notification. If arbitration is
pending at the date of delivery of a demand for arbitration by
a newly admitted member, the newly admitted member’s
demand shall be consolidated with the pending arbitration. All
of the provisions of this section shall otherwise apply to
demands for arbitration filed by newly admitted members.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0353%3A2. Public record. Not legal advice.