LATHROP v. DONOHUE
No. 200
Supreme Court of the United States
Argued January 18, 1961.—Decided June 19, 1961
367 U.S. 820
John W. Reynolds, Attorney General of Wisconsin, and Gordon Sinykin argued the cause for appellee. With them on the brief was Warren H. Resh, Assistant Attorney General.
Leo Rattay and Edwin F. Woodle filed a brief for the Cuyahoga County Bar Association, as amicus curiae, urging reversal.
MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE CLARK and MR. JUSTICE STEWART join.
The Wisconsin Supreme Court integrated the Wisconsin Bar by an order which created “The State Bar of Wisconsin” on January 1, 1957, under Rules and Bylaws promulgated by the court. In re Integration of the Bar, 273 Wis. 281; id., p. vii; 77 N. W. 2d 602. The order originally was effective for a two-year trial period, but
The appellee demurred to the complaint on the ground, among others,1 that it failed to state a cause of action. The demurrer was sustained and the complaint was dismissed. The Supreme Court of Wisconsin, on appeal, stated that the Circuit Court was without jurisdiction to determine the questions raised by the complaint. However, treating the case as if originally and properly brought in the Supreme Court, the court considered appellant‘s constitutional claims, not only on the allegations of the complaint, but also upon the facts, of which it took judicial notice, as to its own actions leading up to the challenged order, and as to all activities, including legislative activities, of the State Bar since its creation.2 The judgment of the Circuit Court dismissing the complaint was affirmed. 10 Wis. 2d 230, 102 N. W. 2d 404. The Supreme Court held that the requirement that appellant be an enrolled dues-paying member of the State Bar did not abridge his rights of freedom of association, and also that his rights to free speech were not violated because the State Bar used his money to support legislation with which he disagreed.
We think that the order is a “statute” for the purposes of
We are satisfied that this appeal is from an act legislative in nature and within
“(1) There shall be an association to be known as the ‘State Bar of Wisconsin’ composed of persons licensed to practice law in this state, and membership in such association shall be a condition precedent to the right to practice law in Wisconsin.
“(2) The supreme court by appropriate orders shall provide for the organization and government of the association and shall define the rights, obligations and conditions of membership therein, to the end that such association shall promote the public interest by maintaining high standards of conduct in the legal profession and by aiding in the efficient administration of justice.”
The State Supreme Court held that this statute was not binding upon it because “[t]he power to integrate the bar is an incident to the exercise of the judicial power . . . .” Integration of Bar Case, 244 Wis. 8, 40, 11 N. W. 2d 604, 619. The court twice refused to order integration, 244
“It is obvious that whether the general welfare requires that the bar be treated as a corporate body is a matter for the consideration of the legislature. . . . While the legislature has no constitutional power to compel the court to act or, if it acts, to act in a particular way in the discharge of the judicial function, it may nevertheless with propriety, and in the exercise of its power and the discharge of its duty, declare itself upon questions relating to the general welfare which includes the integration of the bar. The court, as has been exemplified during the entire history of the state, will respect such decla-
rations and, as already indicated, adopt them so far as they do not embarrass the court or impair its constitutional functions.”
Integration of the Bar in Wisconsin bore no resemblance to adjudication. The State Supreme Court‘s action disposed of no litigation between parties. Rather the court sought to regulate the profession by applying its orders to all present members of the Bar and to all persons coming within the described class in the future. Cf. Hamilton v. Regents, supra, p. 258; King Manufacturing Co. v. City Council, supra, p. 104. As such, the action had the characteristics of legislation. We conclude that the appeal is cognizable under
The core of appellant‘s argument is that he cannot constitutionally be compelled to join and give support to an organization which has among its functions the expression of opinion on legislative matters and which utilizes its property, funds and employees for the purposes of influencing legislation and public opinion toward legislation.4 But his compulsory enrollment imposes only
A review of the activities of the State Bar authorized under the Rules and Bylaws is necessary to decision. The purposes of the organization are stated as follows in Rule 1, § 2: “to aid the courts in carrying on and improv-
The State Legislature and the State Supreme Court have informed us of the public interest sought to be served by the integration of the bar. The statute states its desirability “to the end that such association shall promote the public interest by maintaining high stand-
The court concluded in 1956, however, that integration might serve the public interest and should be given a two-year trial.8 It decided to “require the bar to act as
The appellant attacks the power of the State to achieve these goals through integration on the ground that because of its legislative activities, the State Bar partakes of the character of a political party. But on their face the purposes and the designated activities of the State Bar hardly justify this characterization. The inclusion among its purposes that it be a forum for a “discussion of . . . law reform” and active in safeguarding the “proper professional interests of, the members of the bar,” in unspecified ways, does not support it. Only two of the 12 committees, Administration of Justice, and Legislation, are expressly directed to concern themselves in a substantial way with legislation. Authority granted the other committees directs them to deal largely with matters
We do not understand the appellant to contend that the State Bar is a sham organization deliberately designed to further a program of political action. Nor would such a contention find support in this record. Legislative activity is carried on under a statement of policy which followed the recommendations of a former president of the voluntary Wisconsin Bar Association, Alfred LaFrance. He recommended that the legislative activity of the State Bar should have two distinct aspects: (1) “the field of legislative reporting or the dissemination of information concerning legislative proposals. . . . This is a service-information function that is both useful to the general membership and to the local bar associations“; and (2) “promotional or positive legislative activity.” As to the latter he advised that “the rule of substantial unanimity should be observed. Unless the lawyers of Wisconsin are substantially for or against a proposal, the State Bar should neither support nor oppose the proposal.” Wis. Bar Bull., Aug. 1957, pp. 41-42. “We must remember that we are an integrated Bar, that the views of the minority must be given along with the views of the majority where unanimity does not appear. The State Bar represents all of the lawyers of this state and in that capacity we must safeguard the interests of all.” Id., p. 44. The rules of policy and procedure for legislative activity follow these recommendations.9
(1) its executive director is registered as a lobbyist in accordance with state law. For the legis-
(2) The State Bar, through its Board of Governors or Executive Committee, has taken a formal
(3) The standing committees, particularly the Committees on Legislation and Administration of Justice, and the sections have devoted considerable time to the study of legislation, the formulation of recommendations, and the support of various proposals. For example, the president reported in 1960 that the Committee on Legislation “has been extremely busy, and through its efforts in cooperation with other interested agencies has been instrumental in securing the passage of the Court Reorganization bill, the bill of the Judicial Council expanding personal jurisdiction, and at this recently resumed session a bill providing clerks for our Supreme Court, and other bills of importance to the administration of justice.” Wis. Bar Bull., Aug. 1960, p. 41. See also id., June 1959, pp. 64–65. A new subcommittee, on federal legislation, was set up by this committee following a study which found need for such a group
(4) A number of special committees have been constituted, either ad hoc to consider particular legislative proposals, or to perform continuing functions which may involve the consideration of legislation. Thus special committees have considered such subjects as extension of personal jurisdiction over nonresidents, law clerks for State Supreme Court justices, and revision of the federal tax lien laws. The Special Committee on World Peace through Law, which has encouraged the formation of similar committees on the local level, has sponsored debates on subjects such as the repeal of the Connally reservation, believing that “the general knowledge of laymen as well as of lawyers concerning the possibility of world peace through law is limited and requires a
(5) The Wisconsin Bar Bulletin, sent to each member, prints articles suggesting changes in state and federal law. And other publications of the State Bar deal with the progress of legislation.
But it seems plain that legislative activity is not the major activity of the State Bar. The activities without apparent political coloration are many. The Supreme Court provided in an appendix to the opinion below, “an analysis of [State Bar] . . . activities and the public purpose served thereby.” 10 Wis. 2d, at p. 246, 102 N. W. 2d, at p. 412. The court found that “The most extensive activities of the State Bar are those directed toward postgraduate education of lawyers,” and that “Postgraduate education of lawyers is in the public interest because it promotes the competency of lawyers to handle the legal matters entrusted to them by those of the general public who employ them.” 10 Wis. 2d, at p. 246, 102 N. W. 2d, at pp. 412-413.10 It found that the State Bar‘s partic-
ipation in the handling of grievances improved the efficiency and effectiveness of this work.11 It found that the public interest was furthered by the Committee on Unauthorized Practice of Law which was carrying on “a constant program since numerous trades and occupations keep expanding their services and frequently start offering services which constitute the practice of the law.” 10 Wis. 2d, at p. 248, 102 N. W. 2d, at p. 413.12 The courtseminars and symposia, see, e. g., Wis. Bar Bull., Aug. 1960, p. 41. And it has made funds available to the University of Wisconsin Law School to compensate students for assisting in the preparation of materials for post-graduate programs. See Board of Governors Minutes, Apr. 25, 1958; Wis. Bar Bull., Aug. 1958, pp. 69-70.
This examination of the purposes and functions of the State Bar shows its multifaceted character, in fact as well as in conception. In our view the case presents a claim of impingement upon freedom of association no different from that which we decided in Railway Employes’ Dept. v. Hanson, 351 U.S. 225. We there held that
We are persuaded that on this record we have no sound basis for deciding appellant‘s constitutional claim insofar as it rests on the assertion that his rights of free speech are violated by the use of his money for causes which he opposes. Even if the demurrer is taken as admitting all the factual allegations of the complaint, even if these allegations are construed most expansively, and even if, like the Wisconsin Supreme Court, we take judicial notice of the political activities of the State Bar, still we think that the issue of impingement upon rights of free speech through the use of exacted dues is no more concretely presented for adjudication than it was in Hanson. Compare International Association of Machinists v. Street, ante, p. 740, at pp. 747-749. Nowhere are we clearly
We, therefore, intimate no view as to the correctness of the conclusion of the Wisconsin Supreme Court that the appellant may constitutionally be compelled to contribute his financial support to political activities which
Affirmed.
MR. JUSTICE HARLAN, with whom MR. JUSTICE FRANKFURTER joins, concurring in the judgment.
I think it most unfortunate that the right of the Wisconsin Integrated Bar to use, in whole or in part, the dues of dissident members to carry on legislative and other programs of law reform—doubtless among the most useful and significant branches of its authorized activities—should be left in such disquieting Constitutional uncertainty. The effect of that uncertainty is compounded by the circumstance that it will doubtless also reach into the Integrated Bars of twenty-five other States.1
I must say, with all respect, that the reasons stated in the plurality opinion for avoiding decision of this Constitutional issue can hardly be regarded as anything but trivial. For, given the unquestioned fact that the Wisconsin Bar uses or threatens to use, over appellant‘s protest, some part of its receipts to further or oppose legislation on matters of law reform and the administration of
Unless one is ready to fall prey to what are at best but alluring abstractions on rights of free speech and association, I think he will be hard put to it to find any solid basis for the Constitutional qualms which, though unexpressed, so obviously underlie the plurality opinion, or for the views of my two dissenting Brothers, one of whom finds unconstitutional the entire Integrated Bar concept (post, pp. 877-885), and the other of whom holds the operations of such a Bar unconstitutional to the extent that they involve taking “the money of protesting lawyers” and using “it to support causes they are against” (post, p. 871).
For me, there is a short and simple answer to all of this. The Hanson case, 351 U.S. 225, decided by a unanimous Court, surely lays at rest all doubt that a State may Constitutionally condition the right to practice law upon membership in an integrated bar association, a condition fully as justified by state needs as the union shop is by federal needs. Indeed the conclusion reached in Hanson with respect to compulsory union membership seems to me a fortiori true here, in light of the supervisory powers which the State, through its courts, has traditionally exercised over admission to the practice of law, see Konigsberg v. State Bar of California, 366 U. S. 36; In re Anastaplo, 366 U. S. 82, and over the conduct of lawyers after admission, see Cohen v. Hurley, 366 U. S. 117. The Integrated Bar was in fact treated as such an a fortiori case in the
That being so, I do not understand why it should become unconstitutional for the State Bar to use appellant‘s dues to fulfill some of the very purposes for which it was established. I am wholly unable to follow the force of reasoning which, on the one hand, denies that compulsory dues-paying membership in an Integrated Bar infringes “freedom of association,” and, on the other, in effect affirms that such membership, to the extent it entails the use of a dissident member‘s dues for legitimate Bar purposes, infringes “freedom of speech.” This is a refinement between two aspects of what, in circumstances like these, is essentially but a single facet of the “liberty” assured by the
Nevertheless, since a majority of the Court here, as in the Street case, ante, p. 740, has deemed the “free speech” issue to be distinct from that of “free association,” I shall also treat the case on that basis. From a Constitutional standpoint, I think that there can be no doubt about Wisconsin‘s right to use appellant‘s dues in furtherance of any of the purposes now drawn in question.2 Orderly analysis
I.
To avoid the pitfall of disarming, and usually obscuring, generalization which too often characterizes discussions in this Constitutional field, I see no alternative (even at the risk of being thought to labor the obvious) but to deal in turn with each of the various specific impingements on “free speech” which have been suggested or intimated to flow from the State Bar‘s use of an objecting member‘s dues for the purposes involved in this case. As I understand things, it is said that the operation of the Integrated Bar tends (1) to reduce a dissident member‘s “economic capacity” to espouse causes in which he believes; (2) to further governmental “establishment” of political views; (3) to threaten development of a “guild
1. REDUCTION IN “ECONOMIC CAPACITY” TO ESPOUSE VIEWS.
This argument which, if indeed suggested at all, is intimated only obliquely, is that the mere exaction of dues money works a Constitutionally cognizable inhibition of speech by reducing the resources otherwise available to a dissident member for the espousal of causes in which he believes. The untenability of such a proposition becomes immediately apparent when it is recognized that this rationale would make every governmental exaction the material of a “free speech” issue. Even the federal income tax would be suspect. And certainly this source of inhibition is as great if the Integrated Bar wastes its dues on dinners as if it spends them on recommendations to the legislature. Yet I suppose that no one would be willing to contend that every waste of money exacted by some form of compulsion is an abridgment of free speech.
2. “ESTABLISHMENT” OF POLITICAL VIEWS.
The suggestion that a state-created Integrated Bar amounts to a governmental “establishment” of political belief is hardly worthy of more serious consideration. Even those who would treat the
In establishing the Integrated Bar Wisconsin has, I assume all would agree, shown no interest at all in favoring particular candidates for judicial or legal office or particular types of legislation. Even if Wisconsin had such an interest, the Integrated Bar does not provide a fixed, predictable conduit for governmental encouragement of particular views, for the Bar makes its own decisions on legislative recommendations and appears to take no action at all with regard to candidates. By the same token the weight lent to one side of a controversial issue by the prestige of government is wholly lacking here.
In short, it seems to me fanciful in the extreme to find in the limited functions of the Wisconsin State Bar those risks of governmental self-perpetuation that might justify the recognition of a Constitutional protection against the “establishment” of political beliefs. A contrary conclusion would, it seems to me, as well embrace within its rationale the operations of the Judicial Conference of the United States, and the legislative recommendations of independent agencies such as the Interstate Commerce Commission and the Bureau of the Budget.
3. DEVELOPMENT OF A “GUILD SYSTEM.”
It is said that the Integrated Bar concept tends towards the development of some sort of a “guild system.” But there are no requirements of action or inaction connected
True, the Wisconsin Bar makes recommendations to the State Supreme Court for regulatory canons of legal ethics, and it may be supposed that the Bar is not forbidden to address the State Legislature for measures regulating in some respects the conduct of lawyers. But neither activity is the kind of direct self-regulation that was stricken down in Schechter Corp. v. United States, 295 U.S. 495. The Wisconsin Supreme Court has retained all of the traditional powers of a court to supervise the activities of practicing lawyers. It has delegated none of these to the Integrated Bar. As put by the State Supreme Court:
“The integrated bar has no power to discipline or to disbar any member. That power has been reserved to and not delegated by this court. The procedure under sec. 256.28, Stats., for filing complaints for discipline or disbarment in this court is unaffected by these rules. Rule 11 and Rule 7 provide an orderly and easy method by which proposals to amend or abrogate the rules of the State Bar may be brought before this court for hearing on petition. Rule 9 provides the rules of professional conduct set forth from time to time in the Canons of the Professional Ethics of the American Bar Association, as supplemented or modified by pronouncement of this court, shall be the standard governing the practice of law in this state. Prior to the adoption of the rules
this court has not expressly adopted such Canons of Professional Ethics in toto.
“The by-laws of the State Bar provide for the internal workings of the organization and by Rule 11, sec. 2, may be amended or abrogated by resolution adopted by a vote of two-thirds of the members of the board of governors or by the members of the association themselves through the referendum procedure. As a further protection to the minority a petition for review of any change in the by-laws made by the board of governors will be entertained by the court if signed by 25 or more active members.
“Independently of the provisions in the rules for invoking our supervisory jurisdiction, this court has inherent power to take remedial action, on a sufficient showing that the activities or policies of the State Bar are not in harmony with the objectives for which integration was ordered or are otherwise contrary to the public interest.” In re Integration of Bar, 5 Wis. 2d 618, 624-625, 93 N. W. 2d 601, 604.
Moreover, it is by no means clear to me in what part of the Federal Constitution we are to find the prohibition of state-authorized self-regulation of and by an economic group that the Schechter case found in
4. “DROWNING OUT” THE VOICE OF DISSENT.
This objection can be stated in either of two ways. First: The requirement of dues payments to be spent to further views to which the payor is opposed tends to
It seems to me these arguments have little force. In the first place, their supposition is that the voice of a dissenter is less effective if he speaks it first in an attempt to influence the action of a democratically organized group and then, if necessary, in dissent to the recommendations of that group. This is not at all convincing. The dissenter is not being made to contribute funds to the furtherance of views he opposes but is rather being made to contribute funds to a group expenditure about which he will have something to say. To the extent that his voice of dissent can convince his lawyer associates, it will later be heard by the State Legislature with a magnified voice. In short, I think it begs the question to approach the Constitutional issue with the assumption that the majority of the Bar has a permanently formulated position which the dissenting dues payor is being required to support, thus increasing the difficulty of effective opposition to it.
Moreover, I do not think it can be said with any assurance that being required to contribute to the dispersion of views one opposes has a substantial limiting effect on one‘s right to speak and be heard. Certainly these rights would be limited if state action substantially reduced one‘s ability to reach his audience. But are these rights substantially affected by increasing the opposition‘s ability
Beyond all this, the argument under discussion is contradicted in the everyday operation of our society. Of course it is disagreeable to see a group, to which one has been required to contribute, decide to spend its money for purposes the contributor opposes. But the Constitution does not protect against the mere play of personal emotions. We recognized in Hanson that an employee can be required to contribute to the propagation of personally repugnant views on working conditions or retirement benefits that are expressed on union picket signs or in union handbills. A federal taxpayer obtains no refund if he is offended by what is put out by the United States Information Agency. Such examples could be multiplied. For me, this “drowning out” argument falls apart upon analysis.
5. “COMPELLED AFFIRMATION” OF BELIEF.
It is argued that the requirement of Bar dues payments which may be spent for legislative recommendations which the payor opposes amounts to a compelled affirmation of belief of the sort this Court struck down in West Virginia Board of Education v. Barnette, 319 U. S. 624. While I agree that the rationale of Barnette is relevant,
Mr. Justice Jackson, writing for the Court in Barnette, did not view the issue as turning merely “on one‘s possession of particular religious views or the sincerity with which they are held.” 319 U. S., at 634. The holding of Barnette was that, no matter how strong or weak such beliefs might be, the Legislature of West Virginia was not free to require as concrete and intimate an expression of belief in any cause as that involved in a compulsory pledge of allegiance. It is in this light that one must assess the contention that, “Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against” (ante, p. 788). One could as well say that the same mere difference in degree distinguishes the Barnette flag salute situation from a taxpayer‘s objections to the views a government agency presents, at public expense, to Congress. What seems to me obvious is the large difference in degree between, on the one hand, being compelled to raise one‘s hand and recite a belief as one‘s own, and, on the other, being compelled to contribute dues to a bar association fund which is to be used in part to promote the expression of views in the name of the organization (not in the name of the dues payor), which views when adopted may turn out to be contrary to the views of the dues payor. I think this is a situation where the difference in degree is so great as to amount to a difference in substance.
In Barnette there was a governmental purpose of requiring expression of a view in order to encourage adoption of that view, much the same as when a school teacher requires a student to write a message of self-correction on the blackboard one hundred times. In the present case there is no indication of a governmental purpose to fur-
Indeed, I think the extreme difficulty the Court encounters in the Street case (ante, p. 740) in finding a mechanism for reimbursing dissident union members for their share of “political” expenditures is wholly occasioned by, and is indicative of, the many steps of changed possession, ownership, and control of dues receipts and the multiple stages of decision making which separate the dues payor from the political expenditure of some part of his dues. I think those many steps and stages reflect as well upon whether there is an identification of dues payor and expenditure so intimate as to amount to a “compelled affirmation.” Surely if this Court in Street can only with great difficulty—if at all—identify the contributions of particular union members with the union‘s political expenditures, we should pause before assuming that particular Bar members can sensibly hear their own voices when the State Bar speaks as an organization.
Mr. Justice Cardozo, writing for himself, Mr. Justice Brandeis, and Mr. Justice Stone in Hamilton v. Regents, 293 U.S. 245, 265, thought that the remoteness of the
connection between a conscientious objection to war and the study of military science was in itself sufficient to make untenable a claim that requiring this study in state universities amounted to a state establishment of religion. These Justices thought the case even clearer when all that was involved was a contribution of money:“Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war . . . or in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government.” Hamilton v. Regents, 293 U.S. 245, 268.
Nor do I now believe that a state taxpayer could object on
It seems to me evident that the actual core of appellant‘s complaint as to “compelled affirmation” is not the identification with causes to which he objects that might arise from some conceivable tracing of the use of his dues in their support, but is his forced association with the
II.
While I think that what has been said might well dispose of this case without more, in that Wisconsin lawyers retain “full freedom to think their own thoughts, speak their own minds, support their own causes and wholeheartedly fight whatever they are against” (post, p. 874), I shall pass on to consider the state interest involved in the establishment of the Integrated Bar, the other ingredient of adjudication which arises whenever incidental impingement upon such freedoms may fairly be said to draw in question governmental action. See, e. g., Barenblatt v. United States, 360 U.S. 109; Konigsberg v. State Bar of California, supra.
In this instance it can hardly be doubted that it was Constitutionally permissible for Wisconsin to regard the functions of an Integrated Bar as sufficiently important to justify whatever incursions on these individual freedoms may be thought to arise from the operations of the organization. The Wisconsin Supreme Court has described the fields of the State Bar‘s legislative activities and has asserted its readiness to restrict legislative recommendations to those fields:
“This court takes judicial notice of the activities of the State Bar in the legislative field since its creation by this court in 1956. In every instance the
legislative measures advocated or opposed have dealt with the administration of justice, court reform, and legal practice. Neither the above-quoted by-laws nor the stated purposes set forth in section 2 of Rule 1 for which the bar was integrated would permit the State Bar to be engaged in legislative activities unrelated to these three subjects. . . . However, as we pointed out in our opinion in the 1958 In re Integration of the Bar Case, this court will exercise its inherent power to take remedial action should the State Bar engage in an activity not authorized by the rules and by-laws and not in keeping with the stated objectives for which it was created. If the lawyers of the state wish by group action to engage in legislative activities not so authorized they will have to do so within the framework of some voluntary association, and not the State Bar.” 10 Wis. 2d 230, 239-240, 102 N. W. 2d 404, 409-410.
Further, the same court has declared its belief that the lawyers of the State possess an expertise useful to the public interest within these fields:
“We are of the opinion that the public welfare will be promoted by securing and publicizing the composite judgment of the members of the bar of the state on measures directly affecting the administration of justice and the practice of law. The general public and the legislature are entitled to know how the profession as a whole stands on such type of proposed legislation. This is a function an integrated bar, which is as democratically governed and administered as the State Bar, can perform much more effectively than can a voluntary bar association.” Ibid.
I do not think that the State Court‘s view in this respect can be considered in any way unreasonable.
Legislatures too have found that they can benefit from a legal “expert‘s effort to improve the law in technical and non-controversial areas.” Dulles v. Johnson, 273 F.2d 362, 367. In the words of the Executive Secretary of the New York Law Revision Commission, there are areas in which “lawyers as lawyers have more to offer, to solve a given question, than other skilled persons or groups.” 40 Cornell L. Q. 641, 644. See also Cardozo, A Ministry of Justice, 35 Harv. L. Rev. 113. The Acts recommended by the Commissioners on Uniform State Laws have been adopted on over 1,300 occasions by the legislatures of the fifty States, Puerto Rico, and the District of Columbia. Handbook of the National Conference of Commissioners on Uniform State Laws (1960), at p. 207. There is no way of counting the number of occasions on which state legislatures have utilized the assistance of
In this light I can only regard as entirely gratuitous a contention that there is anything less than a most substantial state interest in Wisconsin having the views of the members of its Bar “on measures directly affecting the administration of justice and the practice of law.” Nor can I take seriously a suggestion that the lawyers of Wisconsin are merely being polled on matters of their own personal belief or predilection, any more than Congress had in mind such a poll when it made it the duty of federal circuit judges summoned to attend the Judicial Conference of the United States “to advise . . . as to any matters in respect of which the administration of justice in the courts of the United States may be improved.” 42 Stat. 837, 838.
III.
Beyond this conjunction of a highly significant state need and the chimerical nature of the claims of abridgment of individual freedom, there is still a further approach to the entire problem that combines both of these aspects and reinforces my belief in the Constitutionality of the Integrated Bar.
I had supposed it beyond doubt that a state legislature could set up a staff or commission to recommend changes in the more or less technical areas of the law into which no well-advised laymen would venture without the assistance of counsel. A state legislature could certainly appoint a commission to make recommendations to it on the desirability of passing or modifying any of the count-
I end as I began. It is exceedingly regrettable that such specious contentions as appellant makes in this case should have resulted in putting the Integrated Bar under this cloud of partial unconstitutionality.
MR. JUSTICE WHITTAKER, concurring in result.
Believing that the State‘s requirement that a lawyer pay to its designee an annual fee of $15 as a condition of its grant, or of continuing its grant, to him of the special privilege (which is what it is) of practicing law in the State—which is really all that is involved here—does not violate any provision of the United States Constitution, I concur in the judgment.
MR. JUSTICE BLACK, dissenting.
I do not believe that either the bench, the bar or the litigants will know what has been decided in this case—certainly I do not. Two members of the Court, saying
On appeal, the Supreme Court of Wisconsin, relying upon its powers of judicial notice, found as a fact that the State Bar does expend some of the moneys it collects as dues to further and oppose legislation3 and that court
The plurality decision to affirm the judgment of the Wisconsin courts on the ground that the issue in the case is not “shaped . . . as leanly and as sharply as judicial judgment upon an exercise of . . . [state] power requires” is, in my judgment, wrong on at least two grounds. First of all, it completely denies the appellant an oppor-
On the merits, the question posed in this case is, in my judgment, identical to that posed to but avoided by the Court in the Street case. Thus, the same reasons that led me to conclude that it violates the
The appellee‘s contention in this respect rests upon two different arguments. The first of these is that the use of compelled dues by an integrated bar to further legislative ends contrary to the wishes of some of its members can be upheld under the so-called “balancing test,” which permits abridgment of
The “balancing” argument here is identical to that which has recently produced a long line of liberty-stifling decisions in the name of “self-preservation.”10 The interest of the State in having “public expression of the views of a majority of the lawyers” by compelling dissenters to pay money against their will to advocate views they detest is magnified to the point where it assumes overpowering proportions and appears to become almost as necessary a part of the fabric of our society as the need for “self-preservation.” On the other side of the “scales,” the interest of lawyers in being free from such state compulsion is first fragmentized into abstract, imaginary parts, then minimized part by part almost to the point of extinction, and finally characterized as being of a purely “chimerical nature.” As is too often the case, when the cherished freedoms of the
I cannot agree that a contention arising from the abridgment of
Moreover, if I felt that I had the power to reweigh the “competing” values involved, I would have no difficulty reaching the conclusion that the loss inflicted upon our free way of life by invasion of
In saying all this, I do not mean to suggest that the Wisconsin State Bar does not provide many useful and entirely lawful services. Quite the contrary, the record indicates that this integrated bar association, like other
The second ground upon which the appellee would have us distinguish compelled support of hated views as practiced by an integrated bar from compelled support of such views as practiced by the unions involved in the Street case is that lawyers are somehow different from other people. This argument, though phrased in various ways, amounts to nothing more than the contention that the practice of law is a high office in our society which is conferred by the State as a privilege and that the State can, in return for this privilege, impose obligations upon lawyers that it could not impose upon those not given “so high a privilege.” Were it not for this Court‘s recent decision in Cohen v. Hurley,14 I would regard this
I do not believe that the practice of law is a “privilege” which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government. What I said in the Cohen case is, in my judgment, equally applicable here:
“. . . [O]ne of the great purposes underlying the grant of those freedoms was to give independence to those who must discharge important public responsibilities. The legal profession, with responsibilities as great as those placed upon any group in our society, must have that independence. If it is denied them, they are likely to become nothing more than parrots of the views of whatever group wields governmental power at the moment. Wherever that has happened in the world, the lawyer, as properly so called and respected, has ceased to perform the highest duty of
his calling and has lost the affection and even the respect of the people.”16
As I see it, the single, sharply defined constitutional issue presented in this case does not raise a difficult problem. This appellant is not denying the power of the State of Wisconsin to provide that its bar shall engage in non-political and non-controversial activities or even the power of the State to provide that all lawyers shall pay a fee to support such activities. What he does argue, and properly I think, is that the State cannot compel him to pay his money to further the views of a majority or any other controlling percentage of the Wisconsin State Bar when that controlling group is trying to pass laws or advance political causes that he is against. If the “privilege” of being a lawyer renders that argument unsound, it is certainly one of the more burdensome privileges Government can confer upon one of its citizens. And lawyers might be well advised to reconsider the wisdom of encouraging the use of a slogan which, though high-sounding and noble in its outward appearance, apparently imposes heavy burdens upon their
I would reverse this case and direct the Supreme Court of Wisconsin to require refund of the dues exacted under protest from the appellant in order to permit the Wisconsin State Bar to advocate measures he is against and to oppose measures he favors. I think it plain that lawyers have at least as much protection from such compulsion under the Constitution as the Court is holding railroad workers have under the
MR. JUSTICE DOUGLAS, dissenting.
The question in the present case concerns the power of a State to compel lawyers to belong to a statewide
If the State can compel all lawyers to join a guild, I see no reason why it cannot make the same requirement of doctors, dentists, and nurses. They too have responsibilities to the public; and they also have interests beyond making a living. The groups whose activities are or may be deemed affected with a public interest are indeed numerous. Teachers are an obvious example. Insurance agents, brokers, and pharmacists have long under licensing requirements or supervisory regimes. As the interdependency of each person on the other increases with the complexities of modern society, the circle of people performing vital services increases. Precedents once established often gain momentum by the force of their existence. Doctrine has a habit of following the path of inexorable logic.
In the Hanson case we said, to be sure, that if a lawyer could be required to join an integrated bar, an employee could be compelled to join a union shop. But on reflection the analogy fails.
Of course any group purports to serve a group cause. A medical association that fights socialized medicine protects the fees of the profession. Yet not even an immediate cause of that character is served by the integrated bar. Its contribution is in policing the members of the legal profession and in promoting what the majority of the Bar thinks is desirable legislation.
The Supreme Court of Wisconsin said that the integrated bar, unlike a voluntary bar association, was confined in its legislative activities. Though the Wisconsin Bar was active in the legislative field, it was restricted to administration of justice, court reform, and legal practice. The court however added:
“The plaintiff complains that certain proposed legislation, upon which the State Bar has taken a stand, embody changes in substantive law, and points to the recently enacted Family Code. Among other things, such measure made many changes in divorce
procedure, and, therefore, legal practice. We do not deem that the State Bar should be compelled to refrain from taking a stand on a measure which does substantially deal with legal practice and the administration of justice merely because it also makes some changes in substantive law.” 10 Wis. 2d 230, 239, 102 N. W. 2d 404, 409.
It is difficult for me to see how the State can compel even that degree of subservience of the individual to the group.
It is true that one of the purposes of the State Bar Association is “to safeguard the proper professional interests of the members of the bar.” State Bar of Wisconsin, Rule 1, § 2. In this connection, the association has been active in exploiting the monopoly position given by the licensed character of the profession. Thus, the Bar has compiled and published a schedule of recommended minimum fees. See Wis. Bar Bull., Aug. 1960, p. 40. Along the same line, the Committee on Unauthorized Practice of the Law, along with a Committee on Inter-professional and Business Relations, has been set up to police activities by nonprofessionals within “the proper scope of the practice of law.” State Bar of Wisconsin, By-Laws, Art. IV, §§ 8, 11.
Yet this is a far cry from the history which stood behind the decision of Congress to foster the well-established institution of collective bargaining as one of the means of preserving industrial peace. That history is partially crystallized in the language of the
Nor can the present association be defended on grounds that it renders only public services.
If we had here a law which required lawyers to contribute to a fund out of which clients would be paid in case attorneys turned out to be embezzlers,2 the present objection might not be relevant. In that case, one risk of the profession would be distributed among all members of the group. The fact that a dissident member did not feel he had within him the seeds of an embezzler might not bar a levy on the whole profession for one sad but notorious risk of the profession. We would also have a different case if lawyers were assessed to raise money to finance the defense of indigents. Cf. In re Florida Bar, 62 So. 2d 20, 24. That would be an imposition of a duty on the calling which partook of service to the public. Here the objection strikes deeper. An attorney objects to a forced association with a group that demands his money for the promotion of causes with which he disagrees, from which he obtains no gain, and which is not part and parcel of service owing litigants or courts.
The right of association is an important incident of
“The idea seems to be, contrary to all human experience, that if power be vested in this at present unknown and untried as well as indifferent outside body, holding themselves aloof from their profession, they will somehow become inspired with a high pro-
fessional sentiment or sense of duty and cooperation and will unselfishly exercise their majority power for the good of their profession and the public, that they can be trusted to choose as their officers and leaders lawyers of the type who are now leaders, that the responsibility of power will necessarily sober and elevate their minds, and finally that democracy calls for the rule of the majority. “Thus, the traditions and ethics of our great profession would be left to the mercy of mere numbers officially authorized to speak for us! This would be adopting all the vices of democracy without the reasonable hope in common sense of securing any of its virtues. It would be forcing the democratic dogma of mass or majority rule to a dangerous and pernicious extreme.
“Although in political democracy the rule of the majority is necessary, the American system of democracy is based upon the recognition of the imperative necessity of limitations upon the will of the majority. In the proposed compulsory or involuntary incorporation of the bar, there would be no limitation whatever, and the best sentiments and traditions of the profession, of the public-spirited and high-minded lawyers who are now active in the voluntary bar associations of the state, could be wholly and wantonly disregarded and overruled.”
This regimentation appears in humble form today. Yet we know that the Bar and Bench do not move to a single
Notes
“Do the orders and rules of the Supreme Court of the State of Wisconsin . . . and the rules and by-laws which were promulgated thereby deprive the appellant . . . of his rights of freedom of association, assembly, speech, press, conscience and thought, or of his liberty or property without due process of law or deny to him equal protection of the law or otherwise deprive him of rights under the Fourteenth Amendment of the Constitution of the United States by compelling him, as a condition to his right to continue to practice law in the State of Wisconsin, to be a member of and financially support an association of attorneys known as the State Bar of Wisconsin, which association . . . among other things, uses its property, funds and employees for the purpose of influencing a broad range of legislation and public opinion; and, therefore, are said orders,
rules and by-laws, insofar as they coerce the appellant to be a member of and support said association, invalid on the ground that they are repugnant to the Constitution of the United States?” “Permanent Legislative Service Agencies,” published by the Council of State Governments. Thus, the Wisconsin court correctly stated the issue in this case: “The only challenged interference with his liberty is the exaction of annual dues to the State Bar . . . part of which is used to advocate causes to which he is opposed.” 10 Wis. 2d 230, 242, 102 N. W. 2d 404, 411. See Swaine, The Cravath Firm (1946), Vol. I, pp. 359, 518.The rules also make the canons of ethics of the American Bar Association, as modified or supplemented by the Supreme Court of Wisconsin, “the standards governing the practice of law in this state.” But appellant makes no claim that the State lacks power to impose on him a duty to abide by these canons.
See, e. g., Brown v. Western R. of Alabama, 338 U.S. 294, especially at 296. Compare with this the language of the court below in this case: “[I]t promotes the public interest to have public expression of the views of a majority of the lawyers of the state, with respect to legislation affecting the administration of justice and the practice of law, the same to be voiced through their own democratically chosen representatives comprising the board of governors of the [Integrated] State Bar.” 10 Wis. 2d 230, 242, 102 N. W. 2d 404.”Legal education and bar admissions.—This committee shall make continuing studies of the curricula and teaching methods employed in law schools, and of standards and methods employed in determining the qualifications of applicants for admission to the bar; and whenever requested by the State Bar commissioners shall assist in the investigation of the qualifications of persons seeking admission to the bar.
”Post-graduate education.—This committee shall formulate and promote programs designed to afford to the members of the State Bar suitable opportunities for acquiring additional professional knowledge, training, and skill, through publications, lectures, and discussions at regional meetings of association members and law institutes, and through correspondence course study.
”Administration of justice.—This committee shall study the organization and operation of the Wisconsin judicial system and shall recommend from time to time appropriate changes in practice and procedure for improving the efficiency thereof; and in that connection shall examine all legislative proposals for changes in the judicial system.
”Judicial selection.—This committee shall study and collect information pertaining to judicial selection, tenure, and compensation, including retirement pensions, and shall report from time to time to the association with respect thereto.
”Professional ethics.—This committee shall formulate and recommend standards and methods for the effective enforcement of high
standards of ethics and conduct in the practice of law; shall consider the Canons of Ethics of the legal profession and the observance thereof, and shall make recommendations for appropriate amendments thereto. The committee shall have authority to express opinions regarding proper professional conduct, upon written request of any member or officer of the State Bar.”Public services.—This committee shall prepare and present to the board of governors plans for advancing public acceptance of the objects and purposes of the association; and shall have responsibility for the execution of such plans as are approved by the board of governors. Such plans shall include arrangements for disseminating information of interest to the public in relation to the functions of the departments of government, the judicial system and the bar; and to that end the committee may operate a speakers’ bureau and employ the facilities of the public press and other channels of public communications.
”Interprofessional and business relations.—It shall be the duty of this committee to serve as a liaison agency between the legal profession and other professions and groups with whom the bar is in contact in order to interpret to such professions and groups the proper scope of the practice of law.
”Legislation.—This committee shall study all proposals submitted to the Wisconsin legislature or the congress of the United States for changes in the statutes relating to the courts or the practice of law, and shall report thereon to the board of governors; and with the approval of the board of governors may represent the State Bar in supporting or opposing any such proposals.
”Legal aid.—This committee shall promote the establishment and efficient maintenance of legal aid organizations equipped to provide free legal services to those unable to pay for such service; shall study the administration of justice as it affects persons in the low income groups; and shall study and report on methods of making legal service more readily available to persons of moderate means, and shall encourage and assist local bar associations in accomplishing this purpose.
”Unauthorized practice of the law.—This committee shall keep itself and the association informed with respect to the unauthorized
practice of law by laymen and by agencies, and the participation of members of the bar in such activities, and concerning methods for the prevention thereof. The committee shall seek the elimination of such unauthorized practice and participation therein on the part of members of the bar, by such action and methods as may be appropriate for that purpose.”State Bar Bulletin.—This committee shall assist and advise the officers of the association and the board of governors in matters pertaining to the production and publication of the Wisconsin State Bar Bulletin, the Wisbar Letter, the Supreme Court Calendar Service and such other periodical publications of the State Bar as may be authorized by the board of governors from time to time.
”State Grievance Committee.—This committee shall consist of the chairmen of the district grievance committees, who shall meet at least quarterly and whose duties shall be to exchange information as to problems arising under the grievance procedure, to discuss and adopt uniform procedures and standards under Rule 10 [relating to grievances] and to make recommendations to the Board of Governors for improvements in the procedures under Rule 10 and for other matters consistent with their organization.” Article IV, Sections 2-13, 273 Wis. xxxiii-xxxv; Supplement, Wis. Bar Bull., Aug. 1960, pp. 21-23.
Sections have been created in the areas of corporation and business law, family law, role of house counsel, insurance, negligence and workmen‘s compensation law, labor relations law, military law, real property, probate and trust law, taxation, government law, protection of individual rights against misuse of powers of government, patent, trademark and copyright law, and criminal law.
The authorities relied upon by the plurality opinion certainly do not support its position. The concurring opinion in United States v. C. I. O., 335 U.S. 106, 124-129, does not suggest that a litigant who fails properly to “shape” constitutional issues should be thrown out of court completely for his failure. And the decision of the Court in United States v. International Union, U. A. W.-C. I. O., 352 U.S. 567, plainly cannot be taken to justify such a disposition since that case was remanded for further proceedings. A current observer has commented on the results of the regimented Bar in England:“Britain is moving towards a dangerous dictatorship not only in journalism, wireless, and television, but in finance and law. The immense groups controlling financial operations are becoming more and more interlocked and have an increasing tendency to cover up each other‘s errors.
“The great firms of solicitors are less and less inclined to offend the powerful financial houses which place the biggest business; and if dishonesty is alleged they all too often refuse ‘to act’ if this should involve one of the great interests upon which the big and profitable business of our times depends.
“Slowly, dangerously, and without the public fully realising what is happening, a nation of great power bottled up in a tiny geographical area is being brought within the grip of a minority of extremely powerful men whose genius is to deny the smallest pretension to power, but who, in fact, are wholly ruthless in a persistent search for power.
“In this search, although money is vital, they are ready to be Radical in many ways—particularly in the destruction of all rivalry for influence which might spring from a widespread continuity of wealth in the hands of proprietors of family businesses or land.
“To destroy this movement towards Press monopoly and financial ‘cover-up,’ it will be necessary for individuals still preserved from ‘take-over’ to support every form of independent journalism and finance. Unhappily, in the field of journalism the smaller groups are so afraid of worse than already threatens, that the tendency is towards surrender. This must be stopped.” The Weekly Review, Feb. 3, 1961, pp. 1, 2.
1. “The State Bar, through action of its Board of Governors, will initiate legislation only on such matters as it believes to be of general professional interest. No legislation will be sponsored unless and until the Board is satisfied that the recommendation represents the consensus and the best composite judgment of the legal profession of this state, and that the proposed legislation is meritorious and in the public interest. The text of all proposed legislation shall be
carefully prepared and considered and the counsel of the experts in the field involved will be sought wherever possible.”2. Power to make the final determination of the policy of the State Bar toward specific legislative proposals is lodged in the Board of Governors.
3. “Where it is obvious that the membership of the Bar is of a substantially divided opinion, the Board of Governors shall take no definite position“; but in any such case the Board is empowered to report its vote to the Legislature as a reflection of the diverse views of the members.
4. The Board may delegate its power to take a position on legislative matters to the Committee on Legislation, the president of the State Bar, or the legislative counsel.
5. Between Board meetings, the Executive Committee may exercise all of the Board‘s powers with respect to legislation.
6. The Board shall designate a legislative counsel, to be registered as a lobbyist in accordance with Wisconsin law. His task is to manage legislative activities, coordinating the work of sections and committees interested in legislative proposals with the activities of the Board, Executive Committee, and Committee on Legislation; he is also directed to screen all legislative proposals and refer those of special interest to the appropriate section or committee for study and recommendation.
7. The Committee on Legislation is empowered to designate persons to appear before legislative committees and arrange for their appearance.
8. When a section or committee sponsors legislation with the approval of the Board, section officers or the committee chairman may appear before the legislature in its name, or request the legislative counsel to appear.
9. “During the session of the Legislature all sections and committees of the State Bar are expected to stand ready to: (a) Participate in explaining the bills recommended or opposed by the State Bar to the committees of the Legislature to whom they are referred; (b) Prepare explanatory material relative to any bill about which
a question has arisen since its introduction; (c) Examine all bills advocated by others that would affect the courts, the judiciary, the legal profession, or the administration of justice in any particular, or that would make any changes in the substantive law, and keep the Board of Governors and the Executive Committee fully informed so that ill-advised bills can be opposed and meritorious bills can be supported. Committees of the Legislature should be encouraged to request the State Bar to study and to report its recommendations concerning all bills of this category.”10. The State Bar staff is directed to cooperate with all sections, committees, individual members, and local bar associations desiring to have bills drafted for introduction into the legislature.
11. To facilitate widespread study of legislative proposals, the State Bar shall issue a weekly legislative bulletin to officers, members of the Board of Governors and the Executive Committee, section and committee chairmen, presidents and secretaries of all local bar associations, judges, and other persons as directed by the Executive Committee.
12. Local bar associations are encouraged to take such action on legislation as they deem appropriate and forward their recommendations to the State Bar for consideration. Board of Governors Minutes, June 12, 1957.
By resolution in 1959 it was further provided that a committee or section may present its views on legislation without approval of the Board of Governors. But in so doing it must state that the position is that of the group or its officers, not that of the State Bar. Board of Governors Minutes, Feb. 18, 1959.
A complete statement of the arguments underlying the “balancing test” is set out in American Communications Assn. v. Douds, 339 U.S. 382, in which this Court held that the freedoms of speech, press, petition and assembly guaranteed by the