# Lathrop v. Donohue/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion Whittaker
* Dissenting Opinions Black Douglas
United States Supreme Court
367 U.S. 820
Lathrop v. Donohue
Argued: Jan. 18, 1961. --- Decided: June 19, 1961
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, 77 N.W.2d 602; id., at page vii. The order originally was effective for a two-year trial period, but
The appellee demurred to the complaint on the ground, among others, 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. 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.
An appeal was brought here by appellant under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), which authorizes our review of a final judgment rendered by the highest court of a State 'By appeal, where is drawn in question the validity of a (state) statute * * *.' We postponed to the hearing on the merits the question whether the order continuing the State Bar indefinitely under the Rules and Bylaws is a 'statute' for the purposes of appeal under § 1257(2). 364 U.S. 810, 81 S.Ct. 57, 5 L.Ed.2d 41.
We think that the order is a 'statute' for the purposes of § 1257(2). Under that section, the legislative character of challenged state action, rather than the nature of the agency of the State performing the act, is decisive of the question of jurisdiction. It is not necessary that the state legislature itself should have taken the action drawn in question. In construing the similar jurisdictional provision in the Judiciary Act of 1867, 14 Stat. 385, we said: 'Any enactment, from whatever source originating, to which a State gives the force of law is a statute of the State, within the meaning of the clause cited relating to the jurisdiction of this court.' Williams v. Bruffy, 96 U.S. 176, 183, 24 L.Ed. 716. We likewise said of the provision of the Act of 1925, 43 Stat. 936, which is the r esent § 1257(2): '* * * the jurisdictional provision uses the words 'a statute of any state' in their larger sense and is not intended to make a distinction between acts of a state legislature and other exertions of the State's law-making power, but rather to include every act legislative in character to which the state gives its sanction.' King Manufacturing Co. v. City Council, 277 U.S. 100, 104-105, 48 S.Ct. 489, 490, 72 L.Ed. 801. Thus this Court has upheld jurisdiction on appeal of challenges to municipal ordinances, e.g., King Manufacturing Co. v. City Council, supra; Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869; certain types of orders of state regulatory commission, e.g., Lake Erie & Western R. Co. v. State Public Utilities Comm., 249 U.S. 422, 39 S.Ct. 345, 63 L.Ed. 684; and some orders of other state agencies, e.g., Hamilton v. Regents, 293 U.S. 245, 257-258, 55 S.Ct. 197, 201, 202, 79 L.Ed. 343. It is true that in these cases the state agency the action of which was called in question was exercising authority delegated to it by the legislature However, this fact was not determinative, but was merely relevant to the character of the State's action. The absence of such a delegation does not preclude consideration of the exercise of authority as a statute.
We are satisfied that this appeal is from an act legislative in nature and within § 1257(2). Integration of the Bar was effected through an interplay of action by the legislature and the court directed to fashioning a policy for the organization of the legal profession. The Wisconsin Legislature initiated the movement for integration of the Bar in 1943 when it passed the statute, chapter 315 of the Wisconsin Laws for that year, now Wis.Rev.Stat. § 256.31, providing:
'(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, 12 N.W.2d 699, 151 A.L.R. 586. The court twice refused to order integration, 244 Wis. 8, 11 N.W.2d 604, 12 N.W.2d 699, 151 A.L.R. 586; 249 Wis. 523, 25 N.W.2d 500, before taking the actions called in question on this appeal, 273 Wis. 281, 77 N.W.2d 602; 5 Wis.2d 618, 93 N.W.2d 601. Nevertheless, the court in rejecting the first petition, 244 Wis. at pages 51-52, 11 N.W.2d at pages 623-624, recognized that its exercise of the power to order integration of the Bar would not be adjudicatory, but an action in accord with and in implementation of the legislative declaration of public policy. The court said:
'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 declarations 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, 293 U.S. at page 258, 55 S.Ct. at page 202; King Manufacturing Co. v. City Council, supra, 277 U.S. at page 104, 48 S.Ct. at page 490. As such, the action had the characteristics of legislation. We conclude that the appeal is cognizable under § 1257(2). We therefore proceed to the consideration of the merits.
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. But his compulsory enrollment imposes only the duty to pay dues. The Supreme Court of Wisconsin so interpreted its order and its interpretation is of course binding on us. The court said: 'The rules and by-laws of the State Bar, as approved by this court, do not compel the plaintiff to associate with anyone. He is free to attend or not attend its meetings or vote in its elections as he chooses. The only compulsion to which he has been subjected by the integration of the bar is the payment of the annual dues of $15 per year.' 10 Wis.2d at page 237, 102 N.W.2d at page 408. We therefore are confronted, as we were in Railway Employes' Department v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, only with a question of compelled financial support of group activities, not with involuntary membership in any other aspect. Cf. International Association of Machinists v. Street, 367 U.S. 740, at pages 748-749, 81 S.Ct. 1784, at pages 1789-1790, 6 L.Ed.2d 1141.
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 improving the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence and public service and high standards of conduct; to safeguard the proper professional interests of the members of the bar; to encourage the formation and activities of local bar associations; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform, and the relations of the bar to the public, and to publish information relating thereto; to the end that the public responsibilities of the legal profession may be more effectively discharged.' To achieve these purposes standing committees and sections are established. The Rules also assign the organization a major role in the State's procedures for the discipline of members of the bar for unethical conduct. A Committee on Grievances is provided for each of the nine districts into which the State is divided. Each committee receives and investigates complaints of alleged misconduct of lawyers within its district. Each committee also investigates and processes petitions for reinstatement of lawyers and petitions for late enrollment in the State Bar of lawyers who fail to enroll within a designated period after becoming eligible to enroll.
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 standards of conduct in the legal profession and by aiding in the efficient administration of justice.' This theme is echoed in the several Supreme Court opinions. The first opinion after the passage of the statute noted the 'widespread general recognition of the fact that the conduct of the bar is a matter of general public interest and concern.' 244 Wis. 8, 16, 11 N.W.2d 604, 608, 12 N.W.2d 699, 15 A.L.R. 586. But the court's examination at that time of existing procedures governing admission and discipline of lawyers and the prevention of the unauthorized practice of the law persuaded the court that the public interest was being adequately served without integration. The same conclusion was reached when the matter was reviewed again in 1946. At that time, in addition to reviewing the desirability of integration in the context of the problems of admission and discipline, the court considered its utility in other fields. The matter of post-law school or post-admission education of lawyers was one of these, The court believed, however, that while an educational program was a proper objective, the one proposed was 'nebulous in outline and probably expensive in execution.' 249 Wis. 523, 530, 25 N.W.2d 500, 503. The Court also observed, 'There are doubtless many other useful activities for which dues might properly be used, but what they are does not occur to us and no particular one seems to press for action.' Id., 249 Wis. 523, 530, 25 N.W.2d 500, 503.
The court concluded in 1956, however, that integration might serve the public interest and should be given a two-year trial. It decided to 'require the bar to act as a unit to promote high standards of practice and the economical and speedy enforcement of legal rights,' 273 Wis. 281, 283, 77 N.W.2d 602, 603, because it had come to the conclusion that efforts to accomplish these ends in the public interest through voluntary association had not been effective. '(T) oo many lawyers have refrained or refused to join, * * * membership in the voluntary association has become static, and * * * a substantial minority of the lawyers in the state are not associated with the State Bar Association.' Id., 273 Wis. 281, 283, 77 N.W.2d 602, 603. When the order was extended indefinitely in 1958 the action was expressly grounded on the finding that, 'Members of the legal profession by their admission to the bar become an important part of (the) process (of administering justice) * * *. An independent, active, and intelligent bar is necessary to the efficient administration of justice by the courts.' 5 Wis.2d 618, 622, 93 N.W.2d 601, 603.
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 h e 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 which appear to be wholly outside the political process and to concern the internal affairs of the profession.
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.
Under its charter of legislative action, the State Bar has participated in political activities in these principal categorites:
(1) its executive director is registered as a lobbyist in accordance with state law. For the legislative session 1959-1960, the State Bar listed a $1,400 lobbying expense; this was a percentage of the salary of the executive director, based on an estimate of the time he spent in seeking to influence legislation, amounting to 5% of his salary for the two years. The registration statement signed by the then president of the State Bar added the explanatory note: 'His activities as a lobbyist on behalf of the State Bar are incidental to his general work and occupy only a small portion of his time.'
(2) The State Bar, through its Board of Governors or Executive Committee, has taken a formal position with respect to a number of questions of legislative policy. These have included such subjects as an increase in the salaries of State Supreme Court justices; making attorneys notaries public; amending the Federal Career Compensation Act, 37 U.S.C.A. § 231 et seq., to apply to attorneys employed with the Armed Forces the same provisions for special pay and promotion available to members of other professions; improving pay scales of attorneys in state service; court reorganization; extending personal jurisdiction over nonresidents; allowing the recording of unwitnessed conveyances; use of deceased partners' names in firm names; revision of the law governing federal tax liens; law clerks for State Supreme Court justices; curtesy and dower; securities transfers by fiduciaries; jurisdiction of county courts over the administration of inter vivos trusts; special appropriations for resa rch for the State Legislative Council.
(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 'TO DEAL WITH FEDERAL LEGISLATION AFFECTIng the practice of law, or lawyers as a class, or the jurisdiction, procedure and practice of the Federal courts and other Federal tribunals, or creation of new Federal courts or judgeships affecting this state, and comparable subjects * * *.' Board of Governors Minutes, Dec. 11, 1959. Furthermore, legislative recommendations and activities have not been confined to those standing committees with the express function in the bylaws of considering legislative proposals. See, e.g., Report of the Committee on Legal Aid, Wis.Bar Bull., June 1960, p. 61; Report of the Committee on Legal Aid, id., June 1959, pp. 61-62. Many of the positions on legislation taken on behalf of the State Bar by the Board of Governors or the Executive Committee have also followed studies and recommendations by the sections. See, e.g., Report of the Real Property, Probate and Trust Law Section, Wis.Bar Bull., June 1960, p. 51; Report of the Corporation and Business Law Section, id., p. 56.
(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 constant program of education and discussion.' Wis.Bar Bull., June 1960, p. 54.
(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 page 246, 102 N.W.2d at page 412. The court found that 'The most extensive activities of the State Bar are those directed toward postgraduate education of lawyers,' and that 'Post-graduate 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 page 246, 102 N.W.2d at pages 412-413. It found that the State Bar's participation in the handling of grievances improved the efficiency and effectiveness of this work. It found that the public interest was furthered by the Committee on Unauthorized Practice of La 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 page 248, 102 N.W.2d at page 413. The court also concluded that the Legal Aid Committee had 'done effective and noteworthy work to encourage the local bar associations of the state to set up legal aid systems in their local communities * * *. Such committee has also outlined recommended procedures for establishing and carrying through such systems of providing legal aid.' 10 Wis.2d at page 249, 102 N.W.2d at page 414. In the field of public relations the court found that the 'chief activity' of the State Bar was the 'preparation, publication, and distribution to the general public of pamphlets dealing with various transactions and happenings with which laymen are frequently confronted, which embody legal problems.' 10 Wis.2d at page 247, 102 N.W.2d at page 413. Moreover, a number of studies have been made of programs, not involving political action, to further the economic well-being of the profession.
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, 76 S.Ct. 714, 100 L.Ed. 1112. We there held that § 2, Eleventh of the Railway Labor Act, 45 U.S.C. § 152, 45 U.S.C.A. § 152, subd. 11, Eleventh, did not on its face abridge protected rights of association in authorizing union-shop agreements between interstate railroads and unions of their employees conditioningt he employees' continued employment on payment of union dues, initiation fees and assessments. There too the record indicated that the organizations engaged in some activities similar to the legislative activities of which the appellant complains. See International Association of Machinists v. Street, ante, 367 U.S. at page 748, 81 S.Ct. at page 1789, note 5. In rejecting Hanson's claim of abridgment of his rights of freedom of association, we said, 'On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar.' 351 U.S. at page 238, 76 S.Ct. at page 721. Both in purport and in practice the bulk of State Bar activities serve the function, or at least so Wisconsin might reasonably believe, of elevating the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people of the State, without any reference to the political process. It cannot be denied that this is a legitimate end of state policy. We think that the Supreme Court of Wisconsin, in order to further the State's legitimate interests in raising the quality of professional services, may constitutionally require that the costs of improving the profession in this fashion should be shared by the subjects and beneficiaries of the regulatory program, the lawyers, even though the organization created to attain the objective also engages in some legislative activity. Given the character of the integrated bar shown on this record, in the light of the limitation of the membership requirement to the compulsory payment of reasonable annual dues, we are unable to find any impingement upon protected rights of association.
However, appellant would have us go farther and decide whether his constitutional rights of free speech are infringed if his dues money is used to support the political activities of the State Bar. The State Supreme Court treated the case as raising the question whether First Amendment rights were violated 'because part of his dues money is used to support causes to which he is opposed.' 10 Wis.2d at page 238, 102 N.W.2d at page 409. The Court in rejecting appellant's argument reasoned that '(t)he right to practice law is not a right but is a privilege subject to regulation. * * * The only limitation upon the state's power to regulate the privilege of the practice of law is that the regulations adopted do not impose an unconstitutional burden or deny due process.' Id., 10 Wis.2d at pages 237-238, 102 N.W.2d at page 408. The Court found no such burden because '* * * 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. * * * The only challenged interference with his liberty is the exaction of annual dues to the State Bar, in the nature of the imposition of an annual license fee, not unreasonable or unduly burdensome in amount, part of which is used to advocate causes to which he is opposed. However, this court, in which is vested the power of the state to regulate the practice of law, has determined that it 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 State Bar. The public interest so promoted far outweighs the slight inconvenience to the plaintiff resulting from his required payment of the annual dues.' Id., 10 Wis.2d at pages 239, 242, 102 N.W.2d at pages 409, 411.
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, 367 U.S. 740, at pages 747-749, 81 S.Ct. 1784, at pages 1788-1790, 6 L.Ed.2d 1141. Nowhere are we clearly apprised as to the views of the appellant on any particular legislative issues on which the State Bar has taken a position, or as to the way in which and the degree to which funds compulsorily exacted from its members are used to support the organization's political activities. There is an allegation in the complaint that the State Bar had 'used its employees, property and funds in active, unsolicited opposition to the adoption of legislation by the Legislature of the State of Wisconsin, which was favored by the plaintiff, all contrary to the plaintiff's convictions and beliefs,' but there is no indication of the nature of this legislation, nor of appellant's views on particular proposals, nor of whether any of his dues were used to support the State Bar's positions. There is an allegation that the State Bar's revenues amount to about $90,000 a year, of which $80,000 is derived from dues, but there is no indication in the record as to how political expenditures are financed and how much has been expended for political causes to which appellant objects. The facts of which the Supreme Court took judicial notice do not enlighten us on these gaps in the record. The minutes of the Board of Governors and Executive Committee of the State Bar show that the organization has taken one position o another on a wide variety of issues, but those minutes give no indication of appellant's views as to any of such issues or of what portions of the expenditure of funds to propagate the State Bar's views may be properly apportioned to his dues payments. Nor do the other publications of the State Bar. The Supreme Court assumed, as apparently the trial court did in passing on the demurrer, that the appellant was personally opposed to some of the legislation supported by the State Bar. But its opinion still gave no description of any specific measures he opposed, or the extent to which the State Bar actually utilized dues funds for specific purposes to which he had objected. Appellant's phrasing of the question presented on appeal in this Court is not responsive to any of these inquiries as to facts which may be relevant to the determination of constitutional questions surrounding the political expenditures. It merely asks whether a requirement of financial support of an association which, 'among other things, uses its property, funds and employees for the purpose of influencing a broad range of legislation and public opinion' can be constitutionally imposed on him. This statement of the question, just as does his complaint, appears more a claim of the right to be free from compelled financial support of the organization because of its political activities, than a challenge by appellant to the use of his dues money for particular political causes of which he disapproves. Moreover, although the court below purported to decide as against all Fourteenth Amendment claims that the appellant could be compelled to pay his annual dues, even though 'part * * * is used to support causes to which he is opposed,' on oral argument here appellant disclaimed any necessity to show that he had opposed the position of the State Bar on any particular issue and asserted that it was sufficient that he opposed the use of his money for any political purposes at all. In view of the state of the record and this disclaimer, we think that we would not be justified in passing on the constitutional question considered below. '(T)he questions involving the power of * * * (the State) come here not so shaped by the record and by the proceedings below as to bring those powers before this Court as leanly and as sharply as judicial judgment upon an exercise of * * * (state) power requires.' United States v. C.I.O., 335 U.S. 106, 126, 68 S.Ct. 1349, 1359, 92 L.Ed. 1849 (concurring opinion). Cf. United States v. U.A.W.-C.I.O., 352 U.S. 567, 589-592, 77 S.Ct. 529, 540, 541, 1 L.Ed.2d 763.
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 he opposes. That issue is reserved, just as it was in Hanson, see International Association of Machinists v. Street, 367 U.S. 740, at pages 746-749, 81 S.Ct. 1784, at pages 1788-1790, 6 L.Ed.2d 1141. Upon this understanding we four vote to affirm. Since three of our colleagues are of the view that the claim which we do not decide is properly here and has no merit, and on that ground vote to affirm, the judgment of the Wisconsin Supreme Court is affirmed.
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.
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 justice, I am at a loss to understand how it can be thought that this record affords 'no sound basis' for adjudicating the issue simply because we are not 'clearly apprised as to the views of the appellant on any particular legislative issues on which the State Bar has taken a position, or as to the way in which and the degree to which funds compulsorily exacted from its members are used to support the organization's political activities' (367 U.S. at pages 845-846, 81 S.Ct. at page 1839). I agree with my Brother BLACK that the Constitutional issue is inescapably before us.
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 (367 U.S. at pages 877-885, 81 S.Ct. at pages 1856-1860, 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' (367 U.S. at page 871, 81 S.Ct. at page 1852).
For me, there is a short and simple answer to all of this. The Hanson case, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, 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, 81 S.Ct. 997, 6 L.Ed.2d 105; In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135, and over the conduct of lawyers after admission, see Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. The Integrated Bar was in fact treated as such an a fortiori case in the Hanson opinion itself. Supra, 351 U.S. at page 238, 76 S.Ct. at page 721. So much, indeed, is recognized by the plurality opinion which rejects the contention that Wisconsin could not Constitutionally require appellant, a lawyer, to become and remain a dues-paying member of the State Bar.
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 Fourteenh Amendment, see N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488, that is too subtle for me to grasp.
Nevertheless, since a majority of the Court here, as in the Street case, ante, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 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. Orderly analysis requires that there be considered, first, the respects in which it may be thought that the use of a member's dues for causes he is against impinges on his right of free speech, and second, the nature of the state interest offered to justify such use of the dues exacted from him. I shall also add some further observations as to the over-all Constitutionality of the Integrated Bar concept.
To avoid the pitfall of disarming, and usually obscuring, generalization which too often characterizes discussion 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 system' of closed, self-regulating professions and businesses; (4) to 'drown out' the voice of dissent by requiring all members of the Bar to lend financial support to the views of the majority; and (5) to interfere with freedom of belief by causing 'compelled affirmation' of majority-held views. With deference, I am bound to say that, in my view, all of these arguments border on the chimerical.
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 speec 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.
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 Fourteenth Amendment as embracing the identical protections afforded by the First would have to recognize the clear distinction in the wording of the First Amendment between the protections of speech and religion, only the latter providing a protection against 'establishment.' And as to the Fourteenth, viewed independently of the First, one can surely agree that a State could not 'create a fund to be used in helping certain political parties or groups favored' by it 'to elect their candidates or promote their controversial causes' (367 U.S. at page 788, 81 S.Ct. at page 1809), any more than could Congress do so, without agreeing that this is in any way analogous to what Wisconsin has done in creating its Integrated Bar, or to what Congress has provided in the Railway Labor Act, considered in the Street case, ante, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141.
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.
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 with the Wisconsin Integrated Bar, as contrasted with any unintegrated bar, except for the requirement of payment of $15 annual dues. I would agree that the requirement of payment of dues could not be made the basis of limiting the profession of law to the comparatively wealthy. Cf. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. Nor, doubtless, could admission to the profession be restricted to relatives of those already admitted. But there is no such 'guild' threat presented in this situation.
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-reu lation that was stricken down in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570. 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 Article I as respects the Federal Government. Is state-authorized self-regulation of lawyers to be the occasion for judicial enforcement of Art. IV, § 4, which provides that 'The United States shall guarantee to every state in this union a Republican form of government * * *'? Cf. Luther v. Borden, 7 How. 1, 12 L.Ed. 581; Pacific States Tel. & Tel. Co. v. State of Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377.
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 increase the volume of the arguments he opposes and thereby to drown out his own voice in opposition, in violation of his Constitutional right to be heard. Second: The United States Constitution creates a scheme of federal and state governments each of which is to be elected on a one-man-one-vote basis and on a one-man-one-political-voice basis. Of course several persons may voluntarily cumulate their political voices, but no governmental force can require a single individual to contribute money to support views to be adopted by a democratically organized group even if the individual is also free to say what he pleases separately.
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 § 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 to reach the same audience? I can conceive of instances involving limited facilities, such as television time, which may go to the highest bidder, wherein increasing the resources of the opposition may tend to reduce a dissident's access to his audience. But before the Constitution comes into play, there should surely be some showing of a relationship between required financial support of the opposition and reduced ability to communicate, a showing I think hardly possible in the case of the legislative recommendations of the Wisconsin Bar. And, aside from the considerations of freedom from compelled affirmations of belief to be discussed later, I can find little basis for a right not to have one's opposition heard.
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.
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 State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. While I agree that the rationale of Barnette is relevant, I do not think that it is in any sense controlling in the present case.
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 page 634, 63 S.Ct. at page 1183. 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' (367 U.S. 788, 81 S.Ct. 1809). One could as well say that the same more 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 diffr ence 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 further the expression of any particular view. More than that, the State Bar's purpose of furthering expression of views is unconnected with any desire to induce belief or conviction by the device of forcing a person to identify himself with the expression of such views. True, purpose may not be controlling when the identification is intimate between the person who wishes to remain silent and the beliefs foisted upon him. But no such situation exists here where the connection between the payment of an individual's dues and the views to which he objects is factually so remote. Surely the Wisconsin Supreme Court is right when it says that petitioner can be expected to realize that 'everyone understands or should understand' that the views expressed are those 'of the State Bar as an entity separate and distinct from each individual.' 5 Wis.2d at page 623, 93 N.W.2d at page 603.
Indeed, I think the extreme difficulty the Court encounters in the Street case (ante, 367 U.S. 740, 81 S.Ct. 1764) 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 these 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, 55 S.Ct. 197, 205, 79 L.Ed. 343, 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, 55 S.Ct. 197, 206.
Nor do I now believe that a state taxpayer could object on Fourteenth Amendment grounds to the use of his money for school textbooks or instruction which he finds intellectually repulsive, nor for the mere purchase of a flag for the school. In the present case appellan is simply required to pay dues into the general funds of the State Bar. I do not think a subsequent decision by the representatives of the majority of the bar members to devote some part of the organization's funds to the furtherance of a legislative proposal so identifies the individual payor of dues with the belief expressed that we are in the Barnette realm of 'asserted power to force an American citizen publicly to profess any statement of belief or to engage in any ceremony of assent to one * * *.' 319 U.S. at page 634, 63 S.Ct. at page 1183.
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 Integrated Bar. That, however, is a bridge which, beyond all doubt and any protestations now made to the contrary, we crossed in the Hanson case. I can see no way to uncross it without overruling Hanson. Certainly it cannot be done by declaring as a rule of law that lawyers feel more strongly about the identification of their names with proposals for law reform than union members feel about the identification of their names with collective bargaining demands declared on the radio, in picket signs, and on handbills.
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' (367 U.S. 874, 81 S.Ct. 1854), 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, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Konigsberg v. State Bar of California, supra.
In this instance it can hardly he 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 bylaws 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 publc 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 such 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.
'(T)he composite judgment of the members of the bar of the state on measures directly affecting the administration of justice and the practice of law' may well be as helpful and informative to a state legislature as the work of individual legal scholars and of such organizations as the American Law Institute, for example, is to state and federal courts. State and federal courts are, of course, indifferent to the personal beliefs and predilections of any of such groups. The function such groups serve is a rationalizing one and their power flows from and is limited to their ability to convince by arguments from generally agreed upon premises. They are exercising the techniques and knowledge which lawyers are trained to possess in the task of solving problems with which the legal profession is most familiar. The numberless judicial citations to their work is proof enough of their usefulness in the judicial decision-making process.
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, 2 Cir., 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 legal advisory groups. Some indication may be obtained by noting that thirty-one jurisdictions have permanent legislative service agencies which recommend 'substantive' legislative programs and forty-two jurisdictions utilize such permanent agencies in recommending statutory revision.
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 (Now 28 U.S.C.A. § 331).
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 lawi nto 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 countless uniform laws dealing with all kinds of legal subjects, running all the way from the Uniform Commercial Code to the Uniform Simultaneous Death Law. It seems no less clear to me that a reasonable license tax can be imposed on the profession of being a lawyer, doctor, dentist, etc. See Royall v. State of Virginia, 116 U.S. 572, 6 S.Ct. 510, 29 L.Ed. 735. In these circumstances, wherein lies the unconstitutionality of what Wisconsin has done? Does the Constitution forbid the payment of some part of the Constitutional license fee directly to the equally Constitutional state law revision commission? Or is it that such a commission cannot be chosen by a majority vote of all the members of the state bar? Or could it be that the Federal Constitution requires a separation of state powers according to which a state legislature can tax and set up commissions but a state judiciary cannot do these things?
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.

## Notes

* ↑ He also demurred on grounds that the Circuit Court had no jurisdiction of the subject matter because exclusive jurisdiction was vested in the Supreme Court and that there was a defect of parties because the State Bar was not made a defendant.
* ↑ We also consider the case on this expanded record. Appellant raises no objection, and indeed urges us to do so.
* ↑ The court's action was in response to a petition for 'integration * * * in the manner described' in Wis.Rev.Stats. § 256.31. Wis.Bar Bull., Apr. 1956, p. 21. The resolution of the House of Governors of the Wisconsin Bar Association leading to the filing of the petition referred to 'integration * * * pursuant to the provisions of Section 256.31 of the Wisconsin Statutes.' Id., p. 52. In many other States integration was initially accomplished either entirely by the legislature or by a combination of legislative and judicial action. See N.D.Laws 1921, c. 25; Ala.Laws 1923, No. 133; Idaho Laws 1923, c. 211; N.M.Laws 1925, c. 100; Cal.Stat.1927, c. 34; Nev.Stat.1928, c. 13; Okla.Laws 1929, c. 264; Utah Laws 1931, c. 48; S.D.Laws 1931, c.8 4; Ariz.Laws 1933, c. 66; Wash.Laws 1933, c. 94; N.C.Laws 1933, c. 210; La.Acts 1934, 2d Extra Sess., No. 10; Ky.Acts 1934, c. 3; Ore.Laws 1935, c. 28; Mich.Acts 1935, No. 58; Va.Acts 1938, c. 410; Tex.Gen.Laws 1939, p. 64; W.Va.Acts 1945, c. 44; Alaska Laws 1955, c. 196.
* ↑ Appellant's notice of appeal presents the following question for our review:
* ↑ The rules limit the maximum permissible dues to $20 a year.
* ↑ A member suspended for nonpayment of dues may secure automatic reinstatement, so long as his dues are not in arrearage for three or more years, by making full payment of the amount and paying an additional $5 as a penalty. No other condition on acquiring or retaining membership is imposed by the rules or bylaws. Although the State Bar participates in the investigation of complaints of misconduct, see 367 U.S. at pages 829-832, 81 S.Ct. at pages 1830-1832, final power to disbar or otherwise discipline any member resides in the Supreme Court.
* ↑ The committees and their assigned functions are as follows:
* ↑ The court said: 'We feel * * * that integration of the bar should be tried. The results thereof will be what the bar and the court make of it. If integration does not work, this court can change the rules to meet any situation that arises or it can abandon the plan.' In re Integration of the Bar, 273 Wis. 281, 285, 77 N.W.2d 602, 604. '(The rules and by-laws) cannot be taken as the last word, and * * * experience in operating under them may disclose imperfections and particulars in which they should be changed. The integrated bar itself is an experiment in Wisconsin, and like all new enterprises may be expected to need adaptation to conditions and circumstances not yet clearly foreseen.' 273 Wis. ix.
* ↑ The policy provides:
* ↑ The statewide and regional meetings, the court found, are largely devoted 'to the delivery of papers on technical legal subjects of an instructive nature.' 10 Wis.2d at page 246, 102 N.W.2d at pages 412-413. The sections are particularly active in this regard. As a former president of the State Bar described their role: 'The sections provide a special place where members with interest in particular fields of law may serve on committees and receive assistance and training in such fields. Moreover, the sections provide their own programs at each Annual and Midwinter meeting largely of a very practical and educational nature.' Wis. Bar Bull., Aug. 1958, p. 71. See, e.g., Report of Corporation and Business Law Section, id., June 1960, p. 56; Report of Labor Law Section, id., p. 60. For example, the Taxation Section has sponsored an annual tax institute for practicing lawyers. See Report of Taxation Section, Wis.Bar.Bull., June 1959, pp. 53-54. Many of the papers delivered at such sessions are later given wider circulation to the Bar by publication in the Bar Bulletin. In addition, the State Bar has undertaken the sponsorship of numerous special seminars 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.
* ↑ Prior to integration the Board of State Bar Commissioners conducted and paid for the investigation of grievances. Since then the grievance committees have performed most of that work, with a resulting diminution in the financial needs of the bar commissioners. A former president of the State Bar commented on these committees' performance of their functions: 'The result is that a majority of complaints are adjusted or explained to the satisfaction of the complainant, and the State Bar Commissioners are saved considerable time and effort * * *.' Wis.Bar Bull., Aug. 1958, p. 68. See also id., Aug. 1960, p. 41.
* ↑ Revenues from integration enabled the State Bar to employ a lawyer whose principal task is the investigation of complaints of unauthorized practice and the effort to achieve its discontinuance. A number of legal actions to prevent unauthorized practice have been instituted. See, e.g., Wis.Bar Bull., Aug. 1960, p. 45; id., June 1960, pp. 48-50; id., June 1958, pp. 48-49. The Committee on Unauthorized Practice has also worked with the Committee on Interprofessional and Business Relations in conferring with other professional groups to establish demarcation lines between their activities and those of the bar. Thus an agreement was negotiated with the Association of Certified Public Accountants and a joint committee provided to police it. See Board of Goe rnors Minutes, Dec. 9, 1960. The Committee on Interprofessional and Business Relations has also participated in projects for the formulation of agreements with the Association of Real Estate Brokers and the Association of Collection Agencies, and its program includes conferences with other professional groups. See Executive Committee Minutes, July 22, 1960. Legal ethics is another concern of the State Bar. Its Committee on Professional Ethics has given opinion on a number of questions of ethical practice. See, e.g., Wis.Bar Bull., June 1960, pp. 46-49.
* ↑ The number of lawyers in Wisconsin participating in legal aid has steadily increased. The committee reported in 1960 that it would 'continue to vigorously carry on its program of rendering prompt and efficient legal aid services to all those who require the same; to continue to work diligently to the realization of the goal that every county bar association within our State have an effective legal aid bureau or legal aid society as soon as possible; to continue our policy of bringing into our open forum meetings on legal aid, the most outstanding authorities on the subject, to the end that we here in the State of Wisconsin will at all times have the fullest, up-to-date information on every phase of legal aid * * *.' Wis.Bar Bull., June 1960, p. 64. See also id., June 1959, p. 63.
* ↑ The State Bar has also prepared articles on legal subjects for distribution to newspapers throughout the State. It has been concerned with the promotion of the annual Law Day. See, e.g., Wis.Bar Bull., Aug. 1958, p. 67. The Bar Bulletin, in addition to publishing articles on legal subjects, has issued special supplements explaining and annotating new laws and has printed checklists for attorneys suggesting how to proceed with various legal problems. Its avowed aim is to make the Bulletin 'a very practical means for all practicing lawyers to keep posted on the ever-changing requirements in the practice. * * * We believe that one of the great justifications for integration is found in the means of publication and communication from the Bar to the member through these vehicles.' Wis.Bar Bull., June 1960, p. 67.
* ↑ The stated functions of the Special Committee on Economics of the Bar are: '(t)he committee will engage itself in the general study of the economics of the Bar to determine a fair fee schedule from time to time; seek its uniform adoption and recognition throughout the state; study the encroachment of lay agencies on the fields of law; make suggestions for proper office management, and make such recommendations from time to time as it considers proper in the general field.' Wis.Bar Bull., June 1959, p. 58. One of the principal products of such activity has been a recommended schedule of minimum fees for Wisconsin lawyers; this schedule was published and distributed at a cost of over $10,000 to the State Bar. See Wis.Bar Bull., Aug. 1960, p. 40; also id., pp. 10-11. Another project authorized by the Board of Governors is a comprehensive statistical study of the economic status of Wisconsin lawyers. See Board of Governors Minutes, Sept. 23, 1960, Dec. 9, 1960. Other special committees have considered such matters as group insurance for State Bar members and creation of a client security plan to insure against attorneys' defalcations. See, e.g., Wis.Bar Bull., Aug. 1960, p. 41; Board of Governors Minutes, Feb. 18, 1959; Executive Committee Minutes, Sept. 23, 1960.
* ↑ On the subject of integration of the bar in the United States, see generally Glaser, The Organization of the Integrated Bar, The Debate Over the Integrated Bar, and Bibliography on the Integrated Bar (Columbia University Bureau of Applied Social Research). Comprehensive discussions of integration of the Bar in the various States are contained in briefs amici curiae filed with the Court in this case.
* ↑ The Wisconsin Supreme Court originally declined to order integration partly because of misgivings whether possible political activities of the integrated Bar would be consistent with the public interest sought to be served. See In re Integration of the Bar, 249 Wis. 523, 25 N.W.2d 500. It indicated that integration would 'require it to censor the budgets and activities of the bar after integration' and said: 'It requires a very short look at some of the possible activities of the bar to make it clear that this court would have to insist upon scrutinizing every activity for which it is proposed to expend funds derived from dues, and that a series of situations would arise that would be embarrassing to the relations of bench and bar.' 249 Wis. at pages 528, 529-530, 25 N.W.2d at pages 502, 503. These reservations were expressly disclaimed when the court continued integration in 1958, 5 Wis.2d 618, 626-627, 93 N.W.2d 601, 605. The court said: 'The integrated State Bar of Wisconsin is independent and free to conduct its activities within the framework of such rules and by-laws.' Id., 5 Wis.2d at page 626, 93 N.W.2d at page 605. The court reiterated this position in the present case: 'In so far as it confines such activities to those authorized by the rules and by-laws, this court will not interfere or in any manner seek to control or censor the action taken, or to substitute its judgment for that of the membership of the State Bar.' 10 Wis.2d at page 240, 102 N.W.2d at page 410.
* ↑ Alabama, Alaska, Arizona, California, Florida, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Mei co, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, Wyoming. See note 14, dissenting opinion of MR. JUSTICE FRANKFURTER in International Association of Machinists v. Street, 367 U.S. 808, 81 S.Ct. 1819, ante. Arkansas has a Bar which is integrated only with respect to disciplinary matters. 207 Ark. xxxiv-xxxvii.
* ↑ Among other things, the Integrated Bar of the State of Wisconsin is authorized by the State Supreme Court, acting under its inherent rule-making powers, to publish information relating to 'the practice of law, the science of jurisprudence and law reform, and the relations of the bar to the public.' Rule 1, 273 Wis. xi. Rule 4, § 4, provides for standing committees including, inter alia, Committees on Administration of Justice and on Legislation. 273 Wis. xvi. The function of the former, as set out in Art. IV, § 4, of the by-laws, 273 Wis. xxxiii, is to 'study the organization and operation of the Wisconsin judicial system and * * * recommend from time to time appropriate changes in practice and procedure for improving the efficiency thereof * * *.' The function of the Committee on Legislation is to study and, in certain circumstances, support or oppose '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 * * *.' Art. IV, § 9, 273 Wis. xxxiv. The enabling court rules indicate authorization for further study and comment on proposed legislation, for the board of governors is directed to establish sections on corporation and business law; family law; house counsel; insurance, negligence and workmen's compensation law; labor relations law; military law; real property, probate, and trust law; and taxation. 273 Wis. xvii. The plurality opinion of this Court sets out the nature and scope of the activities bearing on prospective legislation actually engaged in by this Integrated Bar. 367 U.S. at pages 835-839, 81 S.Ct. at pages 1834-1835.
* ↑ The nine Restatements of the law alone have been cited well over 27,000 times. 36th Annual Meeting, The American Law Institute, at p. 63.
* ↑ 'Permanent Legislative Service Agencies,' published by the Council of State Governments.
* ↑ In thirty-three States the legislature appoints Commissioners on Uniform State Laws. Handbook of the National Conference of Commissioners on Uniform State Laws (1960), at p. 211.
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