Over 50 years ago, in 1961, the Wisconsin Supreme Court held that the completion of a state-approved form by a Wisconsin real estate licensee was not an unauthorized practice of law. The case was Reynolds v. Dinger, and the plaintiff was John W. Reynolds Jr., the democratic attorney general of Wisconsin. Reynolds challenged an administrative rule adopted by the Wisconsin Real Estate Broker’s Board that authorized real estate brokers to complete state-approved forms in real estate transactions. He argued that such a practice was akin to dispensing legal services and as such could only be performed by lawyers. Had the attorney general’s interpretation been upheld, every real estate transaction would have required an attorney throughout the process.
As demonstrated by this seminal case in Wisconsin real estate law, the courts can be every bit as impactful in determining the rules and regulations by which our highly regulated real estate practice is conducted as any governor, legislature, mayor, city council, county board or regulatory agency. That fact has not been lost on the WRA, and that’s why over the past 30 years, the WRA’s Legal Action Fund has grown into a powerful and highly effective advocacy tool.
I say “advocacy tool” because the regulations and rules we must live by are made by judges in court decisions just like they are made by elected officials or regulatory agencies. However, unlike the more visible advocacy tools used by the WRA in lobbying, our legal advocacy efforts often fly under the radar of most members.
Most REALTORS® have heard of and contributed to the REALTORS® Political Action Committee (RPAC) as well as the Direct Giver Conduit program, which raises voluntary campaign contributions to support candidates who support real estate issues. Most members know of our outstanding professional lobbying team in Madison and/or have personally participated in lobbying their elected officials directly and by responding to WRA Calls to Action. And most members know that the Wisconsin Homeowners Alliance is involved in grassroots issue-advocacy campaigns on issues impacting property owners in Wisconsin. These efforts tend to focus on the drafting of statutes in the legislative branch and administrative rules and regulations in the executive branch; and these efforts involve advocating industry and property owner viewpoints to the state Senate, Assembly, the governor’s office and a slew of state administrative agencies including — I’ll spare you the full names — the DSPS, REEB, DNR, DOT, DOA, DOR, DOJ, DHS, DWD, DFI and the OCI, to name a few.
But most members are unfamiliar with our equally successful legal advocacy efforts. While statutes and administrative rules are developed mainly in public forums that provide opportunity for public testimony and comment, legal precedent is issued by the judiciary branch in the far less public venue of a courtroom.
The WRA’s Legal Action Fund (LAF) was established in 1978 to support REALTORS® and property owners involved in legal proceedings, the outcome of which will significantly impact our membership and the real estate industry. The issues include license law, land use and environmental laws, property and development rights, and nearly every other issue under the sun.
Typical assistance from the LAF involves the filing of an as amicus curiae or “friend of the court” brief, as a single organization or as a member of a larger coalition of similar interests. In some cases, the WRA is an actual party to the lawsuit. In other cases, we may identify expert witnesses or provide expert research. Traditionally, the LAF participates in cases that are on appeal, having already been tried in circuit court. However, if the issues in the case are important enough, the LAF has participated in bringing a lawsuit at the trial court or administrative hearing level.
Like the WRA lobbying efforts, the LAF plays an integral role in fashioning the laws every REALTOR® must abide by — and the cases are as varied as the laws proposed in any legislative session. In just the past few years, the LAF has been involved in cases relating to: the DNR duty to maintain lake water levels; special assessments of private property owners; real estate commissions; bankruptcy discharges; authority of regional planning commissions; wetland regulation reforms; listing protection; commercial subleases; wind siting regulations; unauthorized use of MLS data; enforcement of arbitration awards; moratorium on conversions of single-family homes into rentals; town authority to enact shoreland zoning regulations; vested rights; public records laws; campaign finance laws; liability insurance; rights of first refusal; and the scope of easements.
In all, over just the past four years, the LAF has been involved in 27 cases/issues, and the outcome was favorable over 70 percent of the time.
These cases come to us from lawyers, members, interest groups and our own legal research. And my favorite was when a Court of Appeals judge contacted the WRA and asked if we would write a brief regarding the constitutionality of zoning ordinances with no permitted uses. He said he wanted to hear what we had to say on the subject. Nice.
Our WRA advocacy efforts involve all three levels of government — federal, state and local; all three branches of government — executive, legislative and judicial; and all forms of advocacy — political campaigns, issue campaigns, member and professional lobbying, and a far less visible but equally effective, legal action in courtrooms across Wisconsin. When laws impacting real estate are challenged, we often say, “see you in court.”