Nebraska Lawyer Sues Bar Association Over Speech Rights

By William Perry Pendley

DENVER - A Nebraska attorney on Oct. 9 filed a lawsuit against the Nebraska State Bar Association in federal district court in Lincoln charging that it violates his rights under the Constitution's First and Fourteenth Amendments.

Scott Lautenbaugh, Esq., an Omaha, Nebraska attorney and a Nebraska State Senator, alleges that the association's use of his annual membership dues for political and ideological purposes constitutes government compelled-speech. The Association is an integrated bar, which means membership is mandatory for all attorneys practicing in Nebraska. Previously, Mr. Lautenbaugh filed a petition with the Nebraska Supreme Court asking that it "de-integrate the bar," that is, make membership in the bar voluntary; in July 2012, the court noticed the need for further study and in September 2012 sought documents from the association. Mr. Lautenbaugh's lawsuit seeks to build on the U.S. Supreme Court's June 2012 decision in Knox v. Service Employees International Union, Local 1000 [enhanced version available to lexis.com subscribers].

"The NSBA leadership has been on notice for more than a year that their activities do not comply with the United States Constitution," Sen. Lautenbaugh said. "I had hoped they would change their behavior after I filed my petition with the Nebraska Supreme Court. Unfortunately, it has become clear that the NSBA leadership will not alter their behavior. I regret this lawsuit was necessary, but I simply do not believe there is any other way to make the NSBA follow the law. As I said last February, I am amazed that such extraordinary steps need to be taken to make a bar association follow the law."

"The Supreme Court has made clear that its rulings on unions and First Amendment rights apply equally to bar associations," said William Perry Pendley of Mountain States Legal Foundation (MSLF); MSLF represents Mr. Lautenbaugh. "We seek to apply the Court's ruling in Knox in Nebraska."

Membership in the Nebraska State Bar Association is mandatory for all attorneys who practice law in the State. Member's dues of $345 annually is used, not only to regulate, discipline, and educate attorneys, but also to support a "Legislative Program," which includes "the initiation, support, opposition, or comment on legislative matters," at both [state and local] levels." During the last two years, for example, the Legislative Program has lobbied on over 100 bills alone, including opposition to legislation: expanding concealed carry permit rights, restricting eminent domain, and eliminating statutes of limitations for some felonies.

Mr. Lautenbaugh believes, because he is required to be a member of the State Bar Association, the use of his dues for political and ideological purposes constitutes government-compelled speech and violates his First and Fourteenth Amendment rights. Moreover, because the bar association requires him to opt out of paying dues it uses for lobbying purposes, rather than providing him the opportunity to opt in, it appears to violate Knox. The Supreme Court held that the constitutional requirements regarding unions also apply to bar associations, but the applicability of other aspects of Knox to the Nebraska case remain to be determined. Unlike other States, when a Nebraska member "opts-out" of political expenditures, that portion of the dues is not refunded but is used for other purposes.

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver.

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