Case Summary
Issue:
Whether a mandatory association violates its members’ First and Fourteenth Amendments’ rights of freedom of speech and freedom of association by using the members’ compulsory dues for political and ideological purposes?
Plaintiff:
Scott Lautenbaugh, Esq.
Defendant:
Nebraska State Bar Association and Warren R. Whitted, Jr., President; Marsha E. Fangmeyer, President-Elect; and G. Michael Fenner, President-Elect Designate in their official capacities
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Case History
The Nebraska State Bar Association is an integrated bar, which means that membership is mandatory for all attorneys practicing in Nebraska. 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.
Scott Lautenbaugh, Esq., an Omaha, Nebraska attorney and a Nebraska State Senator, previously 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 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 appear to violate the ruling of the Supreme Court in Knox v. Service Employees International Union, Local 1000. 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.
