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Lautenbaugh v. Nebraska State Bar Association

Legal Question:

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.

Defendants:

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

Court:

U.S. District Court for the District of Nebraska

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.

On October 10, 2012, Mr. Lautenbaugh filed a complaint in Nebraska federal district court challenging the Nebraska State Bar Association’s (NSBA’s) use of mandatory bar association dues for lobbying purposes.  On October 12, 2012, Mr. Lautenbaugh moved for class certification and for a preliminary injunction.  On November 28, 2012, the NSBA filed responses to both motions.  On December 6, 2012, the district court denied the motion for class certification.  On December 13, 2012, the district court approved the parties’ stipulation to the preliminary injunctive relief requested by Mr. Lautenbaugh.  Meanwhile, on December 11, 2012, the NSBA moved to dismiss on abstention grounds.  After briefing by Mr. Lautenbaugh, on February 4, 2013, the district court denied the motion.  Thereafter, the parties conducted discovery through October 31, 2013.

On December 6, 2013, the Nebraska Supreme Court ruled on Mr. Lautenbaugh’s petition to deunify the NSBA.  The Nebraska Supreme Court preserved the mandatory nature of the NSBA but, in order to adhere to “constitutional jurisprudence” and “avoid[] protracted litigation,” restricted the NSBA’s use of “mandatory membership assessments” to regulation of the legal profession and required members to “opt-in” for use of their assessment for lobbying purposes.

On February 10, 2014, Mr. Lautenbaugh filed a motion for summary judgment and supporting memorandum.  On March 10, 2014, the NSBA filed its motion for summary judgment and response to Mr. Lautenbaugh's motion for summary judgment. On March 31, 2014, Mr. Lautenbaugh gave his response and reply.  On April 14, 2014, the NSBA filed its reply.

On August 11, 2014, the federal district court denied both motions and urged the parties to settle.  On September 2, 2014, in response to a joint motion from the parties, the federal district court dismissed the case.  On September 26, 2014, the parties entered a settlement agreement wherein:  the NSBA agreed to pay Mr. Lautenbaugh’s 2012 mandatory dues; Mr. Lautenbaugh was permitted to keep that portion of his 2012 mandatory dues payable to the NSBA; Mr. Lautenbaugh was deemed to be an attorney in good standing despite non-payment of the 2012 mandatory dues; and the NSBA reimbursed him for his non-attorney, out-of-pocket expenses.

No Status Updates
  • Nebraska Parties Settle Misuse of Mandatory Dues Lawsuit

    Sep 26, 2014
    A Nebraska attorney who sued the Nebraska State Bar Association in federal district court in Lincoln for its violation of his rights under both the U.S. Constitution’s First and Fourteenth Amendments today celebrated issuance of an order by the Nebraska federal district court dismissing the lawsuit on a joint motion with the association.
  • Nebraska Parties Urged To Settle Misuse of Mandatory Dues Lawsuit

    Aug 11, 2014
    A Nebraska attorney who sued the Nebraska State Bar Association in federal district court in Lincoln charging that it violates his rights under both the Constitution’s First and Fourteenth Amendments today had his motion for summary judgment denied by the Nebraska federal district court; the court also denied the bar association’s motion.
  • Nebraskan Renews Speech Demand on Misuse of Mandatory Dues

    Mar 31, 2014
    A Nebraska attorney who sued the Nebraska State Bar Association in federal district court in Lincoln charging that it violates his rights under both the Constitution’s First and Fourteenth Amendments today renewed his urgings that a Nebraska federal district court grant a ruling in his favor.
  • Nebraska Seeks Free Speech Ruling On Misuse of Mandatory Dues

    Feb 10, 2014
    A Nebraska attorney who sued the Nebraska State Bar Association in federal district court in Lincoln charging that it violates his rights under both the Constitution’s First and Fourteenth Amendments today urged a Nebraska federal district court to grant a ruling in his favor.
  • Nebraska Lawyer Wins Favorable Free Speech Ruling

    Dec 6, 2013
    A Nebraska attorney who sued the Nebraska State Bar Association in federal district court in Lincoln charging that it violates his rights under both the Constitution’s First and Fourteenth Amendments today celebrated a ruling by the Supreme Court of Nebraska that vindicated his allegations.
  • Nebraska Lawyer's Lawsuit Will Go Forward

    Feb 4, 2013
    DENVER, CO. A Nebraska federal district court today refused to dismiss a lawsuit filed by a Nebraska attorney who sued the Nebraska State Bar Association in federal district court in Lincoln charging that it violates his rights under both the Constitution's First and Fourteenth Amendments.


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