The state Supreme Court on Friday said the Nebraska State Bar Association could not use the mandatory dues it charges members to lobby issues other than those directly affecting the legal profession.
In doing so, the court drastically lowered the amount of dues lawyers have to pay to the bar but rejected a request to eliminate a rule requiring them to join the association.
Sen. Scott Lautenbaugh of Omaha, an attorney, brought the case that led to Friday's ruling. He has said repeatedly that the bar association has gone beyond using member dues to regulate the legal profession and improve the quality of legal services by practicing "mission creep" that extends to political activity including lobbying on bills before the Legislature.
He said the bar frequently gets involved in issues on which its members have divergent views and that have nothing to do with the limited issues a mandatory bar association is allowed to weigh in on. That, he said, violates the constitutional rights of members who are forced to belong.
The association has some 9,300 members. Dues have been $275 a year, and each member also has had to pay a $60 assessment to support the Counsel for Discipline, which investigates complaints against lawyers.
The court lowered the dues to $38 and kept the $60 assessment intact. Members can also pay whatever they want in voluntary dues, and the court said those dues could be use for any political activity.
Lautenbaugh hailed the ruling.
"It is more than I could have hoped for," he said Friday. "It protects the rights of those who are forced to be in the bar association and who do not agree with the bar’s activities as of late. I am thrilled with this result.”
Liz Neeley, executive director of the bar association, did not immediately respond to a request for comment.
Lautenbaugh cited a 1990 U.S. Supreme Court case, Keller v. State Bar of California, in which the high court, in a unanimous decision written by Chief Justice William Rehnquist, said although attorneys could be required to be members of a state bar association, their dues could be used only to regulate the legal profession and improve the quality of legal services.
In that case, the court said lawyers who are required to be members of a state bar association have a First Amendment right to opt out of paying for its political or ideological activities.
Michael Kinney, an Omaha attorney who helped represent the bar association, said 33 of 50 state bar associations require lawyers to be members. And with the exception of Iowa, where some 90 percent of lawyers belong to the bar, most others states have participation rates far below 50 percent, he said.
Warren Whitted Jr., immediate past president of the Nebraska Bar Association, has said the group was operating within the law. He noted the state association complied with the Keller ruling by allowing members who object to its legislative activities to specify that they do not want their dues to be used in those areas.
But Lautenbaugh argued that if Nebraska lawyers were not required to pay dues, the bar association would be free to pursue whatever activities its members chose.
Friday's unsigned Nebraska Supreme Court opinion said: "The U.S. Supreme Court has determined that some mandatory associations, such as some unions and state bar associations, do not violate the First Amendment, because the forced speech serves legitimate purposes for the benefit of its entire membership. The critical inquiry in forced speech cases is whether the speech or activity being 'forced' on the dissenting member is 'germane' to the group’s constitutionally permissible purposes.
"By drawing the line for use of mandatory bar assessments well within the bounds of the compelled-speech jurisprudence, we ensure that the assessments -- which will be administered by the Supreme Court -- will be used only for activities that are clearly germane," the court said. "Here again, our experience with the disciplinary assessment shows that this separation between mandatory and voluntary dues can be readily accomplished.
"And by drawing the line in this way, we will clearly avoid the morass of continuing litigation experienced in other jurisdictions" over the membership issue.