Sen. Scott Lautenbaugh of Omaha took his ongoing fight with the Nebraska State Bar Association to federal court Wednesday, filing a lawsuit alleging it is unconstitutional to force lawyers to pay dues to the association.
The class action lawsuit seeks to prevent the bar association from collecting mandatory dues from members who object to the money being used for political, ideological and other non-germane activities until the association adopts procedures that properly safeguard its members’ civil rights.
Lautenbaugh, a lawyer, has said the bar "frequently gets involved in issues on which its members have divergent views and which have nothing to do with the limited issues a mandatory bar association is allowed to weigh in on."
"I regret this lawsuit was necessary, but I simply do not believe there is any other way to make the NSBA follow the law," Lautenbaugh said.
Bar association spokeswoman Jane Schoenike declined comment.
The association has some 9,300 members. Dues are $275 a year. Each member also must pay a $60 assessment to support the Counsel for Discipline, which investigates complaints against lawyers.
The lawsuit says: "The First Amendment protects not only the freedom to associate, but the freedom not to associate; and it protects not only the freedom of speech, but the freedom to avoid subsidizing group speech with which an individual disagrees."
Earlier this year, Lautenbaugh filed a petition asking the Nebraska Supreme Court to eliminate its rule that Nebraska lawyers be members of the bar association. Lautenbaugh also introduced a bill (LB644) during the past legislative session to make membership in the bar voluntary.
The Supreme Court case is pending. His bill was killed in committee.
The Nebraska Supreme Court recently ordered the bar association to submit a detailed accounting of all its activities as well as an analysis of how its spending on activities such as lobbying complies with the United States Constitution.
The court also ordered the association to submit an analysis of the constitutional soundness of its “opt-out” program for dissenting members in light of a June ruling by the U.S. Supreme Court in Knox v. Service Employees International Union.
In that case, the high court said the First Amendment did not permit a public-sector union to impose a special assessment on a member without consent. The opinion, written by Justice Samuel Alito, said unions must give their non-members notice of any new spending they are assessing workers to support.
“The general rule -- individuals should not be compelled to subsidize private groups or private speech -- should prevail,” Alito said.
Lautenbaugh also has 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 for regulating the legal profession and improving the quality of legal services.
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 political or ideological activities of the association.
Lautenbaugh is being represented by the Mountain States Legal Foundation, a nonprofit, public-interest entity 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.