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Lawmaker Sues State Bar Over Lobbying

LINCOLN, Neb. (CN) - A Republican lawmaker challenged the Nebraska State Bar Association's practice of using mandatory dues for lobbying.

Scott Lautenbaugh, a state senator from Omaha, filed a class action in Federal Court. Lautenbaugh claims the Bar's use of mandatory membership dues for lobbying violates Bar members' right to free speech.

"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," the complaint states.

Lautenbaugh says he has introduced bills that the Bar has supported, bills it has opposed and bills on which the Bar took no stance.

He claims the Bar's two procedures to protect members' rights are ineffective.

The first method is a one-sentence check-off procedure that allows members to check an option on annual dues notices stating that the member does not want any of his or her dues used for lobbying. But Lautenbaugh claims the Bar doesn't disclose what portion of its budget is used for lobbying and doesn't define what lobbying is.

"Specifically, although Neb. Ct. R. § 3-803(D)(2)(b) directs that the lobbying fund

shall be reduced in proportion to a dissenter's contribution, materials released by the NSBA in an attempt to defend its practices and policies allow only that, if an NSBA member utilizes the Lobbying Check-Off procedure, 'the NSBA segregates and then deducts from legislative counsel's contract, the amount that is determined by the number of NSBA members that 'check off.'' Memorandum to Executive Council at 4; Neb. Ct. R. § 3-803(D)(2)(b)," the complaint states.

"In other words, utilization of the Lobbying Check-Off procedure only exempts member dues from being used to pay the NSBA's outside lobbyists. Exhibit 3; Memorandum to Executive Council at 4.

"As a result, plaintiff Lautenbaugh and other class members are given no assurances that, even if they check the Lobbying Check-Off box, their mandatory member dues will not go to other non-chargeable activities that the NSBA does not categorize as 'lobbying purposes' conducted by its outside lobbyists, such as legislative or lobbying activities conducted by NSBA staff members."

Lautenbaugh claims the other procedure, a grievance procedure, is also ineffective. The grievance procedure is available to all Bar members who do not opt for the check-off procedure.

"The Grievance Procedure seeks to provide NSBA members with a means to 'challenge[] a particular expenditure,'" the complaint states. "Memorandum to Executive Council at 5. Yet, the NSBA's own Executive Committee makes the 'final determination regarding the grievance.' Exhibit 4. This may explain why only one grievance has ever been filed."

Lautenbaugh says the Bar lobbies on issues far beyond the practice of law.

"Over the past two years, the NSBA has expended mandatory bar dues on tracking almost 300 bills and taking positions on more than 100," the complaint states. "Many of the bills on which the NSBA took positions had nothing to do with regulating the legal profession or improving the quality of legal services. Instead, many of the bills dealt with a wide range of unrelated issues, including concealed handguns, government contracts, divorce, grandparent visitation, child support, truancy, and criminal sentences."

The class consists of the approximately 1,100 Nebraska Bar members who have selected the check-off option and any of the approximately 8,200 other Bar members who have or will file a grievance under the bar's grievance procedure.

Lautenbaugh asks that the check-off and grievance procedures be declared unconstitutional, as a violation of class members' First and 14th Amendment rights, and wants the Bar enjoined from mandatory dues until safeguards to protect class members' interest are put into place.

He is represented by Steven Lechner with the Mountain States Legal Foundation in Lakewood, Colo.

Lautenbaugh filed a petition with the Nebraska Supreme Court in February 2012 to create a voluntary state Bar in Nebraska. That petition is pending.

Lautenbaugh is serving his second full term in the state Senate, is chairman of the Rules Committee for the Nebraska Legislature and sits on the Judiciary, and Transportation and Telecommunications committees.

The Nebraska State Bar Association, its president, president-elect and president-elect designate are named as defendants.

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