Can a Bar Association Violate First Amendment Rights Through Its Dues Collection Process?

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In October 2012, Nebraska State Senator and Attorney, Scott Lautenbaugh, filed a class action suit against the Nebraska State Bar Association (NSBA). The suit seeks to have the NSBA’s lobbying and dues procedures deemed unconstitutional. Among the claims for relief are claims that: the collection of the dues constitute compelled speech and association, violating the First Amendment; and that the procedures implemented by the NSBA are inadequate as they do not allow members to object or affirmatively consent to the collection of dues to be used for lobbying purposes.

Membership in the NSBA is currently mandatory. The dues that are paid by members are used to provide continuing education for active lawyers, regulate the practice of law, and discipline attorneys. Along with that, the NSBA also has a “Legislative Program,” where they participate in lobbying, as well as track and take positions on bills. These activities are wholly or partially funded by mandatory member dues. Many of the bills that the NSBA had taken a position on in the past two years did not have anything to do with the legal profession, rather included topics such as: “concealed handguns, government contracts, divorce, grandparent visitation, child support, truancy, and criminal sentences.”

The First Amendment protects the counterpart of the freedom to associate and the freedom of speech; the First Amendment protects the freedom not to associate and the “freedom to avoid subsidizing group speech with which an individual disagrees.” Members of the NSBA may support some of the bills that the NSBA opposes and vice versa. For this reason, Lautenbaugh does not believe that mandatory member dues should be used for legislative lobbying or other activities (including those that may conflict with his personal beliefs). He believes that the use of his dues for this purpose constitutes government-compelled speech and violates his First Amendment rights.

The NSBA attempted to protect the First Amendment rights by adopting certain procedures. The first attempt was a one-sentence “check-off” procedure (“Lobbying Check-Off”) option on annual dues notices. It allowed members to check off if they did not want a portion of their dues to be used for the purpose of lobbying (this check off is basically assuring the members that their dues would not be used to pay outside lobbyists). The other procedure was for members who did not utilize the Lobbying Check-Off procedure. These members had access to a “Member Dues Grievance Procedure” that allowed members to challenge particular expenditures. Only one person ever took advantage of this procedure though; this may be due to the fact that an executive committee of the NSBA made the final determination in regards to the grievance. The annual dues notice that the NSBA sends out does not seek the affirmative consent of members to use their dues for political, ideological, and other nonchargeable activities.

The claim states that because members are not “being provided with an immediate rebate of, or advance reduction in, the amount of dues being spent on non-chargeable activities, and without being provided an opportunity to opt in to non-chargeable activities . . . members are being forced to associate with and subsidize the NSBA’s political speech, lobbying efforts, and other non-chargeable activities; and are otherwise deprived of their rights to free speech and free association under the First Amendment.” It also states that the procedures implemented by the NSBA are not “narrowly tailored to allow members to object to non-chargeable expenditures, in order to protect their fundamental rights to freedom of speech and association” (failing to provide safeguards known as the “Hudson requirements”). Furthermore, the claim states that there is no “opportunity to affirmatively consent to the use of their dues for nonchargeable activities.”

Lautenbaugh relies heavily on a Supreme Court case decided in June, Knox v. Service Employees International Union, Local 1000 (PDF). In this case, a California public-employee union “charged nonmembers a fee to cover its collective-bargaining activities, but informed the nonmembers and allowed them to ‘opt out’ of the cost of the union’s political and ideological activities.” Later, in order to raise funds to oppose ballot initiatives, the union increased monthly dues, but the increase didn’t allow for an opt-out provision as before and those who initially opted out had to pay a portion of the increase (even though such increase was solely for political activities.) So basically, the union was requiring those nonmembers who objected to pay a fee in order to advance union's political and ideological activities. The Court held that since unions have “no constitutional right to receive any payment from these employees” the general rule that “individuals should not be compelled to subsidize private groups or private speech” should prevail in this case.

It seems that the applicability of Knox will be tested in a bar association context. The difference is that Knox was in regards to a public-employee union and this case relates to lawyers and the mandate that they be members of their state bar.

Posted by Porsha M. Robinson on Sun. November 18, 2012 6:38 PM
Categories: Freedom of Association, Freedom of Speech

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