Lautenbaugh v. Nebraska State Bar Association et al

Filing 29

MEMORANDUM AND ORDER denying 7 Motion to Certify Class. Ordered by Senior Judge Richard G. Kopf. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

SCOTT LAUTENBAUGH, on behalf
of himself and the class he seeks to
represent,

)
)
)
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Plaintiff,
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v.
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NEBRASKA STATE BAR
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ASSOCIATION; WARREN R.
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WHITTED, JR., President, Nebraska
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State Bar Association, in his official
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capacity; MARSHA E. FANGMEYER, )
President-Elect, Nebraska State Bar
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Association, in her official capacity;
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and G. MICHAEL FENNER,
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President-Elect Designate, Nebraska
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State Bar Association, in his official
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capacity,
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Defendants.
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)

4:12CV3214

MEMORANDUM AND ORDER

Mr. Lautenbaugh, a Nebraska state legislator and a member of the Nebraska
bar, has filed this civil rights suit claiming that the Nebraska State Bar Association
violates his civil rights. Currently pending before me is Mr. Lautenbaugh’s motion
to certify this case as a class action.
Under Federal Rule of Civil Procedure 23(a)(4), I deny that motion. I conclude
that Mr. Lautenbaugh is not an “adequate” class representative. To be clear, this
conclusion is not a criticism of Mr. Lautenbaugh. Specifically, this decision is not an
adverse comment on Mr. Lautenbaugh’s integrity or his abilities as a lawyer.

I do not reach any of the other class action issues. My reasons for this ruling
are set forth briefly below.
I. BACKGROUND
In his complaint, Mr. Lautenbaugh alleges that:
1. This civil rights class action seeks immediate injunctive and
declaratory relief to redress and prevent the deprivation of Plaintiff
Lautenbaugh’s rights, and the rights of the class members he seeks to
represent, against compelled speech and compelled association protected
by the First and Fourteenth Amendments to the United States
Constitution by practices and policies of Defendants acting under color
of state law.
2. Specifically, those rights have been violated by Defendants’
imposition of mandatory dues as a condition of membership to the
Nebraska State Bar Association (“NSBA”), which is a prerequisite to the
ability to practice law in the State of Nebraska. A portion of these
mandatory dues, however, are used to fund political, ideological, and
other non-germane activities (“non-chargeable activities”) which
Plaintiff Lautenbaugh and other class members do not support.
Defendants fail to provide constitutionally required procedural
protections to safeguard Plaintiff’s and other class members’
constitutional rights. Plaintiff therefore seeks declaratory and injunctive
relief to abate and correct Defendants’ unconstitutional actions.
(Filing no. 1 at CM/ECF p. 2.)
Mr. Lautenbaugh also alleges that there is now pending before the Nebraska
Supreme Court his petition to do away with “unified” nature of the Nebraska State Bar
Association. (Id. at CM/ECF pp. 12-13 & ¶¶ 45-48.). That is, Mr. Lautenbaugh seeks
to set aside the requirement that a lawyer who desires to practice law before the
Nebraska state courts must be a member of the Nebraska State Bar Association.

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Mr. Lautenbaugh also alleges that this suit is driven, in part, by his activities as
a Nebraska legislator. That is, Mr. Lautenbaugh asserts that the Nebraska State Bar
Association has opposed bills that he introduced as a state legislator. (Id. at CM/ECF
p. 3 & ¶ 9.)1
Further, Mr. Lautenbaugh alleges that:
20. This is a class action brought by Plaintiff Lautenbaugh on his
own behalf and on behalf of others similarly situated, pursuant to Rule
23(b)(2) of the Federal Rules of Civil Procedure. The class that Plaintiff
Lautenbaugh seeks to represent consists of all current NSBA members
who paid annual dues in 2012 and selected the “check-off” option on
their annual dues notices, or will select the “check-off” option on their
2013 dues notices, thus attempting to exempt their dues from use for
non-chargeable activities conducted by the NSBA. It also includes any
NSBA members who have filed or will file a grievance pursuant to the
NSBA’s defective grievance procedure, as described below.
(Id. at CM/ECF p. 6.)
He requests declaratory and injunctive relief. Specifically, and in addition to
attorney fees and costs, he seeks:
1. Entry of judgment declaring that Plaintiff Lautenbaugh and
other class members have First Amendment rights against compelled
speech and compelled association, and therefore have a constitutional
right to prevent Defendants from using their member dues on nonchargeable activities;
2. Entry of judgment declaring that Defendants’ Lobbying
Check-Off and Grievance Procedures are unconstitutional, and that using
mandatory dues for non-chargeable activities while maintaining such
policies deprives Plaintiff Lautenbaugh and other class members of
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He also asserts that the Nebraska State Bar Association has supported or taken
no position on other bills he introduced. Id.
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rights, privileges, and/or immunities secured to them by the First and
Fourteenth Amendments, and, therefore, Defendants are liable to
Plaintiff Lautenbaugh and other class members under 42 U.S.C. § 1983;
3. Entry of judgment declaring that Defendants’ practice of using
an opt-out procedure for funding non-chargeable activities is
unconstitutional, and using mandatory dues for non-chargeable activities
while maintaining an opt-out procedure rather than an opt-in procedure
deprives Plaintiff Lautenbaugh and other class members of rights,
privileges, and/or immunities secured to them by the First and
Fourteenth Amendments, and, therefore, Defendants are liable to
Plaintiff and other class members under 42 U.S.C. § 1983;
4. Entry of judgment declaring that Defendants’ Lobbying
Check-Off and Grievance Procedures fail to comply with Hudson and
thus deprive Plaintiff Lautenbaugh and other class members of their
Fourteenth Amendment right to procedural due process, and, therefore,
Defendants are liable to Plaintiff Lautenbaugh and other class members
under 42 U.S.C. § 1983; [and]
5. Entry of preliminary and permanent injunctions against
Defendants prohibiting the collection of mandatory member dues from
Plaintiff Lautenbaugh and other class members unless and until
procedures that properly safeguard the First and Fourteenth Amendment
rights of Plaintiff Lautenbaugh and other class members are adopted[.]
(Id. at CM/ECF pp. 21-22.)

II. ANALYSIS
Mr. Lautenbaugh is the only plaintiff and the only person who seeks to
represent the class. He seeks class certification under Federal Rule of Civil Procedure
23(b)(2).
“Because ‘unnamed members are bound by the action without the opportunity
to opt out’ of a Rule 23(b)(2) class, even greater cohesiveness generally is required”
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between the party seeking class certification and the other class members. In re St.
Jude Medical, Inc., 425 F.3d 1116, 1121-22 (8th Cir. 2005) (citation omitted). With
the requirement of “even greater cohesiveness” in mind, I now examine Mr.
Lautenbaugh’s suitability to represent the asserted class.
Rule 23(a)(4) requires that “the representative parties will fairly and adequately
protect the interests of the class.” Among other things, a determination of adequacy
typically entails inquiry as to whether the plaintiff’s interests are antagonistic to the
interest of other members of the class. See, e.g., Baffa v. Donaldson, Lufkin &
Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir.2000). The inquiry is designed “to
uncover conflicts of interest between named parties and the class they seek to
represent.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625 (1997). “[A] proposed
class representative may not satisfy the adequacy prong if his or her case involves
problems that ‘could become the focus of cross-examination and unique defenses at
trial, to the detriment of the class.’” Lapin v. Goldman Sachs & Co., 254 F.R.D. 168,
177 (S.D. N.Y. 2008) (quoting In re NYSE Specialists Sec. Litig., 240 F.R.D. 128,
144 (S.D.N.Y.2007)).
There are compelling reasons to believe that Mr. Lautenbaugh could not
“adequately” represent the class members. I will highlight several of those reasons:
* Mr. Lautenbaugh has filed a petition with the Nebraska Supreme Court to
disunify the bar and many members of the proposed class are likely to disagree with
any such attempt. Indeed, this suit could be seen as an attempt to indirectly disunify
the bar by starving it of revenues.
* As the defendants’ advised me on November 15, 2012 during a scheduling
conference, they raise defenses that are unique to Mr. Lautenbaugh’s claims such as
asserting that this court should abstain as Mr. Lautenbaugh is seeking similar relief
before the Nebraska Supreme Court.

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* For judicial ethics reasons, many state court judges, including members of the
Nebraska Supreme Court, may have elected not to have their dues used for lobbying
purposes by selecting the challenged “check off” provision. If Mr. Lautenbaugh
became a class representative for this non-opt-out class, he may well be representing
the very Nebraska Supreme Court judges that are currently hearing his petition to
disunify the bar. Still further, he would be representing any other state court judges
who “checked off” and that could cause serious disqualification issues for those
judges if Mr. Lautenbaugh appeared before them as a lawyer, particularly since, under
Rule 23(b)(2), they have no ability to opt out.
* As a state senator whose legislative interests have sometimes been opposed
by the Nebraska State Bar Association, Mr. Lautenbaugh is particularly vulnerable to
cross-examination on the question of whether he has filed this suit for political
reasons.
IT IS ORDERED that the Motion to Certify Class (filing no. 7) is denied.
DATED this 6th day of December, 2012.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility
for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work
or directs the user to some other site does not affect the opinion of the court.

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