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Tuesday, March 29, 2016

Friedrichs v California Teachers' Association: a 4-4 Tie in the U.S. Supreme Court Gives a Win to Public Unions


Supreme Court hands win to unions, splits 4-4 without Scalia
Public sector unions triumphed before the U.S. Supreme Court on Tuesday when the justices preserved a vital source of cash for organized labor, splitting 4-4 on a conservative challenge that had seemed destined for success until Justice Antonin Scalia's death last month.
The case brought by non-union public school teachers in California had targeted fees that many states force such workers to pay unions in lieu of dues to fund collective bargaining and other activities. A loss in this case would have deprived unions representing teachers, police, transit workers, firefighters and other government employees of millions of dollars annually and diminished their political clout.
The outcome illustrated the impact on the court of the Feb. 13 death of Scalia, the long-serving conservative justice who almost certainly would have cast a decisive vote against the unions. But by virtue of splitting 4-4, the justices affirmed a 2014 lower-court ruling that allowed California to compel non-union workers to pay the fees.
"The death of Justice Scalia has proved a disaster for public sector workers who have their paychecks raided by unions," said Iain Murray, vice president for strategy at the Competitive Enterprise Institute, a conservative think tank in Washington.
The court, evenly divided with four liberals and four conservatives, left intact a 1977 legal precedent that allowed such fees, which conservatives have long abhorred. Conservatives for years have tried to curb the influence of public sector unions, which typically back the Democratic Party and liberal causes.
"The U.S. Supreme Court today rejected a political ploy to silence public employees like teachers, school bus drivers, cafeteria workers, higher education faculty and other educators to work together to shape their profession," said Lily Eskelsen Garcia, president of the National Education Association teachers union.
The case reached the high court after a Washington-based conservative group, the Center for Individual Rights, sued on behalf of lead plaintiff Rebecca Friedrichs, an elementary school teacher in Anaheim, and nine other teachers. They argued the fees infringed upon the free-speech rights of non-union workers under the U.S. Constitution.
'A DISASTER'
During Jan. 11 oral arguments in the case, Scalia was still on the bench, giving the court a majority of five conservatives. The conservative justices during the arguments voiced support for the non-union teachers.
It is the second case in which the court has split 4-4 since Scalia died, with more likely in the coming months, perhaps including major cases on abortion, voting rights and contraception insurance coverage.
It remains unclear when Scalia will be replaced. Senate Republicans have vowed to block confirmation of President Barack Obama's nominee to replace Scalia, centrist appellate judge Merrick Garland. Republicans fear Garland's confirmation would tilt the court to the left for the first time in decades.
At issue in the case decided on Tuesday were so-called agency fees equivalent to union dues, currently mandatory for non-union workers under laws in about half the states including California. The decision means the status quo remains, with the unions able to collect fees from non-union workers.
California's non-union teachers pay the union, which has 325,000 members, around $600 annually in mandatory fees for collective bargaining.
The non-union teachers' lawyers said they plan to ask the court to rehear case.
"With the death of Justice Scalia, this outcome was not unexpected," said Terry Pell, president of the Center for Individual Rights.
The split decision means there is "ongoing doubt about the constitutionality of its forcible collection of millions of dollars in dues," Pell added.
About 5 million public sector employees are subject to union contracts that include mandatory fee provisions, according to the National Right to Work Legal Defense Foundation, which backed the non-union teachers.
Organized labor had expressed worries that a ruling throwing out the fees would give employees less incentive to join public-sector unions because they would get all the benefits of collective bargaining undertaken by unions without having to pay for it.
The teachers who filed the lawsuit in 2013 asked the justices to overturn the 1977 Abood v. Detroit Board of Education Supreme Court ruling that allowed laws that permitted public sector unions to collect fees from workers who were not members as long as the money was not spent on political activities.
Agency fees are already banned in 25 states that have so-called right-to-work laws. In those states, unions still represent workers but membership rates are lower. Federal employee unions also cannot collect such fees.
The ruling comes as a relief to organized labor because unionized civil servants in states without right-to-work laws comprise its main power base.
The court last week also split 4-4 split in a loan discrimination case. Last month, Dow Chemical Co opted to settle a class action case pending before the court for $835 million, citing Scalia's death as a reason. Scalia was seen as a reliable vote for class action defendants.
(Reporting by Lawrence Hurley; Editing by Will Dunham)

Friedrichs v California Teacher's Association 


Vote
Author
Term
Jan 11, 2016
Tr.Aud.
4-4
Per Curiam
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the American Federation of Teachers and American Association of University Professors in support of the respondents in this case.
Issue: (1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
Judgment: Affirmed by an equally divided Court in a per curiam opinion on March 29, 2016.

SCOTUS blog Coverage
·         Union fees in jeopardy: In Plain English (Amy Howe)
·         Argument analysis: The question not asked (Lyle Denniston)
·         Argument preview: New threat to public-employee unions (Lyle Denniston)
·         SCOTUS for law students: Who speaks for Illinois? (Stephen Wermiel)
·         Symposium: Another battle in the war over union fees (Charlotte Garden)
·         Symposium: Correcting the “historical accident” of opt-out requirements (David Rivkin and Andrew Grossman)
·         Symposium: The Friedrichs petition should be dismissed (Catherine Fisk)

Symposium: Public-sector union


Friedrichs v. California Teachers Association

·         Symposium: Overrule Abood to protect individual rights (Deborah La Fetra)
Petition of the day (Maureen Johnston)
Date
Proceedings and Orders
Jan 26 2015
Feb 19 2015
Order extending time to file response to petition to and including April 1, 2015, for all respondents.
Feb 24 2015
Feb 27 2015
Feb 27 2015
Feb 27 2015
Feb 27 2015
Feb 27 2015
Waiver of right of respondent Elliott Duchon to respond filed.
Mar 2 2015
Mar 2 2015
Mar 2 2015
Mar 2 2015
Mar 30 2015
Waiver of right of respondent Kamala D. Harris, Attorney General of California to respond filed.
Apr 1 2015
Apr 14 2015
Apr 15 2015
DISTRIBUTED for Conference of May 1, 2015.
Apr 27 2015
Response Requested . (Due May 27, 2015)
May 27 2015
May 27 2015
May 28 2015
Letter dated May 28, 2015, from counsel for petitioners received waiving 14-day waiting period pursuant to Rule 15.5.
Jun 1 2015
Jun 2 2015
DISTRIBUTED for Conference of June 18, 2015.
Jun 16 2015
Rescheduled.
Jun 22 2015
DISTRIBUTED for Conference of June 25, 2015.
Jun 25 2015
DISTRIBUTED for Conference of June 29, 2015.
Jun 30 2015
Petition GRANTED.
Jul 7 2015
The time to file the joint appendix and petitioners' brief on the merits is extended to and including September 4, 2015.
Jul 7 2015
The time to file respondents' briefs on the merits is extended to and including October 26, 2015.
Jul 21 2015
Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioner.
Jul 24 2015
Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents California Teachers Association, et al.
Jul 27 2015
Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the respondent Kamala D. Harris, Attorney General of California.
Sep 4 2015
Joint appendix (2 volumes) filed. (Statement of costs filed)
Sep 4 2015
Sep 9 2015
Consent to the filing of amicus curiae briefs in support of either party or of neither party received from counsel for Elliott Duchon, Superintendent, Jurupa Unified School District.
Sep 10 2015
Sep 10 2015
Sep 10 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 11 2015
Sep 25 2015
Letter of Carolyn E. Shapiro, Solicitor General of Illinois received. (Distributed)
Oct 1 2015
Letter of Jason Barclay, General Counsel to the Governor received. (Distributed)
Oct 9 2015
Letter of Carolyn E. Shapiro, Solicitor General of Illinois received. (Distributed)
Oct 19 2015
Application (15A422) for an extension of time within which to file petitioners' reply brief on the merits, submitted to Justice Kennedy.
Oct 21 2015
The time to file respondents' briefs on the merits is further extended to and including November 6, 2015.
Oct 21 2015
Application (15A422) for an extension of time within which to file petitioners' reply brief on the merits is GRANTED by Justice Kennedy, and the time is extended to and including December 14, 2015.
Nov 6 2015
Nov 6 2015
Nov 6 2015
Nov 12 2015
Nov 12 2015
Nov 12 2015
Nov 12 2015
Nov 12 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for enlargement of time for oral argument, and for divided argument filed.
Nov 13 2015
Motion for divided argument filed by respondent Attorney General of California.
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 13 2015
Nov 24 2015
SET FOR ARGUMENT on Monday, January 11, 2016
Nov 30 2015
Motion for divided argument filed by respondent GRANTED.
Nov 30 2015
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED, and the time is divided as follows: 40 minutes for petitioners, 15 minutes for the Union Respondents, 15 minutes for respondent Attorney General of California, and 10 minutes for the Solicitor General.
Dec 4 2015
Record requested from U.S.C.A. 9th Circuit.
Dec 11 2015
CIRCULATED.
Dec 14 2015
Jan 11 2016
Argued. For petitioners: Michael A. Carvin, Washington, D. C. For respondent Attorney General of California: Edward C. DuMont, Solicitor General of California, San Francisco, Cal. For Union Respondents: David C. Frederick, Washington, D. C. For United States as amicus curiae supporting respondents: Donald B. Verrilli, Jr., Solicitor General, Department of Justice, Washington, 
D. C.




Victory for Unions as Supreme Court, Scalia Gone, Ties 4-4

 
Michael Mulgrew, UFT President

Teachers unions dodge a bullet with Supreme Court’s split decision


The Supreme Court delivered a major victory Tuesday to public unions, like the city teachers union, that will allow them to continue collecting fees even from members who want to opt out.

“The unions have dodged a bullet,” says David Bloomfield a professor of education, law, and public policy at Brooklyn College and the CUNY Graduate Center. “It potentially could have seriously damaged the collective bargaining position of unions in school districts across the country.”

The case was brought by 10 California teachers who argued that they shouldn’t be required to pay fees that support union positions to which they object, and which finance collective bargaining. Many observers assumed the court’s conservative wing would significantly limit the collection of union fees, but the recent death of Justice Antonin Scalia left the court with a 4-4 split, effectively leaving the lower court’s pro-union ruling intact.

Local education experts and teacher unions called the decision a win, but said it also raises the stakes of the upcoming presidential election — and warned that the unions’ fight is not over.

“The U.S. Supreme Court has protected your voice and your ability to join together to negotiate good wages and benefits and to fight for what our students need,” Michael Mulgrew, president of the United Federation of Teachers, wrote in a letter to union leaders immediately after the decision.

But he cautioned that the 4-4 decision could still be challenged, and that “well-funded” interests were likely to continue the fight. “Today’s ruling won’t stop them,” Mulgrew said.

New York City teachers, along with guidance counselors, school secretaries, and a host of other school staffers, have some amount taken from their paychecks equivalent to union dues — a requirement of state law. Almost all of those who pay are union members: Carl Korn, spokesman for NYSUT, the state teachers union, said less than 3 percent of teachers statewide pay those fees but remain unaffiliated with a union.
A ruling against the unions would have allowed members to refuse to pay those fees, weakening union finances. Such a decision would have had less of an impact in New York than in other states, Bloomfield noted, because the state’s strong union sentiment and relatively high teacher wages would reduce the incentives for teachers to refuse the fees.

Still, if a conservative judge replaces Scalia, it is possible the court could take a similar case and deliver the blow to organized labor that many pro-union groups fear.
On Tuesday, Mulgrew said that the U.S. Senate should give Merrick Garland, President Barack Obama’s moderate pick to replace Scalia, a fair hearing. Republican Senate leaders have said so far that they will not consider a nominee during Obama’s presidency.

“It’s perhaps a temporary victory,” added Bloomfield, “but given the unknowns regarding the composition of the Court in the coming years, it’s no less important.”