TABLE OF CONTENTS I. EXECUTIVE SUMMARY...4 II. QUESTIONS PRESENTED...9 III. BACKGROUND California s Agency Shop" Provision...

Transcription

1 BENCH MEMORANDUM To: From: The Honorable The Moot Court Board Bench Memo Committee Rhea Ghosh (chair) Garrett Cardillo Catherine Eagan Colleen McCullough Kaiyi Xie Date: November 16, 2015 Re: University of Pennsylvania Law School Edwin R. Keedy Cup: Friedrichs v. California Teachers Association

2 TABLE OF CONTENTS I. EXECUTIVE SUMMARY...4 II. QUESTIONS PRESENTED...9 III. BACKGROUND California s Agency Shop" Provision The Parties Procedural History...12 IV. DISCUSSION...14 A. Should Abood be overturned and public sector agency shop laws invalidated under the First Amendment? What Level of Scrutiny Governs Compelled Support of Collective Bargaining in the Context of Public Employment?...14 a. Exacting or Strict Scrutiny When Law Subsidizes Political Speech...14 b. Pickering Balancing For Public Employment Speech Do Any Governmental Interests Justify Imposing Agency Fees?...18 a. The Government s Interest in Ensuring Labor Peace...19 b. The Government s Interest in Preventing Free Riding Does the principle of stare decisis require this Court to uphold Abood?...23 a. Was Abood well-reasoned?...23 b. Are there significant reliance interests at stake?...25 c. Is Abood s test for chargeability unworkable?...26 B. Does Requiring Public Employees to Affirmatively Object to Subsidizing Political Speech Violate the First Amendment? What Standard of Review Governs Opt-Out Provisions for Nonchargeable Fees?...28

3 2. Do Opt-Out Provisions for Nonchargeable Fees Violate the First Amendment?...33 a. Are Opt-Out Provisions for Nonchargeable Fees Justified by a Governmental Interest?...33 b. Does Constitutional Precedent Support the Use of an Opt-Out Mechanism for Nonchargeable Fees?...36 c. Is the Opt-Out Process for Nonchargeable Fees Nondiscriminatory and Viewpoint Neutral Under the Nonpublic Forum Doctrine?...38 V. CASE SUMMARIES... I 1. Railway Employees Department v. Hanson, 351 U.S. 225 (1956)...I 2. International Association of Machinists v. Street, 367 U.S. 740 (1961)...III 3. Pickering v. Board of Education of Township High School, 391 U.S. 563 (1968)...V 4. Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977)...VII 5. Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986)...X 6. Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991)...XIII 7. Knox v. Serv. Emps. Int l Union, Local 1000, 132 S. Ct (2012)...XVI 8. Harris v. Quinn, 134 S. Ct (2014)...XIX

4 I. EXECUTIVE SUMMARY This case concerns the constitutionality of mandatory fees charged by a union representing public-sector employees. Under California law, a union is permitted to become the exclusive bargaining representative for the public school employees of a district. The designation as an exclusive bargaining representative grants the union bargaining authority over a range of issues, including wages, benefits, hours, and grievance procedures. A union that is the exclusive bargaining representative for a school district is also permitted to establish an agency shop arrangement, under which the school district may require all public school teachers, as a condition of employment, to either join the union or pay an agency fee every year. The Court has held that agency fees are constitutional when applied toward activities germane to [the union s] duties as collective bargaining representative, such as negotiations, contract administration, and other efforts to secure employment advantages. Abood v. Detroit Bd. of Educ., 431 U.S. 209, (1977). It has also held, however, that the First Amendment protects nonmembers from being compelled to pay dues that would be put toward ideological cause[s]. Id. Consequently, the agency fee is subdivided into chargeable and nonchargeable portions. The chargeable portion covers collective bargaining

5 activities and is mandatory for all nonmembers. The nonchargeable portion, which funds political and ideological advocacy, must be affirmatively opted out of each year. Petitioners, a group of California public school teachers, argue that agency fees and the opt-out requirement for the nonchargeable portion of the fee violate the First Amendment. 1 The Supreme Court has granted certiorari as to two issues: 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. Issue 1: Constitutionality of Public-Sector Agency Shop Arrangements Upheld Under Abood The first issue concerns whether Abood should be overruled and agency shop arrangements held invalid under the First Amendment. As a threshold matter, Petitioners argue that agency shop arrangements should be subject to strict scrutiny 1 While both objections implicate a negative speech right the ability not to speak or associate the Court has unambiguously held that such a right exists. See, e.g., United States v. United Foods, Inc., 533 U.S. 405, 410 ( [T]he [First] Amendment may prevent the government... from compelling certain individuals to pay subsidies for speech to which they object. ). 2

6 because they burden nonmembers political speech. A nonmember who disagrees with her union s view on benefits, state budget allocations, or education policy must continue to pay the union representatives to sit at the negotiating table on her behalf and negotiate with the government for goals with which she disagrees. This, Petitioner argues, necessarily burdens political speech and should be subject to strict scrutiny. Respondents counter that the Abood Court correctly applied a lower standard of review. They contend that the government is given leeway to regulate employment conditions, and that public employee speech cases support the notion that a public employee must accept certain limits to his or her First Amendment rights. See, e.g., Connick v. Myers, 461 U.S. 138, 143 (1983); Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Petitioners then argue that agency shop practices are not justified by any compelling state interest and, even assuming a valid state interest, are not narrowly tailored to serve the purported state interest. There are two state interests presented in Abood. First, Abood recognized a state interest in preserving labor peace through the orderly and peaceful negotiation of labor terms and conditions. 431 U.S. at 220. In upholding agency shop arrangements, the Abood Court observed that a single representative minimizes the confusion, inefficiency, and hostility of negotiating with multiple groups of workers with conflicting demands. Id. Second, Abood also recognized a state interest in limiting free riders who reap 3

7 the benefits of collective bargaining without incurring costs. Id. at 223. The Abood Court found that agency fees serve that interest by ensuring that the costs of union services are fairly allocated among those receiving the benefits. Id. On the question of labor peace, Petitioners assert that mandatory agency fees for nonmembers and the status of unions as exclusive bargaining representatives are not in conflict. Even absent agency fees, unions can continue to serve as exclusive bargaining representatives, as they do in many states that do not permit agency shop arrangements. See Harris v. Quinn, 134 S. Ct. 2618, 2640 (2014). On the question of preventing free riders, Petitioners argue that the very premise of the state s purported interest is flawed. Unions often negotiate reasonably divisive policies that favor one set of interests over another. For example, seniority clauses advantage some union members at the expense of others. The free rider argument fails because it assumes that the union s bargaining positions are aligned with those of its individual members. Petitioners also suggest that other options for unions, such as incentivizing union membership or providing a la carte services for a fee, constitute less restrictive alternatives that demonstrate that the law is not narrowly tailored. Respondents counter that the Court in Abood properly recognized these state interests as compelling. Although they do not dispute Petitioners claim that the 4

8 free rider argument assumes that dissenting nonmembers benefit from union representation, they argue that the primary interests that the union bargains for compensation, work hours, and safety matters, for example clearly benefit all teachers. Therefore, the costs should be spread equally. The more controversial topics cited by Petitioners may suggest reevaluating the scope of what is chargeable, but do not warrant the eradication of all agency fees. Respondents central argument is that the principle of stare decisis requires the Court to uphold Abood. First, they argue that Abood has had a lasting impact on First Amendment case law. They note that a number of decisions have considered the central distinction upheld in Abood, chargeable versus nonchargeable fees, and all have reaffirmed its validity. See, e.g., Lehnert v. Ferris Faculty Ass n, 500 U.S. 507, 510 (1991). Second, they contend that Abood engenders tremendous reliance interest by employees, employers, and unions. If it were to be overruled, the consequences would be sweeping: union contracts would need to be rewritten, unions would need to find new ways to internalize the cost of freeriding, and statutes based on the decision would require legislative revision. Finally, Respondents argue that the Abood decision was well-reasoned based on the prior Supreme Court decisions Railway Employees Department v. Hanson, 351 U.S. 225 (1956), and International Ass n of Machinists v. Street, 367 U.S. 740 (1961). Hanson upheld an agency fee for collective bargaining expenses for 5

9 railway workers and, five years later, Street held that unions could not spend nonmember fees on political causes over workers objections. Although both Hanson and Street addressed agency fees in the context of private employers, Respondents argue that Abood was a well-reasoned, logical outgrowth of the Court s prior decisions. In response to this argument, Petitioners contend that the Court has a considered practice not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases. Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962). They first argue that the Abood decision was poorly-reasoned, and overextended the holdings in Hanson and Street. Street, they note, was not a constitutional decision, and Hanson had a single sentence pertaining to the First Amendment. Such limited precedent cannot support a sweeping constitutional decision like Abood. Moreover, because Hanson and Street addressed only private-sector agency shop arrangements, Abood erred in applying the previous decision s analysis to a fundamentally different context in which, because the employer is the government, political speech and collective bargaining are fundamentally intertwined. Finally, Petitioners argue that the framework established in Abood is unworkable. Petitioners contend that the distinction between chargeable and nonchargeable expenses is inherently problematic, particularly in a public context in which both bargaining and lobbying activities are directed at the government. 6

10 They also note that because a union s money is fungible, money spent entirely on nonpolitical activities frees up other funds to be spent for political purposes. Issue 2: Validity of Opt Out Requirement for Nonchargable Speech The second issue is the Petitioners First Amendment challenge to the requirement that union nonmembers affirmatively opt out of paying the nonchargeable portion of an agency fee on an annual basis. Petitioners, applying strict scrutiny, advance three main arguments as to why such opt-out provisions are unconstitutional. Petitioners first argue that neither of the asserted government interests in Abood, maintaining labor peace and preventing free riding, is implicated by opt-out procedures for nonchargeable fees. By definition, nonchargeable fees are unrelated to labor negotiations, and they therefore do not pose a free rider problem or a threat to peaceful labor negotiations. Second, Petitioners assert that the opt-out mechanism violates the First Amendment because allowing members to opt-in is less restrictive of speech rights while achieving the same goal. Like the opt-out provision, an opt-in provision would allow individuals to contribute money to the union s political causes, while reducing the likelihood that the contributions were involuntary. Finally, Petitioners claim that an opt-out procedure requires nonmembers to implicitly relinquish their fundamental rights. The Court has held that an individual cannot 7

11 be deprived of his or her fundamental rights without a voluntary waiver. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Because under the current system an individual must opt-out of involuntary political speech, he has effectively been required to claim his constitutional rights or risk surrendering them by default. Respondents argue that the Court has repeatedly reaffirmed the validity of opt-out provisions for nonchargeable expenses. See, e.g., Street, 367 U.S. at 774. Using a less stringent standard of review than strict scrutiny, they argue that the opt-out provision does not compel any speech and thus is valid in light of the interests it serves. Finally, Respondents assert that the California s opt-out procedure filling out a one-page form is not a severe or substantial burden on nonmembers. 8

12 II. QUESTIONS PRESENTED 1. Whether Abood v. Detroit Board of Education should be overruled and public-sector agency shop arrangements invalidated under the First Amendment. 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. III. BACKGROUND 1. California s Agency Shop" Provision Under California law, a union may become the exclusive bargaining representative for all public school employees within a certain unit by providing notification that a majority of those employees wish to be members of the union. Cal. Gov t Code 3544(a). The scope of the union s representation is limited to matters related to wages, hours, and other conditions of employment, which include health benefits, class sizes, evaluation and grievance procedures, and alternative compensation or benefits. Id. at Once a union is the exclusive representative of a unit, it may establish an agency shop agreement, whereby employees are required, as a condition of continued employment, to join 9

13 the recognized employee organization or to pay the organization a fair share services fee. Id. at 3543(a). The fair share services fee may not exceed the dues of union members and is broken down into chargeable and nonchargeable expenses. All nonmembers are obligated to pay chargeable expenses, which are those directly related to the union s collective bargaining activities. Id. at 5246(a); Abood, 431 U.S. at 220. California law defines chargeable fees as the cost of negotiation, contract administration, and other activities of the employee organization that are germane to its functions as the exclusive bargaining representative. Cal. Gov t Code Such costs include, but are not limited to, the cost of lobbying activities designed to foster collective bargaining negotiations and to secure for the represented employees advantages in wages, hours, and other conditions of employment.... Id. at 3546(b). Unlike chargeable fees, nonchargeable fees are removed from or unrelated to collective bargaining. Id. at 3546(a). Nonmembers who affirmatively object have a constitutional right to refrain from paying the nonchargeable portion of the agency fee. See Abood, 431 U.S. at 233. Each year, the union is responsible for determining what percentage of its total agency fee is chargeable and notifying all nonmembers of the breakdown of chargeable and nonchargeable costs. Regs. Cal. Pub. Emp t Relations Bd (b)(1); Cal. Gov t Code 3546(a). 10 This notification process is

14 constitutionally mandated and is often referred to as drafting a Hudson notice. Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986). If a nonmember takes no action, the entire agency fee, including nonchargeable expenses, is automatically deducted from her paycheck. Cal. Gov t Code 3546(a). If an employee wishes to pay only the chargeable portion, she must affirmatively optout each year by returning a form after she receives her annual Hudson notice. California law requires that nonmembers have at least thirty days to object. Regs. Cal. Pub. Emp t Relations Bd (b)(1). Those who successfully object are entitled to a rebate or fee reduction for that year. Cal. Gov t Code 3546(a). Petitioners raise two objections to California s agency shop scheme: (1) that by requiring [Petitioners] to make any financial contributions in support of any union, California s agency shop arrangement violates their right to free speech and association under the First and Fourteenth Amendments to the United States Constitution, and (2) that [b]y requiring [Petitioners] to undergo opt out procedures to avoid making financial contributions in support of nonchargeable union expenditures, California s agency shop arrangement violates their rights to free speech and association under the First and Fourteenth Amendments to the United States Constitution. Friedrichs v. Cal. Teachers Ass n, No JLS, 2013 WL , at *2 (C.D. Cal. Dec. 5, 2013) (first alteration in original). 11

15 2. The Parties Petitioners are (1) public school teachers and nonunion members who object to paying yearly agency fees; and (2) the Christian Educators Association International, a non-profit organization dedicated to specifically serving Christians working in public schools. Id. at *1. Respondents are (1) local unions that represent public school employees; (2) the National Education Association; and (3) the California Teachers Association. California Attorney General Kamala Harris is a Respondent-Intervenor on behalf of the State of California. 3. Procedural History Petitioners filed a complaint with the District Court for the Central District of California on April 30, 2013, challenging the Respondents agency shop regime and opt-out requirement. The Petitioners moved for a preliminary injunction, recognizing in their complaint that the District Court would be unable to grant relief since both issues are controlled by precedent under Abood and Mitchell v. Los Angeles Unified School District, 963 F.2d 258 (9th Cir. 1992). See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam) (stating standard for summary affirmance). In order to expedite review of their claim in a proper forum, Petitioners filed a motion for judgment on the pleadings, requesting that the District Court enter judgment in favor of the Respondents. Pursuant to Federal 12

16 Rule of Civil Procedure 5.1(b) and 28 U.S.C. 2403(b), the Attorney General for the State of California, Kamala Harris, intervened on behalf of Respondents. The District Court granted Petitioners motion on the pleadings in favor of Respondents, and vacated Petitioners motion for a preliminary injunction as moot. Friedrichs, 2013 WL , at *3. Petitioners appealed to the Ninth Circuit Court of Appeals. Again recognizing that Supreme Court and Ninth Circuit precedent foreclosed review of their claims, Petitioners moved for summary affirmance without oral argument. Respondents, contending that there were numerous factual inaccuracies within the Petitioners pleading, asked the Court of Appeals to issue an opinion to clarify the factual assumptions upon which the Court was relying. The Ninth Circuit granted Petitioners request, and summarily affirmed the District Court without a written opinion. Friedrichs v. Cal. Teachers Ass n, No , 2014 WL , at *1 (9th Cir. Nov. 18, 2014). Petitioners appealed to the United States Supreme Court, and certiorari was granted on June 30,

17 IV. DISCUSSION A. Should Abood be overturned and public sector agency shop laws invalidated under the First Amendment? 1. What Level of Scrutiny Governs Compelled Support of Collective Bargaining in the Context of Public Employment? Petitioners and Respondents disagree as to which level of First Amendment scrutiny applies to Petitioners claim that agency fees violate the First Amendment. Petitioners argue that exacting or strict scrutiny applies because the California agency shop law imposes a significant impairment on public employees First Amendment rights by burdening core political speech and freedom of association. Knox v. Serv. Emps. Int l Union, Local 1000, 132 S. Ct. 2277, 2291 (2012). Respondents argue that a lesser standard of review should apply. They propose that, given past precedent and the nature of collective bargaining in the public sector, the Pickering balancing test, where the Court balances the interests of the [employee] as a citizen... and the interest of the State, as an employer, is appropriate. Pickering v. Bd. of Ed. Twp. High Sch. Dist. 205, Will Cnty., 391 U.S. 563, 568 (1968). a. Exacting or Strict Scrutiny When Law Subsidizes Political Speech Petitioners argue that strict scrutiny applies because California s requirement that nonmembers contribute agency fees to a union compels nonmembers to 14

18 subsidize the union s political speech on matters of public concern and significantly burdens their right of association. When the government burdens core political speech, the Court reviews the restriction under strict scrutiny and may only uphold the action if it is narrowly tailored to serve an overriding state interest. McIntyre v. Ohio Elections Comm n, 514 U.S. 334, 347 (1995). Exacting scrutiny also applies to any significant impairment of First Amendment rights. Elrod v. Burns, 427 U.S. 347, (1976). A law imposes a significant impairment on First Amendment rights when it requires direct political contributions. Knox, 132 S. Ct. at See also Abood, 431 U.S. at 235. Petitioners argue that agency fees compel teachers to subsidize political speech on political matters of public concern and therefore should be subject to strict scrutiny. Petitioners note that [a] public-sector union takes many positions during collective bargaining that have powerful political and civic consequences. Knox, 132 S. Ct. at Education policies, for example, are generally matters of public concern. See Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668, 673 (8th Cir. 1986) ( The educational theories and practices employed by school administrators is clearly a question of public concern. ). Specifically, Petitioners cite the size of state education budgets, class size, school year length, and disciplinary procedures as inherently political matters of public concern that unions express positions on during collective bargaining. Pet. Br. 12. Abood itself acknowledged that 15

19 collective bargaining is intended to affect the decisions of government representatives who are engaged in the political process on [w]hether [to] accede to a union s demands. 431 U.S. at 228. Although the issues here are not being debated in public but rather in a private negotiation, the Court in Harris held that this distinction was immaterial, at least in the private-employment context. 134 S. Ct. at Finally, Petitioners point to the Court s most recent consideration of agency shop arrangements in Harris, where, in the quasi-public context of home health aides funded by the state but directly supervised by individual patients, the Court applied strict scrutiny in striking down an agency shop arrangement. Id. at Respondents counter that there are several factual distinctions between collective bargaining and classically political speech such as lobbying. Unlike lobbying, collective bargaining results in obligations on both sides. Even more critically, in public sector collective bargaining the government is acting in its capacity as an employer rather than with the force of the state. It should therefore be subject to a less stringent standard of review. b. Pickering Balancing For Public Employment Speech Respondents argue that, since California s law pertains to the special context of public employment, it is subject to the less stringent Pickering balancing test. Under the Court s two-step test in Pickering, if a government employee engages in 16

20 speech as a citizen on a matter of public concern, the Court must balance the employee s First Amendment interest against the state s interest in managing its employees so as to provide public services efficiently. Connick, 461 U.S. at 143. The Court has reasoned that there is a crucial difference, with respect to constitutional analysis, between the government exercising the power to regulate and the government acting to manage [its] internal operation. Engquist v. Oregon Dep t of Agriculture, 553 U.S. 591, 598 (2008). Respondents contend that the Pickering balancing test applies here because the government acts primarily as an employer during activities related to collective bargaining and therefore must be afforded greater discretion in managing its employees. A union representative s arguments at the bargaining table are not speech on a matter of public concern. Instead, Respondents maintain that such speech is made regarding the terms and conditions of specific employment. Respondents note that bargaining has a narrow and pragmatic purpose: to present a single bargaining position for all employees as to wages, benefits, working conditions, and job security. Petitioners counter that Pickering and its progeny only dealt with the issue of whether the public employer s disciplinary decision violated the First Amendment, where specific instances of the employee s speech or expression were at issue and which invetabl[y] involve Pickering balancing. O Hare Truck 17

21 Serv., Inc. v. City of Northlake, 518 U.S. 712, 719 (1996). Here, however, the question is not the state s decision to sanction an employee for a particular instance of speech it condemns, but, rather, an employee s First Amendment rights with respect to a state law that compels certain speech. Garcetti, 547 U.S. at Do Any Governmental Interests Justify Imposing Agency Fees? No matter which standard of review applies, the Court must measure the state s interest in allowing the union to collect agency fees from nonmember employees against the employees First Amendment rights. Respondents concede that compelled support has an impact upon [a nonmember s] First Amendment interest. Abood, 431 U.S. at 222. Nevertheless, they maintain that where state law mandates an exclusive bargaining entity represent nonmembers and members alike, the potential impingement is constitutionally justified. Id. Abood identified two government interests that justify agency fees: the desirability of labor peace and preventing free riders. 431 U.S. at 224. Petitioners argue that these are not compelling state interests, and even if they were, agency fees are not narrowly tailored to serve those interests. Respondents, on the other hand, argue that the compelling interests that agency fees serve the government as an employer justify slight abridgement of employees First Amendment rights. 18

22 a. The Government s Interest in Ensuring Labor Peace The Abood Court referred to labor peace as the prevention of confusion and conflict that might arise if rival unions with different views seek to obtain the employer s agreement. 431 U.S. at 224. The Court concluded that labor peace is served by having one union with exclusive representation rights to prevent interunion rivalries from creating dissension within the work force. Id. at 221. Thus, Respondents contend that ensuring labor peace through exclusive bargaining representation enabled by agency fees is a vital policy interest. Petitioners argue that the Court should not find the preservation of labor peace a sufficiently compelling state interest to justify the curtailment of First Amendment rights. They cite the concurrence in Abood, in which three members of the Court expressed doubt about whether avoiding free ridership and preserving labor peace justify abridging the First Amendment in the public sector. Abood, 431 U.S. at (Powell, J., concurring). Even if preservation of labor peace were found to be a compelling state interest, Petitioners still argue that agency fees have only a tenuous logical relationship to advancing the state s interest. See Harris, 134 S. Ct. at 2640 ( A union s status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked. ). The Court has already observed that, even as an empirical matter, there is no 19

23 necessary relationship between exclusive bargaining arrangements and agency fees. Id. (noting that employees in some federal agencies may choose a union to serve as the exclusive bargaining agent for the unit, even where no employee is required to join the union or pay any union fee ). b. The Government s Interest in Preventing Free Riding The Abood Court recognized an additional interest in counteract[ing] the incentive that employees might otherwise have... to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees. 431 U.S. at 222. Respondents central justification for agency fees flows from the state-imposed duty of unions designated as exclusive bargaining agents to represent all members and nonmembers equally. See Cal. Gov t Code 3540 et seq. This duty justifies agency fees on a free rider theory because it allows unions to distribute the costs of this statutorily-imposed duty fairly to all who benefit from the fruits of the union s labor. Petitioners suggest that this duty of fair representation does not justify the imposition of agency fees on objectors because it costs the union nothing to represent them. The duty of fair representation does not compel a union to advocate nonmember preferences it merely precludes the union from advocating policies that overtly favor union members. In other words, in the absence of the duty, it is not clear that unions would bargain any differently. Moreover, fixed 20

24 costs incurred at the bargaining table are irrelevant because they are incurred regardless of whether the union represents members or nonmembers. In Harris, for example, the Court would not sustain the agency fee provision for personal assistants unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join. Harris, 134 S. Ct. at The parties also dispute whether an objecting nonmember free rides on a union s bargaining activity in the first place. Petitioners, calling the notion of freeridership in this context illusory, argue that teachers who object to a union s ideological bargaining objectives do not benefit from the union s success in achieving those objectives. For example, a teacher who believes she is an aboveaverage performer might oppose the NEA policy rejecting merit pay systems. NEA, 2015 Handbook at , Petitioners argue that these teachers are forced riders, not free riders. Respondents counter that nonmembers benefit from at least some of CTA s bargaining activities and that this should be sufficient to preserve Abood. Even Abood detractors agree that an employee s interest in expressing views about economic issues, such as salaries and pension benefits, implicates less significant First Amendment interests. Abood, 431 U.S. at 263 n.16 (Powell, J., concurring). Members and nonmembers benefit from union s effort to secure health and dental 21

25 insurance, safer working conditions, or more sick leave. See JA The Court conceivably could carve out an even narrower range of activities to which the fee can permissibly apply without disturbing Abood. Petitioners, however, find the Respondents premise that these issues are simple and uncontroversial to be problematic. For example, they concede safer working conditions clearly benefit all teachers. However, when the union sits at the bargaining table the issue is not so simple; reasonable individuals can disagree over the means that best provide school security. Pet. Rep. Br. 5. Even if the free rider interest were compelling, Petitioners nonetheless argue there are less restrictive means to accomplishing the goal of protecting exclusive representatives. For example, unions could shift to a system whereby unions only charge for services performed at the affirmative request of a nonmember. California already uses such a system: it provides that religious objectors need not support a union as a condition of employment, but may use the union s grievance procedures as-needed for a fee. See Cal. Gov t Code Moreover, instead of requiring teachers to pay dues, unions could incentivize teachers to join using fringe benefits like income protection insurance. 22

26 3. Does the principle of stare decisis require this Court to uphold Abood? The Supreme Court has stated that precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error. Citizens United v. F.E.C., 558 U.S. 310, 362 (2010). The Court considers several factors in deciding whether to overturn prior precedent, including whether the decision was well-reasoned, the reliance interest at stake, and the workability of rule in question. Id. at 363. Petitioners and Respondents dispute the degree to which stare decisis applies to First Amendment decisions. Petitioners say the presumption in favor of stare decisis applies less rigidly in constitutional cases than it does in the statutory interpretation context because corrective action by the legislature of the former is virtually impossible. Respondents instead focus on the prudential concerns of stare decisis: namely, that it promotes consistency, actual and perceived integrity of the judiciary, and predictability. a. Was Abood well-reasoned? Petitioners argue that Abood erred in importing the Court s reasoning in Hanson and Street to its First Amendment analysis. In Hanson, the Court held that an agency shop arrangement for railway workers was within the power of Congress under the Commerce Clause. 351 U.S. at 238. The Court treated the 23

27 First Amendment question only sparingly, writing that the arrangement, does not violate either the First or the Fifth Amendments. Id. The Court further refined the Hanson holding in Street, which held that unions could not spend compelled contributions by dissenting nonmembers as a means for forcing employees, over their objection, to support political causes which they oppose. Street, 367 U.S. at 764. Petitioners, quoting Harris, argue that, the Abood Court seriously erred in treating Hanson and Street as having all but decided the constitutionality of compulsory payments to a public-sector union. 134 S. Ct. at Hanson considered only whether Congress had the power to authorize agency shops under the Commerce Clause, but did not consider the separate issue of whether a state instrumentality could impose agency fees. Street only resolved the scope of the contested agency shop provision on statutory grounds. Petitioners also contend that the Abood Court failed to appreciate the meaningful difference between agency fees in the context of private sector unions, like those at issue in Hanson and Street, and in the public sector, as in Abood. In the context of public unions, in which collective bargaining activities are directed at the government, even negotiations for modified hours and wages become politically infused because they concern issues of public concern and the allocation of public resources. 24

28 Respondents, however, call Abood a logical extension of prior precedent. Petitioners, in their view, overstate the lack of consideration prior to Abood because Hanson and Street addressed issues logically antecedent to the one answered in Abood. Hanson considered whether agency fees could be charged for collective bargaining activities. Street precluded Hanson s permissible fees from reaching lobbying activities. Abood carried the ball forward by answering whether the holdings were applicable to public unions. b. Are there significant reliance interests at stake? Abood potentially implicates at least two significant reliance interests. In the years since Abood, at least 23 states have adopted an agency shop model that imposes agency fees on nonmembers. Because those laws were legislated against the backdrop of Abood s chargeable nonchargeable distinction, overruling Abood would require significant legislative reworking, implicating a central prudential concern of stare decisis. See Hilton v. S. Carolina Pub. Railways Comm n, 502 U.S. 197, 202 (1991) ( Stare decisis has added force when the legislature... acted in reliance on a previous decision... [and] overruling the decision would require an extensive legislative response. ). Relatedly, where contract rights are involved, concerns favoring stare decisis are at their acme. Payne v. Tennessee, 501 U.S. 808, 828 (1991). Respondents note that overruling Abood might invalidate 25

29 thousands of collective bargaining agreements that rely on the agency fee, especially if the agency fee clause is not severable from the rest of the contract. Petitioners argue, though, that reliance interests carry less force in stare decisis analysis in the face of constitutional rather than statutory violations. See Alleyne v. United States, 133 S. Ct. 2151, 2163 n.5 (2013) ( The force of stare decisis is at its nadir in cases concerning procedural rules that implicate fundamental constitutional protections. ). This has been particularly true with respect to the First Amendment. See Citizens United, 558 U.S. at 363 (stating the Court has not hesitated to overrule decisions offensive to the First Amendment ). In light of this, Petitioners concede that some union contracts might have to be adjusted but argue that First Amendment rights trump these costs. Moreover, Petitioners question whether there is any valid reliance interest on Abood when the Court in Knox said that a union has no constitutional right to receive any payment from nonmembers. 132 S. Ct. at Petitioners also point out that unions do not require agency fees to survive, noting the existence of public sector unions in right-to-work states. c. Is Abood s test for chargeability unworkable? Because stare decisis does not prevent the Court from overturning unworkable precedent, Payne, 501 U.S. at 827, Petitioners prompt the Court to consider the practical difficulty of distinguishing between chargeable and 26

30 nonchargeable expenses under Abood. In the private context, the distinction between collective bargaining activities and political advocacy is clearer: collective bargaining is directed at the employer while political advocacy is directed at the government. In the public sector, however, a union directs both bargaining and political advocacy efforts at the government, muddling the line between the two. Petitioners argue that the Court has struggled repeatedly to define a rule that satisfyingly classifies chargeable and nonchargeable expenses. Harris, 134 S. Ct. at Indeed, Petitioners submit that the distinction is illusory and often arbitrary. Petitioners cite the CTA s 2011 classification of its Gay/Lesbian Program as fully chargeable, justified by the CTA as designed to strengthen the governance of CTA and its affiliated chapters by recruiting and training underrepresented groups, as an example of an expense with a questionable relationship to collective bargaining. Pet. Br. 26. Moreover, union money is fungible, and using one fee is entirely for nonpolitical purposes frees up money for political purposes. Knox, 132 S. Ct. at 2293 n.6 (citations omitted). Respondents counter that the blurred distinction between bargaining and ideological activity in the public employment context has not stopped the Court from developing a framework for investigating whether an expense is permissibly chargeable, see Lehnert, 500 U.S. at 519 (adopting a three factor test), and from 27

31 applying that test to specific factual circumstances, see, e.g., Locke v. Karass, 555 U.S. 207, 219 (2009) (applying a framework to national litigation expenses). The Abood distinction has been tested in four cases over thirty-two years, and the decisions in those cases have not been divisive. See, e.g., Ellis v. Brotherhood of Ry. Clerks, 466 U.S. 435, 457 (1984) (Powell, J., concurring in part and dissenting in part) (unanimous except for Justice Powell s limited dissent); Hudson, 475 U.S. at (unanimous approval for notice and opt-out procedure); Locke, 555 U.S. at 221 (unanimously holding that litigation expenses are chargeable). Respondents argue that the chargeability line could be redrawn to satisfy First Amendment concerns by revisiting post-abood cases like Lehnert, but that disagreement on that issue does not translate to unworkable disagreements on Abood s scope. B. Does Requiring Public Employees to Affirmatively Object to Subsidizing Political Speech Violate the First Amendment? 1. What Standard of Review Governs Opt-Out Provisions for Nonchargeable Fees? Petitioners argue that strict scrutiny is applicable in this case because opt-out systems significantly impair the rights of dissenting nonmembers. See Elrod, 427 U.S. at 362 ( [A] significant impairment of First Amendment rights must survive exacting scrutiny. ). In Street and subsequent decisions, the Court has repeatedly held that the use of a nonmember s funds to subsidize political or ideological 28

32 speech to which she objects violates the First Amendment. Street, 367 U.S. at 774; Abood, 431 U.S. at 234. Petitioners argue that, under opt-out systems, the use of a nonmember s funds to subsidize objectionable ideological and political speech is both inevitable and largely irreparable. Pet. Br. 32. Although Petitioners recognize that opt-out procedures do not directly compel political speech, they argue that the Court has previously struck down state action based on a perceived risk of potential First Amendment violations. See, e.g., Chicago Teachers Union v. Hudson, 475 U.S. 292, 309 (1986) (invalidating the original Hudson notice procedure because it failed to minimize the risk that nonunion employees contributions might be used for impermissible purposes ). Therefore, the Petitioners conclude that the Court should apply a level of review commensurate with the magnitude of the constitutional violations that would occur if the risks inherent in opt out were actualized. Pet. Rep. Br. 13; see generally Waters v. Churchill, 511 U.S. 661, 671 (1994) ( [T]he propriety of the proposed procedure must turn on... the relative magnitude and constitutional significance of the risks it would decrease and increase. ). Respondents argue that no heightened scrutiny is warranted because the optout procedure does not fall within Rumsfeld s established protections for compelled speech. Rumsfeld v. Forum for Academic & Institutional Rights, Inc. held that people cannot be forced either to deliver a Government-mandated pledge 29

33 or motto or to host or accommodate another speaker s message. 547 U.S. 47, 60, 63 (2006). First, Respondents argue that the only compelled activity here filling out a one-page form is a regulation of conduct, not speech. A law that compels speech incidental to the... regulation of conduct is constitutional. Id. at 62. Likening the form to a DMV license application or other governmentmandated form, Respondents conclude that strict scrutiny is inappropriate because the statute plainly regulates conduct how a fair-share fee payer can decline to pay any nonchargeable expenses with the form constituting a minor incidental step. Resp. Br. 27. Second, Respondents argue that the second form of compelled speech identified in Rumsfeld is implicated only if the complaining speaker s message is affected by the message that the speaker is forced to accommodate. Id. at 63. See also PruneYard Shopping Center v. Robins, 447 U.S. 74, 88 (1980) (upholding a California provision requiring a shopping center to allow students to distribute political leaflets on premises because the owners were free to publicly dissociate themselves from the views of the speakers ). Here, the very existence of an optout provision means that a speaker is not forced to accommodate the union s message and Petitioners are free to publicly dissociate themselves from the union s views. 30

34 Respondents also argue that California s opt-out procedure filling out a one-page form is not a severe or substantial burden on nonmembers rights of association, and therefore is not subject to strict scrutiny. They argue that the threshold inquiry in free expression cases is whether an act severely burdens associational rights. Clingman v. Beaver, 544 U.S. 581, 586 (2005). In Clingman, the Court upheld a requirement that voters fill out a registration form to change their party affiliation in order to vote in a semi-closed primary for a party they are not affiliated with. 2 Id. at The Court reasoned: Many electoral regulations, including voter registration generally, require that voters take some action to participate in the primary process.... These minor barriers between voter and party do not compel strict scrutiny. Id. In concluding that the form is not a burden, Respondents analogize the opt-out form to a minor administrative inconvenience on people s rights, similar to the form upheld by the Court in Clingman. See id. at Respondents propose that the Court apply a lesser standard of scrutiny and offer several suggestions. Primarily, Respondents suggest that, because opt-out procedures do not place a substantial burden on nonmembers rights of association, the Court should apply the Clingman standard where a State s important 2 Under a semi-closed primary system, a voter affiliated with one party is prohibited from voting in the primary of another party even if the other party wishes to allow nonparty members to participate. 31

35 regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions. 544 U.S. at 587. Alternatively, Respondents suggest that the nonpublic forum doctrine should apply to this case. 3 Under the nonpublic forum doctrine, government property and internal processes are considered nonpublic fora, and, given the government s role as an employer, it can enforce reasonable, viewpoint neutral restrictions on speech. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, (1985) (holding that a campaign through which the government encouraged its employees to make charitable contributions using payroll deductions and lump sum payments constituted a nonpublic forum); see also Perry Educ. Ass n v. Perry Local Educators Ass n, 460 U.S. 37, 71 (1983) (finding that a school s internal mail system constituted a nonpublic forum). Here, the Respondents argue that the government s payroll, which manages the opt-out system, constitutes a nonpublic forum, and since the process is viewpoint neutral and reasonable, it is permissible for public unions to use an opt-out process to collect dues as a form of internal management. Finally, Respondents consider the use of the more demanding Hudson standard. Under Hudson, as later restated in Knox, [A]ny procedure for exacting fees from unwilling contributors must be carefully tailored to minimize the 3 This argument was raised in the Respondents Brief for the Keedy Cup competition, but was not raised in the briefs actually submitted to the United States Supreme Court. 32

36 infringement of free speech rights. Knox, 132 S. Ct. at 2291 (citing Hudson, 475 U.S. at 301). The Respondents explicitly distinguish the Hudson standard from exacting scrutiny as not a least restrictive means inquiry. Resp. Br. 36 (emphasis in original). However, Petitioners see no distinction between careful tailoring and strict scrutiny, and the Court itself acknowledged an overlap between the two standards Do Opt-Out Provisions for Nonchargeable Fees Violate the First Amendment? a. Are Opt-Out Provisions for Nonchargeable Fees Justified by a Governmental Interest? Applying strict scrutiny, Petitioners argue that neither of the purported government interests asserted in Abood, maintaining labor peace or preventing free riding, is implicated by opt-out procedures for nonchargeable fees. Because nonchargeable fees subsidize political activities, they bear no relation to the goals of maintaining labor peace or preventing free ridership, both of which pertain to the separate issue of collective bargaining. 4 Petitioners observed that the Hudson Court intimated a parallel between Hudson s careful tailoring and narrow tailoring by citing to multiple First Amendment cases that applied exacting scrutiny. Pet. Rep. Br Moreover, in Knox the Court again hinted at overlap between careful tailoring and narrow tailoring: [T]o underscore the meaning of this careful tailoring, we followed that statement with a citation to cases holding that measures burdening the freedom of speech or association must serve a compelling interest and must not be significantly broader than necessary to serve that interest. 132 S. Ct. at While the compelling interest seems to indicate strict scrutiny, the Court also suggests that it is not a least restrictive means test by permitting measures that are not significantly broader than necessary[.] Id. (emphasis added). 33