Friedrichs v. California Teachers Association

  • September 19, 2017
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond

    It is no surprise to observers of labor relations that the Supreme Court is once again considering a petition for certiorari in a case challenging the only reliable source of union funds. Well-funded interest groups have long sought to limit unions’ power by restricting their ability to charge for services they are required by law to provide. The petition currently pending in Janus v. AFSCME rehashes the same arguments rejected by the Supreme Court forty years ago in Abood v. Detroit Board of Education and downplays subsequent legal developments that support reaffirmation of the decision in Abood.

  • April 4, 2016
    Guest Post

    by Ann C. Hodges, professor of law, University of Richmond School of Law

    Justice Scalia was widely viewed as the swing vote in Friedrichs v. California Teachers Association. The Court’s 4-4 decision on March 29 supports that view, but leaves unknown how the case would have been decided had Justice Scalia survived to participate in the decision. In his concurring and dissenting opinion in Lehnert v. Ferris Faculty Association, Justice Scalia recognized that the state’s decision to require the union to represent nonmembers offered a compelling justification for charging the nonmembers for that representation. Despite this opinion, which preceded Justice Alito’s attacks on fair share fees in Harris v. Quinn and Knox v. SEIU Local 1000, Justice Scalia’s comments at the Friedrichs argument suggested that he accepted the position of the dissenting employees that all collective bargaining in the public sector is political. If that is the case, it undercuts the distinction that Justice Scalia accepted in his opinion in Lehnert, that the state can require payment for the mandated representational activities but not for political or ideological activities.

    Regardless of how the case might have come out with Justice Scalia on the Court, the Abood decision, which Friedrichs sought to overturn, has survived. The dead heat leaves the Ninth Circuit’s opinion upholding the statute based on Abood intact. Fair share fees remain constitutionally permissible at present. That this issue will return to the Court, however, is a certainty. Unions may have “dodged a bullet” but union opponents remain loaded and ready. The National Right to Work Legal Defense Foundation and the Center for Individual Rights are dedicated to eliminating the ability of unions to charge objectors for their representational activities and offer free legal services to employees that want to challenge unions on this ground. While Friedrichs’ counsel argued that the case would have no impact in the private sector, that is not at all certain given the Court’s previous decisions analogizing public and private sector union security. Further, these same organizations are committed to taking away union security in the private sector as well.

    The Friedrichs case was rushed to the Court without a record because the plaintiffs sought to capitalize on Justice Alito’s invitations in Harris and Knox. That strategy gave the unions several arguments that may be unavailing in a case with a full record. There are cases in the lower courts raising the issue that may be headed to the high Court. But there is little incentive to rush another case to the Court since it appears that the Republicans in the Senate will block confirmation of any nominee until after the 2016 elections. In addition, the Center for Individual Rights has indicated that it will ask the Court to rehear the case once a new justice is confirmed.

  • March 30, 2016
    Guest Post

    by Charlotte Garden, associate professor at Seattle University School of Law, litigation director of the Korematsu Center for Law & Equality, and faculty advisor to the ACS student chapter at Seattle Law. Follow her on Twitter @CharlotteGarden.

    On Tuesday, the Supreme Court affirmed the Ninth Circuit’s decision in Friedrichs v. California Teachers Association by equally divided vote. This result—a win for public sector unions—has been anticipated by Court watchers since Justice Scalia’s death made a tie vote among the remaining eight justices nearly inevitable. Still, a tie vote did not require the Court to affirm the judgment below—instead, the Court could have held the case over for reargument once it was back to the full compliment. That the Court did not go that route could reflect the Justices’ own recognition of the political reality that Senate Republicans’ intransigence makes confirmation of a ninth justice before the presidential election in November unlikely. More important, though, Friedrichs is a sign of things to come—the 4-4 affirmances that are all but certain to arrive later this Term will cause far more disruption and uncertainty.

    What Does Affirmance in Friedrichs Mean for Public Sector Unions?

    As I previously described for ACSblog, January’s argument in Friedrichs left public sector unions—as well as states that have chosen to manage their workforces through collective bargaining with unions supported by agency fees—little reason for hope. The Court seemed poised to hold that public sector employees have a First Amendment right not to contribute financially to the unions that represent them, even as they benefit from that representation. A ruling against the union and state defendants would have reversed a nearly 40-year-old Supreme Court precedent, Abood v. Detroit Board of Education, and handed a long-sought victory to the right.

    Thus, Tuesday’s decision was a reversal of fortunes for public sector unions and employers. It means that in the nearly half of states in which public sector agency fees are required or authorized, unions will not be left scrambling to cover the gap that would have inevitably resulted when represented workers made the economically rational decision to free ride on their co-workers. And the timing of that reversal—which would have left unions to cover their shortfall using dues paid by members on a voluntary basis—is also critically important. Unions would have had to divert member dues that could otherwise have gone to election-related advocacy (among other things). And that reallocation would have dampened union members’ ability to engage in political speech through their unions during the upcoming presidential election season—a fact not lost on the plaintiffs’ lawyer, Michael Carvin.

  • February 17, 2016

    by Jim Thompson

    Justice Antonin Scalia’s death strips conservatives of the 5-4 advantage they had on the Supreme Court at a time when they were positioned to cement some of their longest sought legal gains in areas such as abortion, voting rights and affirmative action, says Tierney Sneed in Talking Points Memo. ACS Board members William Marshall and Adam Winkler provide commentary on the new balance of the Court and the ramifications of split decisions. 

    A split 4-4 decision in Friedrichs v. California Teachers Association would reaffirm the U.S. Court of Appeals for the Ninth Circuit’s ruling upholding the constitutionality of fair share union fees, reports Charlotte Garden at The Atlantic. Even if the Court holds the case for re-argument once a new justice is confirmed, these fees should remain legally sound through the 2016 election.

    At The New Republic, David Dayen explains how America’s grandiose, non-stop electioneering precipitated the current constitutional crisis. 

    Dean Robert Schapiro of Emory Law School writes in The Conversation that Justice Scalia’s jurisprudence will be remembered more for its quotable rhetoric than its legal impact. 

  • January 14, 2016

    by Jim Thompson

    In Jacobin, Chris Maisano recounts the legal battles that precipitated Friedrichs v. California Teachers Association and writes, “Unions are holding out hope that the principle of stare decisis will prevent the court from upending the entire structure of public-sector labor relations, and that Justice Scalia will maintain his historic concern with the free-rider problem. However, even if the court did not fully reverse Abood and impose a national right-to-work regime on the public sector, it is likely it would still rule in a way that would hamstring union activity.”

    Jerame Davis at The Advocate explains why a ruling in favor of Friedrichs’ petitioners would have disastrous consequences for the LGBT community.   

    On Monday, the U.S. Court of Appeals for the Ninth Circuit ruled that corporations can no longer prevent public access to court records by settling a case before a court has the chance to make a final determination, making the “settle-and-conceal model of handling corporate misconduct much more difficult to pull off,” says Jennifer Bennett at Public Justice.

    On Friday, the Supreme Court will consider whether to review a November 2015 decision by the U.S. Court of Appeals for the Fifth Circuit that upheld an injunction on President Obama’s Deferred Action for Parents of American Citizens and Permanent Residents (DAPA) program, reports Simon Lazarus at The New Republic