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SEIU Local 1000
Back in August 2005, the California SEIU levied a temporary assessment (effectively a dues and fees increase) to the public employees it represented, both members and non-members alike, intending to use these funds to defeat anti-union state ballot measures. Under the law, even non-member employees in the bargaining unit can be compelled to pay a percentage of dues representing services benefiting the bargaining unit, but have the right to opt out of paying funds being used for ideological purposes, and the union has to give them fair notice in order to protect that opt-out right.

About 28,000 non-members sued as a class, saying they didn't get the proper opt-out notice, and complained that their First and Fourteenth Amendment rights were violated by being forced to pay for political speech with which they disagreed. The SEIU tried to head off the case and moot it by offering to refund all the fees paid by objecting employees, and glued a dollar bill to each refund offer representing nominal damages.

But no matter. In a 5-4 opinion issued Thursday morning, the Supreme Court found this case to be not-moot because the SEIU could do this again someday, and held that non-member employees can no longer be forced to pay ideological fees without affirmatively opting in to make such payments.  

Stop me if you've heard this before: (1) It's exactly the five you'd expect, with Alito writing for the majority; and (2) the question of opt-out versus opt-in was not squarely before the Court, and went beyond what petitioners were seeking in this case. The Supreme Court reached past the issue of whether this notice and opt-out was sufficient, issuing a harsh defeat to public section employees unions by not allowing them to use opt-out procedures for such assessments at all. Indeed, Justice Alito explains exactly what this decision is about:

Requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues—as opposed to exempting them from making such payments unless they opt in—represents a remarkable boon for unions. Courts “do not presume acquiescence in the loss of fundamental rights.” Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union’s political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment? Shouldn’t the default rule comport with the probable preferences of most nonmembers? And isn’t it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues? An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. But a “[u]nion should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.”
(Continue reading below the fold.)

Nor did it matter that the political spending in question pertained to the union's ability to defend its own rights against a controversial ballot proposition. Why? According to the 5-4 majority, because any ballot proposition has some impact on public employees, and therefore none of them can receive exemptions from the opt-in law:

According to the SEIU, these expenditures were “germane” to the implementation of its contracts because, if Proposition 76 had passed, it would have “effectively permitted the Governor to abrogate the Union’s collective bargaining agreements under certain circumstances, undermining the Union’s ability to perform its representation duty of negotiating effective collective bargaining agreements.”

If we were to accept this broad definition of germaneness, it would effectively eviscerate the limitation on the use of compulsory fees to support unions’ controversial political activities. Public-employee salaries, pensions, and other benefits constitute a substantial percentage of the budgets of many States and their subdivisions. As a result, a broad array of ballot questions and campaigns for public office may be said to have an effect on present and future contracts between public-sector workers and their employers. If the concept of “germaneness” were as broad as the SEIU advocates, public-sector employees who do not endorse the unions’ goals would be essentially unprotected against being compelled to subsidize political and ideological activities to which they object.

Justices Sotomayor and Ginsburg concurred only insofar as they agreed the opt-out procedure was not done properly here, but blasted the majority's decision to leap ahead to the opt-out versus opt-in question:
The majority announces its novel rule without any analysis of potential countervailing arguments and without any reflection on the reliance interests our old rules have engendered.

The majority’s choice to reach an issue not presented by the parties, briefed, or argued, disregards our rules.  And it ignores a fundamental premise of our adversarial system: “ ‘that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.’ ” NASA v. Nelson, 562 U. S. _, _, n. 10 (2011) (opinion for the Court by Alito, J.) (slip op., at 11, n. 10) (quoting Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (opinion for the court by Scalia, J.)); see also Jefferson v. Upton, 560 U. S. _, _ (Scalia, J., joined by Thomas, J., dissenting) (slip op., at 8) (The majority’s “refusal to abide by standard rules of appellate practice is unfair to the . . . Circuit,” which did not pass on this question, “and especially to the respondent here, who suffers a loss in this Court without ever having an opportunity to address the merits of the . . . question the Court decides”). The imperative of judicial restraint is at its zenith here, with respect to an issue of such constitutional magnitude, for “[i]f there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.”

To make matters worse, the majority’s answer to its unasked constitutional question is not even clear....

To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise. It deprives the parties and potential amici of the opportunity to brief and argue the question. It deprives us of the benefit of argument that the parties, with concrete interests in the question, are surely better positioned than we to set forth. See NASA, 562 U. S., at _, n. 10 (opinion for the Court by Alito, J.) (slip op., at 11, n. 10) (“It is undesirable for us to decide a matter of this importance in a case in which we do not have the benefit of briefing by the parties and in which potential amici had little notice that the matter might be decided”). Not content with our task, prescribed by Article III, of answering constitutional questions, the majority today decides to ask them as well.

And Justices Breyer and Kagan flat-out object to the whole enterprise, arguing in a wonky opinion that the union did just fine in the opt-out procedure it provided, and laments the Court's deciding the opt-out versus opt-in issue as well:
The decision is particularly unfortunate given the fact that each reason the Court offers in support of its “opt-in” conclusion seems in logic to apply, not just to special assessments, but to ordinary yearly fee charges as well. At least, its opinion can be so read. And that fact virtually guarantees that the opinion will play a central role in an ongoing, intense political debate.

The debate is generally about whether, the extent to which, and the circumstances under which a union that represents nonmembers in collective bargaining can require those nonmembers to help pay for the union’s (constitutionally chargeable) collective-bargaining expenses. Twenty-three States have enacted “right to work” laws, which, in effect, prevent unions from requiring nonmembers to pay any of those costs. Other States have rejected the “right to work” approach and permit unions to require contributions from nonmembers, while protecting those nonmembers’ right to opt out of supporting the union’s political activities. Still others have enacted compromise laws that assume a nonmember does not wish to pay the nonchargeable portion of the fee unless he or she affirmatively indicates a desire to do so. The debate about public unions’ collective-bargaining rights is currently intense.

The question of how a nonmember indicates a desire not to pay constitutes an important part of this debate. Must the union assume that the nonmember does not intend to pay unless he affirmatively indicates his desire to pay, by “opting in”? Or, may the union assume that the nonmember is willing to pay unless the nonmember indicates a desire not to pay, by “opting out”? Where, as here, nonchargeable political expenses are at issue, there may be a significant number of represented nonmembers who do not feel strongly enough about the union’s politics to indicate a choice either way. That being so, an “opt-in” requirement can reduce union revenues significantly, a matter of considerable importance to the union, while the additional protection it provides primarily helps only those who are politically near neutral. See generally Sunstein & Thaler, Libertarian Paternalism is not an Oxymoron, 70 U. Chi. L. Rev. 1159, 1161 (2003) (explaining that default rules play an important role when individuals do not have “well-defined preferences”). Consequently, the Court, which held recently that the Constitution permits a State to impose an opt-in requirement, has never said that it mandates such a requirement. There is no good reason for the Court suddenly to enter the debate, much less now to decide that the Constitution resolves it.

Of course, principles of stare decisis are not absolute. But the Court cannot be right when it departs from those principles without benefit of argument in a matter of such importance.

SCOTUSblog has the briefs and other case materials.

9:18 AM PT: From AFL-CIO spokesperson Alison Omens:

We are disturbed – but unfortunately not surprised in the wake of Citizens United and similar rulings – that the Court’s activist conservative majority went out of its way to make broad statements about issues not raised or argued in the context of the highly unusual facts of this case. Likewise, we are disturbed but not surprised that the conservative majority places special burdens on public sector unions in their efforts to represent working people’s economic interests through the legislative process that the Court does not apply to corporations when they spend shareholder money on politics. Nevertheless,  the Court reaffirmed that in all ordinary circumstances public sector unions may continue to use the existing system for regular dues payment that has been in place and worked well for many years.

11:03 AM PT: Scott Lemieux:

[T]o go far beyond the narrow issue of requiring notice and to require an revenue-reducing opt-in requirement that the petitioners did not even ask for reflects a simple hostility to labor on the part of the conservative faction of the Roberts Court. It also reflects a shell game on the part of the Roberts Court, which cites the ability of labor unions to participate in the political process when defending pro-corporate rulings, but then invents new First Amendment law to undermine labor participation.

Originally posted to Daily Kos Labor on Thu Jun 21, 2012 at 08:32 AM PDT.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics and Daily Kos.

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