On
Appeal from the United States District Court for the Central
District of California, Santa Ana No. 8:13-cv-00676-JLS-CW
Judge Josephine L. Staton
Michael E. Rosman CENTER FOR INDIVIDUAL RIGHTS Michael A.
Carvin Counsel of Record James M. Burnham William D.
Coglianese Counsel for Appellants
Christopher P. Burger SCHOOLS LEGAL SERVICE Counsel for
Appellee Donald E. Carter
Henry
Chi-Jen Wang BAUTE CROCHETIERE & MALONEY LLP Counsel for
Appellee Ruth Pérez
TABLE
OF CONTENTS
Statement
with Respect to Oral Argument
...............................................................
1
Introduction
...............................................................................................................
2
Jurisdictional
Statement
............................................................................................
4
Issues
Presented
........................................................................................................
4
Pertinent
Authorities
.................................................................................................
4
Statement
of the Case
................................................................................................
5
I.
Factual Background
........................................................................................
5
A.
California's Agency-Shop Law for Public-School Teachers
.................... 5
B. The
Agency-Shop Arrangements Enforced by Appellees
........................ 8
C. The
Non-Union Teachers
........................................................................
10
II.
Procedural Background
................................................................................
11
Summary
of the Argument
......................................................................................
12
Argument
.................................................................................................................
13
I. The
Agency Shop Violates Appellants' First Amendment Rights.
. ............ 13
II. The
Opt-Out Regime Violates Appellants' First Amendment
Rights. . ....... 20
Conclusion
..............................................................................................................
23
Addendum
of Pertinent Authorities
TABLE
OF AUTHORITIES
Page
Cases
Abood
v. Detroit Bd. of Ed., 431 U.S. 209 (1977)
.....................................................................................
passim
Agostini
v. Felton, 521 U.S. 203 (1997)
..........................................................................................
3, 4
Chi.
Teachers Union v. Hudson, 475 U.S. 292 (1986)
..............................................................................................
7
Coll.
Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense
Bd., 527 U.S. 666 (1999)
............................................................................................
21
Davenport
v. Wash. Educ. Ass'n, 551 U.S. 177 (2007)
..................................................................................
8, 21, 22
Ellis
v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers,
Exp. & Station Emps., 466 U.S. 435 (1984)
......................... 16
Harris
v. Quinn, No. 11-681 ( S.Ct. June 30, 2014)
...............................................................
passim
Knox
v. Service Employees International Union, Local 1000,
___ U.S. ___, 132 S.Ct. 2277 (2012)
................................................................
passim
Lehnert
v. Ferris Faculty Ass'n, 500 U.S. 507 (1991)
......................................................................................
15, 17
Lyon
v. Chase Bank USA, N.A., 656 F.3d 877 (9th Cir. 2011)
..............................................................................
13
Mitchell
v. L.A. Unified Sch. Dist., 963 F.2d 258 (9th Cir. 1992)
................................................................................
3
Pickering
v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty.,
Ill., 391 U.S. 563 (1968)
............................................................................................
13
South
Carolina v. Katzenbach, 383 U.S. 301 (1966)
............................................................................................
22
Vergara
v. California, No. BC 484642, slip op. (Cal. Sup. Ct.
June 10, 2014) ...................................... 16
TABLE
OF AUTHORITIES (cont.)
Page
Statutes
& Regulations
28
U.S.C. § 1291
........................................................................................................
4
28
U.S.C. § 1331
........................................................................................................
4
28
U.S.C. § 1343
........................................................................................................
4
Cal.
Educ. Code § 35160
.......................................................................................
15
Cal.
Educ. Code § 44929.21
..................................................................................
14
Cal.
Educ. Code § 44934
.......................................................................................
14
Cal.
Educ. Code § 44938
.......................................................................................
14
Cal.
Educ. Code § 44944
.......................................................................................
14
Cal.
Educ. Code § 44955
.......................................................................................
14
Cal.
Educ. Code § 45060
.........................................................................................
7
Cal.
Educ. Code § 45061
.........................................................................................
8
Cal.
Educ. Code § 45061.5
......................................................................................
8
Cal.
Educ. Code § 45168
.........................................................................................
8
Cal.
Gov't Code § 3540.1
.......................................................................................
5
Cal.
Gov't Code § 3543.1
...................................................................................
5, 7
Cal.
Gov't Code § 3543.2
.................................................................................
14, 5
Cal.
Gov't Code § 3544
..........................................................................................
5
Cal.
Gov't Code § 3544.1
.......................................................................................
5
Cal.
Gov't Code § 3546
...................................................................................
5, 6, 7
Cal.
Gov't Code § 3546.3
..................................................................................
8, 18
Regs.
of Cal. P.E.R.B. § 32992
........................................................................
5, 6, 7
Regs.
of Cal. P.E.R.B. § 32993
................................................................................
7
Regs.
of Cal. P.E.R.B. § 32994
................................................................................
7
STATEMENT
WITH RESPECT TO ORAL ARGUMENT
Appellants
respectfully submit that oral argument is not warranted. The
dispositive issues in this case are currently resolved by
binding decisions of the Supreme Court and a prior panel of
this Court, and so the proper result is-at this stage in the
proceedings-clear. Oral argument therefore will not assist
the Court in addressing the issues presented, and judicial
economy is best served by deciding the case without oral
argument.
INTRODUCTION
California
law empowers school districts and public-teachers unions to
form "agency shop" arrangements under which
teachers, as a condition of employment, must fund all union
expenditures supposedly germane to collective-bargaining.
Under this law, it does not matter that public-sector
collective-bargaining-which involves negotiating with public
officials over often-controversial education policies and the
expenditure of limited tax dollars-is core political
expression, nor does it matter that many non-union teachers
disagree with the unions' political expression.
California law also allows unions to take an additional
amount from nonmembers to fund union political activities
that are entirely unrelated to
collective-bargaining, unless each nonmember affirmatively
registers his dissent every year-no matter how many times
that nonmember has previously exercised his established First
Amendment right to not fund such activities.
Although
both of these practices-the agency shop and the opt-out
regime- have previously been upheld by this Court and the
Supreme Court, they are at war with basic First Amendment
values. The Supreme Court recognized as much in Knox v.
Service Employees International Union, Local 1000,
explaining that "[b]y authorizing a union to collect
fees from nonmembers and permitting the use of an opt-out
system for the collection of fees levied to cover
nonchargeable expenses, our prior decisions approach, if they
do not cross, the limit of what the First Amendment can
tolerate." ___ U.S. ___, 132 S.Ct. 2277, 2291 (2012).
And the Court cast even more doubt onto the constitutionality
of the public-sector agency shop just yesterday in Harris
v. Quinn, explaining that its past precedent allowing
such arrangements "is questionable on several grounds,
" and relies on a number of "evident and
troubling" errors. No. 11-681, slip op. at 17 ( S.Ct.
June 30, 2014).
Appellants,
non-union California teachers who are subject to the agency
shop and the opt-out regime, filed this suit to vindicate the
First Amendment principles addressed in Harris and
Knox. Appellants recognize, however, that despite
casting a great deal of doubt onto the constitutional
validity of both practices, those decisions did not actually
reach the question whether either practice can survive
constitutional scrutiny. Accordingly, the agency shop and the
opt-out regime both currently remain permissible under
precedent that is binding on this panel. See Abood v.
Detroit Bd. of Ed., 431 U.S. 209, 232 (1977) (allowing
public-sector agency shop); Mitchell v. L.A. Unified Sch.
Dist., 963 F.2d 258, 263 (9th Cir. 1992) (allowing
opt-out regime). Though there is good reason to believe that
the Supreme Court will revisit these issues, this Court
cannot do so on its own. See, e.g., Agostini v.
Felton, 521 U.S. 203, 237 (1997) ("[I]f a precedent
of this Court has direct application in a case, yet appears
to rest on reasons rejected in some other line of decisions,
the Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling
its own decisions.").
It is
thus Appellants' intention to pursue their claims before
the Supreme Court. Because this Court's
authority to grant that relief is foreclosed by binding
precedent, Appellants respectfully request that the Court
affirm the district court's entry of judgment on the
pleadings in favor of Appellees (public-teachers unions and
public-school superintendents) as quickly as practicable and
without argument, so that Appellants can expeditiously take
their claims to the Supreme Court. In order to preserve
Appellants' arguments for further review, however, this
Brief explains why Abood and Mitchell
"rest on reasons rejected in some other lines of
decisions." Id.
JURISDICTIONAL
STATEMENT
This
case raises claims under the United States Constitution, and
so the district court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343. The district court granted
judgment on the pleadings in favor of Appellees, thereby
disposing of all parties' claims, on December 5, 2013.
ER4. Judgment was entered on December 6, and Appellants filed
a timely notice of appeal on December 12. ER5, ER261; Fed. R.
App. P. 4(a)(1)(A). This Court has jurisdiction under 28
U.S.C. § 1291.
ISSUES
PRESENTED
1.
Under the authority of California law, Appellees
(public-employee unions and public-school superintendents)
require Appellants (non-union teachers) to pay an
"agency fee" to their respective unions that funds
all expenses the unions deem germane to their function as
exclusive collective-bargaining representative, even though
Appellants have declined to join the unions and object to the
policies they bargain for. Does this agency-fee requirement
violate the First Amendment?
2. Also
under California law, there is a presumption that Appellants
intend to pay an increased fee supporting union expenditures
that are unrelated to collective-bargaining, unless
Appellants affirmatively renew their opposition to doing so
every year. Does this opt-out requirement violate the First
Amendment?
PERTINENT
AUTHORITIES
Pertinent
statutes and regulations are set forth in an Addendum to this
brief.
STATEMENT
OF THE CASE
I.
Factual Background
A.
California's Agency-Shop Law for Public-School
Teachers
The
Agency Shop.
Under
California law, a union becomes the exclusive bargaining
representative for "public school employees" in a
bargaining unit (typically a school district) by submitting
proof that it has the support of a majority of employees in
the unit. Cal. Gov't Code §§ 3544, 3544.1
(hereinafter "Gov't"). A "public school
employee" is anyone "employed by a public school
employer, " except for elected or appointed officials
and certain employees in management. Id. §
3540.1(j). Once a union becomes the exclusive representative,
it represents all public-school employees in the
unit for purposes of bargaining with the district.
Id. § 3543.1(a). And the union is authorized to
bargain over a wide range of "terms and conditions of
employment" that go to the heart of education policy,
including wages, hours, health and welfare benefits, leave,
transfer and reassignment policies, class size, and
procedures to be used for evaluating employees and processing
grievances. Id. § 3543.2(a).
California
law also authorizes districts and unions to negotiate
arrangements under which all teachers-"as a
condition of continued employment"-must "either []
join the recognized [union] or pay the fair share service
fee" (or "agency fee") to that union.
Id. § 3546(a).[1] The amount of this fee is
determined by the union, and "shall not exceed the dues
that are payable by members" of the union. Id.
(In practice, the fee typically equals the amount of union
dues. ER17-18.) The agency fee's stated purpose is to
support union activities that are "germane to [the
union's] functions as the exclusive bargaining
representative." Gov't § 3546(a). And
California law expressly states that these functions include
lobbying the government "to foster collective-bargaining
negotiations and contract administration, or to secure for
the represented employees advantages in wages, hours, and
other conditions of employment in addition to those secured
through meeting and negotiating with the employer."
Id. § 3546(b).
Although
non-union employees are required to pay fees to support union
activities that are "germane" to
collective-bargaining, the First Amendment has long forbade
compelling them to support union activities that are
"not devoted to the costs of negotiations,
contract administration, and other activities of the employee
organization that are germane to its function as the
exclusive bargaining representative." Id.
§ 3546(a) (emphasis added); see generally
Abood, 431 U.S. at 235-36. It is the union's
responsibility to annually determine the
"non-chargeable" portion of its expenses. The union
makes this determination by first calculating the total
agency fee based on its expenses for the coming year, and
then calculating the non-chargeable portion of the fee based
on an audited financial report of a recent year's
expenses. Regs. § 32992(b)(1).
Hudson
Notices and the Opt-Out Requirement.
Each
fall, after a union makes the requisite determinations, it
must send a "Hudson notice" to all
nonmembers that sets forth the total agency fee, the
percentage that is chargeable, and "the basis for this
calculation." Id. §
32992(a).[2] The Hudson notice must also
include either the union's audited financial report for
the year or an auditor's certification that the union has
correctly reproduced the summary of chargeable and
non-chargeable expenses. Id. § 32992(b)(1). The
auditor does not, however, confirm that the union has
properly classified expenses as chargeable or non-chargeable.
Harris, slip op. at 19 (explaining as much).
After
receiving the Hudson notice, a nonmember who does
not want to support the union's non-chargeable
expenditures is required to affirmatively opt out by
notifying the union of his objection. Regs. § 32993(a).
Unions must allow at least 30 days for lodging objections
(id. § 32993(b)), and typically provide no more
than six weeks (ER20). A nonmember must renew his objection
annually, no matter how many times he has opted out
previously. Teachers who successfully opt out are then
entitled to a "rebate" or "fee reduction"
for that year. Gov't § 3546(a). But if a nonmember
fails to opt out by the deadline, he must pay the full agency
fee, including the non-chargeable portion.[3]
California
school districts are permitted to automatically deduct union
dues and agency fees from employees' paychecks, and to
transfer those funds to the appropriate union. Gov't
§§ 3546(a), 3543.1(d); Cal. Educ. Code §§
45060, 45061, 45061.5, 45168 (hereinafter "Educ.").
Alternatively, ...