On April 30, 2012, a group of California public school teachers filed this lawsuit in the U.S. District Court for the Central District of California. The plaintiffs sued under 42 U.S.C. 1983. Represented by private counsel and the Center for Individual Rights, the plaintiffs asked the district court to strike down California's agency-shop law. The law requires public employees to pay some union fees as a condition of public employment; the plaintiffs argued that this unconstitutionally abridged their freedom of speech and association. They sought an injunction barring the union from requiring nonunion employees to pay money to support the union in any way.

Under California law, a union is allowed to become the exclusive bargaining representative for public school employees in a bargaining unit such as a public school district by submitting proof that a majority of employees in the unit wish to be represented by the union. Cal. Gov’t. Code § 3544(a). Once a union becomes the exclusive bargaining representative, it may establish an “agency-shop” arrangement with that district, whereby all employees “shall, as a condition of continued employment, be required either to join the recognized employee organization or pay the fair share service fee.” Id. § 3546(a). The fee is supposed to cover only “chargeable” union expenditures--those germane to collective bargaining, not expenditures on other matters.

Plaintiffs conceded that their challenge was entirely foreclosed by Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and Mitchell v. Los Angeles Unified School District, 963 F.2d 258 (9th Cir. 1992). In Abood, the Supreme Court upheld the validity of compelling employees to pay their fair share of the costs of collective bargaining. In Mitchell, the 9th Circuit, following Abood, further held that the First Amendment did not require an “opt in” procedure, but allowed California's "opt out" approach.

Plaintiffs wanted to get to the Supreme Court, where they could ask the Court to overrule Abood. So they asked the District Court in this case to grant judgment on the pleadings to the defendants. The court did so, in a short opinion by Judge Josephine Staton, on December 5, 2013. 2013 WL 9825479. Plaintiffs then appealed (which is odd, considering that the District Court did what plaintiffs sought), and on appeal, similarly sought summary affirmance to tee the issue up for the Supreme Court. In a one-paragraph order issued (per curiam, by Judges Canby, Clifton, and Owens) on November 18, 2014, the 9th Circuit, did so. 2014 WL 10076847.

Plaintiffs then sought certiorari review in the Supreme Court, which was granted on June 30, 2015. 135 S.Ct. 2933. Arguments took place January 11, 2016; decision is expected by the end of June 2016.

Daniel Fryer - 01/24/2016


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