Teachers Ask High Court to Rehear Friedrichs Union Dues Case

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By Lawrence E. Dubé

April 8 — The California teachers whose First Amendment challenge to a public sector “fair share” agreement was derailed by a 4-4 court deadlock following Justice Antonin Scalia's death asked the U.S. Supreme Court to revive the case and rehear it after a ninth justice is “eventually” appointed to the court.

The teachers challenged California's agency shop arrangement, which allows bargaining contract provisions requiring nonmembers to pay agency fees for union representation, contending it violates their rights to free speech and association. Lower courts rejected the challenge, and the Supreme Court affirmed on March 29 due to an equal division among the court's eight justices.

The teachers apparently couldn't win the support of a court majority for their constitutional challenge, but they are now hoping to convince five of the court's eight justices to at least allow a rehearing of the case.

Rebecca Friedrichs argued in the April 8 petition for rehearing that the First Amendment issues raised in the teachers' case are too important to be left unresolved. Stating the court can and should rehear the case, the teachers are urging the court to hold the case on its docket until it “obtains a full complement of Justices capable of reaching resolution by a five-Justice majority.”

Challenge to Fair Share Agreement

The Friedrichs plaintiffs filed a lawsuit in the U.S. District Court for the Central District of California against the California Teachers Association and other defendants.

The teachers, who were not union members, alleged that by “requiring Plaintiffs to make any financial contributions in support of any union, California's agency shop arrangement violates their rights to free speech and association under the First and Fourteenth Amendments to the United States Constitution.”

The district court said Supreme Court precedent foreclosed their argument, and the Ninth Circuit summarily affirmed the lower court judgment (2014 BL 453683 (9th Cir. 2014)).

Scalia's Death Left Justices Split 4-4

The teachers filed for Supreme Court review, and after a January oral argument, some lawyers predicted that Scalia would join Chief Justice John Roberts and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito in a 5-4 vote to overrule Abood v. Detroit Board of Education, 431 U.S. 209, 95 LRRM 2411 (1977) .

In Abood, the court held that agency-shop arrangements in the public sector pass muster under the First Amendment if nonmembers' agency fees go solely toward the costs of bargaining, contract administration and grievance adjustment.

However, Scalia's death on Feb. 13 left the justices equally divided, and the court issued a one-sentence opinion affirming the judgment of the Ninth Circuit .

Teachers Argue Court Can Hold Case for New Justice

In their petition for rehearing, the teachers argued the Supreme Court has granted rehearing in cases where it appeared that a majority might emerge from equally divided justices, including cases where a new justice is seated on the court.

The teachers said granting rehearing after tie votes in order to await the arrival of a new justice “makes sense.”

“The current vacancy will inevitably be filled, and once it is, the tie will be broken,” the teachers wrote.

Petition Urges Resolving First Amendment Questions

The teachers said only the Supreme Court can resolve “the pressing constitutional question of Abood's current status” as well as the teachers's argument that they should not have to opt out of making payments subsidizing union activities that are not chargeable to collective bargaining or employee representation.

If the court takes no further action in Friedrichs, the teachers argued, other cases presenting the same issues “will almost certainly reach the Court in the next several years.”

“Rather than defer this issue for resolution in some future case at some future time, the better and more efficient course would be to hold the case this Court has already agreed to decide until it is capable of issuing a decision.”

The Supreme Court's rules provide that petitions for rehearing are not subject to oral argument and “will not be granted except by a majority of the Court.”

Michael A. Carvin of Jones Day in Washington is counsel of record for the teachers.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Text of the petition for rehearing is available at http://src.bna.com/dZB.