Union Political Drive Ran Afoul of 1st Amendment

(CN) - A union trampled the free-speech rights of nonmembers by forcing them to finance political activities, the Supreme Court ruled Thursday.

California law allows public-sector employees to decline membership in a union, but such employees must still pay an annual fee to cover collective bargaining costs.

Trouble arose in 2005 for the Service Employees International Union, Local 1000, however, when it sought to increase fees temporarily by 25 percent because it wanted to combat certain propositions up for election that year.

Two controversial propositions were at stake in the November 2005 special election. Proposition 75, if passed, would require unions to obtain the affirmative consent of employees before it could charge them fees that would have a political purpose. Proposition 76, if passed, would empower the governor to reduce state funding for the salaries of public employees.

The SEIU and other unions wanted to raise $10 million to fight these measures, and looked to their ranks for the money.

Some employees balked when the SEIU's general council implemented the proposed "back fund," and the union tried to placate these objectors by reducing their newly increased obligations by about 44 percent.

Still unhappy, a group of nonunion members filed a class action on behalf of 28,000 forced to contribute to the back fund.

Though a federal judge sided with these non-union members at summary judgment, a divided panel of the 9th Circuit reversed in 2010.

After the members brought their fight to Washington, the union defended the merits of its back fund and then offered all class members a full refund.

It told the Supreme Court that the case was now moot, but the justices wouldn't bite Thursday.

"Such postcertiorari maneuvers designed to insulate a decision from review by this court must be viewed with a critical eye," Justice Samuel Alito wrote for the majority. "The vol­untary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed. And here, since the union continues to defend the legality of the Political Fight-Back fee, it is not clear why the union would necessarily refrain from collecting similar fees in the future."

The majority also concluded that there is a live controversy since class members have objected to alleged conditions that the union put on its refund offer.

It is an anomaly that unions can compel nonmembers to pay dues, but the courts have allowed the practice to further "labor peace," Alito explained. He said the same is true for the practice of requiring objecting nonmembers to opt out of paying the political portion of union dues, when it would make more sense to exempt such payments unless the individual opts in.

But precedent also holds that "a nonmember cannot be forced to fund a union's political or ideological activi­ties," and there is no justification for an opt-out burden in this area, the decision states.

"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," Alito wrote.

"By 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," he added. "The SEIU, how­ever, asks us to go farther. ... This aggressive use of power by the SEIU to collect fees from nonmembers is indefensible."

Seven members of the court agreed that First Amendment required the SEIU to let nonmembers opt out of the special assessment intended for political lobbying, but two found it necessary to concur only in judgment.

"I can­not agree with the majority's decision to address unneces­sarily significant constitutional issues well outside the scope of the questions presented and briefing," Justice Sonia Sotomayor wrote, joined by Justice Ruth Bader Ginsburg. "By doing so, the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the court's proper role in our system of separated powers."

"Petitioners did not question the validity of our precedents, which consistently have recognized that an opt-out system of fee collection comports with the Constitution," she added. "They did not argue that the Constitution re­quires an opt-in system of fee collection in the context of special assessments or dues increases or, indeed, in any context. Not surprisingly, respondents did not address such a prospect."

By requiring a union to obtain affirmative consent from nonmembers when it imposes a special assessment, the majority crossed the line, according to the concurring opinion.

"The majority thus decides, for the very first time, that the First Amendment does require an opt­-in system in some circumstances: the levying of a special assessment or dues increase," Sotomayor wrote. "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."

"To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence," she added. "To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise."

The dissent backed this finding as well, in a decision that says the union did not err in "calculating its fee on the basis of its expenses during the preceding year."

"The special assessment as administered here has worked no constitutional harm upon those nonunion em­ployees who raised a general objection at the beginning of the year," Justice Stephen Breyer wrote in dissent, joined by Justice Elena Kagan. "The union has honored their objections by sub­tracting from their special payments the same 44% that it subtracts from each of their ordinary monthly payments. And we know that the special assessment here did not even work temporary constitutional harm. That is because audited figures showed that the union's total nonchargeable (e.g., political) expenses for that year ended up as a lower percentage of total expenses than the pre­vious year. Hence the objecting nonmembers ended up being charged too little, not too much, even with the spe­cial assessment thrown into the mix."

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