Civil and Human Rights

Equally Divided Supreme Court Upholds Union Win in Fees Case

By Tony Mauro and Marcia Coyle

In its first high-profile decision since the death of U.S. Supreme Court Justice Antonin Scalia last month, the court deadlocked, 4-4, on Tuesday, handing at least a temporary victory to California teacher union members in a dispute over fees paid by nonmembers.

The court issued a one-line per curiam or unsigned decision stating, “The judgment is affirmed by an equally divided Court.” The case was Friedrichs v. California Teachers Association.

The decision means that the ruling below by the U.S. Court of Appeals for the Ninth Circuit in favor of so-called “fair share” fees paid by nonmembers stands as law at least in that circuit, and until another case arrives at the high court when it has nine members—a date that is impossible to predict.

Conservative groups have targeted union agency fees in court for years, asserting that they force nonunion members to support public-employee union activities with which they disagree, in violation of the First Amendment.

“The Supreme Court today rejected a political ploy by the wealthy corporate special interests backing this case to make it harder for working families and the middle class to come together, speak up and get ahead,” Eric Heins, president of the California Teachers Association, said Tuesday.

After the justices heard arguments on Jan. 11, a month before Scalia’s death, opponents of agency fees had reason to be optimistic. Four conservative justices appeared sympathetic to the challengers’ First Amendment arguments. Justice Clarence Thomas was silent but he was expected to join his conservative colleagues in striking down the fair-share fees.

Ten nonunion teachers, represented by Jones Day’s Michael Carvin, brought the case to the high court after strategically moving it swiftly through the lower courts. They urged the justices to overrule a nearly 40-year-old decision that upheld so-called agency-shop fees that are collected in more than 20 states by public-employee unions that are required by law to represent all employees in their workplaces.

At argument, California’s solicitor general Edward Dumont and David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel defended the union fees, along with U.S. Solicitor General Donald Verrilli Jr.

The decades-old decision— Abood v. Detroit Board of Education (1977)— acknowledged that First Amendment concerns were raised by compelling objecting members to pay the fees.

However, the court said the burden on the First Amendment rights of speech and association were outweighed by the government-employer’s need for “labor peace”—that is, to avoid having to bargain with representatives with often conflicting demands—and to prevent “free riders” who enjoy the benefits of collective bargaining without sharing the costs. The Abood court also ruled that the fees could not be used for political or other activities unrelated to collective bargaining.

The Center for Individual Rights, which brought the case on behalf on the nonunion teachers, announced it would file a rehearing request with the high court.

“With the death of Justice Scalia, this outcome was not unexpected,” Terry Pell, the Center’s president, said. “We believe this case is too significant to let a split decision stand and we will file a petition for re-hearing with the Supreme Court.”

Other agency fee opponents decried the outcome Tuesday. “As a result of the Supreme Court’s deadlock in the Friedrichs case, public sector unions will continue using involuntary dues to advance a political agenda,” said Ivan Osorio of the Competitive Enterprise Institute. “Public sector collective bargaining influences government policy as effectively as electoral politics and legislation.”

Filling Scalia’s seat

Advocates on both sides also pointed to the decision as reason for and against promptly filling the ninth seat on the court.

“The Court’s 4-4 decision demonstrates just how much rides on the next justice confirmed to the Supreme Court. If the Senate confirms Merrick Garland to the Supreme Court, it will be creating a new liberal majority that will dominate the court’s decisions for a generation,” Carrie Severino, chief counsel of the conservative Judicial Crisis Network, said.

Elizabeth Wydra of the liberal Constitutional Accountability Center countered: “Today’s divided ruling from the Supreme Court establishes no national precedent while leaving open the possibility that the issue will come before the court once again. Such an outcome only emphasizes the importance of a court that can operate with a full complement of nine justices that can resolve important legal questions from lower courts once and for all.”

In two decisions in the last four years, Justice Samuel Alito Jr. raised serious questions about the viability of Abood. It appeared that the Friedrichs case would be the case that would put an end to agency fees on First Amendment grounds.

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