Hamidi et al v. Service Employees International Union Local 1000 et al
Filing
94
MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 2/8/17 ORDERING that Plaintiffs' MOTION for Summary Judgment 64 is DENIED. IT IS FURTHER ORDERED that the California State Controller's Cross-Motion for partial Summary Judgment, and Local 1000's Cross-Motion for Summary Judgment, 67 , 74 are GRANTED. The Clerk is directed to enter judgment in favor of Defendants and against Plaintiffs. CASE CLOSED.(Mena-Sanchez, L)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KOUROSH HAMIDI, et al., and
the CLASS THEY SEEK TO
REPRESENT,
Plaintiffs,
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v.
CIV. NO. 2:14-cv-319 WBS KJN
MEMORANDUM AND ORDER RE: MOTION
FOR SUMMARY JUDGMENT AND CROSSMOTIONS FOR PARTIAL SUMMARY
JUDGMENT AND SUMMARY JUDGMENT
SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL
1000, and BETTY YEE,
California State Controller,
Defendants.
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Fifteen employees of the state of California
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(“plaintiffs”)1 brought this class action against defendants
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Service Employees International Union Local 1000 (“Local 1000”)
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There were originally eighteen plaintiffs. (See Compl.
¶ 6 (Docket No. 1).) Three have been dismissed from this action.
(Docket No. 33.)
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and the California state controller,2 alleging that defendants’
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‘opt-out’ system for collecting optional union fees violates the
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First Amendment.
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for summary judgment against defendants.
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64).)
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controller cross-moves for partial summary judgment, against
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plaintiffs.
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Controller’s Cross-Mot. (Docket No. 74).)
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I.
(Compl. (Docket No. 1).)
Plaintiffs now move
(Pls.’ Mot. (Docket No.
Local 1000 cross-moves for summary judgment, and the state
(Local 1000’s Cross-Mot. (Docket No. 67); State
Factual and Procedural History
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Plaintiffs are employees of the state of California.
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(Compl. ¶ 6.3)
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collective bargaining representative of plaintiffs and other
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state employees.
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1000 may, but are not required to, join Local 1000 as dues-paying
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members.
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dues-paying members.
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California recognizes Local 1000 as the exclusive
(Id. ¶ 19.)
(Id. ¶ 20.)
Employees represented by Local
Plaintiffs have not joined Local 1000 as
(Id. ¶ 6.)
Employees represented by, but not dues-paying members
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of, Local 1000 (“nonmembers”) must, pursuant to a series of
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‘agency shop’ agreements between Local 1000 and the state, pay
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At the commencement of this action, the California
state controller was John Chiang. (Compl. ¶ 7.) Chiang has
since been succeeded by Betty Yee. (State Controller’s CrossMot. at 1 n.1 (Docket No. 74).) For purposes of clarity, the
court will refer to the California state controller by title,
rather than by name.
3
The facts discussed in this Order are taken from
plaintiffs’ verified Complaint. “A verified complaint may be
treated as an affidavit [on a motion for summary judgment] to the
extent that the complaint is based on personal knowledge and sets
forth facts admissible in evidence and to which the affiant[s
are] competent to testify.” Lew v. Kona Hosp., 754 F.2d 1420,
1423 (9th Cir. 1985). Unless expressly noted, the parties do not
dispute the facts discussed in this Order.
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Local 1000 a ‘fair share’ fee.
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choose to pay the “full” fair share fee, which Local 1000 uses to
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fund expenditures both germane and not germane to collective
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bargaining, or a “reduced” fair share fee, which is used to fund
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only expenditures that are germane to collective bargaining.4
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(See id. ¶¶ 20-21; Decl. of Brian Caldeira (“Caldeira Decl.”) ¶ 3
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(Docket No. 37).)
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contributions to political causes.
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(Id. ¶ 20.)
Nonmembers may
Non-“germane” expenditures include
(Compl. ¶ 21.)
In deciding whether to charge nonmembers the full or
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reduced fair share fee, Local 1000 has, with the state’s
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authorization and assistance, implemented an ‘opt-out’ system.
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See (id. ¶ 26); Cal. Gov’t Code § 3515.8 (providing “refund”
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procedure whereby state employees may “demand . . . return of any
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part of [a fair share] fee . . . [designated to] aid . . .
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activities or causes of a partisan political or ideological
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nature”); id. § 3515.7 (requiring that “state employer . . .
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deduct the amount specified by the [collective bargaining
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representative] from the salary or wages of every employee” and
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“remit[]” such funds to the representative each month).
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Under that system, Local 1000 sends nonmembers, prior
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It is well-established that unions may require
nonmembers to pay the portion of fair share fees that are used to
fund “germane” expenditures. See Ry. Emp. Dep’t v. Hanson, 351
U.S. 225, 238 (1956) (unions may compel nonmember employees to
pay fees); Abood v. Detroit Bd. of Ed., 431 U.S. 209, 235 (1977)
(compelled union fees must be “germane to . . . collective[
]bargaining”). Fees used to fund “ideological causes not germane
to . . . collective-bargaining,” by contrast, may not be
compelled. See Ellis v. Bhd. of Ry., 466 U.S. 435, 447 (1984)
(“The union . . . could not, consistently with the Constitution,
collect from dissenting employees any sums for the support of
ideological causes not germane to its duties as collectivebargaining agent.”).
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to each annual fee cycle, a notice (“Hudson notice”) informing
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them that they will be charged the full fair share fee for the
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upcoming cycle unless they opt out by sending back a written
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statement stating that they wish to be charged only the reduced
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fair share fee.
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statement must include the objector’s name, signature, address,
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department, and unit, and, per Local 1000’s instructions, “should
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include, for identification purposes, [the objector’s] social
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security number.”
(See Compl. ¶¶ 12, 26a-c.)
The opt-out
(Id. Ex. A, Hudson Notice at 3 (Docket No. 1-
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1).)
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specified period, and employees must renew their objections each
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year.
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the above procedure are charged the full fair share fee, (id. ¶
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26a), which the state controller deducts from their paychecks and
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forwards to Local 1000, Cal. Gov’t Code ¶ 3515.7.
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The statement must be sent by postal mail within a
(Compl. ¶ 26g.)
Nonmembers who do not opt out pursuant to
On January 31, 2014, plaintiffs filed this action
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against defendants.
(Compl. at 15.)
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action, brought under 42 U.S.C. § 1983, alleges that Local 1000’s
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fee collection system violates the First Amendment by
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“requir[ing] that individuals pay agency fees . . . [that]
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subsidiz[e Local 1000’s] political and other non-bargaining
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activities, absent their affirmative consent.”
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Plaintiffs also allege, under the same cause of action, that
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Local 1000’s opt-out procedure--which requires nonmembers to
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renew their objections each year, send their objections by postal
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mail, and disclose their social security numbers in their
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objections--fails to meet the constitutional standard set forth
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in Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292
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Plaintiffs’ sole cause of
(Id. ¶ 31.)
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(1986).
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(Docket No. 64-2).)
(See id. ¶ 32; Pls.’ Mot., Mem. (“Pls.’ Mem.”) at 18-19
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The court has certified plaintiffs’ cause of action for
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class treatment to the extent it is brought as a facial challenge
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upon the constitutionality of Local 1000’s opt-out requirement
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and procedure.
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53).)
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pertaining to any as-applied challenges they might bring as
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individuals in this action, and appear to have waived those
(See May 22, 2015 Order at 3 n.3, 20 (Docket No.
Plaintiffs have not, to date, raised any arguments
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challenges in their Opposition to Local 1000’s Cross-Motion.5
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The only challenge pending in this action, therefore, is
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plaintiffs’ facial challenge.
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Plaintiffs and Local 1000 now move for summary judgment
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Any as-applied challenge brought in this action would
be predicated upon individual plaintiffs not receiving Hudson
notices, receiving untimely Hudson notices, or not having their
objections honored. There are no allegations that Local 1000
failed to honor any individual objections in this case.
Plaintiffs Ammons, Christensen, Giles, Lopez, Miller, Ollis, and
Toledo testify that they did not receive Hudson notices for the
2013-2014 fee cycle, and plaintiff Tutt testifies that she
received notice after Local 1000’s 2013-2014 objection deadline
had passed. (Compl. ¶¶ 22-23.) Local 1000 disputes that
plaintiffs failed to receive timely Hudson notices in its CrossMotion memorandum, (see Local 1000’s Cross-Mot., Mem. at 5-6
(citing Local 1000’s Resp. to Pls.’ Statement of Undisputed Facts
at 11-14 (Docket No. 69)) (Docket No. 68)), and notes that it
“has implemented a procedure for addressing . . . late-filed
objections, incomplete objections, asserted failures to receive
Hudson notices, and the like, whereby [it] will provide
replacement Hudson notices and extend time for filing fee
objections, where it can be determined that the error was not the
fault of the nonmember,” (id. at 28 (citing Caldeira Decl. ¶¶ 910)). Plaintiffs did not respond to any of Local 1000’s facts in
their Opposition, and concede that whether they received timely
notices is not “material to the claim raised.” (Pls.’ Opp’n at 9
(Docket No. 87).) Accordingly, the court understands plaintiffs
to have waived their as-applied challenges.
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with respect to plaintiffs’ facial challenge.
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judgment declaring Local 1000’s opt-out system unconstitutional,
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permanently enjoining defendants from enforcing the system, and
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ordering that defendants pay plaintiffs and the nonmember class
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compensatory damages for fees “exceeding constitutionally-
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chargeable costs” (“non-‘germane’ fees”) collected pursuant the
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system.
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1000 seeks judgment denying plaintiffs’ challenge and dismissing
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this action with prejudice.
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Plaintiffs seek
(Pls.’ Proposed Order at 2-3 (Docket No. 83).)
Local
(Local 1000’s Proposed Order at 5
(Docket No. 73).)
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The state controller separately moves for partial
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summary judgment denying plaintiffs’ challenge to the extent it
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seeks monetary damages against her.
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Mot. at 2.)
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recovering monetary damages against the state controller under
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the doctrine of sovereign immunity.
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No. 87)); see also Will v. Michigan Dep’t of State Police, 491
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U.S. 58, 71 (1989).
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to the state controller to the extent plaintiffs seek monetary
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damages against her, and decide plaintiffs’ claim for declaratory
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and injunctive relief against her together with their claim for
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the same relief against Local 1000.6
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II.
(State Controller’s Cross-
Plaintiffs have conceded that they are barred from
(Pl.’s Opp’n at 2 (Docket
Accordingly, the court will grant judgment
Legal Standard
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Summary judgment is proper “if the movant shows that
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The parties agreed at oral argument that the state
controller cannot be held liable for monetary damages in this
action. The state controller agreed to be bound by the court’s
ruling on plaintiffs’ claim for declaratory and injunctive relief
against Local 1000.
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there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law.”
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P. 56(a).
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of the suit, and a genuine issue is one that could permit a
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reasonable jury to enter a verdict in the non-moving party’s
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favor.
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(1986).
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undisputed, and the heart of the controversy is the legal effect
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of such facts, such a dispute effectively becomes a question of
Fed. R. Civ.
A material fact is one that could affect the outcome
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
“[W]here the operative facts are substantially
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law that can, quite properly, be decided on summary judgment.”
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Joyce v. Renaissance Design Inc., No. CV 99-07995 LGB (EX), 2000
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WL 34335721, at *2 (C.D. Cal. May 3, 2000); see also Braxton-
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Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th Cir. 1985)
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(“[W]here the palpable facts are substantially undisputed, [the
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controverted] issues can become questions of law which may be
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properly decided by summary judgment.”).
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III. Discussion
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A.
Constitutionality of Opt-Out Requirement
Plaintiffs’ challenge to the constitutionality of Local
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1000’s opt-out requirement arises from the United States Supreme
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Court’s decision in Knox v. Serv. Employees Int’l Union, Local
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1000, 132 S.Ct. 2277 (2012).
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contend, suggests that an opt-out system for collecting non-
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“germane” union fees violates the First Amendment.
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argues, in response, that Knox overruled neither prior Supreme
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Court cases that expressly assumed that the opt-out requirement
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is constitutionally acceptable, nor the Ninth Circuit’s decision
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in Mitchell v. Los Angeles Unified Sch. Dist., 963 F.2d 258 (9th
Language from Knox, plaintiffs
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Local 1000
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Cir. 1992), which held “that the Constitution does not mandate a
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system under which nonmembers pay full union dues only if they
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opt in,” id. at 260.
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The Supreme Court has long assumed, without expressly
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deciding, that an opt-out system for collecting non-“germane”
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fees is tolerable under the First Amendment.
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Machinists v. Street, 367 U.S. 740 (1961), the Court was
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presented with the question of whether the Railway Labor Act
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authorized unions to use fees exacted from employees to fund
In Int’l Ass’n of
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political causes which they opposed.
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holding that the Act did not grant unions such power, the Court
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stated, in dicta, that any remedies granted to employees who were
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subject to such use of their fees “would properly be granted only
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to [those] who have made known to the union officials that they
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do not desire their funds to be used for political causes to
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which they object.”
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“is not to be presumed.”
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known to the union by the dissenting employee.”
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Id. at 774.
Id.
Id. at 743-44.
After
“[D]issent,” the Court stated,
“It must affirmatively be made
Id.
Since Street, the Court has reiterated the admonition
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that “dissent is not to be presumed” in a number of other cases.
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In Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), the Court
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held that unions may not, as a constitutional matter, fund
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political activities using fees exacted from employees “who
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object” to such activities, id. at 235-36, 238, noting again that
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under Street, “dissent [must] be affirmatively indicated” for the
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objecting employee to be eligible for relief, id. at 239; see
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also Hudson, 475 U.S. at 306 (“In Abood, we reiterated that the
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nonunion employee has the burden of raising an objection . . .
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.”).
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explained that one of the reasons Hudson notices must meet
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certain procedural requirements is because such requirements
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protect the First Amendment rights of nonunion employees, who
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“bear[] the burden of objecting.”
The Court expressed a similar sentiment in Hudson, where it
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Id. at 307.
Many other cases have, in reliance upon Street’s
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admonition, understood the line between employees who may and may
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not be charged non-“germane” fees to be drawn at whether they
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object.
See Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 520
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(1991) (holding that certain lobbying activities may not be
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charged to “objecting employees” (emphasis added)); Ellis v. Bhd.
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of Ry., 466 U.S. 435, 453 (1984) (holding that certain litigation
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expenses may not be charged to “objecting employees” (emphasis
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added)); Bhd. of Ry. v. Allen, 373 U.S. 113, 118 (1963) (“No
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respondent who does not . . . prove that he objects to
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[political] use [of fees] will be entitled to relief.” (emphasis
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added)).
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Against the backdrop of Street and its progeny, the
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Ninth Circuit was faced squarely with the question of whether an
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opt-out system for collecting non-“germane” fees violates the
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First Amendment in Mitchell.
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line of cases, the constitutionality of a union’s opt-out system
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was the dispositive issue.
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recounting the “long line of Supreme Court cases” which assumed
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that the opt-out requirement is constitutionally acceptable,
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“beginning with [Street],” the Ninth Circuit concluded that
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“[t]here is . . . no support for the plaintiffs’ position . . .
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that affirmative consent to deduction of full fees is required in
There, unlike in Street and its
See Mitchell, 963 F.2d at 259.
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After
1
order to protect their First Amendment rights.”
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“[N]onunion members’ rights are adequately protected,” the Ninth
3
Circuit held, “when they are given the opportunity to object to
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such deductions . . . .”
5
Id. at 261.
Id.
Mitchell remained largely unquestioned until the
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Supreme Court’s decision in Knox.
In Knox, the issue before the
7
Court was whether a union may constitutionally require employees
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to pay a “special . . . mid-year dues increase,” not disclosed in
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its annual Hudson notice, to fund an “Emergency . . . Political
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Fight-Back Fund.”
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held that it may not, and further held that such a fee may only
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be imposed with the “affirmative consent” of employees.
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2296.
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Knox, 132 S.Ct. at 2285, 2296 n.9.
The Court
Id. at
While Knox did not deal squarely with whether unions
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may implement opt-out systems for collecting non-“germane” fees
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that are disclosed in annual Hudson notices, see id. at 2285
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(“Hudson concerned a union’s regular annual fees.
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case, by contrast, concerns the First Amendment requirements
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applicable to a special assessment or dues increase that is
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levied to meet expenses that were not disclosed when the amount
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of the regular assessment was set.”), the Knox Court devoted
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several paragraphs to criticizing Street and the line of cases
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citing Street which assumed that they may.
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The present
“[R]equiring objecting nonmembers to opt out of paying
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the nonchargeable portion of union dues,” the Court noted,
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“represents a remarkable boon for unions.”
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it is recognized, as our cases have, that a nonmember cannot be
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forced to fund a union’s political or ideological activities,
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Id. at 2290.
“Once
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what is the justification for putting the burden on the nonmember
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to opt out of making such a payment?” the Court asked.
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opt-out system creates a risk that the fees paid by nonmembers
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will be used to further political and ideological ends with which
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they do not agree,” which is in tension with Hudson’s requirement
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that “any procedure for exacting fees from unwilling contributors
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. . . be ‘carefully tailored to minimize the infringement’ of
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free speech rights.”
9
303).
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Id.
“An
Id. at 2290-91 (quoting Hudson, 475 U.S. at
The Court then characterized Street’s “dissent”
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admonition as “dicta” arrived at “without any focused analysis”
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and an “offhand remark” that “c[a]me about more as a historical
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accident than through the careful application of First Amendment
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principles.”
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Id. at 2290.
In light of Knox’s criticism of Street, plaintiffs
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argue, this court should find the opt-out requirement to be
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unconstitutional.
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Knox . . . reversed the Supreme Court’s prior decisionmaking in
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Street.”
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proves Street’s admonition “never was binding precedent” to begin
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with.
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reject[ed] the . . . analysis underlying [the Ninth Circuit’s]
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decision in Mitchell,” and thus indicates that Mitchell is no
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longer good law.
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that neither Street nor Mitchell bind this court, and that
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therfore the court is free to decide, anew, whether the opt-out
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requirement is constitutional.
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Knox’s criticism of Street, plaintiffs argue, the court should
To be precise, plaintiffs “do not argue that
(Pls.’ Opp’n at 11.)
(Id.)
Rather, they argue that Knox
Plaintiffs further argue that “Knox explicitly
(Id.; Pls.’ Mem. at 11-12.)
Plaintiffs argue
(Pls.’ Mem. at 12.)
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In light of
1
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find that such a requirement violates the First Amendment.
The court notes that notwithstanding its criticism of
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Street, Knox does not control the outcome of this case.
Despite
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characterizing Street’s admonition as “dicta,” Knox did not go to
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the extent of ruling that the admonition was unconstitutional.
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Nor did Knox hold that unions must obtain employees’ “affirmative
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consent” to collect non-“germane” fees in all circumstances.
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Instead, Knox limited the “affirmative consent” requirement to
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“special . . . mid-year dues increase[s].”
See Knox, 132 S.Ct.
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at 2296 (“[W]hen a public-sector union imposes a special
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assessment or dues increase, the union . . . may not exact any
12
funds from nonmembers without their affirmative consent.”
13
(emphasis added)); see also id. at 2285 (“Hudson concerned a
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union’s regular annual fees.
15
concerns the First Amendment requirements applicable to a special
16
assessment or dues increase that is levied to meet expenses that
17
were not disclosed when the amount of the regular assessment was
18
set.”); id. at 2295 (noting that previous cases “permitt[ed]
19
unions to use opt-out rather than opt-in schemes when annual dues
20
are billed,” and that the present case presented a “new
21
situation”).
22
to annual Hudson notices, rather than a special mid-year dues
23
increase, Knox is not controlling.
24
The present case, by contrast,
Because this case concerns fees collected pursuant
What the court is left with, then, is Mitchell, and the
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question of whether it remains good law after Knox.
26
the relationship between circuit and Supreme Court precedents,
27
the Ninth Circuit has held that its precedents remain binding law
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in this circuit until the Supreme Court “undercut[s] the theory
12
Addressing
1
or reasoning underlying [its] precedent in such a way that the
2
cases are clearly irreconcilable.”
3
889, 900 (9th Cir. 2003).
4
standard.”
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“It is not enough for there to be some tension between the
6
intervening higher authority and prior circuit precedent, or for
7
the intervening higher authority to cast doubt on the prior
8
circuit precedent.”
9
higher authority to “chip[] away at the theory behind” a circuit
Miller v. Gammie, 335 F.3d
Clear irreconcilability “is a high
Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012).
Id.
Nor is it enough for the intervening
10
precedent, or send a “strong signal[]” that a circuit precedent
11
ought to be reconsidered.
12
1150 (9th Cir. 2013).
13
. . clearly irreconcilable.”
14
United States v. Green, 722 F.3d 1146,
Instead, “the intervening case must [be] .
Id. (emphasis in original).
Knox is not “clearly irreconcilable” with Mitchell.
As
15
discussed above, Knox’s criticism of Street did not rise to the
16
level of holding Street’s admonition and other cases’ reliance
17
upon it to be unconstitutional.
18
unions must obtain employees’ affirmative consent before charging
19
them non-“germane” fees was expressly limited to a “special . . .
20
mid-year dues increase” levied by a union after it had already
21
charged employees fees pursuant to an annual Hudson notice.
22
Knox, 132 S.Ct. at 2285, 2295-96.
23
Knox, concerned fees charged pursuant to an annual Hudson notice.
24
See Mitchell, 963 F.2d at 259 (explaining that case concerned
25
fees charged pursuant to a Hudson notice); (Decl. of Jeffrey
26
Demain (“Demain Decl.”) Ex. 4, Mitchell v. Los Angeles Unified
27
Sch. Dist. Compl. ¶¶ 27-30, 39, (showing that Mitchell concerned
28
annual dues) (Docket No. 72-4)).
Moreover, Knox’s holding that
13
See
Mitchell, in contrast with
Because Knox did not hold
1
Street’s admonition to be unconstitutional, and because Knox and
2
Mitchell apply to different factual circumstances, Knox and
3
Mitchell are not “clearly irreconcilable.”
4
1207; Green, 722 F.3d at 1150.
5
See Lair, 697 F.3d at
The court’s analysis of Mitchell’s viability after Knox
6
is confirmed by the Ninth Circuit’s ruling in Friedrichs v.
7
California Teachers Ass’n, No. 13-57095, 2014 WL 10076847 (9th
8
Cir. 2014).
9
Knox was decided, alleging that unions violated their First
There, plaintiff employees brought action, after
10
Amendment rights by “requiring [them] to undergo opt out
11
procedures to avoid making financial contributions in support of
12
‘non-chargeable’ union expenditures.”
13
Teachers Ass’n, No. SACV 13-676-JLS CWX, 2013 WL 9825479, at *1-2
14
(C.D. Cal. Dec. 5, 2013).
15
for the unions, id. at *3, and the case was appealed to the Ninth
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Circuit.
17
questions presented [on] appeal . . . are governed by controlling
18
Supreme Court and Ninth Circuit precedent,” the Ninth Circuit
19
affirmed the district court’s judgment.
20
10076847, at *1.
21
subsequently “affirmed by an equally divided [Supreme] Court.”
22
Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016).
23
Friedrichs v. California
The district court entered judgment
Citing Mitchell as good law and noting that “the
Friedrichs, 2014 WL
The Ninth Circuit’s affirmation was itself
Friedrichs confirms that Mitchell remains good law
24
after Knox.
Because Mitchell remains good law after Knox, the
25
court must deny plaintiffs’ challenge to the constitutionality of
26
Local 1000’s opt-out requirement.
27
C14-200-MJP, 2016 WL 6126016, at *3 (W.D. Wash. Oct. 20, 2016)
28
(denying challenge to constitutionality of union’s opt-out
14
Accord Hoffman v. Inslee, No.
1
2
requirement in light of Friedrichs).
B.
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Constitutionality of Opt-Out Procedure
Plaintiffs’ challenge to the constitutionality of Local
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1000’s opt-out procedure is brief compared to their challenge of
5
its opt-out requirement.
6
take issue only with three aspects of Local 1000’s procedure: (1)
7
the requirement that objections be renewed each year, (2) the
8
requirement that nonmembers send their objections by postal mail,
9
and (3) the requirement that nonmembers state their social
10
(See Pls.’ Mem. at 18-19.)
security numbers in their objections.
11
Plaintiffs
(Id.)
Under Hudson, a union’s procedure for collecting fees
12
from nonmembers must be “carefully tailored to minimize the
13
infringement” upon nonmembers’ free speech rights.7
14
U.S. at 303.
15
speech,” however, “is constitutionally mandated.”
16
Churchill, 511 U.S. 661, 670 (1994) (O’Connor, J., plurality
17
op.).
18
that, while more protective of nonmembers’ First Amendment rights
19
than others, are not required by the Constitution.
20
475 U.S. at 308 n.21 (“We do not agree . . . that a full-dress
21
administrative hearing [as to a union’s determination of
22
chargeable fees], with evidentiary safeguards, is part of the
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25
26
27
28
7
Hudson, 475
“[N]ot every procedure that may safeguard protected
Waters v.
Hudson itself noted that there are procedural safeguards
See Hudson,
Hudson also requires that unions “include an adequate
explanation of the basis for [their] fee” in their annual
notices, provide “a reasonably prompt opportunity to challenge
the amount of the fee before an impartial decisionmaker,” and
hold “the amounts reasonably in dispute” in escrow “while such
challenges are pending.” Hudson, 475 U.S. at 310. Those
requirements are not at issue in this case. (Pls. Mem. at 10 n.7
(noting that Hudson’s financial disclosure, dispute resolution,
and escrow requirements are “not specifically at issue here”).)
15
1
constitutional minimum.
2
might satisfy the requirement of a reasonably prompt decision by
3
an impartial decisionmaker . . . .”); see also Mitchell, 963 F.2d
4
at 261 (noting that opt-in system was not required under Hudson).
5
We think that an expeditious arbitration
Plaintiffs contend that requiring them to renew their
6
objections each year and send their objections by postal mail
7
constitute a “cumbersome” and “excessive[]” burden.
8
at 19.)
9
social security numbers in their objections triggers the threat
(Pls.’ Mem.
They further argue that requiring them to disclose their
10
of identity theft, which “discourage[s]” objections.
11
Because such requirements make it less likely that nonmembers
12
will file objections, they argue, Local 1000’s opt-out procedure
13
fails to meet the standard set forth in Hudson.
14
(Id.)
Notwithstanding plaintiffs’ arguments, it appears that
15
the Ninth Circuit has ratified the annual renewal and postal mail
16
requirements at issue here.
17
raised on appeal was whether a union’s requirement that employees
18
“renew their objection in writing every year” is permissible
19
under the First Amendment.
20
v. California Teachers Ass’n Appellants’ Br. at 22-23 (Docket No.
21
72-6); see also id. Ex. 5, Friedrichs v. California Teachers
22
Ass’n Compl. ¶ 10 (“Plaintiffs additionally request that this
23
Court declare that the Defendants’ practice of requiring an
24
annual affirmative ‘opt out’ . . . violates the First Amendment .
25
. . .”) (Docket No. 72-5).)
26
order affirming judgment against the employees, that it “reviewed
27
. . . the briefing filed in [the] appeal” and found “that the
28
questions presented in [the] appeal are so insubstantial as not
In Friedrichs, one of the questions
(See Demain Decl. Ex. 6, Friedrichs
The Ninth Circuit noted, in its
16
1
to require further argument.”8
2
*1.
3
Friedrichs, 2014 WL 10076847, at
Similarly, in Mitchell, the opt-out system at issue
4
required nonmembers to object “by certified mail.”
Mitchell v.
5
Los Angeles Unified Sch. Dist., 744 F. Supp. 938, 941 (C.D. Cal.
6
1990).
7
requirement, the Ninth Circuit stated that “[t]he procedures
8
followed by the union to give plaintiffs the opportunity to
9
object to the full agency fee complied with the applicable
In upholding the constitutionality of the union’s opt-out
10
standard to ensure protection of their First Amendment rights.”
11
Mitchell, 963 F.2d at 263.
12
In light of Friedrichs and Mitchell, the court finds
13
that Local 1000’s annual renewal and postal mail requirements are
14
acceptable under Hudson.
15
With respect to Local 1000’s requirement that employees
16
state their social security numbers in their objections, Local
17
1000 argues that the requirement “constitutes a reasonable
18
precaution to insure that one non-member’s objection is not
19
misattributed to another non-member.”
20
Mem. at 25 (Docket No. 68).)
21
employees,” Local 1000 notes, “the likelihood is high that some
22
will share the same name.”
(Local 1000’s Cross-Mot.,
“With so many represented state
(Id.)
“The social security number,
23
24
25
26
27
28
8
Other circuits have split over whether an annual
objection requirement is permissible under Hudson. The Sixth and
D.C. Circuits have found it to be permissible, see Tierney v.
City of Toledo, 824 F.2d 1497, 1506 (6th Cir.1987); Abrams v.
Communications Workers of America, 59 F.3d 1373, 1381-82 (D.C.
Cir. 1995), while the Fifth Circuit has found it to be
impermissible, see Shea v. Int’l Ass’n of Machinists & Aerospace
Workers, 154 F.3d 508, 517 (5th Cir. 1998).
17
1
as a unique identifier, assists the union in attributing fee
2
objections to the correct person.”
3
(Id.)
Plaintiffs have offered no evidence indicating that
4
Local 1000’s social security number requirement results in
5
identity theft, or that employees are deterred from objecting
6
because of that requirement.
7
offered evidence indicating that the requirement is reasonably
8
necessary to guard against misattribution of objections, and that
9
it “takes precautions to safeguard the confidentiality of . . .
Local 1000, on the other hand, has
10
employees’ SSNs” pursuant to federal and state law.
(See Decl.
11
of Anne Giese ¶¶ 10-11 (discussing need for social security
12
numbers and precautionary measures taken) (Docket No. 71).)
13
In light of evidence indicating that Local 1000’s
14
social security number requirement is reasonably necessary to
15
prevent misattribution of objections, and in the absence of
16
evidence indicating that such requirement deters employees from
17
objecting, the court finds that Local 1000’s social security
18
number requirement is acceptable under Hudson.
19
Having addressed each aspect of plaintiffs’
20
constitutional challenge, the court finds that because Mitchell
21
remains good law after Knox, and because Local 1000’s opt-out
22
requirements have been found by the Ninth Circuit or this court
23
to be acceptable under Hudson, the court must deny plaintiffs’
24
Motion and grant Local 1000’s Cross-Motion.
25
26
27
28
IT IS THEREFORE ORDERED that plaintiffs’ Motion for
summary judgment be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that the California state
controller’s Cross-Motion for partial summary judgment, and Local
18
1
1000’s Cross-Motion for summary judgment be, and the same hereby
2
are, GRANTED.
3
The clerk is directed to enter judgment in favor of
4
defendants and against plaintiffs.
5
Dated:
February 8, 2017
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