Lawyers for nine California public school teachers, who object to paying any fees to the labor union that represents them and union-member teachers, asked the Supreme Court on Friday to rehear their constitutional claim but not to go forward with that until a new ninth Justice is on the bench.  There does not appear to be much chance that a new Justice will be seated until next Term, because of resistance to President Obama by Senate Republican leaders.

The Court split four to four on March 29 in the case of Friedrichs v. California Teachers Association, thus upholding a federal appeals court ruling in favor of so-called “agency fees” for non-members of public employee unions.  That result, however, did not set a precedent for the issue in general, and it remains in dispute in several other pending cases in lower courts.

In a five-page rehearing petition, a kind of request that is not often granted but may be less rare after the Court had split evenly, lawyers for the objecting teachers argued that the issues in the case “are of profound nationwide importance” and that a definite answer should not await the arrival at the Court of any of the new cases developing on the same dispute.  The current Justices, it said, are already familiar with the case, so the Court could move ahead more rapidly, once there is a full bench.

Under existing Supreme Court precedent, non-union workers who are represented by a union that has won the right to bargain for all employees in a workplace unit may be legally assessed a fee that pays for union activity devoted to bargaining for workplace rights for all members.  But objecting non-members cannot be assessed any fee that raises money for the union to spend on political activity, such as lobbying for legislation or taking part in election campaign efforts.

The Friedrichs case raises the new question of whether non-members may be assessed any fee, even if the money raised would only go for traditional bargaining over worker benefits and workplace conditions.  The case is built on the premise that anything that a union representing public employees does, even on bargaining for benefits, involves policy questions on such things as budgeting and school policy, to which some of the non-members may object as conflicting with their own views.  The Court has given some encouragement to that argument, raising constitutional questions in past cases about compelled fees that the union will use to cover its activity on public policy questions.

The lawsuit by the nine California teachers was put together precisely to test whether it violates their rights, as non-members of the CTA, to be required to pay even for bargaining-related expenses.   A separate question in the case is whether it violates non-members’ rights to require them to formally opt out if they don’t want to pay “agency fees.”  Both questions, the rehearing petition argued, need definite answers now.

The filing conceded that a grant of rehearing in a decided case is “extraordinarily rare,” but it argued that, in the Court’s history, it has been more likely that rehearing would be granted after the Court had ended a case by a tie vote.  The Court, it argued, should not leave a major issue dangling simply because the Justices could not form a majority to decide it.

President Obama has nominated Merrick B. Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to succeed the late Justice Antonin Scalia, but the GOP leaders of the Senate and of its Judiciary Committee have vowed not to move that nomination forward, through hearings or votes, and to instead await the election of a new president before acting on the Scalia vacancy.  The Obama administration and its allies have waged a nationwide public campaign to try to change the GOP leaders’ minds and move the Garland nomination ahead.

It is possible, depending upon how the presidential election is decided on November 8, that the GOP-controlled Senate would take up and act on the Garland nomination in a session following the election.  If that does not happen, the Garland nomination would be scuttled, unless he were chosen as a nominee by the new president.

Persuading the Court to grant rehearing is a difficult proposition as a general matter, but is made more difficult by the specific requirements that the Court’s rules outline for action on such a request. Rehearing can only be granted, following such a request by lawyers in a case, if that request has the support of at least one Justice who had voted for the result for which a rehearing is being sought.  And rehearing can be granted only if a majority of the Court votes in favor of doing so.

With only an eight-Justice Court, however, it is not entirely clear which group of Justices on opposite sides of a four-to-four split would be the ones eligible to call for rehearing in response to a lawyer’s request.  Both blocs in such a tied situation may be said to have voted for the result — that is, disposing of the case because it could not assemble a majority.

If a new Justice joins the Court while a rehearing plea is under study, it has been the customary practice that the new member would not vote on whether to grant rehearing but — if rehearing were to be granted — could then take a full part in the process.

In seeking rehearing in the Friedrichs case, the California teachers’ attorneys argued that, rather than letting the issues in the case remain unresolved in a final way until “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 petition argued that, in situations like the current one, the Court has typically acted on a rehearing plea without waiting until a new Justice actually is on the bench, but anticipating that there would be a full bench to deal with the case.

 

Posted in Friedrichs v. California Teachers Association, Everything Else, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Teachers want union fee case reheard — probably next Term, SCOTUSblog (Apr. 8, 2016, 1:47 PM), http://www.scotusblog.com/2016/04/teachers-want-union-fee-case-reheard-probably-next-term/