Knox v. Service Employees International Union, Local 1000

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

KNOX ET AL. v. SERVICE EMPLOYEES

INTERNATIONAL UNION, LOCAL 1000

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 10–1121. Argued January 10, 2012—Decided June 21, 2012

California law permits public-sector employees in a bargaining unit to

decide by majority vote to create an “agency shop” arrangement un-

der which all the employees are represented by a union. Even em-

ployees who do not join the union must pay an annual fee for

“chargeable expenses,” i.e., the cost of nonpolitical union services re-

lated to collective bargaining. Under Abood v. Detroit Bd. of Ed., 431

U. S. 209, a public-sector union can bill nonmembers for chargeable

expenses but may not require them to fund its political or ideological

projects. Teachers v. Hudson, 475 U. S. 292, 302–311, sets out re-

quirements that a union must meet in order to collect regular fees

from nonmembers without violating their rights.

In June 2005, respondent, a public-sector union (SEIU), sent to

California employees its annual Hudson notice, setting and capping

monthly dues and estimating that 56.35% of its total expenditures in

the coming year would be chargeable expenses. A nonmember had 30

days to object to full payment of dues but would still have to pay the

chargeable portion. The notice stated that the fee was subject to in-

crease without further notice. That same month, the Governor called

for a special election on, inter alia, two ballot propositions opposed by

the SEIU. After the 30-day objection period ended, the SEIU sent a

letter to unit employees announcing a temporary 25% increase in

dues and a temporary elimination of the monthly dues cap, billing

the move as an “Emergency Temporary Assessment to Build a Politi-

cal Fight-Back Fund.” The purpose of the fund was to help achieve

the union’s political objectives in the special election and in the up-

coming November 2006 election. The union noted that the fund

would be used “for a broad range of political expenses, including tele-

2 KNOX v. SERVICE EMPLOYEES

Syllabus

vision and radio advertising, direct mail, voter registration, voter ed-

ucation, and get out the vote activities in our work sites and in our

communities across California.” Nonunion employees were not given

any choice as to whether they would pay into the fund.

Petitioners, on behalf of nonunion employees who paid into the

fund, brought a class action against the SEIU alleging violation of

their First Amendment rights. The Federal District Court granted

petitioners summary judgment. Ruling that the special assessment

was for entirely political purposes, it ordered the SEIU to send a new

notice giving class members 45 days to object and to provide those

who object a full refund of contributions to the fund. The Ninth Cir-

cuit reversed, concluding that Hudson prescribed a balancing test

under which the proper inquiry is whether the SEIU’s procedures

reasonably accommodated the interests of the union, the employer,

and the nonmember employees.

Held:

1. This case is not moot. Although the SEIU offered a full refund to

all class members after certiorari was granted, a live controversy re-

mains. The voluntary cessation of challenged conduct does not ordi-

narily render a case moot because that conduct could be resumed as

soon as the case is dismissed. See City of Mesquite v. Aladdin’s Cas-

tle, Inc., 455 U. S. 283, 289. Since the SEIU continues to defend the

fund’s legality, it would not necessarily refrain from collecting similar

fees in the future. Even if concerns about voluntary cessation were

inapplicable because petitioners did not seek prospective relief, there

would still be a live controversy as to the adequacy of the refund no-

tice the SEIU sent pursuant to the District Court’s order. Pp. 6−8.

2. Under the First Amendment, when a union imposes a special as-

sessment or dues increase levied to meet expenses that were not dis-

closed when the regular assessment was set, it must provide a fresh

notice and may not exact any funds from nonmembers without their

affirmative consent. Pp. 8−23.

(a) A close connection exists between this Nation’s commitment

to self-government and the rights protected by the First Amendment,

see, e.g., Brown v. Hartlage, 456 U. S. 45, 52−53, which creates “an

open marketplace” in which differing ideas about political, economic,

and social issues can compete freely for public acceptance without

improper government interference, New York State Bd. of Elections v.

Lopez Torres, 552 U. S 196, 202. The government may not prohibit

the dissemination of ideas it disfavors, nor compel the endorsement

of ideas that it approves. See, e.g., R. A. V. v. St. Paul, 505 U. S. 377,

382. And the ability of like-minded individuals to associate for the

purpose of expressing commonly held views may not be curtailed.

See, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 623. Close-

Cite as: 567 U. S. ____ (2012) 3

Syllabus

ly related to compelled speech and compelled association is compelled

funding of the speech of private speakers or groups. Compulsory

subsidies for private speech are thus subject to exacting First

Amendment scrutiny and cannot be sustained unless, first, there is a

comprehensive regulatory scheme involving a “mandated association”

among those who are required to pay the subsidy, United States v.

United Foods, Inc., 533 U. S. 405, and, second, compulsory fees are

levied only insofar as they are a “necessary incident” of the “larger

regulatory purpose which justified the required association,” ibid.

Pp. 8−10.

(b) When a State establishes an “agency shop” that exacts com-

pulsory union fees as a condition of public employment, “[t]he dis-

senting employee is forced to support financially an organization with

whose principles and demands he may disagree.” Ellis v. Railway

Clerks, 466 U. S. 435, 455. This form of compelled speech and associ-

ation imposes a “significant impingement on First Amendment

rights.” Ibid. The justification for permitting a union to collect fees

from nonmembers—to prevent them from free-riding on the union’s

efforts—is an anomaly. Similarly, requiring objecting nonmembers

to opt out of paying the nonchargeable portion of union dues―rather

than exempting them unless they opt in―represents a remarkable

boon for unions, creating a risk that the fees nonmembers pay will be

used to further political and ideological ends with which they do not

agree. Thus, Hudson, far from calling for a balancing of rights or in-

terests, made it clear that any procedure for exacting fees from un-

willing contributors must be “carefully tailored to minimize the in-

fringement” of free speech rights, 475 U. S. 302−303, and it cited

cases holding that measures burdening the freedom of speech or as-

sociation must serve a compelling interest and must not be signifi-

cantly broader than necessary to serve that interest. Pp. 10−13.

(c) There is no justification for the SEIU’s failure to provide a

fresh Hudson notice. Hudson rests on the principle that nonmembers

should not be required to fund a union’s political and ideological pro-

jects unless they choose to do so after having “a fair opportunity” to

assess the impact of paying for nonchargeable union activities. 475

U. S., at 303. The SEIU’s procedure cannot be considered to have

met Hudson’s requirement that fee-collection procedures be carefully

tailored to minimize impingement on First Amendment rights. The

SEIU argues that nonmembers who objected to the special assess-

ment but were not given the opportunity to opt out would have been

given the chance to recover the funds by opting out when the next

annual notice was sent, and that the amount of dues payable the fol-

lowing year by objecting nonmembers would decrease if the special

assessment were found to be for nonchargeable purposes. But this

4 KNOX v. SERVICE EMPLOYEES

Syllabus

decrease would not fully recompense nonmembers, who would not

have paid to support the special assessment if given the choice. In

any event, even a full refund would not undo the First Amendment

violations, since the First Amendment does not permit a union to ex-

tract a loan from unwilling nonmembers even if the money is later

paid back in full. Pp. 14−17.

(d) The SEIU’s treatment of nonmembers who opted out when

the initial Hudson notice was sent also ran afoul of the First

Amendment. They were required to pay 56.35% of the special as-

sessment even though all the money was slated for nonchargeable,

electoral uses. And the SEIU’s claim that the assessment was a

windfall because chargeable expenses turned out to be 66.26% is un-

persuasive. First, the SEIU’s understanding of the breadth of

chargeable expenses is so expansive that it is hard to place much re-

liance on its statistics. “Lobbying the electorate,” which the SEIU

claims is chargeable, is nothing more than another term for support-

ing political causes and candidates. Second, even if the SEIU’s sta-

tistics are accurate, it does not follow that it was proper to charge ob-

jecting nonmembers any particular percentage of the special

assessment. If, as the SEIU argues, it is not possible to accurately

determine in advance the percentage of union funds that will be used

for an upcoming year’s chargeable purposes, there is a risk that un-

consenting nonmembers will have paid too much or too little. That

risk should be borne by the side whose constitutional rights are not

at stake. If the nonmembers pay too much, their First Amendment

rights are infringed. But, if they pay too little, no constitutional right

of the union is violated because it has no constitutional right to re-

ceive any payment from those employees. Pp. 17−23.

628 F. 3d 1115, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and SCALIA, KENNEDY, and THOMAS, JJ., joined. SOTOMAYOR, J., filed an

opinion concurring in the judgment, in which GINSBURG, J., joined.

BREYER, J., filed a dissenting opinion, in which KAGAN, J., joined.

Cite as: 567 U. S. ____ (2012) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1121

_________________

DIANNE KNOX, ET AL., PETITIONERS v. SERVICE EM-

PLOYEES INTERNATIONAL UNION, LOCAL 1000

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 21, 2012]

JUSTICE ALITO delivered the opinion of the Court.

In this case, we decide whether the First Amendment

allows a public-sector union to require objecting nonmem-

bers to pay a special fee for the purpose of financing the

union’s political and ideological activities.

I

A

Under California law, public-sector employees in a

bargaining unit may decide by majority vote to create an

“agency shop” arrangement under which all the employees

are represented by a union selected by the majority. Cal.

Govt. Code Ann. §3502.5(a) (West 2010). While employees

in the unit are not required to join the union, they must

nevertheless pay the union an annual fee to cover the cost

of union services related to collective bargaining (so-called

chargeable expenses). See Lehnert v. Ferris Faculty Assn.,

500 U. S. 507, 524 (1991); Machinists v. Street, 367 U. S.

740, 760 (1961).

Our prior cases have recognized that such arrangements

represent an “impingement” on the First Amendment

rights of nonmembers. Teachers v. Hudson, 475 U. S. 292,

2 KNOX v. SERVICE EMPLOYEES

Opinion of the Court

307, n. 20 (1986). See also Davenport v. Washington Ed.

Assn., 551 U. S. 177, 181 (2007) (“[A]gency-shop arrange-

ments in the public sector raise First Amendment con-

cerns because they force individuals to contribute money

to unions as a condition of government employment”);

Street, supra, at 749 (union shop presents First Amend-

ment “questions of the utmost gravity”). Thus, in Abood v.

Detroit Bd. of Ed., 431 U. S. 209 (1977), we held that a

public-sector union, while permitted to bill nonmembers

for chargeable expenses, may not require nonmembers to

fund its political and ideological projects. And in Hudson,

we identified procedural requirements that a union must

meet in order to collect fees from nonmembers without

violating their rights. 475 U. S., at 302–311. The First

Amendment, we held, does not permit a public-sector

union to adopt procedures that have the effect of requiring

objecting nonmembers to lend the union money to be used

for political, ideological, and other purposes not germane

to collective bargaining. Id., at 305. In the interest of

administrative convenience, however, we concluded that

a union “cannot be faulted” for calculating the fee that

nonmembers must pay “on the basis of its expenses during

the preceding year.” Id., at 307, n. 18.

Hudson concerned a union’s regular annual fees. The

present case, by contrast, concerns the First Amendment

requirements applicable to a special assessment or dues

increase that is levied to meet expenses that were not

disclosed when the amount of the regular assessment was

set.

B

In June 2005, respondent, the Service Employees Inter-

national Union, Local 1000 (SEIU), sent out its regular

Hudson notice informing employees what the agency fee

would be for the year ahead. The notice set monthly dues

at 1% of an employee’s gross monthly salary but capped

Cite as: 567 U. S. ____ (2012) 3

Opinion of the Court

monthly dues at $45. Based on the most recently audited

year, the SEIU estimated that 56.35% of its total expendi-

tures in the coming year would be dedicated to chargeable

collective-bargaining activities. Thus, if a nonunion em-

ployee objected within 30 days to payment of the full

amount of union dues, the objecting employee was re-

quired to pay only 56.35% of total dues. The SEIU’s notice

also included a feature that was not present in Hudson:

The notice stated that the agency fee was subject to in-

crease at any time without further notice.

During this time, the citizens of the State of California

were engaged in a wide-ranging political debate regarding

state budget deficits, and in particular the budget conse-

quences of growing compensation for public employees

backed by powerful public-sector unions. On June 13,

2005, Governor Arnold Schwarzenegger called for a special

election to be held in November 2005, where voters would

consider various ballot propositions aimed at state-level

structural reforms. Two of the most controversial issues

on the ballot were Propositions 75 and 76. Proposition 75

would have required unions to obtain employees’ affirma-

tive consent before charging them fees to be used for polit-

ical purposes. Proposition 76 would have limited state

spending and would have given the Governor the ability

under some circumstances to reduce state appropriations

for public-employee compensation. The SEIU joined a

coalition of public-sector unions in vigorously opposing

these measures. Calling itself the “Alliance for a Better

California,” the group would eventually raise “more than

$10 million, with almost all of it coming from public em-

ployee unions, including $2.75 million from state worker

unions, $4.7 million from the California Teachers Associa-

tion, and $700,000 from school workers unions.”1

——————

1 Marinucci & Wildermuth, Schwarzenegger Adds Prop. 75 to His

Agenda, San Francisco Chronicle, Sept. 18, 2005, p. A–17.

4 KNOX v. SERVICE EMPLOYEES

Opinion of the Court

On July 30, shortly after the end of the 30-day objection

period for the June Hudson notice, the SEIU proposed a

temporary 25% increase in employee fees, which it billed

as an “Emergency Temporary Assessment to Build a Po-

litical Fight-Back Fund.” App. 25. The proposal stated

that the money was needed to achieve the union’s political

objectives, both in the special November 2005 election and

in the November 2006 election. Id., at 26. According to

the proposal, money in the Fight-Back Fund would be

used “for a broad range of political expenses, including

television and radio advertising, direct mail, voter regis-

tration, voter education, and get out the vote activities in

our work sites and in our communities across California.”

Ibid. The proposal specifically stated that “[t]he Fund will

not be used for regular costs of the union—such as office

rent, staff salaries or routine equipment replacement, etc.”

Ibid. It noted that “all other public worker unions are in

the process of raising the extraordinary funds needed to

defeat the Governor.” Id., at 27. And it concluded: “Each

of us must do our part to turn back these initiatives which

would allow the Governor to destroy our wages and bene-

fits and even our jobs, and threaten the well-being of all

Californians.” Ibid. On August 27, the SEIU’s General

Council voted to implement the proposal.

On August 31, the SEIU sent out a letter addressed

to “Local 1000 Members and Fair Share Fee Payers,” an-

nouncing that, for a limited period, their fees would be

raised to 1.25% of gross monthly salary and the $45-per-

month cap on regular dues would not apply. Id., at 31.

The letter explained that the union would use the fund to

“defeat Proposition 76 and Proposition 75 on November 8,”

and to “defeat another attack on [its] pension plan” in

June 2006. Ibid. The letter also informed employees that,

in the following year, the money would help “to elect a

governor and a legislature who support public employees

and the services [they] provide.” Ibid.

Cite as: 567 U. S. ____ (2012) 5

Opinion of the Court

After receiving this letter, one of the plaintiffs in this

case called the SEIU’s offices to complain that the union

was levying the special assessment for political purposes

without giving employees a fair opportunity to object.

An SEIU area manager responded that “even if [the em-

ployee] objected to the payment of the full agency fee, there

was nothing he could do about the September increase for

the Assessment.” Knox v. Westly, No. 2:05–cv–02198, 2008

WL 850128, *3 (ED Cal., Mar. 28, 2008). “She also stated

that ‘we are in the fight of our lives,’ that the Assessment

was needed, and that there was nothing that could be

done to stop the Union’s expenditure of that Assessment

for political purposes.” Ibid. As a consolation, however,

those employees who had filed timely objections after the

regular June Hudson notice were required to pay only

56.35% of the temporary increase.

Petitioners filed this class-action suit on behalf of 28,000

nonunion employees who were forced to contribute money

to the Political Fight-Back Fund. Some of the class mem-

bers had filed timely objections after receiving the regular

Hudson notice in June, and others had not. Those who

had objected argued that it was wrong to require them to

pay 56.35% of the temporary assessment, which had been

billed as intended for use in making political expenditures

that they found objectionable. Those who had not objected

after receiving the June Hudson notice contended that

they should have received a new opportunity to object

when the SEIU levied the special assessment for its Politi-

cal Fight-Back Fund.

The District Court granted summary judgment for the

petitioners, finding that the union “fully intended to use

the 12 million additional dollars it anticipated to raise for

political purposes.” 2008 WL 850128, *7. “Even if every

cent of the assessment was not intended to be used for

entirely political purposes,” the court stated, “it is clear

that the Union’s intent was to depart drastically from its

6 KNOX v. SERVICE EMPLOYEES

Opinion of the Court

typical spending regime and to focus on activities that

were political or ideological in nature.” Id., at *8. In light

of this fact, the court held that it would be inappropriate

for the union to rely on previous annual expenditures to

estimate that 56.35% of the new fee would go toward

chargeable expenses. The court ordered the SEIU to send

out a new notice giving all class members 45 days to object

and to provide those who objected with a full refund of

their contributions to the Political Fight-Back Fund. Id.,

at *12.

A divided panel of the Ninth Circuit reversed. Knox

v. California State Employees Assn., Local 1000, 628 F.

3d 1115 (2010). According to the panel majority, Hudson

prescribed the use of a balancing test. 628 F. 3d, at 1119–

1120. The majority therefore inquired whether the proce-

dure that the SEIU employed reasonably accommodated

the interests of the union, the employer, and nonmember

employees. Id., at 1120–1123. Judge Wallace dissented,

arguing that the majority had misinterpreted Hudson and

sanctioned the abridgment of the First Amendment rights

of nonmembers. 628 F. 3d, at 1123–1139.

We granted certiorari. 564 U. S. ___ (2011).

II

The SEIU argues that we should dismiss this case as

moot. In opposing the petition for certiorari, the SEIU

defended the decision below on the merits. After certiorari

was granted, however, the union sent out a notice offering

a full refund to all class members, and the union then

promptly moved for dismissal of the case on the ground of

mootness. Such postcertiorari maneuvers designed to

insulate a decision from review by this Court must be

viewed with a critical eye. See City News & Novelty, Inc.

v. Waukesha, 531 U. S. 278, 283–284 (2001). The vol-

untary cessation of challenged conduct does not ordinar-

ily render a case moot because a dismissal for mootness

Cite as: 567 U. S. ____ (2012) 7

Opinion of the Court

would permit a resumption of the challenged conduct as

soon as the case is dismissed. See City of Mesquite v.

Aladdin’s Castle, Inc., 455 U. S. 283, 289 (1982). 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 union argues that concerns about voluntary cessa-

tion are inapplicable in this case because petitioners do

not seek any prospective relief. See Motion to Dismiss as

Moot 11–12. But even if that is so, the union’s mootness

argument fails because there is still a live controversy as

to the adequacy of the SEIU’s refund notice. A case be-

comes moot only when it is impossible for a court to grant

“ ‘ “any effectual relief whatever” to the prevailing party.’ ”

Erie v. Pap’s A. M., 529 U. S. 277, 287 (2000) (quoting

Church of Scientology of Cal. v. United States, 506 U. S. 9,

12 (1992), in turn quoting Mills v. Green, 159 U. S. 651,

653 (1895)). “[A]s long as the parties have a concrete

interest, however small, in the outcome of the litigation,

the case is not moot.” Ellis v. Railway Clerks, 466 U. S.

435, 442 (1984).

The District Court ordered the SEIU to send out a

“proper” notice giving employees an adequate opportunity

to receive a full refund. 2008 WL 850128, *12. Petitioners

argue that the notice that the SEIU sent was improper

because it includes a host of “conditions, caveats, and

confusions as unnecessary complications aimed at reduc-

ing the number of class members who claim a refund.”

Brief for Petitioners in Opposition to Motion to Dismiss

19. In particular, petitioners allege that the union has

refused to accept refund requests by fax or e-mail and has

made refunds conditional upon the provision of an original

signature and a Social Security number. Id., at 18–19. As

this dispute illustrates, the nature of the notice may affect

how many employees who object to the union’s special

8 KNOX v. SERVICE EMPLOYEES

Opinion of the Court

assessment will be able to get their money back. The

union is not entitled to dictate unilaterally the manner in

which it advertises the availability of the refund.

For this reason, we conclude that a live controversy

remains, and we proceed to the merits.

III

A

Our cases have often noted the close connection between

our Nation’s commitment to self-government and the

rights protected by the First Amendment. See, e.g., Brown

v. Hartlage, 456 U. S. 45, 52 (1982) (“At the core of the

First Amendment are certain basic conceptions about the

manner in which political discussion in a representative

democracy should proceed”); Buckley v. Valeo, 424 U. S. 1,

93, n. 127 (1976) (per curiam) (“[T]he central purpose of

the Speech and Press Clauses was to assure a society in

which ‘uninhibited, robust, and wide-open’ public debate

concerning matters of public interest would thrive, for only

in such a society can a healthy representative democracy

flourish”); Cox v. Louisiana, 379 U. S. 536, 552 (1965)

(“Maintenance of the opportunity for free political discus-

sion is a basic tenet of our constitutional democracy”);

Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis,

J., concurring); Patterson v. Colorado ex rel. Attorney

General of Colo., 205 U. S. 454, 465 (1907) (Harlan, J.,

dissenting).

The First Amendment creates “an open marketplace” in

which differing ideas about political, economic, and social

issues can compete freely for public acceptance without

improper government interference. New York State Bd. of

Elections v. Lopez Torres, 552 U. S. 196, 208 (2008). See

also Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 51

(1988); Mills v. Alabama, 384 U. S. 214, 218–219 (1966).

The government may not prohibit the dissemination of

ideas that it disfavors, nor compel the endorsement of

Cite as: 567 U. S. ____ (2012) 9

Opinion of the Court

ideas that it approves. See R. A. V. v. St. Paul, 505 U. S.

377, 382 (1992); Brandenburg v. Ohio, 395 U. S. 444, 447–

448 (1969) (per curiam); West Virginia Bd. of Ed. v. Bar-

nette, 319 U. S. 624 (1943); Wooley v. Maynard, 430 U. S.

705, 713–715 (1977); Riley v. National Federation of Blind

of N. C., Inc., 487 U. S. 781, 797 (1988) (The First

Amendment protects “the decision of both what to say and

what not to say” (emphasis deleted)). And the ability of

like-minded individuals to associate for the purpose of

expressing commonly held views may not be curtailed.

See Roberts v. United States Jaycees, 468 U. S. 609, 623

(1984) (“Freedom of association . . . plainly presupposes a

freedom not to associate”); NAACP v. Alabama ex rel.

Patterson, 357 U. S. 449, 460–461 (1958).

Closely related to compelled speech and compelled

association is compelled funding of the speech of other

private speakers or groups. See Abood, 431 U. S., at

222–223. In United States v. United Foods, Inc., 533 U. S.

405 (2001), we considered the constitutionality of a state

scheme that compelled such funding. The subject of the

speech at issue—promoting the sale of mushrooms—was

not one that is likely to stir the passions of many, but the

mundane commercial nature of that speech only high-

lights the importance of our analysis and our holding.

The federal Mushroom Promotion, Research, and Con-

sumer Information Act required that fresh mushroom

handlers pay assessments used primarily to fund adver-

tisements promoting mushroom sales. A large producer

objected to subsidizing these generic ads, and even though

we applied the less demanding standard used in prior

cases to judge laws affecting commercial speech, we held

that the challenged scheme violated the First Amendment.

We made it clear that compulsory subsidies for private

speech are subject to exacting First Amendment scrutiny

and cannot be sustained unless two criteria are met.

First, there must be a comprehensive regulatory scheme

10 KNOX v. SERVICE EMPLOYEES

Opinion of the Court

involving a “mandated association” among those who are

required to pay the subsidy. Id., at 414. Such situations

are exceedingly rare because, as we have stated elsewhere,

mandatory associations are permissible only when they

serve a “compelling state interes[t] . . . that cannot be

achieved through means significantly less restrictive of

associational freedoms.” Roberts, supra, at 623. Second,

even in the rare case where a mandatory association can

be justified, compulsory fees can be levied only insofar as

they are a “necessary incident” of the “larger regulatory

purpose which justified the required association.” United

Foods, supra, at 414.

B

When a State establishes an “agency shop” that ex-

acts compulsory union fees as a condition of public employ-

ment, “[t]he dissenting employee is forced to support

financially an organization with whose principles and

demands he may disagree.” Ellis, 466 U. S., at 455.

Because a public-sector union takes many positions during

collective bargaining that have powerful political and civic

consequences, see Tr. of Oral Arg. 48–49, the compulsory

fees constitute a form of compelled speech and association

that imposes a “significant impingement on First Amend-

ment rights.” Ellis, supra, at 455. Our cases to date have

tolerated this “impingement,” and we do not revisit today

whether the Court’s former cases have given adequate

recognition to the critical First Amendment rights at

stake.

“The primary purpose” of permitting unions to collect

fees from nonmembers, we have said, is “to prevent non-

members from free-riding on the union’s efforts, sharing

the employment benefits obtained by the union’s collective

bargaining without sharing the costs incurred.” Daven-

port, 551 U. S., at 181. Such free-rider arguments, however,

are generally insufficient to overcome First Amend-

Cite as: 567 U. S. ____ (2012) 11

Opinion of the Court

ment objections. Consider the following examples:

“If a community association engages in a clean-up

campaign or opposes encroachments by industrial de-

velopment, no one suggests that all residents or prop-

erty owners who benefit be required to contribute. If

a parent-teacher association raises money for the

school library, assessments are not levied on all par-

ents. If an association of university professors has as

a major function bringing pressure on universities to

observe standards of tenure and academic freedom,

most professors would consider it an outrage to be re-

quired to join. If a medical association lobbies against

regulation of fees, not all doctors who share in the

benefits share in the costs.”2

Acceptance of the free-rider argument as a justification

for compelling nonmembers to pay a portion of union dues

represents something of an anomaly—one that we have

found to be justified by the interest in furthering “labor

peace.” Hudson, 475 U. S., at 303. But it is an anomaly

nevertheless.

Similarly, requiring objecting nonmembers to opt out

of paying the nonchargeable portion of union dues—as

opposed to exempting them from making such payments

unless they opt in—represents a remarkable boon for

unions. Courts “do not presume acquiescence in the loss of

fundamental rights.” College Savings Bank v. Florida

Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 682

(1999) (internal quotation marks omitted). Once it is

recognized, as our cases have, that a nonmember cannot

be forced to fund a union’s political or ideological activi-

ties, what is the justification for putting the burden on

the nonmember to opt out of making such a payment?

——————

2 Summers, Book Review, Sheldon Leader, Freedom of Association: A

Study in Labor Law and Political Theory, 16 Comparative Labor L. J.

262, 268 (1995).

12 KNOX v. SERVICE EMPLOYEES

Opinion of the Court

Shouldn’t the default rule comport with the probable

preferences of most nonmembers? And isn’t it likely that

most employees who choose not to join the union that

represents their bargaining unit prefer not to pay the full

amount of union dues? 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. But a “[u]nion should not be permitted to exact a

service fee from nonmembers without first establishing a

procedure which will avoid the risk that their funds will

be used, even temporarily, to finance ideological activities

unrelated to collective bargaining.” Hudson, supra, at 305

(internal quotation marks omitted).

Although the difference between opt-out and opt-in

schemes is important, our prior cases have given sur-

prisingly little attention to this distinction. Indeed, ac-

ceptance of the opt-out approach appears to have come

about more as a historical accident than through the

careful application of First Amendment principles.

The trail begins with dicta in Street, where we consid-

ered whether a federal collective-bargaining statute au-

thorized a union to impose compulsory fees for political

activities. 367 U. S., at 774. The plaintiffs were employ-

ees who had affirmatively objected to the way their fees

were being used, and so we took that feature of the case

for granted. We held that the statute did not authorize

the use of the objecting employees’ fees for ideological

purposes, and we stated in passing that “dissent is not

to be presumed—it must affirmatively be made known to

the union by the dissenting employee.” Ibid. In making

that offhand remark, we did not pause to consider the

broader constitutional implications of an affirmative opt-out

requirement. Nor did we explore the extent of First

Amendment protection for employees who might not qual-

ify as active “dissenters” but who would nonetheless prefer

to keep their own money rather than subsidizing by de-

Cite as: 567 U. S. ____ (2012) 13

Opinion of the Court

fault the political agenda of a state-favored union.

In later cases such as Abood and Hudson, we assumed

without any focused analysis that the dicta from Street

had authorized the opt-out requirement as a constitutional

matter. Thus in Hudson we did not take issue with the

union’s practice of giving employees annual notice and an

opportunity to object to expected political expenditures.

At the same time, however, we made it clear that the

procedures used by a union to collect money from non-

members must satisfy a high standard.

Contrary to the view of the Ninth Circuit panel major-

ity, we did not call for a balancing of the “right” of the

union to collect an agency fee against the First Amend-

ment rights of nonmembers. 628 F. 3d, at 1119–1120.

As we noted in Davenport, “unions have no constitutional

entitlement to the fees of nonmember-employees.” 551

U. S., at 185. A union’s “collection of fees from nonmem-

bers is authorized by an act of legislative grace,” 628 F. 3d,

at 1126 (Wallace, J., dissenting)—one that we have

termed “unusual” and “extraordinary,” Davenport, supra,

at 184, 187. Far from calling for a balancing of rights or

interests, Hudson made it clear that any procedure for

exacting fees from unwilling contributors must be “care-

fully tailored to minimize the infringement” of free speech

rights. 475 U. S., at 303. And to underscore the meaning

of this careful tailoring, we followed that statement with a

citation to cases holding that measures burdening the

freedom of speech or association must serve a “compelling

interest” and must not be significantly broader than nec-

essary to serve that interest.3

——————

3 The specific citation was as follows:

“See Roberts v. United States Jaycees, [468 U. S. 609, 623 (1984)]

(Infringements on freedom of association ‘may be justified by regu-

lations adopted to serve compelling state interests, unrelated to the

suppression of ideas, that cannot be achieved through means signifi-

cantly less restrictive of associational freedoms’); Elrod v. Burns, 427

14 KNOX v. SERVICE EMPLOYEES

Opinion of the Court

IV

By authorizing a union to collect fees from nonmembers

and permitting the use of an opt-out system for the collec-

tion 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. The SEIU, how-

ever, asks us to go farther. It asks us to approve a proce-

dure under which (a) a special assessment billed for use

in electoral campaigns was assessed without providing a

new opportunity for nonmembers to decide whether they

wished to contribute to this effort and (b) nonmembers

who previously opted out were nevertheless required to

pay more than half of the special assessment even

though the union had said that the purpose of the fund

was to mount a political campaign and that it would not

be used for ordinary union expenses. This aggressive use

of power by the SEIU to collect fees from nonmembers is

indefensible.

A

First, we see no justification for the union’s failure to

provide a fresh Hudson notice. Hudson rests on the prin-

ciple that nonmembers should not be required to fund a

union’s political and ideological projects unless they choose

to do so after having “a fair opportunity” to assess the im-

pact of paying for nonchargeable union activities. 475

U. S., at 303. Giving employees only one opportunity per

year to make this choice is tolerable if employees are able

at the time in question to make an informed choice. But

——————

U. S. 347, 363 (1976) (government means must be ‘least restrictive

of freedom of belief and association’); Kusper v. Pontikes, 414 U. S. 51,

58–59 (1973) (‘[E]ven when pursuing a legitimate interest, a State may

not choose means that unnecessarily restrict constitutionally protected

liberty’); NAACP v. Button, 371 U. S. 415, 438 (1963) (‘Precision of reg-

ulation must be the touchstone’ in the First Amendment context).”

Hudson, 475 U. S., at 303, n. 11.

Cite as: 567 U. S. ____ (2012) 15

Opinion of the Court

a nonmember cannot make an informed choice about a

special assessment or dues increase that is unknown when

the annual notice is sent. When a union levies a special

assessment or raises dues as a result of unexpected devel-

opments, the factors influencing a nonmember’s choice

may change. In particular, a nonmember may take special

exception to the uses for which the additional funds are

sought.4

The present case provides a striking example. The

special assessment in this case was billed for use in a

broad electoral campaign designed to defeat two important

and controversial ballot initiatives and to elect sympa-

thetic candidates in the 2006 gubernatorial and legislative

elections. There were undoubtedly nonmembers who, for

one reason or another, chose not to opt out or neglected to

do so when the standard Hudson notice was sent but who

took strong exception to the SEIU’s political objectives and

did not want to subsidize those efforts. These nonmem-

bers might have favored one or both of the ballot initia-

tives; they might have wished to support the reelection of

the incumbent Governor; or they might not have wanted

to delegate to the union the authority to decide which

candidates in the 2006 elections would receive a share of

their money.

The effect on nonmembers was particularly striking

with respect to the union’s campaign against Proposition

75 because that initiative would have bolstered nonmem-

ber rights. If Proposition 75 had passed, nonmembers

would have been exempt from paying for the SEIU’s ex-

tensive political projects unless they affirmatively con-

——————

4 The dissent suggests that the union gave fair notice because it an-

nounced at the beginning of the year that “ ‘[d]ues are subject to change

without further notice to fee payers.’ ” Post, at 12 (opinion of BREYER,

J.). But a union cannot define the scope of its own notice obligations

simply by promulgating a clause giving itself the power to increase fees

at any time for any purpose without further notice.

16 KNOX v. SERVICE EMPLOYEES

Opinion of the Court

sented. Thus, the effect of the SEIU’s procedure was to

force many nonmembers to subsidize a political effort

designed to restrict their own rights.

As Hudson held, procedures for collecting fees from

nonmembers must be carefully tailored to minimize im-

pingement on First Amendment rights, and the procedure

used in this case cannot possibly be considered to have

met that standard. After the dues increase was adopted,

the SEIU wrote to all employees in the relevant bargain-

ing units to inform them of this development. It would

have been a relatively simple matter for the union to cast

this letter in the form of a new Hudson notice, so that

nonmembers could decide whether they wanted to pay for

the union’s electoral project.

The SEIU argues that we should not be troubled by its

failure to provide a new notice because nonmembers who

objected to the special assessment but were nonetheless

required to pay it would have been given the chance to

recover the funds in question by opting out when the next

annual notice was sent. If the special assessment was

used entirely or in part for nonchargeable purposes, they

suggest, the percentage of the union’s annual expenditures

for chargeable purposes would decrease, and therefore the

amount of the dues payable by objecting nonmembers the

following year would also decrease. This decrease, how-

ever, would not fully recompense nonmembers who did not

opt out after receiving the regular notice but would have

opted out if they had been permitted to do so when the

special assessment was announced.5 And in any event,

even a full refund would not undo the violation of First

Amendment rights. As we have recognized, the First

——————

5 These nonmembers, after paying the full amount of the special as-

sessment, would be required during the subsequent year to pay at least

as much as those nonmembers who did opt out when they received the

initial Hudson notice.

Cite as: 567 U. S. ____ (2012) 17

Opinion of the Court

Amendment does not permit a union to extract a loan from

unwilling nonmembers even if the money is later paid

back in full. See Hudson, supra, at 305; Ellis, 466 U. S.,

at 444. Here, for nonmembers who disagreed with the

SEIU’s electoral objectives, a refund provided after the

union’s objectives had already been achieved would be cold

comfort.6

To respect the limits of the First Amendment, the union

should have sent out a new notice allowing nonmembers to

opt in to the special fee rather than requiring them to opt

out. Our cases have tolerated a substantial impingement

on First Amendment rights by allowing unions to impose

an opt-out requirement at all. Even if this burden can be

justified during the collection of regular dues on an annual

basis, there is no way to justify the additional burden of

imposing yet another opt-out requirement to collect special

fees whenever the union desires.

B

1

The SEIU’s treatment of nonmembers who opted out

——————

6 JUSTICE SOTOMAYOR contends that a new Hudson notice should be

required only when a special assessment is imposed for political pur-

poses. Post, at 2 (opinion concurring in judgment). But as even the

dissent acknowledges, post, at 7, such a rule would be unworkable.

First, our cases have recognized that a union’s money is fungible, so

even if the new fee were spent entirely for nonpolitical activities, it

would free up other funds to be spent for political purposes. See Retail

Clerks v. Schermerhorn, 373 U. S. 746, 753 (1963) (noting that particu-

lar fee earmarks are “of bookkeeping significance only rather than a

matter of real substance”). And second, unless we can rely on unions to

advertise the true purpose behind every special fee, it is not clear how a

court could make a timely determination of whether each new fee is

political in nature. It would be practically impossible to require the

parties to litigate the purpose of every fee merely to determine whether

notice is required.

18 KNOX v. SERVICE EMPLOYEES

Opinion of the Court

when the initial Hudson notice was sent also ran afoul of

the First Amendment. The SEIU required these employ-

ees to pay 56.35% of the special assessment, just as they

had been required to pay 56.35% of the regular annual

dues. But the union proclaimed that the special assess-

ment would be used to support an electoral campaign and

would not be used for ordinary union expenses. Accord-

ingly, there is no reason to suppose that 56.35% of the new

assessment was used for properly chargeable expenses.

On the contrary, if the union is to be taken at its word,

virtually all of the money was slated for nonchargeable

uses.

The procedure accepted in Hudson is designed for use

when a union sends out its regular annual dues notices.

The procedure is predicated on the assumption that a

union’s allocation of funds for chargeable and noncharge-

able purposes is not likely to vary greatly from one year to

the next.7 No such assumption is reasonable, however,

when a union levies a special assessment or raises dues as

a result of events that were not anticipated or disclosed at

the time when a yearly Hudson notice was sent. Accord-

ingly, use of figures based on an audit of the union’s oper-

ations during an entire previous year makes no sense.

Nor would it be feasible to devise a new breakdown of

chargeable and nonchargeable expenses for the special

assessment. Determining that breakdown is problematic

enough when it is done on a regular annual basis because

auditors typically do not make a legal determination as to

whether particular expenditures are chargeable. Instead,

——————

7 The SEIU contends that “[s]ignificant fluctuations in the chargeable

and nonchargeable proportions of a union’s spending are inevitable,”

Brief for Respondent 13, and the dissent appears to agree, post, at 10.

But if the Hudson Court had proceeded on this assumption it is doubt-

ful that it would have found it acceptable for a union to rely solely on

the breakdown in the most recent year rather than computing the

average breakdown over a longer period.

Cite as: 567 U. S. ____ (2012) 19

Opinion of the Court

the auditors take the union’s characterization for granted

and perform the simple accounting function of “ensur[ing]

that the expenditures which the union claims it made for

certain expenses were actually made for those expenses.”

Andrews v. Education Assn. of Cheshire, 829 F. 2d 335,

340 (CA2 1987). Thus, if a union takes a very broad view

of what is chargeable—if, for example, it believes that

supporting sympathetic political candidates is chargeable

and bases its classification on that view—the auditors will

classify these political expenditures as chargeable. Object-

ing employees may then contest the union’s chargeability

determinations, but the onus is on the employees to come

up with the resources to mount the legal challenge in a

timely fashion.8 See, e.g., Lehnert, 500 U. S., at 513; Jib-

son v. Michigan Ed. Assn., 30 F. 3d 723, 730 (CA6 1994).

This is already a significant burden for employees to bear

simply to avoid having their money taken to subsidize

speech with which they disagree, and the burden would

become insupportable if unions could impose a new as-

sessment at any time, with a new chargeability determi-

nation to be challenged.

2

The SEIU argues that objecting nonmembers who were

required to pay 56.35% of the special assessment, far

from subsidizing the union’s political campaign, actually

received a windfall. According to the union’s statistics, the

actual percentage of regular dues and fees spent for

chargeable purposes in 2005 turned out to be quite a bit

higher (66.26%), and therefore, even if all of the money

obtained through the special assessment is classified as

nonchargeable, the union’s total expenditures for 2005

——————

8 The dissent is comforted by the fact that the union “has offered to

pay for neutral arbitration of such disputes before the American Arbi-

tration Association,” post, at 9, but the painful burden of initiating and

participating in such disputes cannot be so easily relieved.

20 KNOX v. SERVICE EMPLOYEES

Opinion of the Court

were at least 66.26% chargeable. See Brief for Respond-

ent 5, n. 6. This argument is unpersuasive for several

reasons.

First, the SEIU’s understanding of the breadth of charge-

able expenses is so expansive that it is hard to place

much reliance on its statistics. In its brief, the SEIU

argues broadly that all funds spent on “lobbying . . . the

electorate” are chargeable. See id., at 51. But “lobbying

. . . the electorate” is nothing but another term for support-

ing political causes and candidates, and we have never

held that the First Amendment permits a union to compel

nonmembers to support such political activities. On the

contrary, as long ago as Street, we noted the important

difference between a union’s authority to engage in collec-

tive bargaining and related activities on behalf of non-

member employees in a bargaining unit and the union’s

use of nonmembers’ money “to support candidates for

public office” or “to support political causes which [they]

oppos[e].” 367 U. S., at 768.

The sweep of the SEIU’s argument is highlighted by its

discussion of the use of fees paid by objecting nonmembers

to defeat Proposition 76. According to the SEIU, these

expenditures were “germane” to the implementation of its

contracts because, if Proposition 76 had passed, it would

have “effectively permitted the Governor to abrogate the

Union’s collective bargaining agreements under certain

circumstances, undermining the Union’s ability to perform

its representation duty of negotiating effective collective

bargaining agreements.” Brief for Respondent 49–50

(internal quotation marks omitted).

If we were to accept this broad definition of germane-

ness, it would effectively eviscerate the limitation on the

use of compulsory fees to support unions’ controversial

political activities. Public-employee salaries, pensions,

and other benefits constitute a substantial percentage of

the budgets of many States and their subdivisions. As a

Cite as: 567 U. S. ____ (2012) 21

Opinion of the Court

result, a broad array of ballot questions and campaigns for

public office may be said to have an effect on present and

future contracts between public-sector workers and their

employers. If the concept of “germaneness” were as broad

as the SEIU advocates, public-sector employees who do

not endorse the unions’ goals would be essentially unpro-

tected against being compelled to subsidize political and

ideological activities to which they object.

Second, even if the SEIU’s statistics are accurate, it does

not follow that it was proper for the union to charge object-

ing nonmembers 56.35%—or any other particular per-

centage—of the special assessment. Unless it is possible to

determine in advance with some degree of accuracy the

percentage of union funds that will be used during an

upcoming year for chargeable purposes—and the SEIU

argues that this is not possible—there is at least a risk

that, at the end of the year, unconsenting nonmembers

will have paid either too much or too little. Which side

should bear this risk?

The answer is obvious: the side whose constitutional

rights are not at stake. “Given the existence of acceptable

alternatives, [a] union cannot be allowed to commit dis-

senters’ funds to improper uses even temporarily.” Ellis,

466 U. S., at 444. Thus, if unconsenting nonmembers pay

too much, their First Amendment rights are infringed. On

the other hand, if unconsenting nonmembers pay less than

their proportionate share, no constitutional right of the

union is violated because the union has no constitutional

right to receive any payment from these employees. See

Davenport, 551 U. S., at 185. The union has simply lost

for a few months the “extraordinary” benefit of being em-

powered to compel nonmembers to pay for services that

they may not want and in any event have not agreed to

fund.

As we have noted, by allowing unions to collect any fees

from nonmembers and by permitting unions to use opt-out

22 KNOX v. SERVICE EMPLOYEES

Opinion of the Court

rather than opt-in schemes when annual dues are billed,

our cases have substantially impinged upon the First

Amendment rights of nonmembers. In the new situation

presented here, we see no justification for any further

impingement. The general rule—individuals should not

be compelled to subsidize private groups or private speech—

should prevail.

Public-sector unions have the right under the First

Amendment to express their views on political and social

issues without government interference. See, e.g., Citizens

United v. Federal Election Comm’n, 558 U. S. ___ (2010).

But employees who choose not to join a union have the

same rights. The First Amendment creates a forum in

which all may seek, without hindrance or aid from the

State, to move public opinion and achieve their political

goals. “First Amendment values [would be] at serious risk

if the government [could] compel a particular citizen, or a

discrete group of citizens, to pay special subsidies for

speech on the side that [the government] favors.” United

Foods, 533 U. S., at 411. Therefore, when a public-sector

union imposes a special assessment or dues increase, the

union must provide a fresh Hudson notice and may not

exact any funds from nonmembers without their affirma-

tive consent.9

——————

9 Contrary to JUSTICE SOTOMAYOR’s suggestion, our holding does not

venture beyond the scope of the questions on which we granted review

or the scope of the parties’ dispute. The second question on which we

granted review broadly asks us to determine the circumstances under

which a State may deduct from the pay of nonunion employees money

that is used by a union for general electioneering. See Pet. for Cert. (i)

(“May a State, consistent with the First and Fourteenth Amendments,

condition continued public employment on the payment of union

agency fees for purposes of financing political expenditures for ballot

measures?”). Our holding—that this may be done only when the em-

ployee affirmatively consents—falls within that question.

Our holding also addresses the primary remaining dispute between

the parties, namely, the particular procedures that must be followed on

Cite as: 567 U. S. ____ (2012) 23

Opinion of the Court

* * *

The judgment of the Ninth Circuit is reversed, and the

case is remanded for further proceedings consistent with

this opinion.

It is so ordered.

——————

remand in order to provide adequate assurance that members of

the class are not compelled to subsidize nonchargeable activities to

which they object. See supra, at 7–8. Petitioners argue strenuously that

these procedures must be narrowly tailored to minimize intrusion on

their free-speech rights. See Brief for Petitioners 11–17. We see no

sensible way to address this dispute without confronting the question

whether, in the particular context present here, an opt-out regime

suffices.

JUSTICE SOTOMAYOR would apparently have us proceed on the as-

sumption that an opt-out regime is permitted. She would then have us

decide what sort of opt-out procedures would be sufficient if such a

regime were allowed at all. But that is a question that simply cannot

be answered. It would be like asking what sort of procedural require-

ments would be required if the government set out to do something

else that the First Amendment flatly prohibits—for example, requiring

prepublication approval of newspapers.

There is also no merit in JUSTICE SOTOMAYOR’s and JUSTICE BREYER’s

comments about prior precedent. This case concerns the procedures

that must be followed when a public-sector union announces a special

assessment or mid-year dues increase. No prior decision of this Court

has addressed that question, and Hudson says not one word on the

subject.

Cite as: 567 U. S. ____ (2012) 1

SOTOMAYOR, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1121

_________________

DIANNE KNOX, ET AL., PETITIONERS v. SERVICE EM-

PLOYEES INTERNATIONAL UNION, LOCAL 1000

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 21, 2012]

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG

joins, concurring in the judgment.

When a public-sector union imposes a special assess-

ment intended to fund solely political lobbying efforts, the

First Amendment requires that the union provide non-

members an opportunity to opt out of the contribution of

funds. I therefore concur in the Court’s judgment.

I concur only in the judgment, however, because I can-

not agree with the majority’s decision to address unneces-

sarily significant constitutional issues well outside the

scope of the questions presented and briefing. 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.

I

The Political Fight-Back Fund was to be used by Service

Employees International Union, Local 1000 (SEIU), “spe-

cifically in the political arenas of California” to defeat

perceived antiunion initiatives and to elect a sympathetic

Governor and legislature. App. 25; see also id., at 31. As

the majority explains, such political efforts are not “ger-

mane” to the union’s function as a bargaining represent-

ative, and accordingly are not chargeable to objecting

nonmembers. See Lehnert v. Ferris Faculty Assn., 500 U. S.

2 KNOX v. SERVICE EMPLOYEES

SOTOMAYOR, J., concurring in judgment

507, 519 (1991); see also Locke v. Karass, 555 U. S. 207,

211 (2009) (“[N]onchargeable union activities [include]

political, public relations, or lobbying activities”). While

the union is free to pursue its ideological goals in the

political arena, it may not subsidize its efforts with object-

ing nonmembers’ funds, lest the objector be used as “ ‘an in-

strument for fostering public adherence to an ideological

point of view he finds unacceptable.’ ” Lehnert, 500 U. S.,

at 522 (plurality opinion) (quoting Wooley v. Maynard, 430

U. S. 705, 715 (1977)).

Accordingly, when a union levies a special assessment

or dues increase to fund political activities, the union may

not collect funds from nonmembers who earlier had ob-

jected to the payment of nonchargeable expenses, and may

not collect funds from other nonmembers without provid-

ing a new Hudson notice and opportunity to opt out. See

Teachers v. Hudson, 475 U. S. 292 (1986). Because SEIU

failed to follow these procedures, it did not satisfy its

constitutional obligations. That holding should end this

case; it is all petitioners asked this Court to decide.1

II

The majority agrees that SEIU’s actions were at odds

with the First Amendment. Yet it proceeds, quite un-

necessarily, to reach significant constitutional issues not

contained in the questions presented, briefed, or argued.

Petitioners did not question the validity of our precedents,

which consistently have recognized that an opt-out system

——————

1 See

Pet. for Cert. (i) (questions presented); Brief for Petitioners (i)

(same); id., at 39 (“The Court should hold that . . . when a union im-

poses a forced-fee increase primarily or solely for political purposes be-

tween notices, it may not collect the increase from nonmembers who

have already objected, and it must not collect the increase from other

nonmembers until it has ascertained their wishes by providing them

with a new notice about the increase’s purpose and an opportunity to

opt out”); see also App. 18–19 (complaint).

Cite as: 567 U. S. ____ (2012) 3

SOTOMAYOR, J., concurring in judgment

of fee collection comports with the Constitution. See Dav-

enport v. Washington Ed. Assn., 551 U. S. 177, 181, 185

(2007); Hudson, 475 U. S., at 306, n. 16; Abood v. De-

troit Bd. of Ed., 431 U. S. 209, 238 (1977); see also ante,

at 12–13. They did not argue that the Constitution re-

quires 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.

Under this Court’s Rule 14.1(a), “[o]nly the questions set

out in the petition, or fairly included therein, will be con-

sidered by the Court.” “[W]e disregard [that rule] ‘only

in the most exceptional cases,’ where reasons of urgency

or economy suggest the need to address the unpresented

question in the case under consideration.” Yee v. Escon-

dido, 503 U. S. 519, 535 (1992) (quoting Stone v. Powell,

428 U. S. 465, 481, n. 15 (1976)). The majority does not claim

any such exceptional circumstance here. Yet it reaches

out to hold that “when a public-sector union imposes a

special assessment or dues increase, the union must pro-

vide a fresh Hudson notice and may not exact any funds

from nonmembers without their affirmative consent.” Ante,

at 22 (emphasis added); see also ante, at 17 (“[T]he

union should have sent out a new notice allowing non-

members to opt in to the special fee rather than requiring

them to opt out”). 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. 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. See

Yee, 503 U. S., at 535. And it ignores a fundamental

premise of our adversarial system: “ ‘that appellate courts

4 KNOX v. SERVICE EMPLOYEES

SOTOMAYOR, J., concurring in judgment

do not sit as self-directed boards of legal inquiry and

research, but essentially as arbiters of legal questions pre-

sented and argued by the parties before them.’ ” NASA

v. Nelson, 562 U. S. ___, ___, n. 10 (2011) (opinion for the

Court by ALITO, J.) (slip op., at 11, n. 10) (quoting Car-

ducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (opinion for

the court by Scalia, J.)); see also Jefferson v. Upton, 560

U. S. ___, ___ (SCALIA, J., joined by THOMAS, J., dissenting)

(slip op., at 8) (The majority’s “refusal to abide by standard

rules of appellate practice is unfair to the . . . Circuit,”

which did not pass on this question, “and especially to the

respondent here, who suffers a loss in this Court without

ever having an opportunity to address the merits of the . . .

question the Court decides”). The imperative of judicial

restraint is at its zenith here, with respect to an issue of

such constitutional magnitude, for “[i]f there is one doc-

trine more deeply rooted than any other in the process of

constitutional adjudication, it is that we ought not to pass

on questions of constitutionality . . . unless such adjudica-

tion is unavoidable.” Clinton v. Jones, 520 U. S. 681, 690,

n. 11 (1997) (internal quotation marks omitted).2

——————

2 The majority contends that its holding “does not venture beyond

the scope of the questions on which we granted review,” pointing to the

second question presented. Ante, at 22, n. 9. The majority is mistaken.

That question concerns the chargeability of political and lobbying

activities under Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 522

(1991), not the procedures by which a union may collect fees. See

Pet. for Cert. (i); id., at 20–27 (describing scope of second question pre-

sented); id., at 23 (“There is a serious split, and confusion, among the

circuits on the chargeability of union political and lobbying activities”).

Indeed, it is only petitioners’ first question presented that deals with

fee-collection procedures. And in that question, petitioners ask this

Court to hold that SEIU may not collect its special assessment without

providing a Hudson notice that offers “an opportunity to object to” the

deduction of fees for the assessment. Id., at (i) (emphasis added).

The phrase “opt in” appears not once in petitioners’ briefing. The

majority protests that it cannot but hold that an opt-in regime is

required, seeing as the opt-out regime the petitioners advocate is, in the

Cite as: 567 U. S. ____ (2012) 5

SOTOMAYOR, J., concurring in judgment

To make matters worse, the majority’s answer to its

unasked constitutional question is not even clear. After

today, must a union undertaking a special assessment or

dues increase obtain affirmative consent to collect “any

funds” or solely to collect funds for nonchargeable ex-

penses? May a nonmember opt not to contribute to a

special assessment, even if the assessment is levied to

fund uncontestably chargeable activities? Does the ma-

jority’s new rule allow for any distinction between non-

members who had earlier objected to the payment of

nonchargeable expenses and those who had not? What

procedures govern this new world of fee collection?

Moreover, while the majority’s novel rule is, on its face,

limited to special assessments and dues increases, the

majority strongly hints that this line may not long endure.

The majority pronounces the Court’s explicit holding in

Machinists v. Street, 367 U. S. 740, 774 (1961)—that

“dissent is not to be presumed[,] it must affirmatively be

made known to the union by the dissenting employee”—

nothing but an “offhand remark,” made by Justices who

did not “pause to consider the broader constitutional

implications of an affirmative opt-out requirement,” ante,

at 12. The reader is told that our precedents’ “acceptance

of the opt-out approach appears to have come about more

as a historical accident than through the careful applica-

tion of First Amendment principles.” Ibid. And that “[b]y

authorizing a union to collect fees from nonmembers and

permitting the use of an opt-out system for the collection

——————

majority’s view, unconstitutional. But if the Court was dissatisfied

with the scope of the questions presented here it should not have

granted certiorari in this case. Or having granted it, the Court should

have asked for supplemental briefing on the question whether an opt-in

regime is constitutionally required. What it should not have done—

cannot do under our rules—is decide that question without having

provided the parties and potential amici an opportunity to weigh in

with their own considered views.

6 KNOX v. SERVICE EMPLOYEES

SOTOMAYOR, J., concurring in judgment

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.” Ante, at 14 (emphasis

added); see also ante, at 21–22 (“[B]y allowing unions to

collect any fees from nonmembers and by permitting

unions to use opt-out rather than opt-in schemes when

annual dues are billed, our cases have substantially im-

pinged upon the First Amendment rights of nonmem-

bers”); ante, at 11–12 (“Once it is recognized . . . that a

nonmember cannot be forced to fund a union’s political or

ideological activities, what is the justification for putting

the burden on the nonmember to opt out of making such a

payment? Shouldn’t the default rule comport with the

probable preferences of most nonmembers?”).

To cast serious doubt on longstanding precedent is a

step we historically take only with the greatest caution

and reticence. To do so, as the majority does, on our own

invitation and without adversarial presentation is both

unfair and unwise. It deprives the parties and potential

amici of the opportunity to brief and argue the question.

It deprives us of the benefit of argument that the parties,

with concrete interests in the question, are surely better

positioned than we to set forth. See NASA, 562 U. S., at

___, n. 10 (opinion for the Court by ALITO, J.) (slip op.,

at 11, n. 10) (“It is undesirable for us to decide a matter

of this importance in a case in which we do not have the

benefit of briefing by the parties and in which potential

amici had little notice that the matter might be decided”).

Not content with our task, prescribed by Article III, of

answering constitutional questions, the majority today

decides to ask them as well.

Cite as: 567 U. S. ____ (2012) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1121

_________________

DIANNE KNOX, ET AL., PETITIONERS v. SERVICE EM-

PLOYEES INTERNATIONAL UNION, LOCAL 1000

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 21, 2012]

JUSTICE BREYER, with whom JUSTICE KAGAN joins,

dissenting.

In Teachers v. Hudson, 475 U. S. 292 (1986), this Court

unanimously held that “the Union cannot be faulted for

calculating its fee on the basis of its expenses during the

preceding year.” Id., at 307, n. 18. That is precisely what

the union has done in this case. I see no reason to modify

Hudson’s holding as here applied. I consequently dissent.

I

In Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), the

Court held that nonunion public employees have a First

Amendment right to prevent a union’s spending a part of

their compulsory fees on contributions to political candi-

dates or on “express[ions of ] political views unrelated to

[the union’s] duties as exclusive bargaining representa-

tive.” Id., at 234. A decade later in Hudson, the Court

considered the constitutionality of procedures adopted to

implement Abood. In particular, the Court considered the

procedures adopted by a teachers union “to draw that

necessary line and to respond to nonmembers’ objections

to the manner in which it was drawn.” 475 U. S., at 294.

The teachers union had calculated the fee it could

charge nonmembers during a particular year on the basis

of the expenditures the union actually made during the

2 KNOX v. SERVICE EMPLOYEES

BREYER, J., dissenting

prior year. Those nonmembers who objected to the ap-

portionment, believing their fee too high, could lodge an

objection with the union, proceed through arbitration, and

receive a rebate if they won. The Court found this proce-

dure constitutionally inadequate. It thought that (1) a

rebate “does not avoid the risk that dissenters’ funds may

be used temporarily for an improper purpose,” (2) the

union had not provided the nonmembers in advance with

“sufficient information to gauge the propriety of the un-

ion’s fee,” and (3) the union did not provide objectors

with “a reasonably prompt decision by an impartial deci-

sionmaker.” Id., at 305–307.

The Court then held that the Constitution requires that

a union collecting a fee from nonmembers provide “an

adequate explanation of the basis for the fee, a reasonably

prompt opportunity to challenge the amount of the fee

before an impartial decisionmaker, and an escrow for the

amounts reasonably in dispute while such challenges are

pending.” Id., at 310.

The Court added that it “recognize[d] that there are

practical reasons why ‘[a]bsolute precision’ in the calcula-

tion of the charge to nonmembers cannot be ‘expected or

required.’ ” Id., at 307, n. 18 (quoting Railway Clerks v.

Allen, 373 U. S. 113, 122 (1963)). It said that the union

retains the burden of proving that a given expense is

chargeable to nonmembers, the “nonmember’s ‘burden’ ” be-

ing simply that of making “his objection known.” 475 U. S.,

at 306, n. 16. And it added that the union “cannot

be faulted for calculating its fee on the basis of its ex-

penses during the preceding year.” Id., at 307, n. 18.

For the last 25 years unions and employers across

the Nation have relied upon this Court’s statements in

Hudson in developing administratively workable systems

that (1) allow unions to pay the costs of fulfilling their

representational obligations to both members and non-

members alike, while (2) simultaneously protecting the

Cite as: 567 U. S. ____ (2012) 3

BREYER, J., dissenting

nonmembers’ constitutional right not to support “‘ideological

causes not germane to [the union’s] duties as collective-

bargaining agent.’ ” Id., at 294 (quoting Ellis v. Railway

Clerks, 466 U. S. 435, 447 (1984)). See also Keller v. State

Bar of Cal., 496 U. S. 1, 17 (1990) (explaining that Hudson

“outlined a minimum set of procedures by which a union

in an agency-shop relationship could meet its requirement

under Abood”). The Court, in my view, should not depart,

or create an exception, from Hudson’s framework here.

II

Because the administrative details of the fee collection

process are critical, I shall begin by explaining how I un-

derstand that process to work. The union here followed

a basic administrative system that ensures that the

fee charged to objecting nonmembers matches their pro

rata share of the union’s chargeable expenditures, but it

achieves that match only over a period of several years.

At the end of 2004, independent auditors determined the

amount of chargeable (e.g., collective-bargaining related)

expenditures and the amount of nonchargeable (e.g., non-

germane political) expenditures that the union ac-

tually made during 2004. The union then used the resulting

proportion (which was about 56% chargeable, 44% non-

chargeable) as the basis for apportioning the next year’s

dues. Thus in June 2005, the union sent all represented

employees a Hudson notice setting forth that (roughly) 56

to 44 figure. App. 96–106. It provided time for nonmem-

bers to object or to challenge the figure or underlying data.

Id., at 98–104. And it then applied the resulting figure to

determine the percentage of the total fee that objecting

nonmembers would have to pay during the next fee-year,

which ran from July 2005 to June 2006. Id., at 102. At

the end of 2005, auditors again examined the union’s

actual expenditures made during 2005. And the union

then used those newly audited figures to determine the

4 KNOX v. SERVICE EMPLOYEES

BREYER, J., dissenting

chargeable percentage for the fee-year 2006–2007. Id., at

158. Since political expenditures during calendar year

2005 turned out to be lower than in 2004, the new charge-

able share amounted to about 69% of the total fee bill.

Ibid.

Simplifying further to illustrate, I shall describe the

system as (1) using audited accounts for Year One to

determine the proportion of the fee that objectors must

pay during Year Two, and (2) using audited accounts for

Year Two to determine the proportion of the fee that ob-

jectors must pay during Year Three. If Year One’s

chargeable share (as applied to Year Two) turns out to be

too high, Year Two’s audited accounts will reflect that fact,

and the payable share for Year Three will be reduced

accordingly.

This system does not put typical objectors to any dis-

advantage. If, say, in Year One total expenses were

$1 million, collective-bargaining expenses amounted to

$600,000, and political expenses amounted to $400,000,

then the union cannot charge objecting nonmembers more

than 60% of normal dues in Year Two. If in Year Two

collective-bargaining expenses turned out to be a lesser

share of total expenses, say 30%, then the union cannot

charge objecting nonmembers more than 30% of the total

fee in Year Three. Normally, what the objecting nonmem-

bers lose on the swings they will gain on the roundabouts.

This kind of basic administrative system is imperfect.

The nature of a union’s expenditures, including non-

chargeable political expenditures, varies from year to year,

for political needs differ at different stages of political

cycles. Thus, last year’s percentages will often fail to

match this year’s expenditures patterns. And the possibil-

ity that an objecting nonmember’s funds will temporarily

help the union pay for a nonchargeable political expendi-

ture (say, in Year Two) is always present—though in this

case that did not happen. See infra, at 6–7.

Cite as: 567 U. S. ____ (2012) 5

BREYER, J., dissenting

Nonetheless this kind of system enjoys an offsetting

administrative virtue. It bases fees upon audited ac-

counts, thereby avoiding the difficulties and disagree-

ments that would surround an effort to determine the

relevant proportions by trying to measure union expendi-

tures as they occur or by trying to make predictions about

the nature of future expenditures. It consequently gives

workers reliable information. It gives workers advance

notice of next year’s payable charge. It gives nonmembers

a “reasonably prompt” opportunity to object. Hudson, 475

U. S., at 310. And, where the chargeable share of next

year’s expenses (Year Two) turns out to be lower than last

year’s (Year One), it provides offsetting compensation in

the form of a lower payable share for the following year

(Year Three).

In any event, these features are characteristic of an

administrative system that “calculat[es]” shares of a un-

ion’s fee “on the basis of its expenses during the preceding

year.” Id., at 307, n. 18. Hudson stated specifically that

the “[u]nion cannot be faulted for calculating its fee” on

that basis. Ibid. And no party here has challenged the

constitutional validity of that basic administrative system.

See Tr. of Oral Arg. 13.

III

If the union’s basic administrative system does not

violate the Constitution, then how could its special as-

sessment have done so? In my view, it did not violate the

Constitution, and I shall explain my basis for thinking

so by considering separately (1) those nonmembers who

objected initially to the 2005 Hudson notice, and (2) those

nonmembers who did not initially object.

A

The special assessment as administered here has

worked no constitutional harm upon those nonunion em-

6 KNOX v. SERVICE EMPLOYEES

BREYER, J., dissenting

ployees who raised a general objection at the beginning of

the year. The union has honored their objections by sub-

tracting from their special payments the same 44% that it

subtracts from each of their ordinary monthly payments.

App. 309. 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 pre-

vious year. Hence the objecting nonmembers ended up

being charged too little, not too much, even with the spe-

cial assessment thrown into the mix.

Let me put the point more specifically. The union’s

June 2005 Hudson notice said that the union would

charge objecting nonmembers roughly 56% of the dues

paid by union members. See App. 102. That 56% figure

represented the chargeable portion of expenditures accord-

ing to the audited figures from 2004. Thus, if the fee

charged to a union member pursuant to the 2005 notice

was $400, the fee charged to an objecting nonmember was

$224. The union similarly prorated the special assess-

ment charging objecting nonmembers 56% of the assess-

ment it imposed upon members. Thus, if the special

assessment amounted to $50 for a member, it amounted to

$28 for an objecting nonmember. And total dues in this

example would have amounted to $450 for a member and

$252 for a nonmember.

In the event, the union’s chargeable expenses for 2005—

including the funds raised pursuant to the special assess-

ment—amounted to more than 56% of its total expendi-

tures. The auditor’s reports show that the union’s total

expenditures in 2005 amounted to $40,045,409. Id.,

at 166. Chargeable expenses amounted to $27,552,746,

which works out to 69% of the total budget. Ibid. Thus, a

substantially larger portion of the union’s 2005 spending

was chargeable (69%) than it had been in 2004 (56%).

Cite as: 567 U. S. ____ (2012) 7

BREYER, J., dissenting

Objecting nonmembers therefore paid 56% of normal fees,

even though the chargeable share that year was 69%.

That is to say, they paid less than what the Constitution

considers to be their fair share. See Abood, 431 U. S., at

236–237.

Even were the underlying facts different, I can find no

constitutional basis for charging an objecting nonmember

less than the 56% that the preceding year’s audit showed

was appropriate. In general, any effort to send a new

notice and then apply special percentages to a special

midyear assessment fee runs into administrative difficul-

ties that, as explained above, are avoided with a retrospec-

tive system. See supra, at 6. And, of course, requiring the

use of some special proportion based on predicted expendi-

tures would contradict Hudson’s determination that prior

year, not present year, expenditures can form the basis for

the determination of that proportion. See Hudson, supra,

at 307, n. 18.

In the particular example before us these general prob-

lems are camouflaged by the fact that the union itself said

that the assessment was to be used for political purposes.

Hence it is tempting to say that 100% of the assessment

is not chargeable. But future cases are most unlikely to

be so clear; disputes will arise over union predictions (say,

that only 20% of the special assessment will be used for

political purposes); and the Court will then perhaps un-

derstand the wisdom of Hudson’s holding. In any event,

we have made clear in other cases that money is fungible.

Retail Clerks v. Schermerhorn, 373 U. S. 746, 753 (1963).

Whether a particular expenditure was funded by regular

dues or the special assessment is “of bookkeeping signifi-

cance only rather than a matter of real substance.” Ibid.

And, the Court’s focus on the announced purposes of the

special assessment, rather than yearly expenditures taken

as a whole, is beside the point.

The Court’s response to these problems, particularly the

8 KNOX v. SERVICE EMPLOYEES

BREYER, J., dissenting

administrative calculation problems, is apparently to de-

part yet further from the Court’s earlier holdings. It

seems to say that an objector can withhold 100%, not

simply of a special assessment made for political purposes,

but of any special assessment whatsoever, including an

assessment made solely for the purpose of paying for extra

chargeable costs, such as extended contract negotiations,

pension plan experts, or newly assessed contributions to

replenish a national union’s collective-bargaining assis-

tance funds. See ante, at 21–22. Although this rule is

comparatively simple to administer, it cannot be recon-

ciled with the Court’s previous constitutional holdings.

Abood, along with every related case the Court has ever

decided, makes clear that the Constitution allows a union

to assess nonmembers a pro rata share of fees insofar

as they are used to pay for these kinds of collective-

bargaining expenses. See 431 U. S., at 234–236; see also

Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 524 (1991);

Machinists v. Street, 367 U. S. 740, 760 (1961); Ellis, 466

U. S., at 447; Davenport v. Washington Ed. Assn., 551

U. S. 177, 181 (2007); Locke v. Karass, 555 U. S. 207, 210

(2009). How could the majority now hold to the contrary?

If there are good reasons for requiring departure from

the basic Hudson-approved administrative system, they

are not the reasons the Court provides. It suggests that

the basic Hudson administrative system gives the union

the freedom to misclassify, arguing, for example, that the

union has adopted an overly broad definition of charge-

ability. See ante, at 20–21. The 2005 proportion, however,

rested upon audited 2004 accounts. While petitioners

argue in this Court that the union misclassified parts

of the special assessment (which was not imposed until

2005), no brief filed in this case (and certainly no court

below) has challenged the accuracy of the 2004 figures or

the resulting chargeable/nonchargeable allocation. In-

deed, the 2004 accounts were audited before the special

Cite as: 567 U. S. ____ (2012) 9

BREYER, J., dissenting

assessment at the center of this case was even imposed.

Compare App. 108 (reflecting that the audit of the 2004

budget was completed by April 25, 2005) with id., at 25

(reflecting approval of the special assessment on July 30,

2005).

More specifically, the Court suggests that the Consti-

tution prohibits the union’s classification of money spent

“ ‘lobbying . . . the electorate’ ” as a chargeable expense.

See ante, at 20. But California state law explicitly permits

the union to classify some lobbying expenses as charge-

able. See Cal. Govt. Code Ann. §3515.8 (West 2010) (a

nonmember’s fair share includes “the costs of support

of lobbying activities designed to foster policy goals and

collective negotiations and contract administration”); see

also Lillebo v. Davis, 222 Cal. App. 3d 1421, 1442, 272 Cal.

Rptr. 638, 651 (1990) (construing §3515.8 narrowly, but

explaining that “[w]e cannot fathom how a union’s lobby-

ing the Legislature for improvement of the conditions of

employment of the members of its bargaining unit . . .

could not be considered to be part of its role as representa-

tive . . .”). No one has attacked the constitutionality of

California’s law; no brief argues the question; and this

Court does not normally find state laws unconstitutional

without, at least, giving those who favor the law an oppor-

tunity to argue the matter.

The Court further complains that the basic administra-

tive system requires an objecting nonmember to “come up

with the resources to mount” a “legal challenge” to the

union’s allocation “in a timely fashion.” Ante, at 19. That

concern too is misplaced. The union has offered to pay for

neutral arbitration of such disputes before the American

Arbitration Association. App. 103–104. And, again, inso-

far as the Court casts doubt on the constitutional validity

of the basic system, the Court does so without the benefit

of argument.

Finally, the Court argues that (Step 1) Hudson is “pred-

10 KNOX v. SERVICE EMPLOYEES

BREYER, J., dissenting

icated on the assumption that a union’s allocation of funds

for chargeable and nonchargeable purposes is not likely to

vary greatly from one year to the next,” ante, at 18; that

(Step 2) this assumption does not apply to midyear as-

sessments; hence (Step 3) what appears binding precedent

(namely Hudson) does not bind the Court in its interpreta-

tion of the Constitution as applied to those assessments.

Ibid.

I must jump this logical ship, however, at Step 1. I

cannot find in Hudson the “assumption” of uniform ex-

penditures that the Court says underlies it. The assump-

tion does not appear there explicitly. And it is hard to

believe any such assumption could implicitly lurk within

a case involving a union’s political expenditures. Those

expenditures inevitably vary from political season to

season. They inevitably depend upon the number and

kind of union-related matters currently visible on the

political agenda. Cf., e.g., App. 102, 158, 223 (union’s

chargeability proportion varies significantly over three

years, from 56.35% in 2004, to 68.8% in 2005, to 60.3% in

2006). And it is hard to believe that the Members of this

Court, when deciding Abood, were not fully aware of these

obvious facts.

B

A stronger case can be made for allowing nonmember

employees who did not object at the beginning of the dues

year to object (for the first time) to a special assessment.

That is because, unlike the nonmember who objected

initially, the union will not permit that initially nonobject-

ing nonmember to withhold anything from the special

assessment fee. Nonetheless, there are powerful reasons

not to allow the nonmember who did not object initially to

the annual fee to object now for the first time to the mid-

year special assessment.

For one thing, insofar as a new objection permits the

Cite as: 567 U. S. ____ (2012) 11

BREYER, J., dissenting

new objector to withhold only the portion of the fee that

will pay for nonchargeable expenses (as the logic of the

concurring Justices would suggest), the administrative

problems that I earlier discussed apply. See supra, at 6.

That is to say, unions, arbitrators, and courts will have to

determine, on the basis of a prediction, how much of the

special assessment the new objector can withhold. I con-

cede that many administrative problems could be over-

come were the new objector allowed to withhold only the

same 44% of the fee that the union here permitted ini-

tial objectors to withhold (a figure based on 2004 au-

dited accounts). But no Member of the Court takes that

approach.

For another thing, as I have previously pointed out, the

Court would permit nonmembers who did not object at the

beginning of the year (like those who did then object) to

object to (and to pay none of) every special assessment,

including those made to raise money to pay additional

collective-bargaining expenses. This approach may avoid

the uncertainty and resulting disputes inherent in an ef-

fort to limit withholding to the nonchargeable portion of

the fee. But the price of avoiding those disputes is to

reduce the financial contribution the union will receive

even when a special assessment pays only for unexpected

but perfectly legitimate collective-bargaining expenses.

See supra, at 8–10.

Moreover, to provide a new opportunity to object re-

quires providing for explanations, potential challenges, the

development of separate accounts, and additional adminis-

trative procedures. That means providing extra time and

extra money. By definition, however, special assessments

are special; time may matter; and unlike the annual dues

payment, the union is unlikely to be able to provide what

is here a 6-month delay (between the close of the 2004

audited year and the beginning of the next mid-2005 dues

year) that can be used to examine accounts and process

12 KNOX v. SERVICE EMPLOYEES

BREYER, J., dissenting

objections. In a word, a new opportunity to object means

time, effort, and funds set aside to deal with a new layer of

administrative procedure.

I recognize that allowing objections only once a year is

only one possible way to administer a fee-charging system.

In principle, one might allow nonmembers to pose new

objections to their dues payments biannually, or quarterly,

or even once a month, as actual expenses do, or do not,

correspond to initial union predictions. But for constitu-

tional purposes the critical fact is that annual objection is

at least one reasonably practical way to permit the princi-

pled objector to avoid paying for politics with which he

disagrees. See Hudson, 475 U. S., at 307, n. 18. And that

is so whether ordinary or special assessments are at stake.

Further, the nonmember who did not object initially is

not likely to be a nonmember who strongly opposes the

union’s politics. That many unions take political posi-

tions and that they spend money seeking to advance those

positions is not exactly a secret. All those whom this

union represents know from history that it spends money

each year for nonchargeable purposes. And any nonmem-

ber who has significant negative views about such matters

is likely to have objected in advance. Those who did not

object initially (but do so later) likely include many whose

objection rests, not upon constitutionally protected politi-

cal grounds, but simply upon a desire not to pay a higher

fee. And those who withhold fees for that reason are not

entitled to constitutional protection in doing so. Here, the

nonobjector cannot even claim that an increase in the total

fee (by the amount of the special assessment) took him by

surprise, for in its initial Hudson notice the union said

that “[d]ues are subject to change without further notice to

fee payers.” App. 98.

Finally, if the union will not let a nonmember object to a

special assessment, that nonmember has an easy remedy.

He or she can simply object the first time around. After

Cite as: 567 U. S. ____ (2012) 13

BREYER, J., dissenting

all, the possibility of a special assessment is known in

advance; the possibility that some, or all of it, will help the

union make political expenditures is known in advance;

the fact that the union will spend a significant amount of

ordinary dues upon political matters is known in advance.

To obtain protection all a nonmember who believes he

might object to some future political expenditure has to do

is to object in advance. His or her fees will decline from

the beginning. And, if the nonmember forgets to object,

there is always next year—when the chargeable amount of

the fee will be based on this year’s actual expenditures.

Given these considerations, I do not believe the First

Amendment requires giving a second objection opportu-

nity to those nonmembers who did not object the first time.

IV

The Court also holds that, “when a public-sector union

imposes a special assessment or dues increase,” it “may

not exact any funds from nonmembers without their af-

firmative consent.” Ante, at 22. In other words, the Court

mandates an “opt-in” system in respect to the payment of

special assessments.

JUSTICE SOTOMAYOR’s concurring opinion explains why

the Court is wrong to impose this requirement. See ante,

at 2–6 (opinion concurring in judgment). It runs directly

contrary to precedent. No party asked that we do so. The

matter has not been fully argued in this Court or in the

courts below. I agree with her about this matter.

The decision is particularly unfortunate given the fact

that each reason the Court offers in support of its “opt-in”

conclusion seems in logic to apply, not just to special as-

sessments, but to ordinary yearly fee charges as well. At

least, its opinion can be so read. And that fact virtually

guarantees that the opinion will play a central role in an

ongoing, intense political debate.

The debate is generally about whether, the extent to

14 KNOX v. SERVICE EMPLOYEES

BREYER, J., dissenting

which, and the circumstances under which a union that

represents nonmembers in collective bargaining can re-

quire those nonmembers to help pay for the union’s (con-

stitutionally chargeable) collective-bargaining expenses.

Twenty-three States have enacted “right to work” laws,

which, in effect, prevent unions from requiring nonmem-

bers to pay any of those costs. See Dept. of Labor, Wage

and Hour Division, State Right-to-Work Laws (Jan. 2009),

online at http://www.dol.gov/whd/state/righttowork.htm (as

visited June 18, 2012, and available in Clerk of Court’s

case file). Other States have rejected the “right to work”

approach and permit unions to require contributions from

nonmembers, while protecting those nonmembers’ right

to opt out of supporting the union’s political activities.

E.g., Cal. Govt. Code Ann. §§3502.5(a), 3515.8. Still others

have enacted compromise laws that assume a nonmember

does not wish to pay the nonchargeable portion of the fee

unless he or she affirmatively indicates a desire to do so.

See Wash. Rev. Code §42.17A.500 (2010) (providing that a

union cannot use a nonmember’s agency fee for political

purposes “unless affirmatively authorized by the individ-

ual”). The debate about public unions’ collective-bargaining

rights is currently intense.

The question of how a nonmember indicates a desire not

to pay constitutes an important part of this debate. Must

the union assume that the nonmember does not intend to

pay unless he affirmatively indicates his desire to pay, by

“opting in”? Or, may the union assume that the nonmem-

ber is willing to pay unless the nonmember indicates a

desire not to pay, by “opting out”? Where, as here, non-

chargeable political expenses are at issue, there may be a

significant number of represented nonmembers who do not

feel strongly enough about the union’s politics to indicate a

choice either way. That being so, an “opt-in” requirement

can reduce union revenues significantly, a matter of con-

siderable importance to the union, while the additional

Cite as: 567 U. S. ____ (2012) 15

BREYER, J., dissenting

protection it provides primarily helps only those who are

politically near neutral. See generally Sunstein & Thaler,

Libertarian Paternalism is not an Oxymoron, 70 U. Chi.

L. Rev. 1159, 1161 (2003) (explaining that default rules

play an important role when individuals do not have “well-

defined preferences”). Consequently, the Court, which

held recently that the Constitution permits a State to im-

pose an opt-in requirement, see Davenport, 551 U. S., at

185, has never said that it mandates such a requirement.

There is no good reason for the Court suddenly to enter

the debate, much less now to decide that the Constitution

resolves it.

Of course, principles of stare decisis are not absolute.

But the Court cannot be right when it departs from those

principles without benefit of argument in a matter of such

importance.

For these reasons, with respect, I dissent.