Opposition Brief — Cara O'Callaghan, et al., Petitioners v. Michael V. Drake, in His Official Capacity as President of the University of California, et al.

No. 22-219

In The Supreme Court of The United States

______________________

CARA O'CALLAGHAN AND JENEÉ

MISRAJE,

Petitioners,

v.

MICHAEL V. DRAKE, IN HIS CAPACITY AS

PRESIDENT OF THE UNIVERSITY OF

CALIFORNIA; TEAMSTERS LOCAL 2010;

AND ROB BONTA, IN HIS OFFICIAL

CAPACITY AS ATTORNEY GENERAL OF

CALIFORNIA,

Respondents.

_________________________

On Petition For Writ Of Certiorari to the United

States Court Of Appeals For The Ninth Circuit

______________________

BRIEF IN OPPOSITION FOR

RESPONDENT TEAMSTERS LOCAL 2010

______________________

Robert Bonsall

(Counsel of Record)

BEESON, TAYER & BODINE

520 Capitol Mall, Suite 300

Sacramento CA 95814

Telephone: (916) 325-2100

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rbonsall@beesontayer.com

Counsel for Teamsters Local 2010

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i

QUESTIONS PRESENTED

Whether public employees who voluntarily joined a

union, signed written agreements to pay membership dues via payroll deduction for a set time period,

and received membership rights and benefits in return, suffered a violation of their First Amendment

rights when their employer made the deductions

that they affirmatively and unambiguously had

authorized.

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ii

CORPORATE DISCLOSURE STATEMENT

Respondent Teamsters Local 2010 has no parent

corporation, and no company owns any stock in

Respondent.

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iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED............................................i

CORPORATE DISCLOSURE STATEMENT ............. ii

TABLE OF AUTHORITIES .......................................... iv

INTRODUCTION ............................................................ 1

STATEMENT OF THE CASE ....................................... 2

A.

Background ......................................................... 2

B.

Proceedings Below ............................................. 4

REASONS FOR DENYING THE PETITION ............. 6

I.

Petitioners do not question the Ninth

Circuit’s independent holding that the

Union’s conduct was not “state action”

for purposes of 42 U.S.C. § 1983...................... 6

II.

The Ninth Circuit’s decision follows

the uniform consensus and faithfully

applies this Court’s precedents. ...................... 8

CONCLUSION ............................................................... 16

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iv

TABLE OF AUTHORITIES

Page

Cases

Adams v. Teamsters Local 429,

No. 21-1372, 2022 WL 4651460

(Oct. 3, 2022)........................................................... 1

Allen v. Ohio Civil Serv. Emps. Ass’n

AFSCME, Local 11, 2020 U.S. Dist. LEXIS 48481

(S.D. Ohio Mar. 20, 2020) ...................................... 14

Barlow v. SEIU, Local 668,

566 F.Supp.3d 287 (M.D. Pa. 2021) ..................... 13

Belgau v. Inslee,

975 F.3d 940 (9th Cir. 2020), cert. denied, 141 S.

Ct. 2795 (2021) ...............................................passim

Bennett v. Council 31 of the AFSCME, AFL-CIO,

991 F.3d 724 (7th Cir. 2021), cert. denied, 142 S.

Ct. 424 (2021) .................................................... 2, 12

Biddiscombe v. SEIU, Local 668,

566 F.Supp.3d 269 (M.D. Pa. 2021) ..................... 14

Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc.,

467 U.S. (1984) ...................................................... 10

Cohen v. Cowles Media Co.,

501 U.S. 663, 672 (1991) ......................................... 1

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd.,

527 U.S. 666 (1999) ................................................ 15

Cooley v. CA Law Enforcement Ass’n,

No. 22-216, 2022 WL 16726107 (Nov. 7, 2022) ...... 1

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v

Curtis Publ’g Co. v. Butts,

388 U.S. 130 (1967) ............................................... 15

Few v. United Teachers Los Angeles,

2022 U.S. App. LEXIS 2545 (9th Cir. 2022),

cert. denied, 142 S. Ct. 2780 (2022); ................ 1, 12

Fischer v. Governor of N.J.,

842 F. App’x 741 (3d Cir. 2021), cert. denied, 142

S. Ct. 426 (2021) ................................................ 2, 12

Fultz v. Am. Fed'n of State, Cnty. & Mun. Emps.,

Council 13,

551 F. Supp. 3d 518 (M.D. Pa. 2021) ................... 14

Grossman v. Hawaii Gov’t Emps. Ass’n,

854 F. App’x 911, 912 (9th Cir. 2021), cert. denied,

142 S. Ct. 591 (2021) ......................................... 2, 13

Hendrickson v. AFSCME Council 18,

992 F.3d 950, 961 (10th Cir. 2021), cert. denied,

142 S. Ct. 423 (2021) ......................................... 2, 12

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp.,

510 U.S. 27 (1993) .................................................. 9

Janus v. AFSCME, Council 31,

138 S.Ct. 2448 (2018) ............................. 6, 9, 11, 12

Johnson v. Zerbst,

304 U.S. 458 (1938) ............................................... 15

Knox v. SEIU, Local 1000,

567 U.S. 298, 315, 322 (2012)................................ 15

LaSpina v. SEIU Pennsylvania State Council,

985 F.3d 278, 287 (3d Cir. 2021)........................... 12

Littler v. Ohio Ass'n of Pub. Sch. Employees,

2022 U.S. App. LEXIS 8182 (6th Cir. Mar. 28,

2022) ...................................................................... 13

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vi

Mendez v. Cal. Teachers Ass’n,

419 F. Supp. 3d 1182, 1186 (N.D. Cal. 2020) aff’d,

854 F. App’x 920 (9th Cir. 2021) ........................... 14

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) ................................................ 15

Oliver v. SEIU Local 668,

830 F. App'x 76 (3d Cir. 2020) .............................. 12

People v. Crayton,

48 P.3d 1136, 1146 (2002) ..................................... 17

Polk v. Yee,

No. 22-213, 22 WL 16726106 (Nov. 7, 2022) ......... 1

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) ............................................... 15

Smith v. Bieker,

854 F. App’x 937 (9th Cir. 2021),

cert. denied, 142 S. Ct. 593 (2021) .................... 2, 13

Smith v. SEIU, Local 668,

566 F.Supp.3d 251 (M.D. Pa. 2021) ...................... 13

State of Nebraska v. Miah S. (In re Miah S.),

861 N.W.2d 406 (2015) .......................................... 18

Troesch v. Chicago Teachers Union,

Local Union No. 1,

2021 U.S. App. LEXIS 19108

(7th Cir. Apr. 15, 2021), cert. denied,

142 S. Ct. 425 (2021) ......................................... 2, 13

United States v. Andaverde,

64 F.3d 1305 (9th Cir. 1995) ................................. 18

United States v. Groth,

682 F.2d 578 (6th Cir. 1982) ................................. 17

United States v. Hinkley,

803 F.3d 85 (1st Cir. 2015).................................... 18

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vii

United States v. Lee,

539 F.2d 606 (6th Cir. 1976) ................................. 17

United States v. Mortensen,

860 F.2d 948 (9th Cir. 1988) ................................. 17

United States v. Nguyen,

608 F.3d 368 (8th Cir. 2010) ................................. 18

United States v. Pruden,

398 F.3d 241 (3d Cir. 2005)................................... 18

Wagner v. University of Washington,

2022 U.S. App. LEXIS 14295

(9th Cir. May 25, 2022) ......................................... 13

Wilson v. Horsley,

974 P.2d 316, 322 (1999) ....................................... 17

Wolf v. Shaw,

2021 U.S. App. LEXIS 28039

(9th Cir. Sept. 16, 2021) (unpublished), cert. denied

sub nom., Wolf v. UPTE-CWA 9199,

142 S. Ct. 591 (2021) ......................................... 2, 13

Zemunski v. Kenney,

984 F.2d 953, 954 (8th Cir. 1993) ......................... 17

Statutes

29 U.S.C. § 186(4) ..................................................... 16

42 U.S.C. § 1983 .............................................. 3, 7, 8, 9

5 U.S.C. § 7115(a) ..................................................... 16

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1

INTRODUCTION

The lower courts unanimously and correctly have

held that the deduction of union dues pursuant to a

public employee’s voluntary union membership and

dues deduction authorization agreement does not

violate the employee’s First Amendment rights. The

non-precedential, unpublished ruling below applies

the unanimous consensus on this issue, which

follows from this Court’s precedent establishing that

“the First Amendment does not confer ... a

constitutional right to disregard promises that would

otherwise be enforced under state law.” Cohen v.

Cowles Media Co., 501 U.S. 663, 672 (1991).

Since June 2021, this Court has denied thirteen

petitions for certiorari that challenged the

enforceability of union membership agreements.1

There have been no developments in the short time

since those denials that would make the unpublished

decision below worthy of this Court’s review.

Moreover, the court of appeals in this case held

that the claims against Teamsters Local 2010 were

1 Cooley v. CA Law Enforcement Ass’n, No. 22-216, 2022 WL

16726107 (Nov. 7, 2022); Polk v. Yee, No. 22-213, 22 WL

16726106 (Nov. 7, 2022); Adams v. Teamsters Local 429, No. 211372, 2022 WL 4651460 (Oct. 3, 2022); Woods v. Alaska State

Employees Ass’n, 142 S.Ct. 1110 (2022); Few v. United Teachers

Los Angles,142 S.Ct. 2780 (U.S. 2022); Grossman v. Hawaii

Gov’t Emps. Ass’n, 142 S.Ct. 591 (2021); Smith v. Bieker, 142

S.Ct. 593 (2021); Wolf v. UPTE-CWA 9119, 142 S.Ct. 591 (2021);

Hendrickson v. AFSCME Council 18, 142 S.Ct. 423 (2021);

Bennett v. AFSCME, Council 31, AFL-CIO, 142 S.Ct. 424

(2021); Troesch v. Chicago Teachers Union, 142 S. Ct. 425

(2021); Fischer v. Murphy, Gov. of N.J., 142 S. Ct. 426 (2021);

Belgau v. Inslee, 141 S.Ct. 2795 (2021).

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properly dismissed for the additional reason that the

union’s alleged conduct was not state action for

purposes of 42 U.S.C. § 1983. The petition does not

address that issue, which provides an independent

basis for the judgment below. As such, this case

would not provide a suitable vehicle to address the

question presented.

For all these reasons, the petition should be

denied.

STATEMENT OF THE CASE

A. Background

Petitioners Cara O’Callaghan and Jenee Misraje

are employed by the Regents of the University of

California (herein the “University”). By virtue of

their employment, they are part of a unit

represented for purposes of collective bargaining by

Teamsters Local 2010 (herein “Local 2010” or the

“Union”). Petitioners chose to voluntarily become

members of Local 2010 and received membership

rights and benefits. In their membership

agreements, Petitioners voluntarily authorized their

membership dues to be paid to the Union through

payroll deduction. They also voluntarily agreed that

this payroll-deduction authorization could be revoked

only at certain times, irrespective of whether they

resigned their Union membership.

Misraje’s agreement

provided

that

dues

deductions could be cancelled only during an annual

window period. Pursuant to her agreement, when

she resigned from the Union in August 2018, her

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payroll-deduction authorization continued until July

27, 2019.2

O’Callaghan became re-employed with the

University in August 2009, and initially paid only

agency fees until joining Local 2010 in May 2018.

App. 7. At that time, O’Callaghan signed a

membership contract, which contained a payrolldeduction authorization agreement through which

she agreed “voluntarily” to pay her Union

membership dues through payroll deduction. 9th Cir.

Dkt. 9, p. 56. That authorization specifically provided

that:

I recognize the need for a strong union and

believe everyone represented by our union

should pay their fair share to support our

union’s activities. Therefore, I voluntarily

authorize my employer to deduct from my

earnings and transfer to Teamsters Local 2010

an amount equal to the regular monthly dues

uniformly applicable to members of Local

2010, and I agree that this authorization shall

remain in effect for the duration of the existing

collective bargaining agreement, if any, and

yearly thereafter until a new CBA is ratified,

unless I give written notice via U.S. mail to

both the employer and Local 2010 during the

30 days prior to the expiration of the CBA or if

none the end of the yearly period. My checkoff authorization will renew automatically,

regardless of my membership status, unless

2 Because the Petition challenges only the constitutionality of

“multiyear” dues deduction commitments, Petition at 11

(argument heading), Petitioners have conceded that Misraje’s

dues deduction authorization was lawful.

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revoked during the window period described.

My signature below strengthens our Union to

win fair wages and benefits!

Id., alterations omitted.

On July 25, 2018, O’Callaghan sent Local 2010 a

letter resigning from the Union. App. 8. The Union

responded by letter, confirming that O’Callaghan’s

membership had been terminated, but advising her

that payroll deductions would continue pursuant to

the terms of her membership application, a copy of

which was enclosed with the letter. Id., 9th Cir. Dkt.

9, pp. 54-55. The expiration date for the applicable

collective-bargaining agreement was March 31, 2022.

9th Cir. Dkt. 18, p. 7.

Nevertheless, the Union requested that the

University discontinue all further dues deductions

for O’Callaghan effective October 31, 2021. By the

terms of her agreement with the Union, O’Callaghan

in any event was free to end the deductions in March

2022. See 9th Cir. Dkt. 44.

B. Proceedings Below

On March 27, 2019, Petitioners filed this action in

the district court, challenging the constitutionality of

their dues deductions (before and after they resigned

their union membership).

By Order dated September 30, 2019, U.S. District

Court Judge James V. Selna granted, with prejudice,

motions filed by the Union, the University and the

California Attorney General to dismiss the

petitioners’ First Amended Complaint. App. 6-23.

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Judge Selna concluded that the University’s

deduction of Union dues from petitioners’ paychecks

did not violate their First Amendment rights. Judge

Selna agreed with the unanimous authority holding

that Janus v. AFSCME, Council 31, 138 S.Ct. 2448

(2018), does not abrogate voluntary agreements to

become dues-paying members of a union. Judge

Selna rejected petitioners’ argument that their

consent to have Union dues deducted in exchange for

the benefits of Union membership was not binding

because Petitioners were somehow coerced into

becoming Union members. App. 13-16. This ruling

effectively dismissed all of petitioners’ claims

regarding collection of dues while Petitioners were

members of the Union and subsequent to petitioners’

resignation of their Union membership.3

On October 4, 2019, Judge Selna entered

judgment dismissing the complaint in its entirety.

App. 4-5.

Petitioners then appealed Judge Selna’s decision,

and on April 28, 2022, the Ninth Circuit, in an

unpublished Memorandum, upheld Judge Selna’s

dismissal of the complaint. In relevant part, the

court stated:

The trial court correctly determined that the

Defendants did not violate Appellants’ First

Amendment rights. Although the First

Amendment protects against compelled

association, it does not permit one to renege on

voluntary agreements. Belgau v. Inslee, 975

3 The petition does not raise issues regarding the claims alleged

below regarding collection of nonmember agency fees (before

issuance of the Janus decision) or exclusive representation

bargaining.

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F.3d 940, 951 (9th Cir. 2020). Appellants

affirmatively agreed to join the Union and

authorized the University to deduct dues from

their wages pursuant to the terms of their

agreements, including terms limiting when

they

could

withdraw

authorization.

Additionally, Appellants’ § 1983 claim against

the Union fails for lack of state action under

Belgau. Id. at 946–47. Therefore, Appellants’

First Amendment claim was properly

dismissed

App. 2.

On June 6, 2022, the Court of Appeals denied

Petitioners’ petition for rehearing en banc. App. 11,

28-29.

REASONS FOR DENYING THE PETITION

I. Petitioners do not question the Ninth

Circuit’s independent holding that the

Union’s conduct was not “state action” for

purposes of 42 U.S.C. § 1983.

In Belgau, the Ninth Circuit rejected Section 1983

claims brought by former union members to challenge

dues deductions that the plaintiffs had authorized.

The Ninth Circuit held in Belgau that the plaintiffs’

Section 1983 claims against the defendant union

failed as a threshold matter because the union was a

private party and its receipt of membership dues

pursuant to its private agreements with its members

did not constitute “state action” sufficient to support a

claim against the union under § 1983. Id. at 946–49.

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The Ninth Circuit, in its Memorandum decision

below, likewise ruled that petitioners’ “§ 1983 claim

against the Union fails for lack of state action under

Belgau.” App. 2. The Ninth Circuit stated that this

was an “[a]dditional[]” reason for affirming the

district court’s judgment. Id. Yet petitioners here do

not address that additional reason for dismissing

their Section 1983 claim against the Union.

Petitioners have thus tacitly conceded that the claim

against the Union was properly dismissed for lack of

state action.

This Court’s Rule 14.1(a) provides, in relevant

part: “Only the questions set forth in the petition, or

fairly included therein, will be considered by the

Court.”

Whether the Ninth Circuit properly

concluded that the Section 1983 claims against the

Union failed for lack of state action is not “fairly

included” within the petition. The question of state

action, not raised by the petition, is a threshold

inquiry that in no way depends on the merits of

Petitioners’ First Amendment claim. And it is a

question that is analytically different from the

question presented in the petition: “Whether a union

can trap a government worker into paying dues for

longer than one year under Janus v. AFSCME,

Council 31, 138 S.Ct. 2448 (2018).” Petition, p. i.

Petitioners thus have not properly presented for

review the Court of Appeals’ determination that the

Section 1983 claim against the Union was properly

dismissed for lack of state action. See, e. g., Izumi

Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips

Corp., 510 U.S. 27, 30–33 (1993). And petitioners

certainly have not shown that this separate state

action question is worthy of review.

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Accordingly, as “this Court reviews judgments,

not opinions,” Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842 (1984), the

petition should be denied because petitioners have

not provided a basis for reversing the Ninth Circuit’s

below.4

II. The Ninth Circuit’s decision follows the

uniform consensus and faithfully applies

this Court’s precedents.

Even if the petition were not properly denied for

the reasons explained above, it does not present a

legal issue worthy of this Court’s review.

In Belgau, the Ninth Circuit held that the

deduction of dues pursuant to public employees’ own

voluntary, affirmative, written authorizations does

not violate the First Amendment. Belgau, 975 F.3d

at 950–52. The Ninth Circuit explained that “[w]hen

‘legal obligations ... are self-imposed,’ state law, not

the First Amendment, normally governs,” and the

First Amendment does not “provide a right to

‘disregard promises that would otherwise be enforced

under state law.’” Id. at 950 (quoting Cohen, 501 U.S.

at 671). The plaintiffs’ public employer had simply

“honored the terms and conditions of a bargained-for

contract” between private parties “by deducting

union dues only from the payrolls of Employees who

gave voluntary authorization to do so.” Id. The

4 In addition to suing the Union, petitioners also sued state

officials. But those officials have sovereign immunity from

claims for retrospective relief, and Petitioners’ claims for

prospective relief against those officials are moot now that their

dues deductions have ceased and all obligations in their

membership agreements have been satisfied.

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Ninth Circuit concluded that “[n]o fact supports even

a whiff of compulsion.” Id.

The Ninth Circuit in Belgau rejected the same

argument that petitioners press here — that Janus

imposed a new heightened “waiver” standard for

voluntary union membership agreements. Id. at

951–52. The Ninth Circuit explained:

The Court [in Janus] considered whether a

waiver could be presumed for the deduction of

agency fees only after concluding that the

practice of automatically deducting agency

fees from nonmembers violates the First

Amendment....

The

Court

discussed

constitutional waiver because it concluded that

nonmembers’ First Amendment right had been

infringed, and in no way created a new First

Amendment waiver requirement for union

members before dues are deducted pursuant to

a voluntary agreement.

Id. at 952 (emphasis in original).

Like the Ninth Circuit, the circuit courts that

have addressed the issue have all “recogniz[ed] that

Janus does not extend a First Amendment right to

avoid paying union dues” that a public employee

affirmatively agreed to pay as part of a private

contract through which the employee received the

benefits of union membership. Belgau, 975 F.3d at

951, cert. denied, 141 S. Ct. 2795 (2021).5

5 See Fischer v. Governor of New Jersey, 842 F. App'x 741, 753 &

n.18 (3d Cir. 2021) (“. . . Janus does not give plaintiffs the right

to terminate their commitments to pay union dues unless and

until those commitments expire under the plain terms of their

membership agreements.”), cert. denied, 142 S. Ct. 426 (2021);

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This Court has recently denied petitions for

certiorari in nine of those cases. See supra at 1, n.1.

Dozens of district courts have reached the same

conclusion.6 Given the unanimous consensus of the

Oliver v. SEIU Local 668, 830 F. App'x 76, 79 (3d Cir. 2020)

(unpublished) (“Oliver was faced with a constitutional choice whether or not to join the Union—and she chose to become a

member.”); Few v. United Teachers Los Angeles, 2022 U.S. App.

LEXIS 2545 (9th Cir. 2022) (unpublished) (noting that

summary judgment was appropriate on the claims for back dues

pre-Janus because Belgau controls this issue), cert denied, 142

S. Ct. 2780 (2022); Bennett v. Council 31 of the AFSCME, AFLCIO, 991 F.3d 724, 729–33 (7th Cir. 2021), cert. denied, 142 S.

Ct. 424 (2021) (“Janus said nothing about union members who,

like Bennett, freely chose to join a union and voluntarily

authorized the deduction of union dues, and who thus

consented to subsidizing a union.”); Hendrickson v. AFSCME

Council 18, 992 F.3d 950, 961 (10th Cir. 2021), cert. denied, 142

S. Ct. 423 (2021); see also, LaSpina v. SEIU Pennsylvania State

Council, 985 F.3d 278, 287 (3d Cir. 2021); Grossman v. Hawaii

Gov’t Emps. Ass’n, 854 F. App’x 911, 912 (9th Cir. 2021)

(unpublished), cert. denied, 142 S. Ct. 591 (2021); Smith v.

Bieker, 854 F. App’x 937 (9th Cir. 2021) (unpublished), cert.

denied, 142 S. Ct. 593 (2021); Wolf v. Shaw, 2021 U.S. App.

LEXIS 28039 (9th Cir. Sept. 16, 2021) (unpublished), cert.

denied sub nom., Wolf v. UPTE-CWA 9199, 142 S. Ct. 591

(2021); Wagner v. University of Washington, 2022 U.S. App.

LEXIS 14295, at *2-4 (9th Cir. May 25, 2022) (unpublished);

Littler v. Ohio Ass'n of Pub. Sch. Employees, 2022 U.S. App.

LEXIS 8182, at *15-16 (6th Cir. Mar. 28, 2022) (unpublished);

Troesch v. Chicago Teachers Union, Local Union No. 1, 2021

U.S. App. LEXIS 19108 (7th Cir. Apr. 15, 2021) (unpublished),

cert. denied, 142 S. Ct. 425 (2021).

6 See, e.g., Smith v. SEIU, Local 668, 566 F.Supp.3d 251, 26264 (M.D. Pa. 2021); Barlow v. SEIU, Local 668, 566 F.Supp.3d

287, 297-300 (M.D. Pa. 2021) (pending appeal to the Third

Circuit); Biddiscombe v. SEIU, Local 668, 566 F.Supp.3d 269,

280-82 (M.D. Pa. 2021) (pending appeal to the Third Circuit);

Fultz v. Am. Fed'n of State, Cnty. & Mun. Emps., Council 13,

551 F. Supp. 3d 518, 525-26 (M.D. Pa. 2021); Mendez v. Cal.

Teachers Ass’n, 419 F. Supp. 3d 1182, 1186 (N.D. Cal. 2020)

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lower courts, there is no reason for this Court to

intervene.

Petitioners’ arguments in any event conflict with

Cohen, which did not apply a special, heightened

“waiver” analysis to a newspaper’s promise not to

reveal the identity of a confidential source, because

the government’s enforcement of the promise did not

give rise to a First Amendment objection that needed

to be waived. The same is true here. Private parties

often enter into agreements that implicate First

Amendment rights — arbitration agreements,

nondisclosure

agreements,

annual

magazine

subscriptions — and courts routinely honor those

agreements. Outside the context of criminal suspects

in custody or criminal defendants pleading guilty, a

voluntary, affirmative, and unambiguous agreement

is sufficient. See, e.g., Schneckloth v. Bustamonte,

412 U.S. 218, 234–49 (1973) (consent to search is

waiver of Fourth Amendment right against

involuntary searches).7

aff’d, 854 F. App’x 920 (9th Cir. 2021); Allen v. Ohio Civil Serv.

Emps. Ass’n AFSCME, Local 11, 2020 U.S. Dist. LEXIS 48481,

at *33-34, n.10 (S.D. Ohio Mar. 20, 2020) (citing, in footnote 10,

to “the unanimous post-Janus district court decisions holding

that employees who voluntarily chose to join a union. . . cannot

renege on their promises to pay union dues”).

7 While the Court cited “waiver” cases in Janus, it did so not to

tacitly overrule Cohen, but to make clear that the States cannot

presume from nonmembers’ inaction that they wish to support

a union. The four “waiver” cases Janus cited concerned whether

waiver could be found solely from the plaintiff’s inaction. See

Johnson v. Zerbst, 304 U.S. 458, 468–69 (1938) (addressing

whether pro se defendant had properly waived his Sixth

Amendment right to counsel by failing to ask that counsel be

appointed); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 527 U.S. 666, 675–80 (1999) (rejecting argument

that State had “constructively” waived its sovereign immunity by

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While

conceding

that

dues

deduction

authorization agreements with annual terms are

perfectly acceptable, petitioners argue that what is

different in this case is that Petitioner O’Callaghan

entered into a multi-year agreement, instead of an

agreement terminable annually. The arguments

petitioners summon in support of this theory,

however, are policy arguments advocating for

legislative or regulatory action, not arguments

asserting legally material bases for distinguishing

application of the law to a multi-year agreement

from that applicable to an annual agreement.8

Petitioners urge that public employees should not

be allowed to voluntarily enter into dues deduction

authorization agreements that are irrevocable for

some unspecified time longer than one year. They

cite a number of cases for the proposition that a

waiver of a constitutional right “should not … be

deemed forever binding.” Petition at p. 18, emphasis

engaging in activity that Congress decided to regulate); Knox v.

SEIU, Local 1000, 567 U.S. 298, 315, 322 (2012) (nonmembers of

union could not be deemed to consent to union political

assessment through their silence); Curtis Publ’g Co. v. Butts, 388

U.S. 130, 142–44 (1967) (libel defendant could not be deemed to

have waived, through its silence, libel defense later recognized in

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)). And contrary to

petitioners’ assertion at page 12 of their Petition, Janus said

nothing about “multiyear window periods [being subjected] to

heightened First Amendment scrutiny.”

8 See, e.g., petitioner’s reference to 29 U.S.C. § 186(4) at pp. 13-

14 of the petition, and to the Federal Labor Relations

Authority’s “general statement of policy” interpreting 5 U.S.C. §

7115(a), issued in 71 FLRA 571 (Reb. 14, 2020), at p. 15 of the

petition. Indeed, the FLRA is currently considering through it

rule-making process a reversal of the general statement of

policy issued in in 2020. See 87 FR 78014-01 (Dec. 21, 2022).

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added. The authorization at issue here, however, is

not binding in perpetuity. And the cases cited by

petitioners merely affirm that individuals cannot be

deprived of a right to revoke a waiver of the right to

a jury trial, the right to a trial before a district court

judge, or the right to counsel. None of the cases

remotely suggests that a voluntary agreement

between two private parties that may implicate the

private

parties’

constitutional

rights

is

unconstitutional if the agreement lasts for more than

one year.9

Petitioners also cite a series of cases for the

proposition that “waiver of one’s constitutional rights

can become stale due to the passage of time or

intervening events.” Petition at p. 18. But, again,

the cases cited do not support the conclusion that

voluntary private contracts are subject to a

constitutional time limit. The cases cited all address

the continuing effectiveness of a Miranda warning

9 The cases cited are United States v. Mortensen, 860 F.2d 948,

950 (9th Cir. 1988) (“We conclude as to this issue that waiver of

a jury trial does not bar a demand for a jury on retrial of the

same case unless the original waiver explicitly covers this

contingency”); United States v. Groth, 682 F.2d 578, 580 (6th

Cir. 1982) (“Accordingly, both precedent and policy require us to

reverse Lee's conviction because Lee should have been

permitted to withdraw his consent to trial by the magistrate”);

United States v. Lee, 539 F.2d 606, 610 (6th Cir. 1976) (motion

to withdraw jury waiver was untimely); Zemunski v. Kenney,

984 F.2d 953, 954 (8th Cir. 1993) (“In federal practice, a waiver

of counsel has been held to remain in effect despite various

breaks in the proceedings”); People v. Crayton, 48 P.3d 1136,

1146 (2002) (“Parties who waive the right to a jury in one

proceeding cannot be deemed to have given up the right for all

subsequent proceedings”); and Wilson v. Horsley, 974 P.2d 316,

322 (1999) (party who consents to trial before a magistrate may

withdraw the consent).

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and the circumstances under which an individual is

entitled to a renewed Miranda warning. For

example, in United States v. Andaverde, 64 F.3d

1305, 1312 (9th Cir. 1995), the court noted: “The

courts have generally rejected a per se rule as to

when a suspect must be readvised of his rights after

the passage of time or a change in questioners.” And

in United States v. Hinkley, 803 F.3d 85, 92 (1st Cir.

2015), the court observed, “Miranda warnings need

not be renewed every time there is a break in

questioning. Once an effective Miranda warning is

administered, those warnings remain effective until

the passage of time or an intervening event makes

the defendant unable to fully consider the effect of a

waiver.”10

It is one thing to say that an oral admonishment

delivered by the police to a suspect -- the Miranda

warning -- might, depending on circumstances, need

to be renewed; it is something else altogether, and

completely unrelated to the first, to suggest that a

multi-year contract between two private parties may

not impose obligations that last for more than one

year. The dues deduction authorization at issue here

was a written contract for which O’Callaghan

received consideration in the form of membership

rights and benefits. There is no need to impute into

this dues deduction authorization an opportunity for

rescission; the right to rescind is already contained in

the contract itself. Nor, as noted above, is there any

constitutional basis for creating a new obligation on

The other cases cited by petitioners - United States v.

Nguyen, 608 F.3d 368, 375 (8th Cir. 2010); United States v.

Pruden, 398 F.3d 241, 246–47 (3d Cir. 2005); and State of

Nebraska v. Miah S. (In re Miah S.), 861 N.W.2d 406 (2015) are all consistent with these basic rules regarding Miranda

warnings.

10

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labor unions to “warn” public employees before they

enter into dues deduction authorization contracts

that they are waiving a First Amendment right to

refrain from doing so. Absent such a constitutional

obligation, the Miranda cases cited by petitioners are

completely irrelevant to the present case.

California also has a Public Employment

Relations Board and state court system that are

entirely competent to address claims that a

particular agreement is unconscionable or was the

product of coercion or duress or fraud. Petitioners

have not established a sufficient basis for

constitutionalizing state contract law. They did not

even exhaust potential state law claims.

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CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

Robert Bonsall

(Counsel of Record)

BEESON, TAYER & BODINE

520 Capitol Mall, Suite 300

Sacramento CA 95814

Telephone: (916) 325-2100

rbonsall@beesontayer.com

Counsel for Teamsters Local 2010

January 3, 2023

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