Amicus Curiae Brief — Kristine Kurk, Petitioner v. Los Rios Classified Employees Association, et al.

Supreme Court briefDec 28, 2022

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No. 22-498

In the Supreme Court of the United States

KRISTINE KURK, Petitioner

LOS RIOS CLASSIFIED EMPLOYEES ASSOCIATION, ET AL.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE

PROTECT THE FIRST FOUNDATION

AND MANHATTAN INSTITUTE

SUPPORTING PETITIONER

ILYA SHAPIRO

MANHATTAN INSTITUTE

52 Vanderbilt Avenue

New York, NY 10017

(212) 599-7000

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

H. CHRISTOPHER BARTOLOMUCCI

HANNAH C. SMITH

ishapiro@manhattan- KATHRYN E. TARBERT

ANNIKA BOONE BARKDULL*

institute.org

SCHAERR|JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amici Curiae

DECEMBER 28, 2022

QUESTION PRESENTED

California law requires Kristine Kurk to maintain

her union membership as a condition of public employment. Kurk attempted to resign her union membership on September 13, 2018. It is undisputed that her

public employer refused to honor the resignation based

on California statute. It is also undisputed that the

Union refused to permit her to resign based on the collective bargaining agreement with her public employer, the relevant terms of which were authorized

and controlled solely by the same state statute. This

system violates the freedom of association of all employees subjected thereto by compelling membership

in an inherently political organization.

The question presented is:

Does the First Amendment protect a public employee’s right to resign union membership at will?

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTRODUCTION AND INTERESTS OF

AMICI CURIAE ........................................................ 1

STATEMENT............................................................... 3

REASONS FOR GRANTING THE PETITION .......... 4

The First Amendment Violation Here

Cannot Be Excused on the Ground That It

Is De Minimis. ................................................. 4

II.

California’s Maintenance-of-Membership

Statute Compels Political Speech and

Association in Violation of the First

Amendment. .................................................... 6

III. The Lower Courts Are Routinely

Eviscerating Janus’s Protections. .................. 9

CONCLUSION .......................................................... 12

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977) .................................................. 7

Belgau v. Inslee,

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

cert. denied, 141 S. Ct. 2795 (2021) (mem.)....... 3, 10

Bennett v. Council 31 of the Am. Fed’n

of State, Cnty. & Mun. Emps., AFL-CIO,

991 F.3d 724 (7th Cir.), cert. denied sub nom.

Bennett v. American Fed’n of State, Cnty.,

& Mun. Emps., Council 31, AFL-CIO,

142 S. Ct. 424 (2021) .......................................... 9, 11

Citizens United v. Federal Election Comm’n,

558 U.S. 310 (2010) .................................................. 7

Cooley v. California Statewide L. Enf’t Ass’n,

No. 19-16498, 2022 WL 1262015 (9th Cir.),

cert. denied, 143 S. Ct. 405 (2022) ........................... 9

Doughty v. State Emps.’ Ass’n of New

Hampshire, SEIU Local 1984, CTW, CLC,

981 F.3d 128 (1st Cir. 2020), cert. denied,

141 S. Ct. 2760 (2021) .............................................. 9

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) ...................................................... 5

Elrod v. Burns,

427 U.S. 347 (1976) .................................................. 5

Fischer v. Governor of New Jersey,

842 F. App’x 741 (3rd Cir.),

cert. denied sub nom. Fischer v. Murphy,

142 S. Ct. 426 (2021) .................................... 9, 10, 11

Hendrickson v. AFSCME Council 18,

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

142 S. Ct. 423 (2021) ................................................ 9

Janus v. American Fed’n of State, Cnty.,

& Mun. Emps., Council 31,

138 S. Ct. 2448 (2018) .................................... passim

Mattos v. American Fed’n of State, Cnty.

& Mun. Emps., AFL-CIO, Council 3,

No. 20-1531, 2022 WL 4285717

(4th Cir. Sept. 16, 2022), petition for cert.

pending, No. 22-567 (Dec. 15, 2022) ........................ 9

McCutcheon v. Federal Election Comm’n,

572 U.S. 185 (2014) .................................................. 8

Roman Cath. Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) .................................................. 5

Savas v. California State L. Enf’t Agency,

No. 20-56045, 2022 WL 1262014

(9th Cir. Apr. 28, 2022), petition for cert.

pending, No. 22-212 (Sept. 8, 2022)......................... 9

School Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) .................................................. 6

Troesch v. Chicago Tchrs. Union,

Local Union No. 1, Am. Fed’n of Tchrs.,

No. 21-1525, 2021 WL 2587783 (7th Cir.),

cert. denied sub nom. Troesch v. Chicago

Tchrs. Union, 142 S. Ct. 425 (2021) ........................ 9

West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .................................................. 5

Wooley v. Maynard,

430 U.S. 705 (1977) .................................................. 5

Wright v. Service Emps. Int’l Union Local 503,

48 F.4th 1112 (9th Cir. 2022), petition for cert.

pending, No. 22-577 (Dec. 19, 2022) ........................ 9

Statute

Cal. Gov’t Code § 3540.1(i) ...................................... 3, 7

Other Authority

Los Rios Classified Emps. Ass’n,

LRCEA Finance Policy............................................. 7

INTRODUCTION AND INTERESTS

OF AMICI CURIAE 1

When Kristine Kurk signed a “Dues Check-off

Form” twenty-five years ago, she agreed to allow her

employer, the Los Rios Community College District

(“the District”), to deduct union dues from her

paycheck and send them to the Los Rios Classified Employees Association (“Union”). Pet. 2. But she never

agreed to remain a union member until the end of

time. After all, the 1997 form included no conditions

on her ability to resign from the Union. Pet. 3. And,

unlike many other agreements at issue in petitions

considered by this Court, this agreement didn’t even

refer to a limiting window that specifies when a Union

member may withdraw her membership. Id.

But when Ms. Kurk tried to resign her union membership, she was told no. Although the First Amendment does not allow compelled speech and association,

the Union used a California statute’s authorization of

“organizational security agreements” to force Ms.

Kurk to remain a full member—including requiring

her government employer to seize money from her

paycheck and give it to the Union. This constitutional

violation would be intolerable even if it lasted mere

days or weeks, because there is no such thing as a de

minimis First Amendment violation. That the compelled speech here lasted years—and could have done

so indefinitely, see Pet. 9—is unconscionable. And the

1 No counsel for any party authored this brief in whole or in

part and no entity or person, aside from amici curiae, their members, and their counsel, made any monetary contribution toward

its preparation or submission. All parties were notified by amici

curiae of their intent to file this brief more than 10 days prior to

its due date and gave written consent.

Ninth Circuit’s error is particularly shocking because

the Union, despite Ms. Kurk’s attempted resignation,

could continue to count her on its membership roster

and receive her State-extracted membership dues and

use them to support political candidates and legislation through multiple election cycles.

This is far from an isolated error. It is not even the

Ninth Circuit’s first holding that improperly limits

this Court’s decision in Janus v. American Federation

of State, County, & Municipal Employees, Council 31,

138 S. Ct. 2448 (2018). Other circuits, including the

Third and Seventh Circuits, have followed suit. This

Court’s review is necessary to prevent further evisceration of Janus’s constitutional bulwark.

This Court’s review is of particular importance to

both of the amici. Amicus Protect the First Foundation

(PT1) a nonprofit, nonpartisan organization that advocates for protecting First Amendment rights in all applicable arenas and areas of law. PT1 is concerned

about all facets of the First Amendment and advocates

on behalf of all people across the ideological spectrum,

including people who may not even agree with the organization’s views.

Amicus The Manhattan Institute for Policy Research (MI) is a nonpartisan public policy research

foundation whose mission is to develop and disseminate new ideas that foster greater economic choice and

individual responsibility. To that end, MI has sponsored scholarship and filed briefs supporting free

speech and workers’ rights.

This case concerns amici because it involves issues

of compelled speech and association that are of partic-

ular interest to their missions to protect First Amendment rights and values, including in public-sector employment.

STATEMENT

When Kristine Kurk tried to resign her union membership in September 2018, the District and the Union

told her she was stuck. Pet. 4. California law authorizes “organizational security” arrangements, which require public school employees “as a condition of continued employment *** to maintain [their] membership

in good standing for the duration” of the collective-bargaining agreement (CBA). Cal. Gov’t Code § 3540.1(i).

Under that law and the CBA, Ms. Kurk was trapped

into full union membership, complete with discipline

and dues, until June 30, 2020—21 months after she

tried to resign. Pet. 4. And the Union tried to keep her

on the hook even longer than that: Mere weeks before

the CBA was set to expire, the Union and the District

decided to extend it another six months. The Union informed Ms. Kurk that she would now be stuck in the

Union until December 2020. The only reason she was

eventually permitted to resign in June 2020 was because she had sued. Pet. 9.

In an unpublished two-page order, the Ninth Circuit held (relying on Belgau v. Inslee, 975 F.3d 940,

946-949 (9th Cir. 2020), cert. denied, 141 S. Ct. 2795

(2021) (mem.)) that Ms. Kurk had lawfully been kept

in the Union because of a “private membership agreement” that was not subject to constitutional scrutiny.

Pet. App. 2a. But the panel did not explain how a Dues

Check-off Form which contained no language limiting

Ms. Kurk’s ability to resign constituted a “private

agreement” to remain in the Union until the expiration

of the CBA.

Ms. Kurk seeks vindication of Janus’s promise—

the right to be free from the “compelled subsidization

of private speech” and association with a union which

she does not support. Janus, 138 S. Ct. at 2464.

REASONS FOR GRANTING THE PETITION

Amici write to highlight three key reasons the Petition should be granted. First, even though Ms. Kurk

was eventually permitted to resign her Union membership, the injury California’s law imposed on her (and

other public-school employees’) speech and association

rights still requires redress because there are no de

minimis First Amendment violations. Second, the California law at issue here is particularly problematic because it not only indefinitely compels speech related to

collective bargaining, but also core political speech and

association. Finally, enough lower courts have read

Janus in an unreasonably cramped fashion as to require this Court’s intervention now.

The First Amendment Violation Here Cannot Be Excused on the Ground That It Is De

Minimis.

As Petitioner notes, the right to resign union membership is foundational to the right to be free from compelled speech. Pet. 2. Respondents may assert that the

compelled speech and association here is permissible

because Ms. Kurk was eventually permitted to resign

her union membership—nearly two years after she

tried to resign. But that does not eliminate the constitutional violation presented here. Absent a clear

waiver—and as Petitioner notes, there was no waiver

here, Pet. 11—compelled speech and association violates the First Amendment, even if the compelled

speech or association lasts mere moments, consists of

only a few words, or takes the form of a forced contribution of one penny. As this Court has held, “The loss

of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). See

also Roman Cath. Diocese of Brooklyn v. Cuomo, 141

S. Ct. 63, 67 (2020). From that principle it follows, as

Justice O’Connor recognized, that “[t]here are no de

minimis violations of the Constitution—no constitutional harms so slight that the courts are obliged to ignore them.” Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1, 36-37 (2004) (O’Connor, J., concurring).

Consistent with that principle, this Court has long

held that compelled speech is not permissible even

where it compels only a few words. Thus, the Court

held in Barnette that requiring children to say the

Pledge of Allegiance—which typically takes fewer than

30 seconds—was unconstitutional. West Virginia State

Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Similarly, in another famous case, the Court held that a

state law requiring a driver to display four short, simple words on his license plate violated the First

Amendment. Wooley v. Maynard, 430 U.S. 705, 717

(1977). These cases are integral to our constitutional

fabric because they show that there are no “small” instances of compelled speech. In matters of “politics, nationalism, religion, or other matters of opinion,” there

are no de minimis violations, and “no official, high or

petty, can prescribe what shall be orthodox” therein.

Barnette, 319 U.S. at 642.

Despite this Court’s clear warnings, California, the

District, and the Union have created a scheme that

compels speech under the guise of a collective bargaining agreement that lasts for years, subject to extension

at the whim of the Union and the District. See Pet. 9.

As this Court admonished in Schempp, “it is no defense to urge that” challenged government actions

“may be relatively minor encroachments on the First

Amendment.” School Dist. of Abington Twp. v.

Schempp, 374 U.S. 203, 225 (1963). For a First Amendment violation “that is today a trickling stream may

all too soon become a raging torrent, and, in the words

of Madison, ‘it is proper to take alarm at the first experiment upon our liberties.’” Id. (citation omitted). It

is critical that this Court correct the Ninth Circuit’s

error.

II. California’s Maintenance-of-Membership

Statute Compels Political Speech and Association in Violation of the First Amendment.

Although any length of compelled speech and association is impermissible, the Union here compelled Ms.

Kurk’s speech and association for nearly two years,

through multiple legislative sessions and primary and

general federal, state, and municipal elections. The

Union even sought to extend that compelled speech

and association to last through the 2020 election cycle.

Pet. 9. That is a severe burden on First Amendment

rights. Indeed, the California law and CBA here pose

an even greater burden than the agency fee agreement

struck down in Janus. Unlike this agreement, the

agreement there at least permitted employees to pay

reduced union fees that excluded expenses for political

activities and did not compel employees to remain full

members of a union they did not support. Janus, 138

S. Ct. at 2460-2461.

California’s active prevention of union resignations

in these circumstances is an affront to the First

Amendment. That is because the First Amendment’s

“robust protection” is at its strongest where core political speech and association are concerned. See Citizens

United v. Federal Election Comm’n, 558 U.S. 310, 480

(2010). Indeed, even Abood, which was overruled in

Janus, recognized that compelling contributions used

for political purposes strikes “at the heart of the First

Amendment,” which requires that union political expenditures “be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas,” rather than by government coercion.

Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-236,

(1977), overruled by Janus v. American Fed’n of State,

Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448

(2018). And this Court reiterated in Janus that the

government may not compel employees to “subsidize

private speech on matters of substantial public concern.” Janus, 138 S. Ct. at 2460.

Yet that is precisely what California law did: it

compelled Ms. Kurk, “as a condition of continued employment” as a public-school employee, to support Union speech, including political speech, that she no

longer wished to support. Cal. Gov’t Code § 3540.1(i).

That is because the Union is an “inherently political

organization,” Pet. i., that, using members’ dues, may

“take such action as it deems necessary to support, oppose, or otherwise act on any candidate for elective office” or “any initiative, legislation, or regulations” that

the Union deems relevant.” Los Rios Classified Emps.

Ass’n, LRCEA Finance Policy at 5-6, available at

https://tinyurl.com/LRCEApac (last visited Dec. 27,

2022).

California law thus forces public school employees

to continue to support political candidates and causes

for years—or perhaps in perpetuity, if the government

employer and union decide to continually extend the

CBA. Pet. 2, 8-9. So, if the Union, after an employee

joins it, endorses a slate of candidates with whom an

employee vehemently disagrees, the employee has no

way to stop supporting the Union and those candidates. Indeed, she will be forced to continue paying full

union dues that may support many of those same candidates again—for example, in a general election after

support in a primary, or in a re-election two years

later. The First Amendment cannot tolerate repeated

injuries to constitutional rights throughout the yearslong period during which California compels association and support for political speech.

Permitting such perpetual maintenance-of-membership agreements is particularly problematic because of the potential for self-dealing by government

officials. Under this regime, incumbent officials can

pass and enforce agreements that require employees

to remain part of a union that supports those very

same incumbents. This potential for self-dealing raises

a serious constitutional question, for, as this Court has

stated, “those who govern should be the last people to

help decide who should govern.” McCutcheon v. Federal Election Comm’n, 572 U.S. 185, 192 (2014).

This Court should grant the petition to make clear

that, under Janus, California’s maintenance-of-membership statute and similar laws around the country

impermissibly burden constitutionally-protected political speech and association.

III. The Lower Courts Are Routinely Eviscerating Janus’s Protections.

Granting the petition is also critical to end the

lower courts’ systematic evisceration of Janus’s protections. This Court held that “nonconsenting employees”

cannot be compelled “to subsidize private speech on

matters of substantial public concern.” Janus, 138 S.

Ct. at 2460, 2486. Yet, as this Court well knows, there

has been an ongoing flood of petitions seeking reversal

of the decisions of the courts of appeals, which have

repeatedly ignored Janus’s requirements and erroneously narrowed its application. 2 This skirting of Janus

2 See, e.g., Savas v. California State L. Enf’t Agency, No. 20-

56045, 2022 WL 1262014 (9th Cir. Apr. 28, 2022), petition for cert.

pending, No. 22-212 (Sept. 8, 2022); Wright v. Service Emps. Int’l

Union Local 503, 48 F.4th 1112 (9th Cir. 2022), petition for cert.

pending, No. 22-577 (Dec. 19, 2022); Mattos v. American Fed’n of

State, Cnty. & Mun. Emps., AFL-CIO, Council 3, No. 20-1531,

2022 WL 4285717 (4th Cir. Sept. 16, 2022) (per curiam), petition

for cert. pending, No. 22-567 (Dec. 15, 2022); Cooley v. California

Statewide L. Enf’t Ass’n, No. 19-16498, 2022 WL 1262015 (9th

Cir.), cert. denied, 143 S. Ct. 405 (2022); Troesch v. Chicago Tchrs.

Union, Local Union No. 1, Am. Fed’n of Tchrs., No. 21-1525, 2021

WL 2587783 (7th Cir.), cert. denied sub nom. Troesch v. Chicago

Tchrs. Union, 142 S. Ct. 425 (2021); Bennett v. Council 31 of the

Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO, 991 F.3d 724

(7th Cir.), cert. denied sub nom. Bennett v. American Fed’n of

State, Cnty., & Mun. Emps., Council 31, AFL-CIO, 142 S. Ct. 424

(2021); Fischer v. Governor of New Jersey, 842 F. App’x 741, 753

(3rd Cir.) (unpublished), cert. denied sub nom. Fischer v. Murphy,

142 S. Ct. 426 (2021); Hendrickson v. AFSCME Council 18, 992

F.3d 950 (10th Cir.), cert. denied, 142 S. Ct. 423 (2021); Doughty

v. State Emps.’ Ass’n of New Hampshire, SEIU Local 1984, CTW,

CLC, 981 F.3d 128 (1st Cir. 2020), cert. denied, 141 S. Ct. 2760

is intolerable both as a matter of sound judicial administration and as a matter of First Amendment rights.

Only clarification from this Court will stop the torrent

of lower court decisions evading Janus’s implications.

1. The panel below relied on the Ninth Circuit’s decision in Belgau v. Inslee, 975 F.3d 940 (9th Cir.

2020), cert. denied, 141 S. Ct. 2795 (2021) (mem.). 3 In

that case, state employees resigned their union memberships, but the state continued to deduct union dues

throughout an “irrevocability” period. The Ninth Circuit sidestepped the First Amendment violation at issue there by reasoning that the objecting employees

had not been “compelled” to support union speech because they had chosen to join the union. Id. at 952.

That they now objected and wished to resign was, in

the lower court’s view, irrelevant.

2. Other circuits have also done their best to limit

Janus. For example, in Fischer v. Governor of New Jersey, the Third Circuit foisted an implausibly narrow

interpretation of Janus onto a class of public-school

teachers seeking relief from an unconstitutional union-membership agreement. 842 F. App’x 741, 753 (3rd

(2021); Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020), cert. denied, 141 S. Ct. 2795 (2021) (mem.).

3 This case offers a better vehicle than Belgau to address the

constitutionality of laws limiting the right to resign union membership. In Belgau, the plaintiffs were (unlike Ms. Kurk) at least

permitted to resign their memberships, although they were required to continue paying dues. 975 F.3d at 946. And the Belgau

plaintiffs signed a revised membership agreement that stated

that their authorization of dues deduction would be irrevocable

for one year. Id. at 945. The Dues Check-off Form in this case

contained no reference to irrevocability or limitations on the right

to resign membership. Pet. 3.

Cir.) (unpublished), cert. denied sub nom. Fischer v.

Murphy, 142 S. Ct. 426 (2021). 4 Although the teachers

there, like Ms. Kurk, sought to revoke their union

membership shortly after this Court’s decision in Janus, the Third Circuit required them to remain in the

union, reasoning that Janus only protected employees

who had the foresight to opt out of the union even

when doing so would require them to pay significant

agency fees. Id. at 745, 753 n.18. Because the Fischer

plaintiffs had chosen union membership over agency

fees when Abood governed, the Third Circuit held

there was no compelled speech and refused even to

conduct a waiver analysis. Id. at 753 n.18.

Relying on the Ninth and Third Circuit’s errors, the

Seventh Circuit has also held that there was no First

Amendment violation where a school district employee

was not permitted to stop paying union dues upon her

resignation. Bennett v. Council 31 of the Am. Fed’n of

State, Cnty. & Mun. Emps., AFL-CIO, 991 F.3d 724,

730 (7th Cir.), cert. denied sub nom. Bennett v. American Fed’n of State, Cnty., & Mun. Emps., Council 31,

AFL-CIO, 142 S. Ct. 424 (2021). 5 Thus, the plaintiff in

4 This case is a better vehicle than Fischer because in Fischer,

the plaintiffs-public school teachers had agreed to limitations on

when they could revoke their authorization for payroll deductions. 842 F. App’x at 745. Ms. Kurk did not agree to any such

limitation when she signed the Dues Check-off Form in 1997. Pet.

3. Here, “only a state statute and CBA compel association in the

form of membership.” Pet. 12.

5 This case presents a better vehicle than Bennett because unlike Ms. Kurk, Bennett was allowed to resign her membership,

although she was required to continue paying dues. 991 F.3d at

728. And unlike Ms. Kurk, Bennett signed a membership and

dues deduction authorization card that stated the deduction

would be irrevocable for one year. Ibid.

that case was similarly compelled to support speech

with which she did not agree.

In short, the circuit courts have consistently ignored and evaded Janus’s constitutional directives. By

granting the Petition, this Court can halt further neutering of Janus and make clear to the lower courts that

government cannot compel employees to continue to

associate with and support unions.

CONCLUSION

The Ninth Circuit and other courts of appeals have

consistently tried to evade the First Amendment’s requirements as articulated in Janus. In doing so, they

have blessed “maintenance-of-membership” statutes

that burden speech and association at the core of the

First Amendment’s protections. Compelled speech and

association, whether it lasts a few months or, as in this

case, a few years, raises the specter of a First Amendment violation. This Court should grant the petition to

affirm Janus’s underlying principle that states and

unions may not conspire to compel speech or association on matters of public concern.

Respectfully submitted,

ILYA SHAPIRO

GENE C. SCHAERR

MANHATTAN INSTITUTE Counsel of Record

52 Vanderbilt Avenue ERIK S. JAFFE

New York, NY 10017 H. CHRISTOPHER BARTOLOMUCCI