Opposition Brief — Lillebo v. Davis

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No. 90-1201 MAR

F THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

H. PAUL LILLEBO, et a!.,

= Petitioners,

GRAY DAVIS, in his capacity as

the Controller of the State of California, and

CALIFORNIA STATE EMPLOYEES’ ASSOCIATION,

Respondents.

On Petition for Writ of Certiorari to the

Court of Appeal of California,

Third Appellate District

MEMORANDUM IN OPPOSITION OF

CALIFORNIA STATE EMPLOYEES ASSOCIATION

GarRY P. REYNOLDS

HOWARD L. SCHWARTZ

1108 O Street

Sacramento, CA 95814

FRANK E. MELTON

355 South Grand Avenue, 40th Flr.

Los Angeles, CA 90071-3101

LAURENCE GOLD

(Counsel of Record)

815 Sixteenth Street, N.W.

Washington, D.C. 20006

(202) 637-5390

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

CASES: Page

Cumero v. Public Employment Relations Bd., 49

Cal. 3d 576, 778 P.2d 174 (39GB) ........................ 3

Ellis v. Railway Clerks, 466 U.S. 4385 (1984) _...... 7

Houston v. Hill, 482 U.S. 451 (1987) .....02000200000.. 6

Keller v. State Bar of California, —— U.S. ——,

120 BAS. Se Te ence 4,5,6,7

Lehnert v. Ferris Faculty Ass’n, 881 F.2d 1888

(6th Cir. 1989), cert. granted, U.S. Sup. Ct.

Whe, GDREG) os ininciassnntenincinnidaantaaanaiaiaeaaa 5

United States v. Salerno, 481 U.S. 739 (1987)... 6

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IN THE

Supreme Court of the United States

OCi7'OBER TERM, 1990

No. 90-1201

H. PAUL LILLEBO, et al.,

‘ Petitioners,

GRAY DAVIS, in his capacity as

the Controller of the State of California, and

CALIFORNIA STATE EMPLOYEES’ ASSOCIATION,

Respondents.

On Petition for Writ of Certiorari to the

Court of Appeal of California,

Third Appellate District

MEMORANDUM IN OPPOSITION OF

CALIFORNIA STATE EMPLOYEES ASSOCIATION

STATEMENT

The State of California’s Dills Act authorizes a union

chosen by an appropriate collective bargaining unit of

State employees as their exclusive representative to ne-

gotiate a labor contract providing “for organizational

security in the form of ... [a] fair share fee deduction”

from the wages of represented employees. Pet. App.

A-8-9, quoting Cal. Gov. Code § 3515.7(a). The Califor-

nia Act’s purpose in this respect is to assure that all bar-

gaining unit employees pay their share of “the costs

incurred by the recognized employee organization in ful-

filling its duty to represent the [unit] employees in their

employment relations with the state, ...” Pet. App. A-9,

quoting Cal. Gov. Code § 3513(j).

2

The California Act provides that the fair share fee

charged to an objecting nonmember of the union may not

include “the employee’s additional pro rata share of ex-

penditures by the [union] that is either in aid of activi-

ties or causes of a partisan political or ideological nature

only incidentally related to the terms and conditions of

employment, or applied toward the cost of any other

benefits available only to members of the [union].” Pet.

App. A-9, quoting Cal. Gov. Code § 3515.8.

The California statute provides too that the fair share

fee may include the objecting employee’s pro rata share

of “the costs of support of lobbying activities designed to

foster policy goals [in] collective negotiations and con-

tract administration, or to secure for the employees rep-

resented advantages in wages, hours, and other condi-

tions of employment in addition to those secured through

meeting and conferring with the state employers.” Pet.

App. A-9-10, quoting Cal. Gov. Code § 3515.8.' As au-

thoritatively construed by the California court of appeal,

the statutory permission to include lobbying expenditures

in the fair share fee “is limited to activities germane to

collective negotiations, contract administration and em-

ployment benefits.” Pet. App. A-11 (emphasis added }

The petitioners challenge this authorization to finance

certain lobbying activities with fair share fees as wncon-

stitutional on its face. Pet. App. A-10.2. The courts

below denied this challenge. As a matter of First Amend-

ment law, the California court of appeal “conclude! d]

that the union may properly use fair share fees for

1 This provision of the code refers to “policy goals and collective

bargaining,” but the California court of appeal determined that

this was a typographical error and that the statute was intended to

be read “policy goals in collective bargaining.” Pet. App. A-32.

2 The court below noted that questions concerning the constitu-

tionality of the statute’s application were not before it, because the

petitioners dismissed the as-applied aspect of their case. Pet. App.

A-35 n.11,

3

lobbying on matters germane to its collective bargaining

role.” Pet. App. A-40. And, as a matter of state law,

the California court found that the California statute

authorizes nothing more in terms of the use of fair share

fees for lobbying. Pet. App. A-31-34.

The petitioners’ constitutional theory is that the Cali-

fornia Act violates the First Amendment by authorizing

the use of fair share fees over objection for representa-

tional activities beyond collective bargaining in the nar-

rowest sense of that term. Pet. 16. Petitioners would

have it that the State’s interest in labor peace is served

only by face-to-face negotiations between the union rep-

resenting State employees and the State’s Executive

branch in its role as employer. Pet. 17. From this pre-

mise, petitioners draw the conclusion that the only union

lobbying that can be financed with an objector’s fee pay-

ments is that necessary to ratify the collective bargaining

agreement resulting from negotiations between the union

and the Executive branch. Pet. 17.

The California court of appeal rejected this abstract

approach to discerning the Legislature’s interest in hear-

ing from the exclusive representatives of State employees

on employment matters. Rather, the California court

placed the limited authorization for the expenditure of

fair share fees on employment-related lobbying within

the context of the State labor relations system. Pet. App.

A-36-37.

To begin with, the California court of appeal notes

that there is nothing in “the Dills Act [to] preclude [an!

employer role for the Legislature.” Pet. App. A-36. Far

from there being a strict dichotomy between the Execu-

tive and Legislative branches when it comes to setting

terms of State employment, the California court found

that “in the context of public employment negotiations,

the employer ‘state often assumes a duality in its execu-

tive and legislative roles.” Jd. Consistent with the dual

roles played by the Executive and Legislature in State

4d

labor relations, the California Act protects not only the

right to meet and confer with representatives of the

State Executive but “the union’s broader right to repre-

sent its members in employment relations with the state

(see $§ 3512, 3515.5), including not only the executive

branch but also the Legislature.” Pet. App. A-37, quot-

ing Cumero v. Public Employment Relations Bd., 49 Cal.

3d 575, 597, 778 P.2d 174 (1989) (emphasis in original).

Against this background, the California court of ap-

peal stated that it “cannot fathom how a union’s lobby-

ing the Legislature for improvement of the conditions of

employment of the members of its bargaining unit—

union and nonunion alike—could not be considered to be

part of its role as representative. ...” Pet. App. A-37.

ARGUMENT

1. The California court of appeal’s conclusion that an

adequate State interest supports the decision of the Cali-

fornia Legislature to authorize the use of fair share fees

for lobbying that is directly related to employment mat-

ters, faithfully follows this Court’s precedents setting the

limits on compulsory fee payments. Pet. App. A-17-31.

Moreover, the petitioners are unable to cite a single lower

court decision that conflicts with the ruling below on

lobbying expenditures. See Pet. 20-23.

The court of appeal paid particular attention to this

Court’s most recent decision in point: Keller v. State

Bar of California, USS. » 110 S.Ct. 2228

(1990). Applying the teachings of that decision to the

circumstances of California State labor relations, the

court found that “Keller .. . cannot be read to suggest,

as plaintiffs would have it, that lobbying reasonably re-

lated to the advancement of the union’s representational

role may not be charged to objecting nonmembers. . . .”’

Pet. App. A-39.

In Keller, this Court held that all attorneys may be

required to provide financial support to “those State Bar

vo

activities in which the officials and members of the Bar

are acting essentially as professional advisors to those

ultimately charged with the regulation of the legal pro-

fession....” 110 S.Ct. at 2237. In particular, the Court

indicated that an objector’s bar dues may be used to

finance the making of “recommendations as to admission

to practice, the disciplining of lawyers, codes of conduct,

and the like to... the legislature.” Id@. at 2235 (em-

phasis added). Thus, under Keller members of the legal

profession may be required to pay their share of the

lobbying costs incurred by the State Bar in advising ‘he

State on regulation of the profession.

The California court of appeal found that Keller’s ra-

tionale justified charging nonmembers for their share of

the costs incurred by their exclusive representative in

advising the State on the interests of State employees

with respect to their terms and ccnditions of employment.

In this regard, the court could not see “why a nonunion

unit member benefitting from that representation should

not be expected to contribute toward the cost of achieving

it. This squarely implicates the essential state interest

in eliminating the ‘free rider’ problem (in order to fa-

cilitate labor peace) which justifies what might other-

wise infringe upon the nonmember’s constitutional

rights.” Pet. App. A-38 (footnote omitted).

2. The petitioners attempt to tie this case io Lehnert

v. Ferris Faculty Ass’n, Sup. Ct. No. 89-1217. which is

currently pending before the Court. Pet. 20-22. That

attempt fails.

Lehnert does not involve a facial challenge to a statu-

tory authorization to use fair share fees for employment-

related lobbying. Rather, Lehnert is concerned with

particular lobbying expenditures found by a trial court

to be authorized under a state statute. See Lehnert v.

Ferris Faculty Ass’n, 881 F.2d 1888, 1390 (6th Cir.

1989) (“this appeal is limited to the claim that the dis-

trict court erred in holding that the costs of certain dis-

6

puted union activities were constitutionally chargeable

to the plaintiff faculty members”’).

“A facial challenge to a legislative Act is, of course,

the most difficult challenge to mount successfully, since

the challenger must establish that no set of circumstances

exists under which the Act would be valid.” United

States v. Salerno, 481 U.S. 739, 745 (1987).° The dif-

ficulty petitioners face here is especially great since, as

the California court of appeal explained, in applying the

lobbying authorization, the California courts will “adopt

an interpretation that, consistent with the statutory lan-

guage and purpose, eliminates doubts as to the provision’s

constitutionality.” Pet. App. A-34. See also id. at A-35

n.1l.

Petitioners attempt to make the required showing by

maintaining that the California Act authorizes the use

of fair share fees for lobbying beyond that necessary to

secure ratification of a collective bargaining agreement,

and that the First Amendment prohibits the use of fair

share fees beyond this very narrow range. Pet. 16-18.

The petitioners are correct that the California statute

does allow employment-related lobbying beyond that nec-

essary to ratify the results of face-to-face negotiations

between a union and the State Executive. But, as the

California court of appeal recognized, Keller makes clear

that the First Amendment does not confine the use of

fair share fees only toe lobbying that is directly related to

collective bargaining narrowly defined. Rather, where,

as here, the division of responsibility within government

places certain issues concerning one’s livelihood within

the Legislative domain, Keller allows the use of fair share

3’ The statutory authorization to use fair share fees for employ-

ment-related lobbying is not subject to First Amendment over-

breadth analysis. The authorization does not prohibit any conduct,

much less “make unlawful a substantial amount of constitutionally

protected conduct... .” Houston v. Hill, 482 U.S. 451, 459 (1987).

7

fees for communicating with the Legislature on those

issues. See pp. 3-4, supra.'

CONCLUSION

The petition for a writ of certiorari shuuld be denied.

Respectfully submitted,

GARY P. REYNOLDS

HOWARD L. SCHWARTZ

1108 O Street

Sacramento, CA 95814

FRANK E. MELTON

355 South Grand Avenue, 40th Flr.

Los Angeles, CA 90071-3101

LAURENCE GOLD

(Counsel of Record)

815 Sixteenth Street, N.W.

Washington, D.C. 20006

(202) 637-5390

‘The Keller Court found “useful guidelines for determining per-

missible expenditures” in the Railway Labor Act test for deter-

mining whether objecting fee payers may be charged for a particu-

lar class of activity. 110 S.Ct. at 2236. As set out in Ellis v. Rail-

way Clerks, 466 U.S. 435 (1984), the RLA test is whether the

activity “relatles| to the work of the union in the realm of collec-

tive bargaining.” Id. at 456 (emphasis added). This statutory

test—which is “well within the acceptable range” under the First

Amendment—ailows “the union .. . a certain flexibility in its use

of compelled funds,” id. at 456-457, that permits charging for ac-

tivities related to effective representation. As the California court

of appeal opinion demonstrates, Pet. App. A-35-39, certain employ-

ment-related lobbying is a necessary part of effective representation

in that State’s public sector labor relations system.