# Opposition Brief — Lillebo v. Davis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1587%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 501 U.S. 1205 ## Text é tT SiLeD gq — 21 1991 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 ee WILSON - Erpze PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 @ FES co ee aAwT RUATERMEc ANDY “ TABLE OF CONTENTS Page ITE oittiloriauicsneas eneitaccinnnsnsnminemneieninmasaenshaneel 1 ITT, ire prsctsttrdsehete onemceiichssnisnscoepoegbicunnupiaiencsnieheabiin 4 ii 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 STATUTES: Call. Ghaw'h Cth 6 BG ceccnssscctesccciditeiceedsonsiacaenienn 1 Call, Gare 'h Cit SB eet GOD cncsccetibetaeeee ae 1 CO, Goae'S Ce BONE cetenmnissinisnastictnecaieeimesanineaiastnes 2 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1587%3A3. Public record. Not legal advice.