Opposition Brief — Anchorage Education Ass'n v. Patterson

| Supreme Ceort, U.S.

2. 6D

APR 8 14998

No. 97-1454

LERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

ANCHORAGE EDUCATION ASSOCIATION, ef ai.,

Petitioners,

REBECCA PATTERSON, ef al.,

Respondents.

On Petition for a Writ of Certiorari

United States Court of Appeals

for the Ninth Circuit

BRIEF OF RESPONDENTS

REBECCA PATTERSON, FT AL.,

IN OPPOSITION TO THE PETITION

W. JAMES YOUNG*

c/o National Right to Work

Legal Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

ATTORNEY FOR RESPONDENTS

*Counsel of Record

April 8, 1998

NaS a eae Se Sdn The a

sata ia abies Me SRO URS I a eas ate pated de Nea ad ra see desires 5 ae - Pe ee - — supcea\

ms aga a a i ka le 3

COUNTER-STATEMENT OF THE QUESTION PRESENTED

May a federal court require plaintiffs to exhaust their

administrative remedies prior to bringing a federal civil rights

action pursuant to the Civil Rights Act of 1871, 42 U.S.C.

§ 1983 (1988)?

is

TABLE OF CONTENTS

Page

Counter-Statement of the Question Presented ........... 1

Ter RI ess oc es EES ee i eee ill

Constitutional and Statutory

Prevaaies SN 5 ee hee ae l

Sistomment of he Cae 6 i sk eee eas ae

Reasons for Denying the Petition ..................«.: 6

I. Petitioners Mischaracterize the Issue Decided By the

Lower Court, Which Addressed an Article III Court’s

Duty To Adiudicate Damages . .. . . 2. oe ns 6

II. The Ninth Circuit Was Faithful To This Court’s Pre-

cedents, Which Unambiguously Reject Efforts To

Force Civil Rights Plaintiffs To Exhaust Their Admin-

irative ROMO | ou co ee oes 9

Cerna ee ee ee ee ee 30

- ill -

TABLE OF AUTHORITIES

Cases Page

Abood v. Detroit Board of Education,

gy Se dL 2 rr re 7 ae ee ae

Abrams v. Communications Workers,

59 F.3d 1373 (D.C. Cir. Co) CR ea ..... passim

Air Line Pilots Association vy. Miller,

No. 97-428 (U.S. Nov. 26, “pice! ESE EE ee «.

Associated Plumbing & Mechanical Contractors v Plumbers

Local 447, 811 F.2d 480 (9th Cir. Peet oy eee 24

AT&T Technologies, Inc. v. Communications Workers,

re eee ING). a Rae tanes 9

Bagnall v. ALPA, 626 F 2d 336 (4th Cir. 1980),

cert. denied, 449 U.S. 1125 (3 De TY

Beck v. Communications Workers,

468 F. Supp. 87 (D. Md. is) See Ry eMedia pe 21

Bethlehem Mines C ‘orp. v. Mine Workers.

344 F. Supp. 1161 (W_D. Pa. 1972),

aff'd, 494 F.2d 726 (3d Cir. DER ese Rinse 23-24

In re Bituminous Coal Operators’ Association.

wae ae Ae. Cie 1993)... 16, 19

Bromley v. Michigan Education Association,

843 F. Supp. 1147 (E.D. Mich. 1994),

rev d, 82 F.3d 686 (6th Cir. 1996), cert

denied, --- U.S. ---. 1178S. Ct. Gee Ci9e7) ...... passim

-iV-

TABLE OF AUTHORITIES (CONT.)

Cases

Brosterhous v. State Bar,

906 P.2d 1242 (Cal. 1995)

Burlington N.R.R. v. Department of Reveme,

934 F.2d 1064 (9th Cir. 1991)

Carey v. Piphus, 435 U.S. 247 (1978) ....

City of Riverside v. Rivera, 477 U.S. 561 (1986) .. .

Commodity Futures Trading Commission v. Schor,

Fe Wick ee CE os ee ees

Communications Workers v. Beck.

487 U.S. 735 (1988) ..

Cox v. New Hampshire, 312 U.S. 569 (1941)

Damiano v. Matish,

830 F.2d 1363 (6th Cir. 1987)

Paige

16

Edwards v. Ralisok, --- U.S. ---, 117 S. Ct. 1584 (1997) .. 12

Ellis v. Railway Clerks, 466 U.S. 435 (1984)

Ellis v. Western Airlines,

652 f.-Sunp. $36(35.D; Cal. 1966). 2...

Farrar v. Hobby, 506 U.S. 103 (1992)

Felder v. Casey, 487 U.S. 131 (1988)

First Options of Chicago, Inc. v. Kaplan,

514 U.S. 938 (1995)

[a7

passim

TABLE OF AUTHORITIES (CONT.)

Cases

Food & Commercial Workers Local 951 v. Mulder,

31 F.3d 365 (6th Cir. 1994), cert. denied,

$13 U.S. 1148 (1995)

Gateway Coal Co. v. Mine Workers,

414 U.S. 368 (1974)

Gibney v. Toledo Board of Education,

§32 N.E.2d 1300 (Ohio 1988)

Heck v. Humphrey, 512 U.S. 477 (1994) .

Hills v. Gautreaux, 425 U.S. 284 (1976) .

Hohe v. Casey, 956 F.2d 399 (3d Cir. 1992)

Hudson v. Teachers Local No. 1,

922 F.2d 1306 (7th Cir.),

cert. denied, 501 U.S. 1230 (1991)....... 7,

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) .

Kimberly v. Arms, 129 U.S. 512 (1889)...

Knight v. Kenai Peninsula Borough School District,

131 F.3d 807 (Sth Cir. 1997) .....

La Buy v. Howes Leather Co., 352 U.S. 249 (1957)

Lancaster v. ALPA,

76 F.3d 1509 (10th Cir. 1996) .

Lehnert v. Ferris Faculty Association,

500 U.S. 507 (1991) ....

Page

10, 16, 18

19, 20, 21

“) 9

- Vi-

TABLE OF AUTHORITIES (CONT.)

Cases Page

Lehnert v. Ferris Faculty Association,

707 F. Supp. 1473 (W.D. Mich. 1988) 3

Lehnert v. Ferris Faculty Association,

643 F. Supp. 1306 (W.D. Mich. 1988) 11,12

Lowary v. Lexington Loca! Board of Education,

903 F.2d 422 (6th Cir. 1990) wee 7, 19

Lucid v. City and County of San Francisco,

774 F. Supp. 1234 (N_D. Cal. 1991) 3

McCarthy v. Madigan, 503 U.S. 140 (1992) . 14

McDonald v. City of West Branch, 466 U.S. 284 (1984) 15

Machinists v. Street, 367 U.S. 735 (1963) . 19

Miller v. ALPA, 108 F.3d 1415 (D.C. Cir.),

cert. granted, No. 97-428 (Nov. 26, 1997) passim

Neal v. System Board of Adjustment,

348 F.2d 722 (8th Cir. 1965) . 27

Pacemaker Diagnostic Clinic v. Instromedix,

725 F.2d 537 (9th Cir.) (e7 banc),

cert. denied, 469 U.S. 824 (1984) 19

Patsy v. Florida Board of Regents,

457 US. 496 (1982) . passim

Pattern Makers’ League v. NLRB, 473 U.S. 95 (1985) 26

Peretz v. United States, 501 U.S. 923 (1991) . .. 8, 19

- Vil -

TABLE OF AUTHORITIES (CONT.)

Cases Page

Poulos v. New Hampshire, 345 U.S. 395 (1953) 29

Railway Clerks v. Allen, 373 U.S. 113 (1963) 7, 26

Railway Employes’ Department v. Hanson,

351 U.S. 225 (1956) 26

Reese v. City of Columbus,

71 F.3d 619 (6th Cir. 1995),

cert. denied, --- U.S. ---, 117 S. Ct. 386 (1996) 3

Roth v. United States.

354 U.S. 476 (1957) 29

Schneider v. ¢ ‘Olegio de Abogados,

682 F. Supp. 674 (D.P.R. 1988), aff'd in part,

rev d in part, 917 F.2d 620 (Ist Cir. 1991) 3-4

Soto Segarra v. Sea-Land Services, Inc.,

208 F.26 291 (let Cw. 1978)... ce eeee ST Pie

Stauble v. Warrob. Inc..

977 F.2d 690 (lst Cir. 1992) 16, 18. 19

leachers Local No. | v. Hudson,

475 U.S. 292 (1986) passim

lierney v. ( ‘ity of Toledo,

824 F.2d 1497 (6th Cir 1987), further

proceedings, 917 F.2d 927 (6th Cir. 1990) 3.147. 8

limes Film Corp. v. City of Chicago,

Pe Ghee GRATES: iit ve vewae es | 29

- Vill -

TABLE OF AUTHORITIES (CONT.)

Cases Page

In re United States,

816 F.2d 1083 (6th Cir. 1987) 16

United Transportation Union v. State Bar,

401 U.S. 576 (1971) 23

Weaver v. University of Cincinnati,

942 F.2d 1039 (6th Cir. 1991), further

proceedings 970 F.2d 1523 (6th Cir. 1992),

cert. denied, 507 U.S. 917 (1993)... 8, 25

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985) ....... 27, 28, 29

Constitutions, Statutes, and Other Rules

U.S. Const. art. III , | passim

U.S. Const. amend. | . , | passim

U.S. Const. amend. XIV tase ) . 23

28 U.S.C. § 1331 16

28 U.S.C. § 1337(a) ... Nee ee <a oe ae

Civil Rights Act of 1871, 42 U.S.C. § 1983 (1988) ... passim

Railway Labor Act, 45 U.S.C. § 151, ef seg. ........ 21, 26

Supreme Court Rule 15 ah Gia sae aieseotataee Pew

>

INTHE. .

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1454

ANCHORAGE EDUCATION ASSOCIATION

and NEA-ALASKA, INC.,

Petitioners,

Vv.

REBECCA L. PATTERSON, ef al.,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

Pursuant to Supreme Court Rule 15, Respondents Rebecca

L. Patterson, ef alia (“the teachers”), oppose the Petition of the

Anchorage Education Association (“AEA”) and NEA-Alaska,

inc

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Besides the provisions set out in the Petition (“Pet.”) at 2,

this case raises issues under Article III of the Constitution of the

United States. Article III provides in pertinent part:

Section 1. The judicial Power of the United States,

shall.be vested in one supreme Court, and in such

mn,

such inferior Courts as the Congress may from time to

time ordain and establish...

Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Constitu-

tion [and] the Laws of the United States...

This case also raises issues under the Fourteenth Amend-

ment to the Constitution of the United States. It provides in

pertinent part:

Section 1. .... No State shall make or enforce any

law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State de-

prive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Respondents Rebecca L. Patterson, ef al., initiated this civil

rights class action against their monopoly bargaining representa-

tive, its state-wide affiliate (collectively, “the unions”), and their

public employer and certain officials thereof, to vindicate their

First- and Fourteenth-Amendment rights.

The teachers’ complaint alleged that the efforts of the

unions and the Anchorage School District (“ASD”) to enforce

their “agency shop” arrangement violated their constitutional

rights, because the unions and/or ASD failed to comply with

“the constitutional requirements for the ... collection of agency

fees,” as set forth in Jeachers Local No. J v. Hudson, 475 U.S.

292, 310 (1986).

As relief, the teachers sought restitution of all fees collected

or a declaration that those teachers who had refused to pay any

fees owed no financial obligation to the unions.

On cross-motions for summary judgment, the district court

found that the unions failed to comply with Hudson, Appendix

;

moe

(“App.”) B at 27a-29a, App. C at 39a-40a and App. E at 60a,

and ordered entry of some relief requested by the teachers.’ It

is notable, however, that not among the violations alleged was

a requirement that the nonmembers exhaust the unions’ “impar-

tial decisionmaker” procedure before challenging their fee

calculation in federal court. No such requirement was stated or

suggested anywhere in Petitioners’ notice and procedures.

The district court rejected the teachers’ argument that a

union notice claiming that constitutionally nonchargeable

categories of expenditures are, in fact, chargeable is constitution-

ally deficient under Hudson,’ and also rejected the teachers’

| Protestations to the contrary notwithstanding, and though

correctly conceding that “they are not at issue here,” the unions clearly do

not “accept } the district court’s rulings on” the district court’s findings that

their notice and procedures were constitutionally inadequate, and superflu-

ously expend more than one-third of a page arguing why the district court

erred in its findings on this irrelevant issue. Pet. at 4-5, n.4.

: But see Reese v. City of Columbus, 71 F.3d 619 (6th Cir. 1995),

cert. denied, — U.S. --, 117 S. Ct. 386 (1996) (deciding issues in challenge

to adequacy of union’s notice and procedures); see also Abrams v. Commun-

ications Workers, 59 F.3d 1373, 1380 (D.C. Cir. 1995); Hohe v. Casey, 956

F.2d 399, 414, n.8 (3d Cir. 1992); Tierney v. Citv of Toledo, 824 F.2d 1497,

1505-06 (6th Cir. 1987) (procedures for collecting agency-shop fees are

“constitutionally deficient under Hudson” because the union’s “formulation”

of the costs that are chargeable was substantively erroneous); Schneider v.

Colegio de Abogados, 917 F.2d 620, 631 (1st Cir. 1991); Lucid v. City and

County of San Francisco, 774 F. Supp. 1234, 1238 (N.D. Cal. 1991); Ellis

v. Western Airlines, 652 F. Supp. 938, 940 (S.D. Cal. 1986); Lehnert v.

Ferris Faculty Ass'n, 707 F. Supp. 1473, 1481-82 (W.D. Mich. 1988) (“the

standard for calculating the fee [under a union’s collection procedure] must

properly define chargeable costs for it to pass constitutional muster under

Hudson’), of. Schneider v. Colegio de Abogados, 682 F. Supp. 674, 686-87

(D.P.R. 1988), aff'd in pertinent part, 917 F.2d at 631 (considering the

(continued...)

a ee

request for damages, holding that they were not entitled to

restitution of all fees collected and/or a declaration that they

owed no financial obligation to the unions. App. D at 45a-46a.

The district court held that, notwithstanding the unions’ failure

to comply with “the constitutional requirements for the ...

collection of agency fees,” Hudson, 475 U.S. at 310, they were

stull entitled to collect some portion of the fees demanded of the

teachers.’

Rather than adjudicate the appropriate amount of that fee,

the district court determined that “the appropriate remedy for

this case at this time is to order arbitration.” App. C at 46a. The

district court entered judgment that the unions’ “arbitration”

procedures

must be utilized by employees who wish to challenge the

Associations’ calculation of chargeable and nonchargeable

(...continued)

constitutionality under Hudson of a rule establishing procedures for the

collection of mandatory bar dues; holding that “[p]erhaps the most basic

flaw in this arrangement lies in the rule’s definition of ‘objectionable

activities”).

: Typical of the self-serving extra-record claims characteristic of

their Petition, the unions state that such fees are demanded for AEA

affiliates “to pay for services provided by NEA-Alaska; and ... to pay for

services provided by [the National Education Association].” Pet. at 3

(emphasis added). Of course, the last time an NEA-affiliate was before this

Court on agency-shop issues, the unions fiercely maintained, and this Court

held, that bargaining activities of state and national affiliates were charge-

able “even if those activities were not performed for the direct benefit of the

objecting employees’ bargaining unit.” Lehnert v. Ferris Faculty Ass'n, 500

U.S. 507, 524 (1991). If Petitioners now concede for purposes of the

remainder of this litigation that its position as stated to this Court is

appropriate and controlling, the teachers will accept it. However,

Petitioners’ narrow characterization here of their practices does not reflect

their actual practices.

'

7A)

i

items for the purpose of establishing service fees, [and]

[t}hat all issues of chargeability ... including issues raised by

plaintiffs herein with regard to litigation expenses, organiza-

tional maintenance and lobbying ... shall be determined by

an arbitrator to be selected by the American Arbitration

Association [’AAA”], through arbitration, and chargeability

issues may not be brought to the court for determination

until arbitration is completed.

/d. at 60a-61a.

The teachers’ appealed to the Ninth Circuit raising, inter

alia, two issues relevant to the Petition:

* * * *

2. Whether the District Court properly denied full restitu-

tion and/or relief from the obligation to pay fees to the

teachers for violations of their constitutional rights.

+

3. Whether the District Court properly designated a

nonconsensual, non-Article III judge to adjudicate the

teachers’ damages, instead concluding that “the arbitration

procedures established by [the unions], utilizing the services

of the American Arbitration Association ... must be utilized

by employees who wish to challenge the Association's

calculation of chargeable and nonchargeable items for the

purpose of establishing service fees.

Plaintiffs-Appellants/Cross-Appellees’ Brief at 3.

The Ninth Circuit reversed the district court’s ruling on both

questions. First, for the year at issue, “the amount of the agency

fee ... lawfully ... chargeable to them” is zero,“[b]ecause ... AEA

failed to satisfy Hudson’s requirements and was not entitled to

the fees that it collected”; “Patterson is ... entitled to relief.” /d.

Petitioners have not sought review of this determination.

4

Petitioners seriously mischaracterize the nature of the relief

(continued...)

As to whether “other relief had to be arbitrated,” id. at 16a,

specifically, the district court’s holding that “Patterson had to

arbitrate her damages,” id at 15a, the Ninth Circuit held that

“nonmembers are not required to exhaust union remedies to

which they did not agree before challenging the chargeability

determinations in federal court.” /d. at 18a.

REASONS FOR DENYING THE PETITION

Petitioners state that this case presents the same question

pending before this Court in Air Line Pilots Association v.

Miller, No. 97-428 (U.S. Nov. 26, 1997). Pet. at 5. However,

substantial differences exist between the cases, and the Ninth

Circuit reached a correct conclusion of law required by this

Court’s jurisprudence. Therefore, the writ should be denied.

I. Petitioners Mischaracterize the Issue Decided By the

Lower Court, Which Addressed an Article III Court’s

Duty To Adjudicate Damages.

This case is not about a nonmember teacher’s obligation to

exhaust the unions’ impartial decisionmaker process. This case

is about a court’s effort to refer damages calculations to a non-

Article [lI decisionmaker. When this case is viewed in its proper

light, then, much of the unions’ discussion is rendered decidedly

off-topic

: (...continued)

sought by the teachers, Pet. at 3-5, asserting that “Respondents ... sought t9

have the district court determine the amount of the agency fee that lawfully

was chargeable to them.” /d. at 3. However, the teachers invoked their

right to a federal adjudication of the appropriately chargeable fee calculation

only in lieu of restitution of fees collected and/or a declaration that the

unions were entitled to nothing, owing to the unions’ failure to satisfy

Hudson's requirements, if the district court adopted the unions’ argument

and/or declined to order full restitution.

2

Petitioners err by relegating the core of the Ninth Circuit's

decision to footnote status, Pet. at 11 n.9, stating merely that

“there is language in the Ninth Circuit's opinion suggesting that

what the district court required here was arbitration of respon-

dents’ ‘damages.’” Such language appears in the Ninth Circuit's

decision for very good reason—that is precisely what the district

court ordered. App. C at 44a-45a.

Importantly, it did so at the unions’ urging. They argued

below that, in lieu of restitution of all fees demanded and/or

collected in the absence of complete compliance with “the

constitutional requirements for the ... collection of agency fees,”

Hudson, 475 U.S. at 310, the district court should award “only

the nonchargeable portion of the fee.” App. C at 45a. The

district court’s decision was based upon the teachers’ request for

“a full refund of the escrowed fees,” and “[i]n the event that a

full refund is not granted, [the teachers] request that this court

determine the amount of a refund, rather than assign such a

decision to the arbitrator.” /d., citing Railway Clerks v. Allen,

373 US. 113, 119-20 (1963); Hudson v. Teachers Local No. 1,

922 F.2d 1306, 1313-15 (7th Cir.), cert. denied, 501 U.S. 1230

(1991); Lowary v. Lexington Local Bd. of Educ., 903 F.2d 422,

433-34 (6th Cir. 1990). However, having determined that the

teachers were entitled to less than a full refund, the district court

abdicated its judicial responsibility and sought to force the

teachers to “arbitrate” their damages before the unions’ “impar-

tial decisionmaker.”

Apparently cognizant of their peril, and desperate to receive

dispensation for a “union exception” to normal principles of law,

the unions here ignore the actual substance of the decisions

below, instead attempting to place the square peg of this case in

the round hole of Miller v. ALPA, 108 F.3d 1415 (D.C. Cir.),

cert. granted, No. 97-428 (Nov. 26, 1997), arguing that it is an

exhaustion case. Pet. at 5. This characterization is inaccurate.

Nowhere in Petitioners’ constitutionally-deficient notice and

procedure was an “exhaustion” requirement purported to be

imposed. Further, to do so now would impose upon the teach-

eB.

ers, as a foregone conclusion, the results of a proceeding in

which they did not participate. They had no legitimate reason

to suspect that those results would be imposed upon them. But

see, Weaver v. University of Cincinnati, 970 F.2d 1523, 1534-36

(6th Cir. 1992), cert. denied, 507 U.S. 917 (1993). It ts difficult

to imagine a more stunning and thorough-going denial of due

process

Moreover, this Court repeatedly has reaffirmed the proposi-

tion that the finding of a constitutional violation “impose[s] a

duty on the District Court to grant appropriate relief,” Hills v.

Gautreaux, 425 U.S. 284, 297 (1976) (emphasis added), since

Article Ill, § 1, “preserves to litigants their interest in an

impartial and independent federal adjudication of claims within

the judicial power of the United States.” Commodity Futures

Trading Comm'n v. Schor, 478 U.S. 833, 850 (1986) (emphasis

added); see also Peretz v. United States, 501 U.S. 923, 936

(1991) (litigants have “personal right to have an Article III judge

preside over a civil trial”); cf Farrar v. Hobby, 506 U.S. 103

(1992); see also Hudson, 475 U.S. at 309 n.22 (“The judicial

remedy for a proven violation of the law will often include

commands the law does not impose on the community at

large”).°

When viewed in the proper light, then, the Ninth Circuit's

decision is well within the mainstream of the jurisprudence of

both this Court, and of the lower federal courts. No cogent

reason is present for granting the writ.

4

“{Wyjhen a plainuff establishes the violation of [his] mght to

procedural due process,” a court is “obligate[d]” under 42 U.S.C. $1983 “to

award nominal damages.” Farrar, 506 U.S. at 112. citing Carey v. Piphus,

435 U.S. 247, 266 (1978). No such award was made by the district court

here, obviously because the district court contemplated that a damages

award—the nonchargeable portion of the fee—would be adjudicated

pursuant to the unions’ “arbitration.”

ee

In sum. on the actual substance of the decision below,

Petitioners make no case for a writ of certiorari

ll. The Ninth Circuit Was Faithful To This Court’s Prece-

dents, Which Unambiguously Reject Efforts To Force

Civil Rights Plaintiffs To Exhaust Their Administrative

Remedies.

The Petition narrowly focuses upon decisions issued in the

wake of this Court’s decision in Hudson, 475 U.S. at 301-10, as

though there were some sort of “union exception” to normal

principles applicable to constitutional claims raised pursuant to

42 U.S.C. § 1983. This Court’s decisionmaking does not justify

such a distinction. Moreover, the Petition constitutes a naked

effort to establish labor unions as a preferred class of litigants

granted authority to delay unilaterally and, therefore, deny relief

sought by the victims of their constitutional torts.

In light of Hudson's determination, the proposition that the

teachers need not exhaust the unions’ “impartial decisionmaker”

procedure before they may challenge the unions’ agency fee in

court is not a matter of controversy among the circuits. There-

fore, a writ of certiorari is inappropriate here.

A. It is a black-letter rule of law that a party can be

required to arbitrate a dispute only where there is a contract or

other voluntary agreement to do so, or some statutory mandate.

E.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938,

944 (1995); AT&T Technologies, Inc. v. Communications

Workers, 475 U.S. 643, 648-49 (1986); Gateway Coal Co. v.

Mine Workers, 414 U.S. 368, 374 (1974); Abrams, 59 F.3d at

1382 & n.t4. The unions concede that the teachers did not

contract for, or otherwise agree to, arbitration of their agency-fee

dispute.°

6

For this reason, the unions’ characterization of their “impartial

(continued...)

- 10-

Moreover, the teachers are not union members. App. A at

4a. As such, they are “not bound by contract with the union to

exhaust any formal internal union appeals before resorting to a

judicial forum.” Soto Segarra v. Sea-Land Services, Inc., 581

F 2d 291, 295 (1st Cir. 1978); see Bagnall v. ALPA, 626 F.2d

336, 341 (4th Cir. 1980), cert. denied, 449 U.S. 1125 (1981).’

Neither statutory mandate nor voluntary agreement compels

exhaustion of administrative remedies. To the contrary, the

governing statute, 42 U.S.C. § 1983, precludes imposition of an

exhaustion requirement. See § 1(B), infra.

Petitioners concede as much by devoting the bulk of their

argument, Pet. at 6-15, to policy arguments why exhaustion

should be required.

In large part, Petitioners rely upon their extra-record claims

that the virtue of their so-called “arbitration” process is that it

“certainly is more ‘expedi[tious]’ than the judicial process.” Pet.

at 8-9 & nn. 6 & 9. They neglect to mention that among the

reasons why it is so much more “expeditious” are: (1) that

teachers testing union chargeability claims typically are denied

discovery as a matter of right—typically denied by AAA

arbitrators, see, e.g., Miller, 108 F.3d at 1417; Bromley v.

Michigan Education Association, 843 F. Supp. 1147, 1153 (E.D

Mich. 1994), rev ‘d, 82 F.3d 686 (6th Cir. 1996), cert. denied, ---

ss (...continued)

decisionmaker” process as “arbitration” approaches a fraud upon the Court.

While its compliance with Hudson's requirements is not challenged, Pet. at

4 n.2, conceding that point does not establish that the procedure is

“arbitration,” as that concept normally is understood. Arbitration it is not.

AEA’s negotiated collective bargaining agreement could not

require the teachers to arbitrate their disputes with itself, as opposed to

disputes with their employer. Food & Cormmercial Workers Local 951 v.

Mulder, 31 F.3d 365, 368-69 (6th Cir. 1994), cert. denied, 513 U.S. 1148

(1995); Bagnall, 626 F.2d at 342; but see Lancaster v. ALPA, 76 F.3d 1509,

1524-26 (10th Cir. 1996).

ae

U.S. ---, 117 S. Ct. 682 (1997)—available to them only in the

federal courts, and necessary to a full and fair adjudication; (2) it

is union resistance to reasonable discovery requests and to the

litigation as a whole that prevents it from being “expeditious.”

See Bromley (litigation first filed in 1992 is still pending); cf

City of Riverside v. Rivera, 477 U.S. 561, 580 n.11 (1986)

(“Those who elect a militant defense ... must take into account

the time and effort they extract from their opponents. It Is ...

[defendants’] right to contest every aspect of this claim, but they

cannot now disclaim the consequences of their actions”).*

8

Petitioners likewise would have this Court conclude, Pet. at 10,

inter alia, that the undocumented lack of chalienges to the results of their

so-called “arbitration” process occurs because “objectors often ... find that

the arbitrator's decision satisfactonly resolves their objections.” Pet. at 10

(citing the self-serving characterization of “the experience of AEA’s parent

organizations’). Of course, it is equally likely that such individuals

acquiesce when union fee calculations are rubberstamped by AAA

“arbitrators,” as contrasted with the substantial reductions achieved when

such questions are litigated before the federal courts, Lehnert v. Ferris

Faculty Ass'n, 643 F. Supp. 1306, 1334 (W.D. Mich. 1986) (determining

after trial that less than 14% of union expenditures were properly charge-

able, after an initial union claim that a multiple of that percentage was

chargeable); see also Communications Workers v. Beck, #87 U.S. 735, 740

(1988), because they lack the resources to bring amd maintain complex

litigation in the federal courts.

Indeed, the only rational conclusion—given the litigation record of

Petitioners’ national affiliates and their efforts in this case—is that

Petitioners’ goal is to guarantee that no meaningful review of their

chargability claims ever occur. This is evident from Petitioners’ insistence

on characterizing their “impartial decisionmaker’ process as “arbitration,”

thus providing the basis to argue a lesser standard of review. Bromley, 843

F. Supp. at 1154, 1156 (giving “great deference to the fact-findings made by

the arbitrator’). While Petitioners’ desire to first “wear out” challengers,

and then to deny meaningful review for those who persist in their challenges

by bringing them to court, is understandable in light of the litigation record

(continued...)

eize

The Ninth Circuit was thus correct in its observation that an

exhaustion requirement frustrates the teachers’ right to a full,

fair, and most importantly, reliable adjudication of their

claims. App. A at 18a. Petitioners’ suggestion that such

litigation cannot be “expeditious” is akin to the defendant

convicted of patricide, who begs for mercy because he is an

orphan

Nevetheless, it is unnecessary here to rebut in detail

Petitioners’ self-serving characterizations of the purpose of

Hudson's prophylactic requirements and their unjustified

conclusions regarding nonmembers and Hudson-type litigation,

for it is noteworthy that Petitioners gloss over the statutory and

constitutional context in which this case arises.

B. The proposition that exhaustion of administrative (or

internal union) remedies can or should be required in suits

pursuant to 42 U.S.C. § 1983 was unanimously rejected by this

Court as recently as last term. Edwards v. Ralisok, --- U.S. ---,

117 S. Ct. 1584, 1589 (1997) (“a claim either is cognizable

under § 1983 and should immediately go forward, or is not

cognizable and should be dismissed”’); see also Heck v. Humphr-

ey, 512 U.S. 477, 481 (1994) (§ 1983 contains no judicially

imposed exhaustion requirement). However, these most recent

statements hardly were the first time that this Court had occasion

to consider this issue, or resoundingly to reject an argument that

exhaustion should be required. Patsy v. Florida Board of

Regents, 457 U.S. 496, 500-01 (1982) (“this Court has stated

categorically that exhaustion is not a prerequisite to an action

under § 1983”), and cases cited therein, Felder v. Casey, 487

U.S. 131 (1988)

s

(...continued)

of such challenges, see Lehnert, 643 F. Supp. at 1334 (reducing chargeable

fee to fraction of that initially claimed), Beck, 487 U.S. at 740 (same), such

self-serving union goals are hardly consonant with Petitioners’ duties under

the First Amendment and Hudson, 475 U.S. at 307 n.20

ohZe«

Petitioners attempt to avoid Patsy's unambiguous mandate

by arguing that Hudson's “impartial decisionmaker” “is not a

state administrative remedy; it is a procedure created and

governed by federal law, and it is administered by a union, not

by state authorities.” Pet. at 13. This is a distinction without a

difference. In negotiating and enforcing its forced-unionism

agreement, a union acts “under color of” state law. See Felder,

487 U.S. at 139 (“Section 1983 creates a species of liability in

favor of persons deprived of their federal civil rights by those

wielding state authority”) (emphasis added). Nevertheless, we

suppose Petitioners fatuously suggest that a process established

by unions pursuing their own economic interests are somehow

due more deference than state administrative remedies.

Under remarkably similar circumstances, this Court has

observed:

We think it plain that Congress never intended that those

injured by governmental wrongdoers could be required, as

a condition of recovery, to submit their claims to the

government responsible for their injuries.

Felder, 487 U.S. at 142. There, it was argued that, only for

§ 1983 actions brought in state courts, civil rights plaintiffs

should be required to satisfy Wisconsin's “notice-of-claim”

statute. /d. at 135-36. This Court reversed the Wisconsin

Supreme Court’s ruling sustaining the requirement, rejecting

numerous arguments asserting “sound notions of public

administration” because they “necessarily clash with the

remedial purposes of the federal civil rights laws.” /d. at 145

This Court further noted that:

The decision to subject state subdivisions to liability for

violations of federal rights, however, was a choice that

Congress ... made, and it is a decision that the State has no

authority to override. Thus, ... the State’s interest ... is

patently incompatible with the compensatory goals of the

federal legislation.

oe

Id. at 143. It seems self-evident that a procedure established by

a labor union as a precondition to pursuing its own economic

interests, Hudson, 475 U.S. at 310 (“the constitutional require-

ments for the ... collection of agency fees”) (emphasis added),

is entitled to even less regard than a state scheme to which can

be attributed at least the facade of “understandable or laudable

... State[] interest.” Fe/der, 487 U.S. at 143.

Aside from this practical consideration, Patsy’s bar on

exhaustion requirements is equally applicable to state and federal

remedies. Compare McCarthy v. Madigan, 503 U.S. 140, 144

(1992), with Patsy, 457 U.S. at 501-02 & n4. Petitioners

proceed from an assumption unambiguously rejected by this

Court in their assertion that “[b]ecause Congress has not clearly

spoken on the matter, the question whether ‘exhaustion of

remedies’ should be required in this context must be determined

by this Court in accordance with ‘sound judicial discretion.’”

Pet. at 13, citing McCarthy, 503 U.S. at 144. Under § 1983,

Congress has “clearly spoken,” reaffirming “categorically that

exhaustion is not a pre-requisite to an action under § 1983,”

policy considerations notwithstanding, and this Court has so

held. Patsy, 457 U.S. at 500-01, 512-16 (emphasis added); see

Felder, 487 U.S. at 146-50.

C. Petitioners maintain that whether a court should require

exhaustion of an internal union process is an open, contentious

issue in this context, because Hudson:

did not expressly address the question presented here ..., the

Court’s statement that funds must be escrowed while

challenges are pending “before [the] impartial decision-

maker” appears to contemplate that all objections will be

- presented to that decisionmaker; indeed, the Court did not

describe any other mechanism for terminating the escrow of

an objectors’s funds.

Pet. at 7-8 (original emphasis).

To the contrary, in holding that the union’s procedure in

Hudson was constitutionally “inadequate because the [arbitra-

a

tor’s] selection represents the Union's unrestricted choice,” this

Court noted that, even if both parties selected the arbitrator,

“[t]he arbitrator's decision would not receive preclusive effect

in any subsequent [42 U.S.C.] § 1983 [(1988)] action. See

McDonald v. [City of] West Branch, 466 U.S. 284 (1984).” 475

U.S. at 308 & n.21. The Court was aware of Justice White's

suggestion that “if the union provides for arbitration ... it should

be entitled to insist that the arbitration procedure be exhausted

before resorting to the courts,” but chose not to accede to it

Compare id. at 311 (concurring opinion) with id. at 308-09

(opinion of the Court).” The Court’s action clearly implies that,

if the union alone opts for arbitration, that procedure cannot be

required of nonunion employees

As Hudson recognized by citing McDonald, compelled

arbitration never can be appropriate, because arbitration cannot

provide “an adequate substitute for a judicial proceeding in

protecting ... federal statutory and constitutional rights.”

McDonald, 466 U.S. at 290. Even if the Ninth Circuit had not

held that the teachers owe nothing to the unions owing to their

failure to comply with Hudson, App. A at 16a, the teachers’

claim that some of Petitioners’ expenditures of their agency fees

were not “necessarily or reasonably incurred for the purpose of

performing the duties of an exclusive representative’ raises

issues under the First Amendment to the United States Constitu-

tion. See Lehnert, 500 U.S. at 522; Ellis v. Railway Clerks, 466

U.S. 435, 445-48, 455-56 (1984).

Even so, Justice White’s concurrence lends no support to

Petitioners. His suggestion that a union “should be entitled to insist that the

arbitration procedure be exhausted before resorting to the courts,” /fudson,

475 U.S. at 311, was premised upon the union's “compli[ance] with the

other requirements specified in our opinion.” This is a condition unmet by

Petitioners here; they were adjudicated to have failed to comply with “the

other requirements specified in [the Ninth Circuit's] opinion.” App. A at

loa

«$<

The district courts Congress created under Article III of the

Constitution “have original jurisdiction of all civil actions arising

under the Constitution [or] laws ... of the United States.” 28

U.S.C. §§ 1331, 1337(a). Neither the First Amendment, nor the

Civil Rights Act of 1871, nor any other statute authorizes this

Court to prefer a class of litigants by delegating this jurisdiction

to non-Article III decisionmakers independent of constitutional

norms—union-approved “arbitrators” in agency-fee cases.

Under Article III, to do so would be for the court to “abdicate its

duty to determine by its own judgment the controversy pre-

sented....” Kimberly v. Arms, 129 U.S. 512, 514 (1889).

Therefore, Article III and the Judicial Code prohibit federal

courts from deferring, on issues of law or fact, to “non-statutory

arbitration conducted by a privately appointed decisionmaker”’

in agency-fee cases. Bromley, 82 F.3d at 692 (§ 1983 case); cf

Stauble v. Warrob, Inc., 977 F.2d 690, 696-98 (Ist Cir. 1992)

(“nonconsensual reference of fundamental issues of liability ...

for adjudication is not consonant with ... Article III”); Jn re

Bituminous Coal Operators’ Ass'n, 949 F.2d 1165, 1169 (D.C.

Cir. 1991) (opinion by R. Ginsburg, J.) (same, in mandamus

action); Burlington N.R.R. v. Department of Revenue, 934 F.2d

1064, 1073 (9th Cir. 1991) (same); /n re United States, 816 F.2d

1083, 1092 (6th Cir. 1987) (same).

Clearly, if federal courts should not defer to a federal

agency in agency-fee cases arising under the duty of fair

representation, Mu/der, 31 F.3d at 368-69, they should not defer

to a private “arbitration” set up by the very union alleged to have

violated nonmembers’ constitutional rights. Indeed, a “proce-

dure requiring an objector who challenges [an agency fee] to

exhaust Union-provided arbitration violates [the] duty of fair

representation by limiting the choice of forum for the chal-

lenge.” Abrams, 59 F.3d at 1382.

Hudson did not suggest that “an expeditious arbitration

might satisfy the requirement of a reasonably prompt decision by

an impartial decisionmaker, so long as the arbitrator’s selection

did not represent the Union’s unrestricted choice,” 475 U.S. at

$

3

4

$

a

’

x

atts

308 n.21, to oust the courts of jurisdiction in cases in which

unions adopt an arbitration scheme. It merely “reject{ed] the

Union’s suggestion that the availability of ordinary judicial

remedies is sufficient” to meet the union’s special, independent

responsibility itself “to provide procedures that ... facilitate a

nonunion employee's ability to protect his rights.” /d. at 307

n.20.

That is, to render an agency-shop arrangement arguably

constitutional at all, a union must affirmatively establish a

procedure for an expeditious decision by an “impartial decision-

maker.” But the Court clearly countenanced no notion that the

union could compel nonunion employees to resort to such a

procedure before seeking judicial relief.

To the contrary, Hudson “presume[d] that the courts remain

available as the ultimate protectors of constitutional rights.” /d.

at 307 n.20. Creation of a scheme for an “impartial decision-

maker” is thus a special duty Hudson imposed on unions solely

to “facilitate a nonunion employee’s ability to protect his

rights,” id. (emphasis added), if the employee chooses to avail

himself of it. It is not a grant to unions of new powers over such

employees. If nonunion employees believe, as the teachers do,

that such a scheme does not facilitate, but rather impedes, their

rights—and that it is, in fact if not in law, far from “impar-

tial” —they remain free to seek “ordinary judicial remedies,” id.

See Tierney v. City of Toledo, 917 F.2d 927, 939-40 (6th Cir.

1990) (a requirement that nonunion employees exhaust arbitra-

tion before seeking judicial relief “unduly implies a limitation

upon the [nonmembers’] constitutional rights”). To require

otherwise converts the employees’ shield under Hudson into a

sword by which unions may separate employees from their right

of access to the federal courts.

D. Even in the overly-narrow context in which Petitioners

pigeon-hole this case, and contrary to the panel’s and Petition-

ers’ error (“‘courts are divided on the issue’ of ‘whether

nonmembers can be forced to arbitrate a union’s chargeability

determinations before seeking relief in federal court,”” Pet. at 6,

5

citing App. A at 16a), every court agrees with the Ninth Circuit

that Hudson does not require exhaustion of agency-fee arbitra-

tion procedures. Knight v. Kenai Peninsula Borough School

District, 131 F.3d 807, 816 (9th Cir. 1997), App. A at 18a; see

also Bromley, 82 F.3d at 694; Hohe v. Casey, 956 F.2d 399,

408-09 (3d Cir. 1992); Tierney, 917 F.2d at 939-40; Gibney v.

Toledo Bd. of Educ., 532 N.E.2d 1300, 1303-05 (Ohio 1988); cf

Abrams, 59 F 3d at 1382 (under National Labor Relations Act);

Mulder, 3\ F.3d at 367-68 (same), see also Brosterhous v. State

Bar, 906 P.2d 1242, 1251, 1255-58 (Cal. 1995) (no exhaustion

required of attorneys challenging the amount of compulsory bar

dues).

Only one court, under the Railway Labor Act, has reached

a contrary conclusion. Lancaster, 76 F.3d at 1521-22. And in

so doing, it seriously misreads this Court’s decision in Hudson."

10

The Tenth Circuit characterized it as “persuasive” dicta consistent

with the majority's opinion, notwithstanding Justice White's self-conscious

recognition that his concurrence (joined by Chief Justice Burger) was

contrary to the majority's decision. The court also relied on the argument

that absent exhaustion, “the procedure spawned by the Supreme Court [in

Hudson would be] largely a waste of time and money,” citing in Bromley,

843 F. Supp. at 1153, a decision later reversed by the Sixth Circuit. 82 F.2d

at 693-94. Finally, like other courts, the district court disclaimed interest in

or obligation to “micromanage the fee calculation.” 76 F.3d at 1522; cf,

Stauble v. Warrob, 977 F.2d at 695 (rejecting an argument of “complexity”

as “the same old whine in a different bottle”). We respectfully submit,

however, that permitting the agency shop notwithstanding its inherent

“impact upon «.. First Amendment interests,” 00d v. Detroit Board of

‘Education, 431 U.S. 209, 222 (1977), obliges the federal courts scrupulously

and without reticence to insure that nonmembers are not required to

subsidize activities beyond those satisfying the “compelling state interest”

which caused this Court to permit public employers to impose such an

obligation. Having said that a line can be drawn, it is the solemn duty of the

courts to draw that line. If courts are unwilling or unable to address such

(continued...)

_

E. Where the circuits have conflicted is not as to “‘ whether

nonmembers can be forced to arbitrate a union’s chargeability

determinations before seeking relief in federal court,’” Pet. at 6,

quoting App. A at 16a, but rather, as to whether courts may

refer, without the consent of the litigants, damage calculations

in a civil nghts action brought pursuant to § 1983 to non-Article

[Il decisionmakers. Hudson, 922 F.2d at 1314; Lowary, 903

F 2d at 433.

These errant cases represent a distinct departure from this

Court's jurisprudence regarding the responsibilities of an Article

III court, Schor, 478 U.S. at 850: see also Peretz, 501 US. at

936 (litigants have “personal right to have an Article III judge

preside over a civil trial”); cf Farrar v. Hobby, 506 U.S. 103

(1992), constituting a distinct minority among the circuits

applying this Court’s decisions. Pacemaker Diagnostic Clinic

v. Instromedix, 725 F.2d 537, 541 (9th Cir.) (en banc, opinion

by Kennedy, J.) (citations omitted), cert. denied, 469 U.S. 824

(1984) (“federal litigant has a personal right ... to demand

Article Ill adjudication of a civil suit”); see also Stauble v.

Warrob, 977 F.2d at 694 (nonconsensual reference of liability

issue to non-Article II] adjudicator is constitutionally prohibit-

ed), /n re Bituminous Coal Operators’ Ass'n, 949 F.2d at 1168

(judge “has no discretion to impose on parties against their will

‘a surrogate judge’”) (emphasis added), citing La Buy v. Howes

Leather Co., 352 U.S. 249, 256 (1957) (party has a right to “trial

before the court on basic issues involved in the litigation’).

Hudson did not involve any question of nonunion employ-

ees being compelled to arbitrate a dispute over the amount of an

agency fee. At issue was only the adequacy of the union’s

notice of ‘ts so-called “fair-share fee,” not “the issue of the

‘° (...continued)

constitutional issues, then the problem should be resolved at its root, by

striking down the public-sector agency shop, rather than by abdication of

judicial responsibility. Cf Machinists v. Street, 367 U.S. 740, 795-96 (1963)

(Black, J., dissenting).

.

accuracy of the fee itself.” See 922 F.2d at 1309. Indeed, in the

district court, the nonunion employees in Hudson settled part of

the case by agreeing to a stipulated judgment that gave them an

option to challenge the amount of the fee in the union’s internal

arbitration procedure. /d. at 1311.

On appeal, the court of appeals clearly stated the limited

nature of the issue in Hudson. Quoting this Court’s holding in

Hudson that “the constitutional requirements for the [union’s]

collection of agency fees include 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,” the court of appeals explained that

“[t]he [nonunion employees’] attack focuses on the first

requirement: an adequate explanation of the basis for the fee.”

/d. at 1313 (emphasis added) (quoting Hudson, 475 U.S. at 310).

And the question the court actually decided was “whether the

notice gives the nonunion [employees] enough information to

challenge the basis for the fee,” and “sufficient information to

enable the [employees] ‘to decide whether there is any reason to

mount a challenge’.” /d. at !13!4, 1316 (emphasis added).

So Hudson is no precedent for Petitioners’ claim. As the

Sixth Circuit concluded in Bromley, Hudson “did not hold that

exhaustion of the arbitral remedy could be required as a condi-

tion to the bringing of a § 1983 action.” 82 F.3d at 694.

Moreover, if Hudson had held that exhaustion was required, it

would have contradicted this Court’s “categorical[ ]” holding

that “exhaustion is not a prerequisite to an action under § 1983.”

Patsy, 457 U.S. at 500-01; see Felder, 487 U.S. at 146-50."

it

i

It is hard to believe that, having been told by this Court in Hudson

that “(t]he arbitrator's decision would not receive preclusive effect in any

subsequent § 1983 action,” 475 U.S. at 308 n.21, the lower courts on remand

would cavalierly disregard that admonition, ignore Patsy and Felder, and

require the nonunion employees to exhaust arbitration.

21

Although a bare precedent, Lancaster is highly unconvinc-

ing. First, Lancaster wrongly interpreted Hudson as having

“held [that] a dissenting employee must exhaust all available

nonjudicial remedies.” It then “conclude[d that] the . . . holding

in Hudson was correct” and “adopt[ed] it as the law of thfe

Tenth] Circuit.” 76 F.3d at 1521-22. Thus, Lancaster not only

stands on a misreading of Hudson, but also defies this Court’s

decisions in Patsy and Felder.”

Second, Lancaster allowed the nonunion employee there to

pursue his suit, though he had not exhausted the union’s

arbitration, because—like here—the union had earlier failed to

provide a Hudson notice containing sufficient information about

the nature of certain allegedly chargeable assessments. 76 F.3d

at 1525-27. Thus Lancaster itself supports the conclusion that

any case, such as this,’ in which nonunion employees prove a

defective notice (in addition to claims that an agency fee is

unlawfully calculated) can properly begin in federal court. But

why exhaustion of a union’s arbitration scheme should come

into play after a federal court has already asserted jurisdiction

IS not easy to imagine. Cf Beck v. Communications Workers.

468 F. Supp. 87, 91 (D. Md. 1979) (“a stay pending exhaustion

of the union rebate procedure would not be helpful in promoting

the ultimate resolution of the controversy,” because it “is

extremely unlikely that exhaustion will substantially alter the

positions of the parties”).

Moreover, such a proceeding would meet a need for

adjudication obviated here by the Ninth Circuit’s express

‘= It also is distinguishable because the case was brought pursuant

to the Railway Labor Act, 45 U.S.C. § 151, et seq

13

The teachers obtained a judgment that “the explanation provided

to the nonmembers, along with the supplemental mailing, was deficient.”

App. A at 16a. Thus, even under Lancaster, exhaustion was not required

here.

79

determination that the unions were “not entitled to the fees it

collected.” App. A at 16a.

Further, Petitioners overstate the case by claiming that “the

Ninth Circuit acknowledged that this case presents the same

issue as is pending before this Court in Miller.” Pet. at6. To

the contrary, the panel merely agreed with the D.C. Circuit's

conclusion that nonmembers cannot be forced to participate in

an internal union process to adjudicate their constitutional

claims.

This is highlighted by the distinctly different factual context

in which this case arose, one in which the district court declined

to adjudicate damages and that calculation to adjudication

pursuant to Petitioners’ nonconsensual, internal process. App.

C at 46a; App. D at 60a-6la.

F. Even if Hudson could be read to have left debatable

whether nonunion employees can be compelled to use an

“arbitration” in which “the arbitrator’s selection did not repre-

sent the Union’s unrestricted choice,” 475 U.S. at 308 n.21,

(which the teachers deny), the record here is not suited for

resolution of that issue. Hudson expressed deep concern with a

union’s unilateral selection of an “arbitrator,” finding such a

scheme unconstitutional under the First Amendment “because

the selection represents the Union’s unrestricted choice from the

state list.” 475 U.S. at 308

In Hudson, “the Union President . . . select{[ed] an arbitrator

from a list maintained by the Illinois Board of Education.” /d.

at 296. Here, the unions have selected the AAA as its intermedi-

ary. Under its procedure, at the union’s request, the AAA

appoints an arbitrator in accordance with its rules. App. E at

61a.

This is a procedural distinction without a practical differ-

ence. In both cases, the union selected the list from which

someone other than the nonunion employees chose the

“arbitrator.” As one court of appeals observed, “It may well be

.. that the arbitrators chosen by the AAA from a group “experi-

enced in labor matters’ would not be perceived as typically

sympathetic to [the teachers] (or their counsel).” Adi//er, 108

F.3d at 1421. It strains credulity to the breaking point to believe

that Petitioners employ the AAA’s “special panel of arbitrators

experienced in employment relations” for a reason other than

that it considers those individuals friendly to its position, and

that the AAA’s participation constitutes the minimum necessary

to comply with that aspect of Hudson’s mandate.

In any event, however, the record does not show whether in

practice Petitioners’ scheme amounts to “the Union’s unre-

stricted choice,” because of the attitudes of the “special panel of

arbitrators,” or somehow might be deemed as fair as a mutual

choice of the arbitrator by both Petitioners and the teachers. The

record also does not show how the special panel is selected or

what say, if any, unions have in that selection.

Thus, any attempt to resolve this issue now would entangle

this Court in a purely hypothetical case.'* The teachers submit

that, as a matter of First-Amendment law, a court can impose no

arbitration on nonunion employees in an agency-fee dispute; but,

if arbitration can be required, it surely must provide for mutual

selection of the actual arbitrator by the union and the nonunion

employees, not simply by the union through the union’s self-

servingly selected surrogate. “By definition, an arbitrator must

be a person chosen by mutual agreement.” The “essential

‘* Some courts have held that the AAA's procedure satisfies

Hudson's requirement for an “impartial decisionmaker.” E.g., Damiano v

Matish, 830 F.2d 1363, 1372 (6th Cir. 1987). These opinions, though, dealt

only with the situation in which nonunion employees might voluntarily use

such a scheme. The AAA’s procedure might arguably comport with

Hudson, but only because nonunion employees could still bring their claims

to court. To the extent that Petitioners might argue that these cases support

compelled arbitration, they are neither binding nor persuasive—because in

this case there is no record as to whether the AAA’s procedure is, in fact, as

fair as mutual selection of the arbitrator. See United Transportation Union

v. State Bar, 401 U.S. 576, 583 (1971).

nk

element of arbitration” is “that the selection of the particular

arbitrator or the method of selection of an arbitrator be estab-

lished by mutual agreement between the parties.” Bethlehem

Mines Corp. v. Mine Workers, 344 F. Supp. 1161, 1165 (W.D

Pa. 1972), aff'd, 494 F.2d 726 (3d Cir. 1974); see Associated

Plumbing & Mechanical Contractors v. Plumbers Local 447,

811 F.2d 480, 483-84 (9th Cir. 1987).

Therefore, to argue its case, the unions must show—

contrary to the record, App. E at 61a—that, in fact, the AAA’s

procedure Is the practical equivalent of mutual selection of a true

arbitrator.'° The unions’ only other recourse is to contend that,

even assuming the AAA’s procedure is not the practical

equivalent of mutual selection, nevertheless the procedure passes

muster under the First Amendment. But this Court has already

decided this issue adversely to the unions, in Hudson, where it

held that “review by a Union-selected arbitrator ... is

inadequate” under the First Amendment. 475 U.S. at 308

(footnote omitted).

Thus, a writ of certiorari is unwarranted here because the

factual record arguably necessary to bring the unions’ procedure

outside the condemnation of Hudson is deficient; and constitu-

tional questions should never be roa in a factual vacuum.'®

See, e.g., Abood, 431 U.S. at 236 n.33. At the same time, a writ

|

The district court’s holding that the teachers were not entitled to

mutual selection was wholly gratuitous as, the unions’ misrepresentations to

the contrary notwithstanding, the teachers did not seek such authonty. Thev

maintain, however, that describing Petitioners’ “impartial decisionmaker”

process as “arbitration” is misleading and inaccurate, because it is not the

product of mutual consent.

'© This Court should wait for a case in which either “the arbitrator's

selection [does] not represent the Union's unrestricted choice,” Hudson, 475

U.S. at 308 n.21, in any sense, or in which there is a record as to whether or

not a scheme such as Petitioners’ amounts, in practice, to such an “unre-

stricted choice.”

2 NO NP Neem -

ae.

is not warranted because Hudsoz has already ruled adversely to

the unions on the fundamental constitutional question.

G. Presumably because they find little support for their

position in Hudson and in exhaustion cases, Petitioners argue

that they are not attempting to impose an exhaustion requirement

at all. Rather, they say, there is a ripeness problem, because “‘a

nonmember may not bypass a union’s agency fee arbitration

process and then mount a First Amendment challenge to the

fee.” Pet. at 13. They base this argument upon the notion that

“the essence of a cognizable First Amendment claim in the

agency fee context is ‘that a union has utilized an individual

agency-shop agreement to force dissenting employees to

subsidize ideological activities.”” Pet. at 15, citing Lehnert, 500

U.S. at 516.

This extraordinary statement is in studied disregard of the

law. Petitioners’ “ripeness” argument misrepresents Hudson.

A First-Amendment violation occurs when a union spends

objecting nonmembers’ agency fees on nonbargaining activities

However, a violation of the right not to be deprived of property

without due process also occurs when a union collects agency

fees without having in place a procedure that satisfies the

Constitution, in all respects, even if the union escrows all

contested fees. See, e.g., Weaver v. University of Cincinnati,

942 F.2d 1039, 1045-46 (6th Cir. 1991).

Hudson prescribed “constitutional requirements for the

Union's collection of agency fees.” 475 U.S. at 310 (emphasis

added). These requirements were not imposed merely to prevent

improper spending, as the unions argue. They also were

imposed to “provide the protections necessary for any depriva-

tion of property” and “to minimize both the impingement [of

the agency shop itself on nonmembers’ First-Amendment

interests] and the burden” of cbjection. /d. at 304 n.13, 309

(emphasis added).

The Court explicitly rejected the argument “that because a

100% escrow completely avoids the risk that dissenters’

contributions could be used improperly,” there is no constitu-

oe

tional violation. The Court held thiat the Hudson “plaintiffs

established a constitutional violation,” because the union’s

procedure “remains flawed in two [other] respects”: the lack of

“an adequate explanation for the advance reduction of dues” and

“a reasonably prompt decision by an impartial decisionmaker.”

Id. at 309 & n.22.

Hudson also reiterated the Court’s earlier holding in RLA

cases and Abood that the “nonmember’s ‘burden’ is simply the

obligation to make his objection known.” /d. at 306 n.16

(emphasis added). Those earlier cases also held that an objection

may be made for the first time “in [a] complaint filed in [a civil]

action.” Allen, 373 U.S. at 119 n.6; accord Abood, 431 U.S. at

239 & n.39. And, Hudson emphasized that the union has “a

responsibility to provide procedures that minimize th[e]

impingement [of the agency shop on First-Amendment rights]

and that facilitate a nonunion employee's ability to protect his

rights.” /d. at 307 n.20 (emphasis added).

It necessarily follows that a union’s procedure is invalid—

and a claim that the union has unlawfully collected agency fees

is ripe for judicial determination—where the union’s procedure

fails to include one of the three required Hudson procedural

safeguards (i.e., notice, independent decisionmaker, and escrow)

or includes some other element that imposes an impermissible

condition on nonmembers’ exercise of their right to challenge its

calculation of chargeable expenses.

For example, under the NLRA and RLA, “the only aspect

of union membership that can be required pursuant to a union

shop agreement is the payment of dues.” Pattern Makers’

League v. NLRB, 473 U.S. 95, 106 n.16 (1985); see Beck, 487

U.S. at 744-45; Railway Employes’ Dep't v. Hanson, 351 U.S.

225, 235-38 (1956). Thus, clearly, a union could not lawfully

condition exercise of the right not to subsidize its nonbargaining

activities, or the right to challenge its calculation of bargaining

costs, upon full membership.

Here, Petitioners attempt to condition exercise of both rights

on compliance with an aspect of full union membership: use of

eg a

a union-created remedy, see, e.g., Neal v. System Bd. of Adjust-

ment, 348 F.2d 722, 726 (8th Cir. 1965). Petitioners have

demonstrated no consensual or federal statutory source of

authority for that requirement.

Thus, by attempting to impose that condition in its proce-

dure, Petitioners have invalidated the procedure and infringed on

the teachers’ First-Amendment rights by demanding and/or

collecting agency fees from them, independent of the other

deficiencies already adjudicated. As the court of appeals held in

Abrams, a union’s agency-fee procedure “requiring an objector

who challenges the allocation of chargeable and non-chargeable

expenses to exhaust Union-provided arbitration violates its duty

of fair representation by limiting the choice of forum for the

challenge.” 59 F.3d at 1382; see also Bromley, 82 F.3d at 694

(“it is [not] constitutional for an agency shop agreement to

require objecting employees to exhaust their arbitration remedies

before going into court on their constitutional claims”); Hohe,

956 F.2d at 408-09 (a state requirement of exhaustion of public-

sector union agency-fee procedures “is constitutionally

unenforceable’’).

Likewise, Williamson County Regional Planning Commis-

sion v. Hamilton Bank, a case Petitioners cite for this inventive

argument, shows that they confuse two “conceptually distinct”

questions: “whether administrative remedies must be exhausted”

and “whether an administrative action must be final before it is

judicially reviewable,” 473 U.S. 172, 192 (1985):

[T]he finality requirement is concerned with whether the

initial decisionmaker has arrived at a definitive position on

the issue that inflicts an actual, concrete injury; the exhaus-

tion requirement generally refers to administrative and

judicial procedures by which an injured party may seek

review of an adverse decision and obtain a remedy if the

decision is found to be unlawful or otherwise inappropriate.

Id. at 193 (emphasis added).

38.

&

Here, Petitioners are the “initial decisionmaker[s]”’ and

“arrive at a definitive position” on the chargeability issue. When

the unions distribute their notice, they have finally determined

what percentage of dues they will demand of teachers who

object to paying for nonbargaining activities and what they will

spend, despite those objections, if the teachers do not seek

review of their determination. The “impartial decisionmaker”

does not participate in that decision. And, that decision “inflicts

an actual, concrete injury.” Dues are demanded of and/or

collected from teachers based on the unions’ determination,

upon pain of discharge for nonpayment, thus depriving the

teachers of possession of part of their wages.

On the other hand, Hudson describes the “impartial

decisionmaker” procedure as a “review procedure” and a

“remedy.” 475 U.S. at 307-08 & nn.19-21. And so it is in

practice. The “arbitrator” determines whether the unions validly

calculated the agency fee charged objectors and orders a remedy:

restitution of any portion of the fee that he finds was not

lawfully collected.

Therefore, Williamson County confirms that the Ninth

Circuit correctly held that exhaustion of Petitioners’ “arbitra-

tion” procedure is not required. The claim in that case was not

ripe, because the property owner had not asked the Planning

Commission to grant a variance and, thus, the Commission had

not yet made “a conclusive determination ... whether it would

allow [the property owner] to develop the subdivision in the

manner [the owner] proposed.” 473 U.S. at 193. In short, in

contrast to this case, there had occurred no taking or threat of

taking.

However, in Williamson County, there were two other

procedures, similar to the “impartial decisionmaker” procedure

here, that the Court held need not be used before the claim was

ripe for judicial determination. The “State provide[d] proce-

dures by which an aggrieved property owner may seek a

declaratory judgment regarding the validity of zoning and

planning actions taken by county authorities.” The Court held

29.

that the property owner “would not be required to resort to those

procedures before bringing its § 1983 action, because those

procedures clearly are remedial.” It also held that the owner

“would not be required to appeal the [Planning] Commission’s

rejection of [a] preliminary plat to the Board of Zoning Appeals,

because the Board was empowered, at most, to review that

rejection, not to participate in the Commission’s decision-

making.” /d."’

i?

The other cases Petitioners cite are wholly inapposite. Cox vy. New

Hampshire, 312 U.S. 569 (1941), and Poulos v. New Hampshire, 345 U.S.

395 (1953), held merely that government can require the obtaining of a

license for the use of public property if the licensing agency makes only

ministerial time, place, and manner determinations. See Poulos, 345 U.S. at

402-05; Cox, 312 U.S. at 575-76. The public owns the public streets and

parks and, as proprietor, may make reasonable regulations for their use.

Petitioners have no authority over nonmembers that justifies requiring them

to seek a license from it through its “arbitration” scheme as a precondition

to asserting in court their constitutional and statutory right to get back their

own money. Moreover, Poulos recognized that government cannot require

the obtaining of a license as a precondition to exercising First-Amendment

rights where the licensing agency—like the “arbitrator” here—has discretion

to make content-based determinations. See 345 U.S. at 403 n.9. 412-14

Times Film Corp. v. City of Chicago held only that a permit may be required

to protect the public “against the dangers of obscenity in the public

exhibition of motion pictures,” because “obscenity is not within the area of

constitutionally protected speech,’” and motion pictures are “not ‘necessar-

ily subject to the precise rules governing any other particular method of

expression.” 365 U.S. 43, 49-50 (1961) (quoting Roth v. United States, 354

U.S. 476, 485 (1957), and Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495. $03

(1952)). Here, in contrast, the collection of agency fees even for bargaining

purposes indisputably infringes on First-Amendment interests. See Hudson.

475 U.S. at 301 n.8, 307 & n.20; Ellis, 466 U.S. at 455: Abood. 431 US. at

222 (opinion of the Court), 255 (Powell. J.. concurring). Nor does this case

concem motion pictures.

=~ }

CONCLUSION

Petitioners present no cogent reason for a writ of certiorari

in this case. The court of appeals’ decision correctly followed

the applicable decisions of this Court. Petitioners suggest no

conflict among the courts of appeals, and no real conflict exists.

Therefore, Petitioners’ petition should be denied. If a writ of

certiorari is granted, the court of appeals’ decision should be

summarily affirmed.

Respectfully submitted,

W. JAMES YOUNG

Counsel of Record

c/o National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, VA 22160

(703) 321-8510

ATTORNEY FOR RESPONDENTS

8 April 1998