Opposition Brief — Prescott v. County of El Dorado

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No. 02-686 rOAN & 200

In the crncnor cmt |

Supreme Court of the Anited States

STEVEN PRESCOTT, ET AL.,

Petitioners,

V.

CounTy OF Ext Dorapo, CALIFORNIA, ET AL.,

Respondents.

On Petition For Wait Or CERTIORARI

To Tue Unrrep States Court Or APPEALS

For Tue Ninra Circuit

RESPONDENTS' BRIEF IN OPPOSITION

MICHAEL W. RoMAN Frep J. HiIESTAND

1816 Firru STREET Counsel of Record

BERKELEY, CA 94710 1121 L STREET

(510) 548-6211 Surre 404

SACRAMENTO, CA 95814

(916) 448-5100

Counsel for Respondents

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTION PRESENTED

Do agency fee payers who have standing to challenge

the adequacy of the notice sent them by the union pursuant to

Chicago Teachers Union, Local No. 1, AFL-CIO v. Hudson,

475 U.S. 292 (1986), also have standing to challenge the

validity of the third-party indemnity agreement between their

public employer and the union?

TABLE OF CONTENTS

8 eee eo ee

Talis oC. oi 5 KS a elke eee eee

Tate of AWGGEEEE .. so o.e kek Rie eee i

Pr norte ee

Seen of PO. .... 6s cde eRe eee

Semmanry Of AIQUMBOEE. 2... ci cee cee ws vences

Reasons for Denying the Petition ...............

I.

The Court of Appeals’ Decision Does Not

Conflict with Opinions of this Court; and

Petitioners’ Mislabeling of Their “Injury” for

the Purpose of Manufacturing an Apparent

Comiiiet Wal F000 WOR. ook eid ce wetness

A. Petitioners Presented No Proof that the

Indemnification Agreement between

the Union and the Public Employer

was the Legal “Cause” of any

Inadequacy in the Union’s Hudson

er ar er re grey

B. Petitioners Did Not and Cannot Satisfy

the “Redressability” Element

Necessary to Show They Have

Standing to Challenge the

Indemnification Clause ............

c. Petitioners’ Mislabeling of their

Purported Injury is a Veiled Attempt to

Get this Court to Review Another

Recent Case for which Certiorari was

Denied, Foster v. Madhesian, and

enous OG RGCTNOS 2 wc ees 14

Il. The Court of Appeals’ Decision Does Not

Conflict with Opinions from the Third and

Sixth Circuits upon Which Petitioners Rely ... . 21

Il. | Whatever Conflict Exists Between the Court of

Appeals’ Decision and the Tenth Circuit’s

Opinion in Wessel Is Insufficient to Warrant

DE SiGe eee ls rE Ca Kah ee 22

Rr ee it eg Oe a obs kao SOO 27

ili

TABLE OF AUTHORITIES

CASES

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)... 8

Allen v. Wright, 468 U.S. 737 (1984) ............ 8

Arizonans for Official English v. Arizona,

egg Re Fe re 26

Camden County Board of Chosen Freeholders v.

Beretta USA Corp.,

123 F. Supp. 2d 245 (D.N.J. 2000) ......... 11

Chicago Teachers Union, Local No. 1 v. Hudson,

Cie Gs ee ES 3. 6. 0040's wee 6 8 Passim

City of Canton, Ohio v. Harris,

469 U.S. STC GRR) ww cues cece renee 10

City of Oklahoma v. Tuttle, 471 U.S. 808 (1985) ... 9, 10

Ellis v. Railway Clerks, 466 U.S. 435 (1984) ....... 17

Florida Audobon Society,

94 F.3d 658 (D.C. Cir. 1996) (en banc) ... 10, 12

Foster v.Mahdesian,

268 F.3d 689 (9 Cir. 2001) .... 3,7, 14-18, 20

Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc.,

See Ua Set OD a wk eas Ba harkwks owe 2, 13

FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990) .... 24-25

iv

Gladstone, Realtors v. Village of Bellwood,

GOL US. FERRIED ae elec wes ewes 25

Hagans v. Lavine, 415 U. S. 528 (1974) .......... 21

Hohe v. Casey, 956 F.2d 399 (3d Cir. 1992) ..... 15, 21

Huddy v. Federal Communications Commission,

236 F.3d 720 @. C. Cir. BIDE) ww. ees 10

Knight v. Kenai Peninsula Borough Sch. Dist.,

131 F.3d 807 (9" Cir. 1997),

cert. denied sub nom Anchorage Educ.

Ass’n v. Patterson,

524 U.S. 904 (19BE).. ww ccc cccees 3, 7,.an

Lewis v. Casey, 518 U. S. 343 (1996) ............ 21

Lujan v. Defenders of Wildlife,

I | rer eee ara 8, 25

McCray v. New York, 461 U.S. 961 (1983) ......... 23

Monell v. Pape, 365 U.S. 167 (1961) ............ 9

Pembaur v. City of Cincinnati,

STS U.S GED ve ces asevsasee’s 10

Pennhurst State Sch. & Hosp. v. Halderman,

ee Lo. | eevee) eee eee ee 21

Prescott v. County of El Dorado,

177 F.3d 1102 (9" Cir. 1999) (Prescott I) . 1,2, 24

Prescott v. County of El Dorado,

298 F.3d 844 (9" Cir. 2002) (Prescott Il) ... 3, 26

Prescott v. County of El Dorado,

528 U.S. 1111 (2000) .....------+++> 1, 4, 24

San Ramon Valley Unified School Dist. (Abbot),

PERB Decision No. 751,

13 P.E.R.C. 20201 (1989);

accord Sweetwater Union High School

District (Gerber), PERB Decision No. 1417,

25 P.E.R.C. 4 32024 (2001) ..----- sree? 19

Simon v. Eastern Kentucky Welfare Rights Organization,

426 U. S. 26 (1976) ...-- eee errr? 11, 25

Tierney v. City of Toledo,

824 F.2d 1497 (6" Cir. 1987) ..----- +--+? 15

Warth v. Seldin, 422 U. S. 490 (1975) ...-- +++ -55: 25

Weaver v. Univ. of Cincinnati,

970 F.2d 1523 (6th Cir. 1992) .....---- 15, 21

Wessel v. City of Albuquerque,

299 F.3d 1165 (10th Cir. 2002) .... 7, 16, 22-26

STATUTES AND REGULATIONS

Cal Gov Code § 3519(d) ...-- seer rrr rrr 19

Cal Gov Code § 3541 2... - eee eee rer er este? 19

Cal Gov Code § 3541.3(g) .----- errr rrr? 19

vi

Cal Gov Code § 3543.5(d) .. 2... - ee eee eee eee 19

Cal Gov Code § 3571(d) ... 1... eee eee eee eee 19

8 Cal Code Reg § 32992 .... 1... eee eee eee: 20

OTHER AUTHORITY

Justice Stevens, Some Thoughts on Judicial Restraint,

66 Judicature 177 (1982) .........--++5-: 23

Vii

STATEMENT OF THE CASE

This case is the outcome of a remand order by this

Court to the Ninth Circuit that it take another look at its

decision in Prescott v. County of El Dorado, 177 F.3d 1102

(9" Cir. 1999) (Prescott I) (Pet. at 20a). (See Prescott v.

County of El Dorado, 528 U.S. 1111 (2000).) That decision

held, per Judge Fernandez, that with respect to the issue

presented here again “insofar as [petitioner agency fee payer]

Prescott attacks the indemnification provision between the

[respondent union] and the County, standing is in question.

We review standing questions de novo.” (Prescott I, supra,

Pet. at 20a.)

The Ninth Circuit’s de novo review upheld the district

court’s opinion that petitioner lacked standing to challenge the

indemnification agreement between the county and the union.

Petitioners argued that this agreement obligating the union to

indemnify the county “from any liability which arises out of

deductions of fees from employee wages, and to provide a

defense against any claims,” was, if not unconstitutional, void

for public policy. But the Ninth Circuit never reached that

issue on the merits, finding instead that the petitioner agency

fee payers lacked standing to challenge the agreement. It

reached that conclusion by reasoning that

While it can be assumed that Prescott suffered

some injury when the fees were deducted from

his paycheck, that is all he has shown. He

certainly cannot show any connection between

the indemnification agreement and that injury.

The agreement does no more than place the

ultimate cost of any impropriety in the notice

and the procedures where it belongs—on the

union, which seeks the fees. Just how any

l

injury can be traced to the indemnification

provision itself is entirely unclear, but for

Prescott’s claim that the provision will

somehow cause the County to ignore its own

duties. But that argument is no more than rank

speculation, and any breach of the County’s

duty can hardly be said to be traceable to the

indemnification provision itself.

(Prescott I, supra, Pet. at 42a.)

The Court directed the Ninth Circuit to reexamine and

reconsider its decision in light of the Court’s recent holding

in Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167 (2000) (FOE). The Ninth Circuit understood

FOE to be “a standing case” and, since “the only portion of

its decision that dealt with standing . . . discussed the issue of

indemnification,” interpreted the remand to require the district

court to “address the standing issue in the first instance.”

(Pet. at 21a.)

The district court reconsidered the standing issue and

concluded that petitioners “failed to demonstrate how the

remedy they seek will prevent any future violation of their

rights under Hudson. Although [they] may have suffered a

violation of the standards enunciated in Hudson, that injury

resulted from the Union’s conduct, and, notwithstanding the

defendants’ stipulation, the hold harmless agreement is a

cause of the injury only in the most indirect fashion.” (Pet.

at 16a.)

The district court discussed FOE and concluded that it

did not alter its conclusion because “the injury suffered by the

organization members in [FOE] could have been redressed by

a favorable decision, [while] the same is not true in this case

2

with respect to [petitioners’] challenge to a third-party

indemnity agreement.” (Pet. at 17a.)

On appeal, the Ninth Circuit agreed for the second

time with the district court, albeit for different reasons, that

petitioners lacked standing to challenge the indemnity

agreement between the county and the union. This time Chief

Justice Schroeder expressly found that petitioners failed to

demonstrate either the requisite causation or redressability

elements of standing. As to causation, the opinion stated:

[Petitioners’ Hudson] injury was not caused by

the employer’s entry into the collective

bargaining agreement; it was caused by the

union’s inadequate notice of expenditures on

which the agency fees were based. Indeed, in

this circuit, the employer has no responsibility

for ensuring the adequacy of the notice; that is

the union’s responsibility. Foster v.Mahdesian,

268 F.3d 689, 694 (9" Cir. 2001); Knight v.

Kenai Peninsula Borough Sch. Dist., 131 F.3d

807, 817 (9" Cir. 1997). The challenged

indemnification clause upon which the

employer issued caused neither the union to

furnish, nor the plaintiffs to receive,

inadequate notice.

(Prescott v. County of El Dorado, 298 F.3d 844 (9 Cir.

2002) (Prescott I])) (Pet. at 4a.)

The Ninth Circuit also agreed with the district court

that petitioners did not meet the redressability requirement for

standing because “the remedy [they] seek, invalidation of the

indemnity clause, does not compensate [them] for past

violations of Hudson, nor does it prevent future violations.”

(Id.)

It is from this opinion of the Ninth Circuit that

petitioners seek certiorari review.

STATEMENT OF FACTS

Respondents respectfully refer the Court to the factual

statements presented by the Ninth Circuit in its two opinions

(Pet. at App. A & E, pp. la-5a and 22a et. seq.) for an

objective statement of the pertinent background animating its

most recent decision challenged by petitioners. We also add

this disclaimer to petitioners’ parsing of the issues presented:

The Court has been up this down staircase once

before—when it remanded the case for reconsideration of

whether agency fee payers had standing to challenge the

indemnification clause of the collective bargaining agreement

between the County of El Dorado and the union representing

the county’s employees. (Pet. at 3, citing to Prescott v.

County of El Dorado, 528 U.S. 1111 (2000).) The result of

that remand is now complete and presented anew for this

Court to review again; but petitioners are wrong in their

assertion that, beyond the narrow standing issue over the

‘indemnification agreement for which remand was ordered,

this case presents the larger issue of whether petitioners have

standing to “challenge provisions of the agreement governing

their terms and conditions of employment.” (Pet. at i, 3.) Of

course they do or do not, depending upon what “terms and

conditions” of their employment we are talking about.

Petitioners’ broad phrasing of this phantom “standing” issue

as one pertaining to their “their terms and conditions of

employment” is too general to be of assistance to the Court or

counsel trying to wrestle with pertinent jurisprudential

4

authority. It reflects, if not a peculiar ideological view of

labor relations and constitutional law, an understandable

penchant to make narrow, fact specific legal issues into more

grandiose ones; and is analogous, and about as helpful to the

question of justiciability, as saying (which is perhaps true in

an ontological sense) that this case concerns the right of

public employees to associate together and bargain

collectively for the improvement of their working conditions

without having to subsidize “free riders.”

That narrow, properly framed legal issues can be, as

petitioners have done here, extrapolated into more global ones

for various purposes is commonly recognized, but doing so

properly consigns their resolution to the political process, not

to the federal courts. Only one issue is really presented by

this case, and that is whether agency fee payers who have

undisputed standing to challenge the adequacy of the Hudson

notice they receive from the union, also have Standing to

challenge the validity of the indemnity agreement between the

union and their public employer. That Standing issue turns,

to be sure, on the nature of petitioners’ “injury,” which this

Court has defined and confined to the adequacy of the

“notice” it requires the union to give agency fee payers, and

whether the challenge to that “injury” can satisfy the

requirements of traceability (i.e., legal causation) and

redressability.

Mischaracterizing their purported “injury” as

something other than what this Court and others have said it

is - whether that be called the “seizure” of their property in

the form of their fair share of agency fees by the employer, or

their deprivation of standing to challenge, as they put it, that

“section of the MOU [fi.e., the indemnity provision]

governing their terms and conditions of employment”' -

should not suffice to achieve certiorari. This Court should

not, in other words, countenance the evasion of its holdings

by a litigant’s mislabeling of the nature of the injury

implicated.

SUMMARY OF ARGUMENT

Two elements essential to show that petitioner agency

fee payers have the standing essential to challenge the validity

of the indemnification agreement between the union and the

county are causation and redressability. Both are lacking

here.

Petitioners cannot show the necessary causal link

between their injury in fact - i.e. , collection of their fair share

fees by the public employer absent an adequate Hudson notice

to them from the union - and the indemnification agreement

between the union and petitioners’ employer. The

relationship between the injury and the indemnity agreement

is too attenuated to conclude anything reasonable respecting

legal cause. Petitioners fear that the indemnification

agreement induces the countv to act illegally with respect to

petitioners’ rights is just that, fear driving speculation in a

vicious circle that ignores fact and logic. That the county

stipulated it would not have entered into the fair share

agreement without the indemnification guarantee from the

union proves nothing because all elements of an agreement are

indispensable to it as a whole; it can be safely said about each

and every element that absent it there would be no agreement.

Pet. at 3.

Nor can petitioners meet the redressability requirement

of standing because the remedy they seek, invalidation of the

indemnity clause, does not compensate them for past

violations of Hudson, nor prevent future violations.

No conflict exists between this Court’s opinion in

Hudson and the Ninth Circuit opinions in this case and others

upon which it relies, namely Foster and Knight. Neither is

there any meaningful conflict between the appellate opinion

here and decisions of the Third and Sixth Circuits concerning

Standing of agency fee payers to challenge the validity of

indemnification agreements between a union and the public

employer of the fee payers. To the extent there may exist a

conflict between the decision in this case and the Tenth

Circuit’s recent opinion in Wessel v. City of Albuquerque, 299

F.3d 1165, it is not sufficiently deep to warrant review now

instead of letting the decisions percolate in the lower courts

for a reasonable period to see if any differences between the

two opinions can be ironed out or clarified.

REASONS FOR DENYING THE PETITION

I. THE COURT OF APPEALS’ DECISION DOES

NOT CONFLICT WITH OPINIONS OF THIS

COURT; AND PETITIONERS’ MISLABELING

OF THEIR “INJURY” FOR THE PURPOSE OF

MANUFACTURING AN APPARENT CONFLICT

WILL NOT WASH.

Petitioners disagree with the district and appellate

courts’ identification of their purported injury, which is the

union’s failure to provide them with adequate notice of the

basis of the agency fee and to maintain a sufficient portion of

collected fees in escrow pending fee arbitration (see Pet. at

3a), both of which are required by Chicago Teachers Union,

7

Local No. 1 v. Hudson, 475 U.S. 292 (1986). They claim

that their real injury is not the union’s failure to comply with

Hudson, for which they obtained redress, but the public

employer’s withholding of agency fees.

But as Abood v. Detroit Bd. of Educ. , 431 U.S. 209,

232 (1977) makes clear, the First Amendment is not violated

by the implementation of an agency fee agreement - i.e., “to

require nonunion employees, as a condition of employment,

to pay a fair share of the union’s cost of negotiating and

administering a collective-bargaining agreement.” (Hudson,

475 U.S. at 301 (emphasis added).) Rather, the only reason

that the petitioners can claim any injury in the present case is

because (as the Court of Appeals held in its first decision in

this case) the union failed to comply fully with Hudson. Their

injury, then, arises from the union’s inadequate compliance,

and the standing inquiry turns on the second and third prongs

of the standard this Court articulated in such cases as Lujan v.

Defenders of Wildlife, 504 U. S. 555, 560-61 (1992), and

Allen v. Wright, 468 U.S. 737, 751 (1984) - i.e., whether

they have (1) demonstrated the necessary causal link between

the conduct they seek to challenge (the indemnification

agreement) and their injury, and (2) whether they have

demonstrated that the remedy they seek (invalidating the

indemnification agreement) will redress their injury.

A. Petitioners Presented No Proof that the

Indemnification Agreement between the

Union and the Public Employer was the

Legal “Cause” of any Inadequacy in the

Union’s Hudson Notice.

Petitioners misconstrue the nature of their “injury” to

avoid addressing the real standing issues presented of

causation and redressability. It is on the basis of these two

8

issues that the appellate opinion held petitioners lacked

standing (see Pet. at 3a-5a); and as to those issues, the court

was correct.

Thus, the Court of Appeals correctly rejected

petitioners’ argument that they could establish the requisite

causal relationship merely by showing “but-for” causation

based on a stipulation that the public employer would not have

' entered into the agency fee agreement absent the

: indemnification provision. This Court has previously held in

. the Section 1983 context that such “but-for” causation

: arguments are too attenuated to establish causation:

[SJome limitation must be placed on

: establishing municipal liability through policies

that are not themselves unconstitutional, or the

test set out in Monell will become a dead

letter. Obviously, if one retreats far enough

from a constitutional violation some municipal

“policy” can be identified behind almost any

such harm inflicted by a municipal official; for

example, [the accused officer] would never

have killed Tuttle if Oklahoma City did not

have a “policy” of establishing a police force.

But Monell must be taken to require proof of a

city policy different in kind from this latter

example before a claim can be sent to a jury on

the theory that a particular violation was

“caused” by the municipal “policy.” At the

very least there must be an affirmative link

between the policy and the particular

constitutional violation alleged.

(City of Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985)

(plurality opinion).)’

The same reasoning applies equally in the context of

standing. (See Huddy v. Federal Communications

Commission, 236 F.3d 720, 735 (D. C. Cir. 2001) (rejecting

“but-for” approach to standing where there was no “inherent

tendency of the [defendant]’s alleged error to produce the

alleged injury,” and questioning whether “‘but for’ causation

of this sort could ever be sufficient to confer constitutional

standing”); Florida Audobon Society, 94 F.3d 658, 670 (D.C.

Cir. 1996) (en banc) (holding that “a protracted chain of

causation fails both because of the uncertainty of several

individual links and because of the number of speculative

links that must hold for the chain to connect the challenged

acts to the asserted particularized injury”).)°

? Although this passage is found in a section of Tuttle that was

joined by only four justices, the Court subsequently quoted the

language with approval. See City of Canton, Ohio v. Harris, 489

U. S. 378, 390 n. 9 (1989). Moreover, the author of the opinion

of three other justices in Tuttle later clarified that “both the plurality

and the opinion concurring in the judgment [in Tuttle] found

plaintiff's submission inadequate because she failed to establish that

the unconstitutional act was taken pursuant to a municipal policy

rather than simply resulting from such a policy in a ‘but for’

sense.” Pembaur v. City of Cincinnati, 475 U. S. 469, 484 n. 11

(1986) (plurality opinion of Brennan, J.) (emphasis in original).

> See also Camden County Board of Chosen Freeholders v. Beretta

USA Corp., 123 F. Supp. 2d 245, 257 (D.N.J. 2000) (rejecting

“but-for” approach to standing and holding that, “[aJlthough

proximate cause is not typically part of the constitutional standing

analysis, the proximate cause approach is warranted where, as

here, the plaintiff's theory of liability involves suing a defendant

10

NP a

PS AO A ogee ah Te Pita

Petitioners’ “but-for” causation analysis - reminiscent

of a Rube Goldberg contraption - is simply too attenuated and

speculative to support standing in the instant case. For

example, if such a “but-for” causation theory were sufficient,

fee payers would have standing (assuming they could show

redressability) to challenge the union’s or public employer’s

very existence as ultra vires, on the theory that if the union or

public employer did not exist there would be no agency fee

agreement. This sort of reductio ad absurdum causation

analysis would permit courts and counsel to foresee forever,

rendering the principle of causation uncabined and

unconfined.

The Court of Appeals’ rejection of petitioners’ other

“causation” argument - that the indemnification provision

removed the public employer’s incentive to police the union’s

compliance with the Hudson notice requirements - was also

manifestly correct because petitioners introduced no evidence

to support their argument, but rather relied solely on

speculation which is insufficient to sustain their burden of

proof. (See Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U. S. 26, 42-45 (1976).) In Simon, this

Court held that the plaintiffs lacked standing to challenge

favorable tax treatment to hospitals that denied non-

emergency services to indigents. Although the Court assumed

that the plaintiffs had been injured by the denial of hospital

service, it rejected their arguments that the revenue ruling had

“‘encouraged’ hospitals to deny services to indigents” and

that requiring hospitals to offer non-emergency service to

indigents to obtain the tax break “would ‘discourage’ hospitals

from denying” such service. (Jd. at 42.) The Court reasoned

over allegedly wrongful conduct several steps removed from the

end harm”).

11

that, regardless of the tax consequences, the decision whether

to provide non-emergency care to indigents would rest with

hospitals, who might instead “elect to forgo favorable tax

treatment.” (/d. at 42-43.) It therefore concluded that

“{s}]peculative inferences” that different tax incentives would

change the hospitals’ behavior “will not suffice to invoke the

federal judicial power.” (Jd. at 44-45.)‘

Here, as noted above, petitioners introduced no

evidence to support their speculation that the public employer

knew that the union’s Hudson notice was legally deficient, yet

continued to deduct agency fees because the indemnification

provision shielded it from liability. (See Pet. at 5-6.) The

stipulation that the public employer would not have entered

into or enforced the agency fee agreement absent an

indemnification agreement is much too general to prove

petitioners’ contention, as it does not state that the public

employer was aware that the union’s Hudson notice was

legally deficient, yet continued to deduct fees in reliance on

the indemnification provision.

Moreover, the stipulation makes the instant case an

extremely poor vehicle to resolve the issue of the standing of

fee payers to challenge agency fee indemnification agreements

because the very existence of the stipulation renders this case

sui generis. The dynamic, give-and-take nature of collective

bargaining makes it extremely difficult to predict with

certainty the effect that the omission of one element of an

* See also Florida Audobon Society, 94 F.3d at 670 (where, as

here, causation depends upon a chain of inferences regarding the

likely effects of the conduct of independent actors, courts

“routinely refuse to permit . . . predictive assumptions,” which

“cannot be easily described as true or false,” “to establish

standing”).

12

Morty en 10 a tr onl ae

agreement would have upon other provisions. If they were

unable to offer a public employer an indemnification provision

in return for an agency fee agreement, most unions would

likely offer other concessions. In such cases, it is impossible

to predict whether an employer would agree to an agency fee

arrangement without indemnification, because it would

depend on the nature of such other concessions and their

importance to the employer.

B. Petitioners Did Not and Cannot Satisfy the

“Redressability” Element Necessary to

Show They Have Standing to Challenge the

Indemnification Clause.

The Court of Appeals’ decision was equally correct as

to the “redressability” prong of the standing inquiry. As the

Court of Appeals held,

Redressability requires that it be “likely, as

opposed to merely speculative, that the injury

will be redressed by a favorable decision.”

[Friends of the Earth, Inc. v.] Laidlaw

[Environmental Svcs. (TOC), Inc.|, 528 U.S.

[167] at 181, 120 S.Ct. 693 [(2000)]. The

remedy the plaintiffs seek, invalidation of the

indemnification clause, does not compensate

plaintiffs for past violations of Hudson, nor

does it prevent future violations.

(Pet. at 4a.)

Certainly, invalidating the indemnification agreement

is prospective relief and would not remedy any past injury the

petitioners have incurred. At no point in the litigation did

petitioners seek an order requiring the public employer or its

13

attorney to repay to the union (much less to the petitioners)

any funds it had received pursuant to the indemnification

agreement. Moreover, the union settled the monetary aspects

of this case by refunding to the petitioners all of the agency

fees they paid during the relevant period. Since they have

already received a full refund of their fees, the invalidation of

the indemnification provision cannot redress their past injury

- which has already been fully redressed by the refund.

Similarly, petitioners introduced no evidence to demonstrate

that the violations found by the courts below, i.e., the union’s

failure to comply with its obligations under Hudson, were

likely to be repeated in the future, much less that invalidation

of the indemnification provision would likely be effective in

preventing the repetition of such violations. Again,

petitioners’ argument was founded on nothing more than

speculation as to the possible effect of the indemnification

agreement.

>a Petitioners’ Mislabeling of their

Purported Injury is a Veiled Attempt

to Get this Court to Review Another

Recent Case for which Certiorari

was Denied, Foster v. Madhesian,

and Should be Repelled.

The Petition, then, is really about something besides

the Court of Appeals’ decision. What petitioners really seek

is to avoid litigating the causation and redressability questions

that the Court of Appeals grounded its decision upon, and

instead relitigate the Court of Appeals’ prior decision in

Foster, 268 F.3d 689, as to which this Court recently denied

a petition for certiorari. (122 S. Ct. 2327.) There is,

however, no compelling reason for this Court to grant the

petition in the instant case, given its denial of the petition in

Foster.

14

eg ee

Foster examined the issue of under what circumstances

a public employer could be held liable for the union’s failure

to comply with its obligations under Hudson. Foster

concluded that the employer does not incur such liability

merely for making a routine payroll deduction for agency

fees, as long as there is a plan in place for Hudson

compliance, even if the union’s Hudson compliance is

deficient. In other words, under Foster, (1) the public

employer does not have a legal obligation to police the

intricate details of the union’s implementation of its Hudson

compliance plan, as long as there is such a plan in place, and

(2) if there is such a plan, the public employer does not incur

any such duty merely by making a routine payroll deduction

for agency fees. (See Foster, 268 F.3d at 693-94.)

The Foster plaintiffs did not agree with the Court of

Appeals’ decision in that case and they filed a petition for a

writ of certiorari. In their writ petition, the Foster plaintiffs

contended that the Court of Appeals’ decision conflicted with

Hudson, as well as with the other Court of Appeals’ decisions

relied on by petitioners here - Hehe, Tierney and Weaver.

(See Petition Writ of Certiorari filed in No. 01-1307.)° This

Court, however, determined that there was nothing in Foster

that merited review.

Petitioners in this case - who are represented by a staff

attorney at the National Right to Work Legal Defense

Foundation, Inc. (as were the Foster plaintiffs) - are really

5 The Foster plaintiffs did not raise Wessel v. City of Albuquerque,

299 F.3d 1186 (10th Cir. 2002), since that decision had not been

rendered at the time they filed their cert. petition. There can be no

argument, however, that Wessel conflicts with Foster, since the

Wessel court expressly distinguished Foster rather than disagreeing

with it. See id. at 1198-99.

15

trying to use this case as a vehicle to get a second bite at the

Foster apple, just months after certiorari was denied in

Foster. (See Pet. at 11-14.)

Contrary to the Petition, there is no conflict between

Hudson and the Court of Appeals’ decision in Foster, or as

the Foster decision is incorporated by reference into the Court

of Appeals’ decision in the instant case. Hudson simply does

not speak, expressly or impliedly, to the potential liability of

a public employer for legal deficiencies in the minute details

of the union’s compliance with the obligations imposed in that

decision. In Hudson, this Court affirmed in part the Seventh

Circuit’s reversal of the district court’s judgment, rendered

after a bench trial, for the defendants upholding the agency

fee procedure. (See Hudson, 475 U.S. at 298-301; Hudson,

743 F.2d 1187, 1190 (7th Cir. 1984).) This Court did not

affirm any judgment of liability against the public employer,

since there was no such judgment below. Rather, the Seventh

Circuit, whose decision this Court affirmed in part, had

reversed the judgment of the district court and remanded the

case for further proceedings consistent with its opinion.

(Hudson, 743 F.2d at 1197.)

. Further, there is no indication in this Court’s opinion

that the public employer ever raised the issue before this

Court that is implicated in Foster - whether a public employer

can incur liability for the deficiencies in the details of the

union’s compliance with its agency fee obligations merely by

the routine deduction of agency fees. Nor does the Court’s

opinion in Hudson decide that issue, either explicitly or

implicitly. To be sure, the Court did recite that the public

employer accepted the union’s calculation of the fair share

fee, made the requested fee deductions, and did not provide

fee payers with an explanation of the union’s calculation or

the agency fee procedures. (See Hudson, 475 U.S. at 296.)

16

But the Court’s observations on this point were merely set

forth in its statement of the underlying facts of the case. The

Court nowhere alluded to (much less relied on) these facts in

its discussion, nor did it draw any conclusions from them.

In fact, there is virtually nothing in the Court’s

discussion that even relates to the liability vel non of the

public employer. To be sure, Hudson did state in a footnote,

“Since the agency shop itself is a ‘significant impingement on

First Amendment rights,’ Ellis [v. Railway Clerks], 466 U.S.

[435] at 455 [(1984)], the government and union have a

responsibility to provide procedures that minimize that

impingement and that facilitate a nonunion employee’s ability

to protect his rights.” (Hudson, 475 U.S. at 307 0.20.) But

there can be no contention either in the present case or in

Foster that such “procedures” did not exist. In both cases,

the union had a plan for Hudson compliance that addressed all

three obligations imposed by that decision: the provision of

“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.”

(See Hudson, 475 U.S. at 310.)

The claims in the present case (as in Foster) were not

that the union did not provide such an explanation, challenge

procedure and escrow, but that the details of these measures

did not fully comply with the union’s Hudson obligations,

e.g., whether the Hudson notice that was admittedly sent to

fee payers was audited, whether the agency fee challenge

procedure established was sufficiently prompt, and whether

the portion of the agency fee that was admittedly escrowed

17

was high enough.® Nowhere does Hudson hold that the public

employer can be held liable for such flaws in the details of the

union’s implementation of its Hudson compliance plan, as

opposed to a situation in which no such plan exists. And

Foster is in accord:

The plaintiffs do not argue that no plan [for

Hudson compliance] was in place; they have

merely demonstrated that they received an

inadequate notice. [{] Although employers

certainly owe nonunion member employees the

general duty set forth in Hudson of ensuring

that procedures exist “that minimize

impingement and that facilitate a nonunion

employee’s ability to protect his rights,”

Hudson, 475 U.S. at 307 n.20, they owe no

specific duty to employees to ensure that a

proper Hudson notice is received by each

employee before agency fees are deducted.

(Foster, 268 F.3d at 694.) Thus, there is no conflict between

Hudson and Foster.

° As Kathryn Libicki testified in her deposition, the public

employer did make sure that the union had abided by the plan for

Hudson compliance:

[O]ur responsibility was to ensure that in fact [the

union] provided those things that I identified and in

fact these documents show that they gave notice to

the employees. They identified chargeable versus

non-chargeable expenses. They set up an escrow

* account and a procedure for challenge.

ER 170:7-13.

18

Nor, as a policy matter, would it make sense to

require the public employer to police the details of the union’s

compliance with its Hudson obligations. The public employer

is particularly ill-suited to intervene in the dispute between the

union and its agency fee payers regarding the details-of the

union’s Hudson compliance because well-estabiished public

policy prohibits public employers from interfering in the

internal affairs of the unions that represent their employees.

See, e.g., California Government Code §§3519(d), 3543.5(d),

§3571(d).

Consistent with these statutory mandates, the

California Public Employment Relations Board (“PERB”) -

the state agency charged with interpreting and enforcing

public employment bargaining laws including the foregoing

provisions’ — has promulgated regulations specifying that the

union, not the public employer, is responsible for informing

the employees of the amount and basis for calculating the

agency fee, as well as of the procedure for challenging it. (8

California Code of Regulations § 32992.) Moreover, PERB

has also specifically held that imposing such a duty on the

employer would conflict with the statutory prohibition on

interference with the union’s affairs. (San Ramon Valley

Unified School Dist. (Abbot), PERB Decision No. 751, 13

P.E.R.C. {20201 at p. 732 (1989); accord Sweetwater Union

High School District (Gerber), PERB Decision No. 1417, 25

P.E.R.C. ¢ 32024 (2001).)

7 See, e.g., California Government Code §§ 3541 (establishing

PERB); 3541.3(g) (authorizing PERB “to adopt . . . rules and

regulations to carry out the provisions and effectuate the purposes

and policies of this chapter”).

19

As PERB held in Abbot, the position espoused by

petitioners here “is incompatible with the entire notion of

collective bargaining,” because “(t]he ‘arm’s length’

relationship required by collective bargaining recognizes that

the employer and the union have conflicting interests” which

“obviously render unworkable any scheme where the

employer must police the union’s actions, lest it be held liable

for them.” (Abbot, 13 P.E.R.C. ¢ 20201 at p. 732.)

Moreover, as PERB also recognized, there are “practical

reasons why creating such a duty [as to the employer] makes

little sense,” such as the fact that “[a] public . . . employer

simply does not have the authority or resources to review

union procedures and determine if they are statutorily or

constitutionally adequate.” (/d.) .

The reasoning of Abbot is compelling. The public

employer’s role in the agency fee context is limited to

deducting the fees and transmitting them to the unions; the

employers retain no more control over the fees than they do

over payroll deductions that they may make for the United

Way or for other charitable organizations. The unions act

alone and in their own interest in determining the purposes for

which agency fees shall be spent, the form and content of

their Hudson notices, and the procedures that comprise the _

agency fee arbitration and escrow.. Moreover, public

employers lack the information and expertise to look over the

unions’ shoulders and review the legality of their agency fee

procedures. For these reasons, Foster’s holding that a public

employer incurs no legal duty to police the details of the

union’s compliance with Hudson merely by making routine

agency fee payroll deductions is not only consistent with

Hudson, but moreover is supported by public policy.

Il. THE COURT OF APPEALS’ DECISION DOES

NOT CONFLICT WITH OPINIONS FROM THE

THIRD AND SIXTH CIRCUITS UPON WHICH

PETITIONERS RELY. |

Contrary to petitioners’ argument, there is no conflict

between the Ninth Circuit’s resolution of the standing issue

and either of the Sixth and Third Circuit decisions on which

plaintiffs rely, Weaver v. Univ. of Cincinnati, 970 F.2d 1523

(6th Cir. 1992), and Hohe v. Casey, 956 F.2d 399 (3d Cir.

1992). Neither of those cases expressly addressed the

standing issue.* Although petitioners cite authority to the

effect that federal courts have an obligation to address

standing (see Pet. at 22-23), that is a far cry from authority

holding that one can assume from a federal court’s resolution

of the merits of an issue that it has implicitly addressed and

resolved the standing issue. In fact, settled authority is

plainly to the contrary. Thus, the Court has “repeatedly held

that the existence of unaddressed jurisdictional defects has no

precedential effect.” (Lewis v. Casey, 518 U. S. 343, 352 n.

2 (1996) (emphasis added). See also Pennhurst State Sch. &

Hosp. v. Halderman, 465 U. S. 89, 119 (1984) (quoting

Hagans v. Lavine, 415 U.S. 528, 533 n. 5 (1974)) (“‘[W]hen

® Contrary to plaintiffs’ attempt to portray the district court’s

decision in Hohe, 740 F. Supp. 1092, 1098-99 & n.5, that court

did not address the issue of fee payers’ standing to challenge the

agency fee indemnification provision. Rather, that decision held

that its resolution of the merits of various of the claims rendered it

unnecessary to reach the challenge to the indemnification provision.

This clearly was not a decision that the plaintiffs lacked standing to

bring such a challenge, but rather was an express and

straightforward application of the jurisprudential rule of avoiding

the resolution of constitutional questions that are not necessary to

the outcome of the case. (See id. at 1098.)

21

questions of jurisdiction have been passed on in prior

decisions sub silentio, this Court has never considered itself

bound when a subsequent case finally Laie the jurisdictional

issues before us’”).)

Second, the same is true of the prior Ninth Circuit

case that petitioners cite, Knight v. Kenai Peninsula Borough

Sch. Dist., 131 F.3d 807, 817 (9th Cir. 1997), cert. denied

sub nom Anchorage Educ. Ass’n v. Patterson, 524 U.S. 904

(1998). In Knight, the Ninth Circuit had no occasion to

consider whether the agency fee payers had demonstrated

sufficient injury, causation, and redressability to establish

standing. Instead, Knight held the challenge unripe because

it was based upon “factual assertions that cannot be assessed

on the current record” and because no action had yet been

taken against the plaintiff. (Knight, 131 F.3d at 814.) The

court’s statement that the plaintiff’s factual assertions were

incapable of assessment demonstrates that the standing

question, which depended upon such facts, could not have -

been resolved in that case. Moreover, plaintiffs in the present

case acknowledged in the Ninth Circuit that the standing issue

was not raised at all on appeal in Knight. (See Appellants’

Opening Ninth Circuit Brief at 33, n. 10.) As such, Knight

cannot be considered to have any precedential effect with

regard to the standing issue, under the authority cited in the

prior paragraph.

Il. WHATEVER CONFLICT EXISTS BETWEEN

THE COURT OF APPEALS’ DECISION AND

THE TENTH CIRCUIT’S OPINION IN WESSEL

IS INSUFFICIENT TO WARRANT REVIEW.

Petitioners’ final claim of a conflict that would justify

this Court’s review is the juxtaposition of this case with the

Tenth Circuit’s 2 to 1_opinion in which the majority reached

22

a different conclusion for the wrong reasons: Wessel v. City

of Albuquerque, 299 F.3d 1186 (10th Cir. 2002).

Wessel did not, however, consider and reject the Ninth

Circuit’s decision from which plaintiffs now seek certiorari.

Rather, Wessel considered only the prior Ninth Circuit

decision in this case, which was vacated. (See Wessel, 299

F.3d. at 1199 n.3.) Further, since the conflict is only at

present between two circuits, the Court should permit other

circuits an opportunity to consider the issue, because

“experience with conflicting interpretations of federal rules

[of law] may help to illuminate an issue before it is finally

resolved_and thus may play a constructive role in the

lawmaking process.” (Justice Stevens, Some Thoughts on

Judicial Restraint, 66 Judicature 177, 183 (1982); see also id.

(“The doctrine of judicial restraint teaches us that patience in

the judicial resolution of conflicts may sometimes produce the

most desirable result”).)

As Justice Stevens also observed in McCray v. New

York, 461 U.S. 961, 962 (1983), in which the Court denied a

petition for a writ of certiorari, “[F]urther consideration of

the substantive and procedural ramifications of the problem by

other courts will enable [the Supreme eo to deal with the

issue more wisely at a later date.”

Moreover, Wessel’s resolution of the standing issue is

pure ipse dixit and on its face reveals the fatal flaw in its

analysis. The majority opinion’s discussion of the standing

issue, which consists merely of a one paragraph footnote,

reads as follows in its entirety: ma

A previous Ninth Circuit panel declined to

reach the issue presented in this case,

concluding that the objecting employee lacked

23

standing because “[w]hile it can be assumed

that [he] suffered some injury when the fees 7

were deducted from his paycheck .... He

certainly cannot show any connection between

the indemnification agreement and that

injury.” (Prescott v. County of El Dorado,

177 F.3d 1102, 1112 (9th Cir. 1999), vacated

on other grounds, 528 U.S. 1111, 120 S.Ct.

929, 145 L.Ed.2d 807 (2000).) Although

standing has not been raised as an issue by the

parties in this case, we disagree with the Ninth

Circuit’s analysis. The alleged injury results

from the indemnification provision’s negation

of any incentive for the City to ensure that the

Hudson requirements were followed. The

nonmembers’ entire argument presumes that,

if the City faced potential liability, it would

have prevented the fair share fees from being

deducted unconstitutionally from the non-

members’ paychecks.

(Wessel, 299 F.3d at 1199 n.3.)

The crux of the Wessel majority’s resolution of the

standing issue is contained in the final sentence quoted above,

“The nonmembers’ entire argument presumes that, if the City

faced potential liability, it would have prevented the fair share

fees from being deducted unconstitutionally from the non-

members’ paychecks.” (/d.; emphasis added.) The fatal flaw

in this analysis is apparent: it is the plaintiffs’ burden to

prove their standing, not merely to presume it:

The party invoking federal jurisdiction bears

the burden of establishing the[] elements [of

standing]. See FW/PBS, Inc. v. Dallas, 493

24

U.S. 215, 231 (1990); Warth [v. Seldin, 422

U. S. 490], 508 [(1975)]. Since they are not

mere pleading requirements, but rather an

indispensable part of the plaintiff's case, each

element must be supported in the same way as

any other matter on which the plaintiff bears

the burden of proof, i.e., with the manner and

degree of evidence required at the successive

stages of the litigation. See Lujan v. National

Wildlife Federation, 497 U.S. 871, 883-889

(1990); Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91, 114-115, and n. 31

(1979); Simon [v. Eastern K. Welfare Rights

Organization, 426 U.S. 26], 45, n. 25

[(1976)]; Warth, supra, at 527, and n. 6

(Brennan, J., dissenting). At the pleading

stage, general factual allegations of injury

resulting from the defendant’s conduct may

suffice, for on a motion to dismiss, we

“presum{e] that general allegations embrace

those specific facts that are necessary to

support the claim.” National Wildlife

Federation, supra, at 889. In response to a

summary judgment motion, however, the

plaintiff can no longer rest on such “mere

allegations,” but must “set forth” by affidavit

or other evidence “specific facts,” Fed. Rule

Civ. Proc. 56(e), which for purposes of the

summary judgment motion will be taken to be

true. And at the final stage, those facts (if

controverted) must be “supported adequately

by the evidence adduced at trial.” Gladstone,

supra, at 115, n. 31.

(Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).)

25

The Wessel decision, which reviewed a summary

judgment, neither cites nor analyzes any “specific facts,” set

forth “by affidavit or other evidence” (id.) proffered by the

plaintiffs to satisfy their burden of proof as to standing, i.e.,

any evidence that the City would have ceased deducting fair

share fees absent the indemnification provision. Instead, the

Tenth Circuit does precisely what the Supreme Court has held

cannot be done: it presumes standing on the basis of “mere

- allegations.” Jd. The Tenth Circuit’s error as to the standing

inquiry was most likely influenced by the absence of any

briefing by the parties on that issue, as the court noted that

“standing ha[d] not been raised as an issue by the parties in

th[e] case.” (Wessel, 299 F.3d at 1199 n.3.) A preferred, if

not the proper, procedure would have been for the court to

request briefing on that issue, rather than decide it without the

benefit of briefing. (See, e.g., Arizonans for Official English

v. Arizona, 517 U.S. 1102 (1996) (directing the parties to

brief the issue of whether “petitioners have standing to

maintain this action,” in “addition to the questions presented

by the petition [for certiorari]”).)

In light of the aforementioned errors surrounding the

Wessel opinion, it is entirely possible that permitting this issue

to “percolate” in the lower courts will obviate the need for this

Court to resolve any perceived conflict between Prescott II

and Wessel, because circuits which consider this issue in the

future may likely note these palpable errors in Wessel.

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be denied.

Respectfully submitted,

Fred J. Hiestand*

1121 L Street

Suite 404

Sacramento, CA 95814

(916) 448-5100

Michael W. Roman

1816 Fifth Street

Berkeley, CA 94710

(510) 548-6211

Counsel for Respondents

*Counsel of Record

27