Petition for Writ of Certiorari — Cummings v. Connell

“aurt, U.S.

021498 apr 9 2003

Io. 02- |

CLERK

IN THE

Supreme Court of the Untted States

OCTOBER TERM, 2092

CHRISTINE A. CUMMINGS; JANET TAYLOR DARVAS:

RICHARD K. DEHART; CHRISTOPHER GARBANI; PATRICIA A.

MCCUMSEY; DANIEL NOWALIS; CLAUDIA STEWART,

AND THE CLASS THEY REPRESENT,

Petitioners,

v.

KATHLEEN CONNELL; MARTY MORGENSTERN; AND CALIFORNIA

STATE EMPLOYEES ASSOCIATION, LOCAL 1000, SERVICE EMPLOYEES

INTERNATIONAL UNION, AFL-CIO-CLC,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITICN FOR WRIT OF CERTICRARI

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 PETITIONERS

*Ceunsel of Record

April 2003

II.

oe

QUESTIONS PRESENTED

Are public officials who seize agency fees in violation of “the

constitutional requirements for the . . . collection of agency

fees,” Teachers Local No. 1 v. Hudson, 475 U.S. 292, 310

(1986), immune from liability under 42 U.S.C. § 1983?

Do public employees possess standing to challenge, as void

as against federal constitutional law and public policy, the

legality of provisions of the collective bargaining agreements

governing their terms and conditions of employment?

May public officials agree to be indemnified by a labor union

for their liability for violating nonunion public employees’

constitutional rights when they seize compulsory union fees

in violation of this Court’s decision in Hudson?

Is a union which fails to satisfy “the constitutional require-

ments for the Union’s collection of agency fees,” Hudson,

475 U.S. at 310, entitled to retain agency fees seized before

compliance or, in the alternative, the nonchargeable portions

of the fees seized? i

is

PARTIES TO THE PROCEEDINGS BELOW

There were no parties to the proceedings in the court whose

judgment is sought to be reviewed other than those named in the

caption.

In addition to those named in the caption, Mona Yassa, an

individual employee of the State of California, was initially a party

to the proceedings in the District Court. Record (“R.”) 1:

Complaint, 16. She was voluntarily dismissed from the action

when it was discovered that she was a voluntary union member

during the relevant period at issue in this case. R. 55 & 56.

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TABLE OF CONTENTS

Page

eR ra i

PARTIES TO THE PROCEEDINGS BELOW ................ ll

pe Be | vil

RS ee ree ]

ee Se Aw eh ORO OO 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..... re y

nr 2

re ahd wk ea Skew ees 4

A Se ee +

REASONS FOR GRANTING THE WRIT .........-..-0005> 8

I. THE IMPORTANT QUESTIONS AS TO EMPLOYER

LIABILITY AND EMPLOYEE STANDING DIRECTLY

ADDRESS INDIVIDUALS’ ABILITY TO PROTECT THEM-

SELVES AGAINST GOVERNMENT'S IMPOSITION OF

UNLAWFUL TERMS AND CONDITIONS OF EMPLOY-

Il.

IV.

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TABLE OF CONTENTS — CONTINUED

Page

A. The Conflict with Decisions on the Injury-in-Fact

Inflicted by Government Enforcement of Forced-

Unionism Schemes ....------ssrrr rer

1. The Conflict with This Court ...-----++:°?

B. The Conflict with “Standing” Decisions ....----

1. The Conflict with This Court .....-++++ +

2. The Conflict Among the Circuits ...------

THERE IS WIDESPREAD CONFLICT AMONG THE

CIRCUITS AS TO WHETHER UNIONS MAY INDEMNIFY

PUBLIC OFFICIALS FOR ILLEGALLY ENFORCING

FORCED-UNIONISM AGREEMENTS ...----+-s¢°°""

_ THE IMPORTANT QUESTION AS TO THE APPROPRIATE

REMEDY DIRECTLY ADDRESSES THE CONTINUED

VITALITY OF HUDSON'S PROTECTIONS ...--+:-+°°°

A. The Conflict with Blaieeh . . oo ee cee e sees:

B. The Conflict Among the Courts ...- +--+ +500 7°

THE IMPORTANCE OF THE ISSUES PRESENTED ...----

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TABLE OF CONTENTS — CONTINUED

eo 8): werrwrrerrrre Perr ree rs Sy ee es 30

APPENDICES Page

A.

Decision of the United States Court of Appeals for

the Ninth Circuit (9 January 2003), reported at -

316 F.3d 886 (9th Cir. 2003) ...........-..- la

Amended Judgment in a Civil Case Entered by the

United States District Court for the Eastern Dis-

trict of California (31 July 2001) ............ 23a

Memorandum and Order Re Motion to Recon-

sider or Amend Judgment Entered by the United

States District Court for the Eastern District of

California (31 July), reported at 177 F. Supp. 2d

1060, 1075 (E.D.Cal. 2001) .....0 2.05.00. 24a

Judgment in a Civil Case Entered by the United

States District Court for the Eastern District of

California (2 May 2001) ..........s0e seen 32a

Memorandum and Order on Pending Cross-Mo-

tions for Summary Judgment Entered by the

United States District Court for the Eastern Dis-

trict of California (2 May 2001), reported at 177

F. Supp. 2d 1060 (E.D.Cal. 2001) ........... 33a

United States Constitution, Article II ........ 57a

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TABLE OF CONTENTS — CONTINUED

APPENDICES Page

G. United States Constitution,

First Amendment .....---+s+eerrrere 58a

H. United States Constitution,

Fourteenth Amendment ....----+++++5> 59a

I. Civil Rights Act of 1871, 42 U.S.C.

§ 1983 (West Supp. 1999) ...- +--+ +555 60a

J. RalphC. Dills Act,

Cal, Gov't Code § 3513(k) .....--00005: 6la

K. Ralph C. Dills Act,

Cal. Gov't Code § 3515... ee eee reer 62a

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TABLE OF AUTHORITIES

Cases Page

Abood v. Detroit Board of Education,

ee a ee EE ove eee bnuveoneeanieties passim

Aur Line Pilots Association v. Miller,

ee SE RED kc keh ao ecuaee cease kekwie 12, 27

Allen v. Wright,

cast A hcidlh | nc MOTE EROTIC REET Tee 9

Andrews v. Education Association of Cheshire,

CaP Wms OO CO GE. BOOTY 55s 6 vec necicscewens 15

Boddte v. Connecticut,

Pee 2) 2 | re 24

Brewer v. Lewis,

989 F.2d 1021 (9th Cir. 1993) ......... cc ee eee. 19

Browne v. Wisconsin Employment Relations Commission ,

ee a Li >: ry ee 26, 27

Carey v. Piphus,

tt kt. | on re rere 21

City of Charlotte v. Firefighters Local 660,

oe ee eee re Tee re 9

City of Newport v. Fact Concerts, Inc.,

See i eT CED hate kde eee ee wk eeewunenese 21

- Vill -

TABLE OF AUTHORITIES — CONTINUED

Page

Clements v. Fashing,

457 U.S. 957 (1982) «0... cere ceecrcceeseeseess 17

Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985) .... eee creer teeter 24

Clinton v. City of New York,

524 U.S. 417 (1998) ....-- cece creer tees 9,16, 17

Communications Workers of America v. Beck,

487 U.S. 735 (1988) ....--- seer eres 7, 27, 29

Conley v. Massachusetts Bay Transportation Authority,

405 Mass. 168 (1989) ....-- eee reer e rer 15

Cramer v. Matish,

924 F.2d 1057 (table), 1990 WL

169640 (6th Cir. 1990) .....-- +e eee reer rere 19, 22

Cummings v. Connell,

163 L.R.R.M. (BNA) 2086 (E.D. Cal. 1999) ...-. 2, 5

Dean v. TWA,

924 F.2d 805 (9th Cir. 1991) ....--- eee eee reer: 27

District of Columbia v. Carter,

409 U.S. 418 (1973) ...-- eee cece eer ceeceees 21

Seiler iN he TD tle Reet

- ix -

TABLE OF AUTHORITIES — CONTINUED

Page

Ellis v. Ratlway Clerks,

ee i GEE 6 69 ood ene pe esenvers 13, 27, 28

Elrod v. Burns,

FS CRE 65 0 50 60554 Reseed ioe ree nee 1]

Elvin v. Oregon Public Employees Union,

og gt | ee eee eee eee ee ee ee eee ee 26

Foster v. Madhesian,

268 F.3d 629 (9th Cir. 2002), cert. denied

sub nom. Foster v. Garcy, — U.S. —,

Sa We ET CPD 4S eke Cote nee sceetins passim

Gibney v. Toledo Board of Education,

ee ee eee 26

Grunwald v. San Bernardino City Unified School District,

Foe Fae LOTO UN CA, BFPO) ovcicccencsenvcens 25

Hartk v. California Teachers Association ,

298 F.3d 863 (9th Cir. 2002) ............. 11, 21, 30

Harrison v. Massachusetts Society of Professors,

ot POSTE YT TT ReeT eer Cece rs 25

Hohe v. Casey,

FOO. FAG OFF (BGG. UGFZ) ov cvcvccecssives passim

-X-

TABLE OF AUTHORITIES — CONTINUED

Hohe v. Casey,

740 F. Supp. 1092 (M.D. Pa. 1989), rev'd in

part, 956 F.2d 399 (3d Gr. 1992) ............08. 18

Hudson v. Teachers Local No. 1,

743 F.2d 1187 (7th Cir 1984),

ee Al Oe CED oi oe sek even nentsdeuses 15

Knight v. Kenai Peninsula Borough School District,

131 F.3d 807 (9th Cir. 1997), cert. dented

sub nom. Anchorage Education Association v.

Patterson, 524 U.S. 904 (1998) ............... passim

Lehnert v. Ferris Faculty Association,

Pe PT COPED sb bee cccnesudecee evans 13, 27

Los Angeles v. Lyons,

ge Fe POPOTCTeTUTTEE ER TE Te Te 9,14, 15

Lowary v. Lexington Local Board of Educatwn,

903 F.2d 422 (6th Cir. 1990) ................ 26, 27

Lujan v. Defenders of Wildlife,

a eo Pee eTeeerr Taree Tiree 9, 19

Ex parte McCardle,

Pe ED ais 6 6 o.ce dee eeebavayedeenwnws 19

x

TABLE OF AUTHORITIES — CONTINUED

Page

McGlumphy v. Fraternal Order of Police,

633 F. Supp. 1074 (N.D. Ohio 1986) ............ 25

Mitchum v. Foster,

le et. oe | 21

Monroe v. Pape,

365 U.S. 167 (1961) ....................... 21, 28

Mullane v. Central Hanover Bank ¢ Trust Co.,

$39 U.S. 306 (1950) ..................... eee 24

National Law Center on Homelessness ¢& Poverty v. Kantor,

91 F.3d 178 (D.C. Cir. 1996) ................... 19

National Organization for Women p. Scheidler,,

510 U.S. 249 (1994) 0. 19

Northeastern Florida Chapter of the Associated General

Contractors of America v. Jacksonville ,

508 U.S. 656 (1993) .....00. 0. 17

O’Shea v. Littleton,

414 U.S. 488 (1974) .......000.000000......... 16

Patterson v. American Tobacco Co.,

535 F.2d 257 (4th Cir. 1976) ................... 16

- Xli-

TABLE OF AUTHORITIES — CONTINUED

Perry v. Machinists Local 2569,

oem BP Ty, fe | | errrrrrrr er sy 25

Prescott v. County of El Dorado (“Prescott III”),

298 F.3d 844 (9th Cir. 2002), cert. dented

— U.S. —, 123 S. Ct. 1251 (2003) ............ passim

Prescott v. County of El Dorado (“Prescott I”),

q 177 F.3d 1102 (9th Cir. 1999), cert.

granted, vacated, & remanded, 528 U.S.

1111 (2000), reinstated in part (“Prescott IT”),

204 F.3d 984 (9th Cir. 2000) ................ passim

Prescott v. County of El Dorado,

915 F. Supp. 1080 (E.D. Cal. 1996) .............. 25

Regents of University of California v. Bakke,

Cee OD. Be ee eck ke aekeesnsneceeeeee 17

Stamford Board of Education v. Stamford Education

Association ,

GOT 7.28 FO GBC, BGR) 0 2 ba ccavunesaanens 16, 22

Steel Co. v. Citizens for a Better Environment,

SAO LD. GP (IPO O) + os ok veeteescanannauwenen 9,19

Teachers Local No. 1 v. Hudson,

S76 US. 28 (ASSO) 0 kh cb eiieeceeeee passim

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TABLE OF AUTHORITIES — CONTINUED

Page

Tierney v. City of Toledo,

824 F.2d 1497 (6th Cir. a +»

Turner v. Fouche,

396 U.S. 346 (1970)... 17

Valley Forge Christian College v. Americans United for

Separation of Church ¢ State,

454 U.S. 464 (1982) .......................... 10

Ex parte Virginia,

100 U.S. 339 (1879)... 0. 21

Wareham Education Association v. Massachusetts Labor

Relations Commission,

430 Mass. 81 (1999) .......00.0000.000......0.. 26

Weaver v. University of Cincinnati,

970 F.2d 1523 (6th Cir. a passim

Wessel v. City of Albuquerque,

299 F.3d 1186 (10th Cir. ae passim

Wilson v. Garcia,

re We an (89OS)....................d! 28

Wyatt v. Cole,

004 US. 158 (1992) ............)............. 21

A 2

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TABLE OF AUTHORITIES — CONTINUED

Constitutions, Statutes, and Rules Page

United States Constitution,

OE cash eos os Sa a eee eee 2,17

tt errr er eT eer veer et ee eee eres passim

|, PETE PRSC RTC TOT TTC T Te ET Cre ee 2

Line Item Veto Act,

yep Sod 2 6 MOOPePrT Tee eer eT ey Cr Te 17

2B U.S. § 12061) CW IGPS) on cece wewenvevens 2

National Labor Relations Act,

Pe eT eer Tee 7

ee as Oe 5 6 0 0 bee hoe eee ee 9

Civil Rights Act of 1871,

Ets eee . | | errewee res Tere ee ee passim

Civil Rights Attorney’s Fees Award Act, 1976,

Ete oe 2 Meee eevee rT Teer Ty cere 1, 14, 21

Railway Labor Act,

GS U.BAs, } UBS, WM kc en i eve cect enseesss 9

te ee PTT Lee eet 2

Ralph C. Dills Act,

A SOOPER ERD se 5 koe or on tdetsess ees 4

ee gs 8 es ee ere rer ee 2, 4,9

a SROs GE PO 6 6 ok kooks eee essere 2

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TABLE OF AUTHORITIES — CONTINUED

Meyers-Milias-Brown Act,

Cal. Gov't Code § 3502.5(b) ...............000.. 28

Other Authorities

Jeff Canfield, What a Sham(e): The Broken Beck System

in the Real World Workplace, 47 Wayne L. Rev. 1049

PMNED 80-9550 69) ohne eee 29

Milton L. Chappell, Seeking a New Foundation:

Legislative and Practical Alternatives to the Current

Monopoly Bargaining Model That Will Enhance the

Viallity of Independent Teacher — 16 Gov't Union

Rev. 1 (Summer 1995) .........:.............. 28

1A Martin A. Schwartz & John E. Korklin,

Section 1983 Litigation: Claims and Defenses § 1.3 (3d

saan heicinistl MOTE COT COT TO a ee Te 21

2

PETITION FOR WRIT OF CERTIORARI

Petitioners Christine A. Cummings, Janet Taylor Darvas,

Richard K. DeHart, Christopher Garbani, Patricia A. McCum-

sey, Daniel Nowalis, Claudia Stewart, and the class they repre-

sent, respectfully pray that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals for

the Ninth Circuit entered on 9 January 2003.

OPINIONS BELOW

The panel. opinion sought to be reviewed (Appendix

(“App.”) A at la) is reported at 316 F.3d 886 (9th Cir. 2003).

The opinions and orders of the United States District Court for

the Eastern District of California on Respondent CSEA’s Motion

to Reconsider or Amend Judgment (App. C at 24a), and on

Petitioners’ and Respondents’ Cross-Motions for Summary

Judgment (App. E at 33a), are reported at 177 F. Supp. 2d 1060

(E.D. Cal. 2001). The amended judgment (App. B at 23a) and

original judgment (App. D at 32a) are unreported.

Additionally, the United States District Court for the Eastern

District of California issued a number of officially and unofficially

reported opinions and orders in this case. Its memorandum and

order granting Petitioners’ petition for an award pursuant to 42

U.S.C. § 1988 is reported at 177 F. Supp. 2d 1079 (E.D. Cal.

2001). Its denial of Respondent CSEA’s first summary judgment

motion is unofficially reported at 2000 WL 33599094 (E.D. Cal.

2000). Its memorandum and order denying Petitioners’ second

motion for a preliminary injunction is unofficially reported at

2000 WL 33599092 (E.D. Cal. 2000). Its memorandum and

order granting Petitioners’ motions for a preliminary injunction

and for class certification is unofficially reported at 163 L.R.R.M.

' (BNA) 2086 (E.D. Cal. 1999).

a

JURISDICTION

The Court of Appeals entered its judgment on 9 January

2003. This petition is timely under Supreme Court Rule 13.1.

This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves Article II], and the First and Fourteenth

Amendments, of the United States Constitution, Title I of the

Civil Rights Act of 1871, 42 U.S.C. § 1983, and $§ 3513(k) and

3515 of the California Government Code. Their pertinent text

is set out in Appendices F-K at 57a-62a.

STATEMENT OF THE CASE

This case involves the Ninth Circuit’s decision shielding

public officials from liability when they act in concert with a labor

union to deprive public employees of their constitutional rights

for that union’s financial benefit. Further, it involves the appro-

priate remedy when a government and a union defy “the constitu-

tional requirements for the . . . collection of agency fees.”

Teachers Local No. 1 v. Hudson, 475 U.S. 292, 310 (1986).

This civil rights action, brought pursuant to Section 1 of the >

Civil Rights Act of 1871, 42 U.S.C. § 1983, sought and obtained

relief to prevent and redress violations of the constitutional rights

of Petitioners and the class they represent (“the employees”)’ to

be free from unlawful seizures of compulsory union fees. 475

U.S. at 306-10. Applying Hudson, the lower courts determined

that Respondent California State Employees Association, Local

' The class numbers approximately 37,000 State employees

subjected to agency fee seizures after 2 March 1999. Cummings r.

Connell, 163 L.R.R.M. (BNA) 2086, 2095 (E.D. Cal. 1999).

re

~

1000, Service Employees International Union, AFL-CIO-CLC

(“CSEA”), failed to comply fully with Hudson’s “constitutional

requirements,” id. at 310, until after Respondent Kathleen

Connell, California State Controller, had seized and forwarded to

CSEA approximately $14.2 million from the employees’ wages

Over a period of thirteen months.

As part of their lawsuit, the employees sought judgment that

Connell violated their constitutional rights by seizing fees for

CSEA’s benefit, and challenged indemnification provisions of the

various collective bargaining agreements (“CBAs”) negotiated by

Respondent Marty Morgenstern with CSEA, alleging that they

are void as against public policy and unenforceable. R. 1, 19 22

& 55. Both lower courts declined to address that challenge,

declaring that the employees lack standing to challenge such a

: secuon of the CBAs governing their terms and conditions of

employment. See App. A at 21a; App. E at 5la-55a. The Ninth

Circuit also affirmed the District Court’s refusal to enter judg-

ment against Connell and Morgenstern, holding that “a public

séctor employer who deducts ‘fair share’ fees from an employee’s

paycheck is not liable if the union fails to provide adequate notice

under Hudson.” App. A at 18a.

The District Court awarded to the employees that portion of

: agency fees denominated “nonchargeable” by CSEA, approxi-

é mately $3 million of the $14.2 million seized from them before

i CSEA complied with Hudson’s requirements. App. E at 45a-46a;

App. C at 30a. Reversing, the Ninth Circuit declared that

CSEA—which did not comply with Hudson’s requirements until

after thirteen months of fee seizures—was entitled to collect and

: use agency fees involuntarily seized by the State on its behalf from

public employees’ wages, because, albeit tardily (1.¢., after being

hailed into court and subjected to preliminary injunctive relief),

it complied fully with Hudson’s disclosure mandates. App. A at

ia.

lla-15a. The Ninth Circuit—declaring CSEA’s “good faith,”

exhibited only after the District Court’s intervention and eight

months of fee seizures—held that the employees were entitled to

no monetary award unless they objected pursuant to CSEA’s

untimely notice. App. A at 15a.

I. The Facts.

The employees are nonunion employees of the State of

California in nine bargaining units. CSEA is an “employee

organization” recognized as their monopoly bargaining represen-

tative pursuant to State law. Cal. Gov’t Code § 3513(a). CBAs

governing each bargaining unit are negotiated and administered

on behalf of the State by Morgenstern. App. E at 34a. Since

March 1999, these CBAs have subjected employees who do not

join CSEA to involuntary seizures—made by Connell—of

“agency fees” from their wages, for CSEA’s benefit. App. E at

34a; see Cal. Gov't Code, $§ 3513(k) & 3515. CSEA agreed in

the forced-unionism section of each CBA to indemnify “the State

and its agents . . . against any claims made of any nature and

against any suit instituted against the State arising from this

Article and the deductions arising therefrom.” R. 125, 1 22.

Beginning in April 1999, Connell began seizing agency fees

from the wages of each nonunion employee, continuing to date

such fee seizures on a monthly basis. Constitutionally-adequate

notice and procedures under Hudson were not provided to the

employees until May 2000. App. C at 25a.

II. The Proceedings Below.

The employees filed their civil rights lawsuit on 2 November

1999, seeking declaratory and injunctive relief, and damages, on

the grounds that Respondents were enforcing their “agency shop”

scheme in violation of Hudson. The Complaint also alleged that

the CBAs’ indemnification provisions are void as against public

RETEST DIE CLE IE TNT TREES CO TEER AO RAO tonne ee

POEL REN BARE AG AE Si BRO

==

policy. Shortly thereafter, the District Court enjoined CSEA

“from collecting a fair share agency fee,” because the employees

had raised “serious questions going to the merits” as to CSEA’s

failure to include an auditor’s report in its then-effective notice.

The District Court certified Petitioners as representatives of the

class of all “potential objectors” under Hudson. Cummings, 163

L.R.R.M. (BNA) at 2093, 2095; see Hudson, 475 U.S. at 306.

More than eight months after the first fee seizures, and more

than two months after suit was filed, but within days of the

setting and posting of the injunction bond, R. 33 & 40, Connell

distributed CSEA’s annual audit (but no explanation o* its

procedures for objection). Respondents simultaneously filed ex

parte applications seeking dissolution or clarification of the

injunction. R. 34-38. The employees opposed. R. 46. When

the District Court deemed the injunction’s conditions satisfied,

they sought a new temporary restraining order and/or a prelimi-

nary injunction. R. 43-45. Both were denied. R. 48 & 69.

CSEA issued separate notices in May and June 2000. The

May notice purportedly applied to fee seizures occurring over the

preceding thirteen months; the June notice was te apply to

subsequent fee seizures. Shortly thereafter, CSEA sought

summary judgment. R. 73. The employees opposed, pending

completion of discovery. R. 85 & 94. Upon its completion, all

parties moved for summary judgment. R. 112-128 & 132-158.

The District Court entered its Order and Judgment on 2 May

2001, granting and denying the motions in part, and determining

that the May and June 2000 notices finally and fully complied

with Hudson’s requirements. App. D at 32a; App. E at 55a.

The District Court found the four CSEA notices distributed

before May 2000 constitutionally infirm. The April and June

1999 notices “did not adequately explain the basis for the fee,”

because they “failed to provide a copy of the Audit in the absence

willie

of a fee payer’s formal request.” App. E at 38a. The two notices

issued in January 2000 were inadequate because the first “did not

provide [employees] with a reasonable opportunity to object,” 2d.

at 40a, while the second explained CSEA’s objection procedure

without including financial disclosure. Id. at 42a.

Judgment was entered, App. D at 32a, awarding declaratory

relief and damages against CSEA, directing refund of

nonchargeable fee portions to all nonmembers, but denying

restitution of the balance of the fees seized before compliance

with Hudson’s “constitutional requirements.” 475 U.S. at 310.

App. E at 45a-46a. The District Court also held that its “award

of partial restitution leaves no injury that is redressable against

defendants Connell and Morgestern” and that the employees

lacked standing to challenge the CBAs’ indemnification agree-

ments. Id. at 36a n.3 & 51a-55a.

CSEA filed separate motions: (1) to alter or amend the

judgment or, in the alternative, for relief from judgment, R. 165;

and (2) for relief from judgment. R. 171. The District Court

issued a decision, App. C at 24a-31a, and an amended Judgment,

App. B at 23a, on 31 July 2001. CSEA tmely appealed, R. 182,

and the employees timely cross-appealed. R. 185.

in their cross-appeal, the employees unsuccessfully sought

reversal of the District Court’s: (1) ruling that the employees lack

standing to challenge the indemnification clauses in the CBAs;

(2) refusal to enter judgment against Connell and Morgenstern;

and (3) denial of full restitution. CSEA successfully sought

reversal of the District Court’s limited award of partial restitution

of the nonchargeable portion of the seized fees.

Applying Foster vr. Mahdestan, 268 F.3d 689, 694 (9th Cir.

2001), cert. dented sub nom. Foster v. Garcy, —U.S.—, 122 S. Ct.

2327 (2002), the panel ruled Connell virtually immune from

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liability for her “routine collection of fees,” declaring “not

significant” her distribution of CSEA’s constitutionally-inade-

quate notices. The panel also expressed serious skepticism as to

Morgenstern’s exposure. App. A at 18a-19a.” It then applied

Prescott v. County of El Dorado (“Prescott ITT”), 298 F.3d 844, 846

(9th Cir. 2002), cert. denied — U.S. —, 123 S. Ct. 1251 (2003),

to hold that the employees “lack standing to challenge . . .

indemnification clauses” in the CBAs. App. A at 2]a.

The panel also denied the employees’ request for full

restitution of fees seized prior to Respondents’ compliance with

Hudson’s requirements, declaring it foreclosed by Prescott v.

County of El Dorado (“Prescott I”), 177 F.3d 1102, 1109-10 (9th

Cir. 1999), cert. granted, vacated, @ remanded on other Zrounas,

528 U.S. 1111 (2000), reinstated in pertinent part (“Prescott IT”),

204 F.3d 984 (9th Cir. 2000). In addition, the panel reversed

the District Court's award of partial restitution of the

nonchargeable portions of the fee, App. E at 45a-46a, applying

private-sector decisions under the National Labor Relations Act,

29 U.S.C. $§ 141 et seq.; see also Communications Workers of

America v. Beck, 487 U.S. 735 (1988). App. A at lla-15a.

Declaring that it “fail[s] to see how plaintiffs suffered any

compensable harm (aside from nominal damages) from the initial

defective notice,” the panel found a notice issued thirteen months

after the first fee seizures “adequate to renew the burden on the

plaintiffs to object.” It declared “overbroad” the limited remedy

denying to CSEA only monies spent on political, ideological, and

other non-bargaining activities. Id. at 15a.

> Obviously, Morgenstern’ participation was necessary to obtain

appropriate relief as to the CBA’s indemnification provisions, to-wit:

declaratory judgment that they are void as against public policy; an

injunction against their negotiation and enforcement; and their

expunction from existing State/CSEA CBAs. R. 1: Complaint, 155.

a es

yt

REASONS FOR GRANTING THE WRIT

I. THE IMPORTANT QUESTIONS AS TO EMPLOYER LIABIL-

Iry AND EMPLOYEE STANDING DIRECTLY ADDRESS

INDIVIDUALS’ ABILITY TO PROTECT THEMSELVES

AGAINST GOVERNMENT’S IMPOSITION OF UNLAWFUL

TERMS AND CONDITIONS OF EMPLOYMENT.

The decision below on the first three questions presented,

based upon other recent Ninth Circuit decisions, rejects cits

Court’s well-established jurisprudence regarding public officia.

liability under 42 U.S.C. § 1983, generally, and in the context of

public-sector forced-unionism, particularly.

The panel declared Connell’s “routine collection of agency

fees” to be virtually immune from judicial scrutiny, App. A at

18a, quoting Foster, 268 F.3d at 693, because it “does not trigger

a duty . . . to ensure that every employee has received a proper

Hudson notice.” 268 F.3d at 693. But the panel disregards this

Court’s admonition that “the government and union have a

responsibility to provide procedures that minimize th[e] impinge-

ment [on First Amendment rights] and that facilitate a nonunion

employee’s ability to protect his rights” by compliance with “the

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

Hudson, 475 U.S. at 307 n.20 & 310. More importantly, the

panel begs the important question of a public official’s appropri-

ate response when Hudson’s standards are ignored, or defied.

The flaw in the panel’s conclusion arises from the unstated

premise underlying Ninth Circuit decisionmaking on this issue:

that monopoly bargaining representatives possess some inchoate

claim against a portion of nonmembers’ wages. This premise

confuses political argument with sound legal principle.

This Courts decisionmaking is to the contrary. The

monopoly bargaining privilege is statutory. Unions possess no

RE ES ae

< -

entitlement or authority to bargain exclusively or collectively with

a public employer. City of Charlotte v. Firefighters Local 660, 426

U.S. 283, 286-88 (1976). Likewise, the authority to compel

nonmembers’ support of a union is a statutory privilege, not an

inchoate right inherent in the monopoly bargaining privilege.

Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223-25 (1977)

(explaining governmental interests justifying allowance of agency

shop). Two conditions precedent—statutory and contractual*—

must be satisfied before forced dues may be exacted from

nonunion public employees. This Court in Hudson added a third

category of conditions: “the constitutional requirements for the

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

added). Absent satisfaction of all of these requirements—

including the last—there is no authority to exact monies from

nonunion public employees.

The Ninth Circuit’s grant of immunity to public officials,

App. A at 18a, quoting Foster, 268 F.3d at 693, is of a piece with

its determination that employees lack standing to challenge one

of the terms and conditions of the CBA governing their employ-

ment (here, the indemnification provision).

This Court frequently addresses standing questions. See, i.c.,

Clinton v. City of New York, 524 U.S. 417 (1998); Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83 (1998); Lujan v. Defenders

of Wildlife, 504 U.S. 555 (1992); Allen v. Wright, 468 U.S. 737

(1984); Los Angeles v. Lyons, 461 U.S. 95 (1983). In these cases,

among many others, this Court has repeated the tripartite

showing required to establish standing: “A plaintiff must allege

[1] personal injury [2] fairly traceable to the defendant’s allegedly

* Cal. Gov't Code § 3513(k), App. J at 6la, permits forced-

unionism clauses, but does not require them. See also 29 U.S.C.

§ 158(a)(3) (same); 45 U.S.C. § 152, Eleventh (same).

ate

unlawful conduct and [3] likely to be redressed by the requested

relief.” Allen, 468 U.S. at 751 (citing Valley Forge Christian Coll.

v. Americans United, 454 U.S. 464, 471-76 (1982)).

By misdefining the employees’ injury, the Ninth Circuit has

written out of civil rights law government officials’ liability,

rendering nonexistent any meaningful duty to refrain from

violating nonunion public employees’ constitutional rights. This

result ignores this Court’ clearly-enunciated standards, see

Hudson, 475 U.S. at 307 n.20 (“the government and union have

a responsibility”), as well as those of virtually every other Circuit

addressing this issue. Consequently, the employees face the

prospect of future violations of their constitutional rights by both

illegal agency fee seizures absent compliance with the “constitu-

tional requirements for the . . . collection of agency fees,” id. at

310, and by compelled subsidization of the public employer’s

defense against their successful lawsuit challenging past violations

of their constitutional rights.

A. The Conflict with Decisions on the Injury-in-Fact

Inflicted by Government Enforcement of Forced-

Unionism Schemes.

The panel’s decision conflicts with this Court’s standing

decisions, because it conflicts with this Courts forced-unionism

jurisprudence. Although nonunion employees are injured by the

public employer’s seizure of agency fees from their wages, the

Ninth Circuit has radically abstracted their injury, attributing

their “injury in fact” to inadequate notice under Hudson. Prescott

IIT, 298 F.3d at 845. Like the panel in Prescott IIT, the panel here

premised its decision on the untenable proposition that the

contents of a union’s notice—rather than Connell’s seizure of

their property—injures employees.

ott.

The Ninth Circuit has applied this analysis in a series of

; cases, beginning with its first Prescott decision, 177 F.3d at 1111-

12, culminating in its decision on remand. 298 F.3d at 846; see

| Foster, 268 F.3d at 694; Harik v. California Teachers Ass'n, 298

F.3d 863, 870 (9th Cir. 2002) (reversing judgment against

; public officials for seizing fees absent Hudson compliance).

The panel’s conclusion defies this Court’s mandate that a

public employer has responsibility, before it seizes fees from

“potenual objectors,” to ensure that Hudson’s standards are

satisfied. Hudson, 475 U.S. at 306-07 & n.20; see also Knight v.

Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 817 (9th Cir.

1997) (miscast by both the Foster and the Prescott IIT panels).

l. The Conflict with This Court.

Hudson holds that an employer’s seizure, not the union’s

expenditure, of nonmembers’ fees is the constitutionally-injurious

act. Proceeding from the principle “that requiring nonunion

employees to support their collective-bargaining representative

‘has an impact upon their First Amendment interests,” this Court

identified the constitutional infringement in any forced-unionism

scheme. Hudson, 475 U.S. at 301, quoting Abood, 431 U.S. at

222. Holding that “the agency shop itself impinges on the

nonunion employees’ First Amendment interests,” this Court

required an “appropriately justified advance reduction” of the fee.

475 U.S. at 309. That it is the taking of their property which

injures the nonmembers’ constitutional rights was cemented by

this Court’s holding establishing “the constitutional requirements

; for the . . . collection of agency fees.” Id. at 310 (emphasis

added); cf: Elrod v. Burns, 427 U.S. 347, 373 (1976) (“loss of

First Amendment freedoms, for even minimal periods of ume,

unquestionably constitutes irreparable injury”) .

Sa A ak Mil a ah ie

3h

While declining to consider the case “through the prism of

the procedural due process protections necessary for deprivations

of property,” this Court recognized that the infringement is dual,

because “the procedures required by the First Amendment also

provide the protections necessary for any deprivation of prop-

erty.” Hudson, 475 U.S. at 304 n.13. It therefore rejected the

union’s argument that escrow of all monies seized addresses “any

valid constitutional objection to [its] procedure.” Id. at 309; see

also ALPA v. Miller, 523 U.S. 866, 876 n.4 (1998) (rejecting

amicus argument that “[iJllegality depends on the spending of

compelled agency fees for ideological purposes . . . not simply the

initial collection of those fees”) (original emphasis).

Furthermore, the Ninth Circuit’s rejection of public official

liability disregards the governments duty to refrain from

unconstitutional conduct, and government culpability for its

unconstitutional seizure of “agency fees” from nonunion public

employees. This Court unambiguously declared in Hudson that

“the government and union” share “responsibility” when they

enter into and enforce a forced-unionism provision, 475 U.S. at

307 n.20 (emphasis added). Nevertheless, another Ninth Circuit

panel—relied upon by the panel below, App. A at 21a—discarded

that conclusive affirmance of governnicnt responsibility in favor

of a construction of § 1983 embracing the proposition that “the

routine deduction of fees by the [government] employer,” does

not injure employees when the necessary notice and procedural

protections have not been provided. Foster, 268 F.3d at 694.

As in Prescott and Foster, the panel elevated state statutory

policy ostensibly favoring agency fee seizures, id., over the federal

constitutional policy barring fee seizures absent compliance with

Hudson.

Distribution of an inadequate Hudson notice is not what

injures employees, as the Ninth Circuit assumes. Prescott IIT, 298

:

a

i

sacs i iy a Se Haid ne

ie.

F.3d at 846. Rather, nonmembers are injured by the seizure of

agency fees, an act committed solely by the public employer

and/or its officials (here, by Connell). The Ninth Circuit’s refusal

to acknowledge this point underlies its peculiar views as to stand-

ing: “The challenged indemnification clause upon which the

employer insisted caused neither the union to furnish, nor the

plaintiffs to receive, inadequate notice.” Id. The Ninth Circuit

_ refuses to acknowledge that the indemnification clause immunizes

public officials against the consequences of their actions causing

constitutional harm, i.e., seizing agency fees from the employees’

wages.

Having miscast the “injury” suffered by the employees from

whom forced union dues are seized, the Ninth Circuit conse-

quently ignores the palpable and direct effect of the indemnifica-

tion agreement in the seizure of agency fees. Moreover, the court

ignores the real and imminent prospect of additional financial

injury (beyond the past illegal seizures of agency fees), insofar as

the employees remain subject to the CBAs, and the prospect that

CSEA will treat its expenses in indemnifying public officials as

chargeable to nonmembers.

This Court has consistently recognized the First Amendment

repercussions of forced-unionism schemes. Hudson, 475 U.S. at

301 (quoting Abood, 431 U.S. at 222); see also Abood, 431 U.S. at

255 (Powell, J., concurring); Lehnert v. Ferris Faculty Ass’n, 500

U.S. 507, 517-19 (1991); see also Ellis v. Railway Clerks, 466 U.S.

435, 447, 455-56 (1984) (“by allowing the union shop at all, we

have already couritenanced a significant impingement on First

Amendment rights”; “[t]he First Amendment does limit the uses

to which the union can put funds obtained from dissenting

employees”). The coerced subsidization imposed by indemnifica-

tion provisions in cases such as this serves no legitimate govern-

mental interest, but seriously “impact[s]” the employees’ First

« ts

Amendment rights. Hudson, 475 U.S. at 301; cf 42 U.S.C.

§ 1988 (fee-shifting provisions).

When it adopted the “injury-because-Hudson-was-not-

followed” reasoning in Prescott IIT, 298 F.3d at 845-46, the Ninth

Circuit ignored the tangible prospect of the employees’ economic

injury in CSEA’s promise to indemnify Connell and Morgenstern

for the costs of their defense of this lawsuit. The CBAs thus add

to the injury of Connell’s unlawful seizure of agency fees the

insult of requiring the employees to subsidize Connell’s financial

liability for that injury. Certainly, the prospect of that injury is

sufficient to confer upon the employees standing to challenge the

legality of the indemnification agreement. Lyons, 461 U.S. at

111.

2. The Conflict Among the Courts.

The Ninth Circuit’s decision conflicts with decisions of four

other Circuits,* and one state supreme court, which have held

public employers liable for seizing agency fees absent compliance

with Hudson’s requirements. No other Circuit has adopted the

Ninth Circuit’s view.

A public employers duty to refrain from inflicung

constitutional harm by seizing fees is unanimously recognized in

the Third, Sixth, Seventh, and Tenth Circuits, the only other

Circuits to consider the question. Wessel v. City of Albuquerque,

299 F.3d 1186, 1197-99 (10th Cir. 2002) (“That a public

employer has certain obligations within the fair share deduction

framework established by courts is beyond dispute”); Hobe v.

* There is good cause to believe that it defies existing Ninth

Circuit precedent, since the public employer’s responsibility was

previously recognized in Knight, 131 F.3d at 817, based upon Hudson,

475 U.S. at 307 n.20.

CEE SE SO BLT

|

Casey, 956 F.2d 399, 405-06, 411 (3d Cir. 1992) (“the employer

and the union must have a constitutional procedure in place

before deducting fees”); Tierney v. City of Toledo, 824 F.2d 1497,

1504, 1507 (6th Cir. 1987) (“no . . . employer may take any

action to enforce a. . . duty to pay any dues, . . . through a

deduction from wages,” absent Hudson compliance); Weaver v.

University of Cincinnati, 970 F.2d 1523, 1538 (6th Cir. 1992) (“a

public employer ha[s} duties separate and apart from those of the

union”); Hudson v. Teachers Local No. 1, 743 F.2d 1187, 1191

(7th Cir. 1984) (public agency liable), affd, 475 U.S. 292

(1986); see also Andrews v. Education Ass’n of Cheshire, 829 F.2d

335, 339 (2d Cir. 1987) (Hudson “mandated that the unions and

government use a narrowly drawn plan that protects the nonmem-

bers’ first amendment interests”). Likewise, the Supreme Judicial

Court of Massachusetts recognizes that “an employer cannot

ignore an employee’s assertion of a constitutionally protected

right which is valid on its face.” Conley v. Massachusetts Bay

Transp. Auth., 405 Mass. 168, 177 (1989).

This Court should grant certiorari to address the Ninth

Circuit’s deviation from this Court’s jurisprudence, and that of

virtually every other court, as to the injury-in-fact suffered by

nonunion employees subject to the diminution of their compen-

sation resulting from public officials’ enforcement of forced-

unionism schemes, and as to public officials’ liability when they

act in league with a labor union to enforce such a requirement.

B. The Conflict with “Standing” Decisions.

1. The Conflict with This Court.

Insofar as the employees seek prospective declaratory and

injunctive relief that Respondents’ indemnification scheme is void

as against public policy, the Ninth Circuit failed to analyze

properly the employees’ standing under Lyons. Lyons holds that

“=

litigants seeking such relief demonstrate standing when they show

a “real or immediate threat that [they] will be wronged again—a

‘likelihood of substantial and immediate irreparable injury.” 461

U.S. at 111 (quoting O'Shea v. Littleton, 414 U.S. 488, 502

(1974)). The employees in the bargaining units remain subject

to the CBAs’ forced-unionism provisions, and satisfy these

requirements. Nevertheless, because “[t]he remedy the plaintiffs

seek, invalidation of the indemnification clause, does not compen-

sate plaintiffs for past violations of Hudson, nor does it prevent

future violations,” as it wrongly defines them, the Ninth Circuit

has declared that the employees failed to meet “the redressability

requirement for standing.” Prescott II, 298 F.3d at 846.

The Second Circuit struck down a similar indemnification

provision in Stamford Board of Education v. Stamford Education

Association, 697 F.2d 70, 74 (2d Cir. 1982), citing the union’s

payment of the public employer’s liability for damages for

entering into an unlawful agreement and the derivation of that

payment from, “at least in part, funds collected as dues from the

plaintiffs themselves or from members of the plaintiff class.” Id.

(citing Patterson v. American Tobacco Co., 535 F.2d 257, 269 (4th

Cir. 1976) (union may not bargain away minority employees’

right to equal treatment)). Similarly, the employees here face the

very real prospect of subsidizing the opposition to their own

lawsuit, if CSEA indemnifies Connell and Morgenstern and

charges bargaining unit employees for those costs. See also

Clinton, 524 U.S. at 429-30. Rejecting the argument that there

was no “actual injury [to the City] because the claims are too

speculative,” this Court in Clinton compared a President’s exercise

of his authority to setting aside a defense verdict on appeal, with

remand for a new trial of a multibillion dollar damage claim:

“fe]ven if the outcome of the second trial is speculative, the

reversal, like the President’s cancellation, causes a significant

immediate injury by depriving the defendant of the benefit of a

ee esr eg,

7 -

favorable final judgment.” Clinton, 524 U.S. at 429-30 (allowing

challenge to the Line Item Veto Act, 2 U.S.C. § 691 et seq.)

The courts below were presented with the fact that an

indemnification provision necessarily lowers indemnitees’

exposure, thereby creating disincentives to the public officials’

protection of the employees’ constitutional rights. If “denial of

a benefit in the bargaining process can itself create an Article III -

injury, irrespective of the end result,” 524 U.S. at 433 n.22

(cing Northeastern Florida Chapter of the Associated General

Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993)),

then certainly achievement of a term in the bargaining process

likewise inflicts an Article I injury.°

2. The Conflict Among the Circuits.

In addition to the Ninth Circuit in this case, three other

courts of appeals have addressed indemnification in the context

of forced-unionism agreements. See Wessel, 299 F.3d at 1197-99

(Tenth); Weaver, 970 F.2d at 1536-38 (Sixth); Hobe, 956 F.2d

at 411-12 (Third); see also Knight, 131 F.3d at 817 (Ninth;

addressing similar merits challenge to indemnification provi-

* The employees need not demonstrate that Connell would have

eschewed fee seizures absent the indemnification provision to establish

their standing. This Court has repeatedly refused to impose such a

requirement. Jacksonville, 508 U.S. at 664-65 (citing Turner v. Fouche,

396 U.S. 346, 361 (1970)); see also Clements v. Fashing, 457 U.S. 957

(1982) (dispute not “merely hypothetical” because litigants could not

show they would have been elected but for “automatic resignation”

provisions of Texas state constitution); Regents of University of California

». Bakke, 438 U.S. 265, 281 n.14 (1978) (requisite injury shown by

refusal of state to allow litigant to compete for benefit sought).

=

sions).° None has eluded the merits by adopting the position of

Prescott III, followed by the panel below.

Most recently, in Wessel, the Tenth Circuit specifically

criticized and rejected the Ninth Circuit’s approach in Prescott I,

177 F.3d at 1112. There, the court referred to the Ninth Cir-

cuit’s erroneous identification of the injury, noting that:

[t]he 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 unconstitution-

ally from the nonmembers’ paychecks.

299 F.3d at 1199 n.3.

The Third Circuit addressed a similar challenge in Hohe, 956

F.2d at 411-12. There, the district court rejected the challenge

on standing grounds. In a footnote to a simultaneous rejection

on standing grounds of the challenge to the facial validity of a

statute requiring fee seizures absent Hudson compliance, the court

stated that, “[f]or the same reasons we also reach that conclusion

with respect to the indemnification clause in the [CBA].” Hohe

v. Casey, 740 F. Supp. 1092, 1098-99 & n.5 (M.D. Pa. 1989),

rev'd in pertinent part, 956 F.2d 399, 412 (3d Cir. 1992).

° The district court in Knight “quickly disposed of ” an identical

challenge to nonunion employees’ standing. Petition for a Writ of

Certiorart, Anchorage Educ. Ass’n v. Patterson, No. 97-1454, App. C at

47a. However, perhaps recognizing Knight’s conclusion, Prescott II

views Knight through the prism of Foster, which declared that the

seizure of fees is not an “adverse action” under Knight, 131 F.3d at 817.

Foster, 268 F.3d at 694.

«39%

On appeal, the Hohe nonmembers argued that the indemnifi-

cation clause “is void as against public policy.” 956 F.2d at 411.

The Third Circuit explicitly held that employees subject to a

monopoly bargaining agreement possess standing to challenge its

terms: “We find ourselves in disagreement with the ruling of the

district court that it need not decide this issue, We say so because

we think the theory advanced by the plaintiffs’ attack on the

clause raises a cognizable legal issue.” Id. at 412.

The Sixth Circuit in Weaver likewise addressed the merits in

a challenge to an indemnification clause, in a discussion devoid of

any suggestion that employees lack standing. 970 F.2d at 1536-

38; see also Cramer v. Matish, 924 F.2d 1057 (table), 1990 WL

169640 (6th Cir. 1990) (same). The court found it sufficient

that the clause “protect[s] the University from any financial

consequences of going along with procedures selected by the

union that fail to comply with the constitutional standards

enunciated in Hudson.” 970 F.2d at 1538.

Any federal court’s merits judgment presupposes determina-

tion that the parties possess the requisite standing. National Org.

for Women v. Scheidler, 510 U.S. 249, 255 (1994) (standing is

open to review at all stages of the litigation); cf: Brewer v. Lewis,

989 F.2d 1021, 1025 (9th Cir. 1993) (standing is a jurisdictional

question that must be addressed at threshold of any case). It is

“an indispensable part of the plaintifPs case.” Lujan, 504 U.S. at

561. When a party lacks standing, there is no case or controversy,

and the court lacks jurisdiction. As this Court recently reaf-

firmed, “Jurisdiction is the power to declare the law, and when

it ceases to exist, the only function remauing to the court is that

of announcing the fact and dismissing the cause.” Steel Co., 523

U.S. at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514

(1868)); see also National Law Center on Homelessness e Poverty v.

Kantor, 91 F.3d 178, 180 (D.C. Cir. 1996). Thus, implicit in the

- 20 -

Sixth Circuit’s merits determination in Weaver is the conclusion

that it possessed jurisdiction to decide the issue presented to it.

This Court should grant certiorari to settle the conflict

among the circuits as to whether employees subject to a forced-

unionism provision possess standing to challenge the legality of

an indemnification clause in that agreement.

II. THERE IS WIDESPREAD CONFLICT AMONG THE

CIRCUITS AS TO WHETHER UNIONS MAY INDEMNIFY

PUBLIC OFFICIALS FOR ILLEGALLY ENFORCING

FORCED-UNIONISM AGREEMENTS.

Like this case, Hudson was brought pursuant to 42 U.S.C.

§ 1983. 475 U.S. at 298 n.3. Hudson addressed “whether the

[agency shop] procedure used by [a union] and approved by [a

public employer] adequately protects the basic distinction drawn

in Abood” between “devis[ing] a way of preventing compulsory

subsidization of ideological activity by employees who object

thereto without restricting the Union’s ability to require every

employee to contribute to the cost of collective-bargaining

activities.” Id. at 302 (quoting Abood, 431 U.S. at 237).

“[A]nalyz[ing] the problem from the perspective of the First

Amendment concerns,” 475 U.S. at 304.n.13, this Court set forth

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

fees.” Id. at 310. The Court specifically stated that, in this

context, both “the government and union have a responsibility

to provide procedures that minimize that impingement [on First

Amendment rights] and that facilitate a nonunion employee’s

ability to protect his rights.” Id. at 307 n.20 (emphasis added).

Under this articulation of government responsibility, public

officials may not, without violating constitutional norms, seize

agency fees from nonmember employees on behalf of a union

absent strict adherence to these “constitutional requirements.” Id.

i

at 310. Doing so injures the employees. Nevertheless, the Ninth

Circuit has rejected this Court’s decisionmaking here, App. A at

19a, and in three other cases that write government liability out

of § 1983 law. Prescott IIT, 298 F.3d at 846; Foster, 268 F.3d at

694; Hark, 298 F.3d at 870.

Section 1983 creates a remedy “against those who represent-

ing a State in some capacity were unable or unwilling to enforce

a state law,” Monroe v. Pape, 365 U.S. 167, 176 (1961) (original

emphasis); see also District of Columbia v. Carter, 409 U.S. 418,

426 (1973), with the purpose of “protect[ing] the people from

unconstitutional action under color of state law ‘whether that

action be executive, legislative, or judicial.” Mitchum v. Foster,

407 U.S. 225, 242 (1972) (quoting Ex parte Virginia, 100 U.S.

339, 346 (1879)); see generally 1A Martin A. Schwartz & John E.

Kirklin, Section 1983 Litigation: Claims and Defenses § 1.3 (3d ed.

1997).

Thus, state and local governments bear non-delegable

responsibility for their “constitutional torts.” 42 U.S.C. §$§ 1983,

1988. The purpose of § 1983 is “to deter state actors from using

the badge of their authority to deprive individuals of their

federally guaranteed rights.” Wyatt r. Cole, 504 U.S. 158, 161

(1992) (citing Carey v. Piphus, 435 U.S. 247, 254-57 (1978)): see

also City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 268

(1981) (deterrence of future abuses of power is an important

purpose of this section). Similar purpose is implicit in the fee-

shifting provisions of § 1988.

The courts of appeals are in deep conflict over whether labor

unions may agree to indemnify public officials against any liability

arising out of the unlawful enforcement of forced-unionism

provisions. The Ninth Circuit has four times eluded this issue,

but four other circuits.have confronted it, three in this specific

context.

2.

Only the Third Circuit has found such agreements per-

missible. Hohe, 956 F.2d at 411-12. When the Third Circuit

addressed this controversial issue, the Second Circuit had already

addressed it in another context, Stamford, 697 F.2d at 73-75, and

the Sixth Circuit already had addressed it in this context in its

unpublished Cramer opinion. Cramer held an indemnification

provision void as against public policy because, “[u]nder Hudson,

the public employer, not the union, has the primary duty to

ensure that the plan is constitutionally valid.” “[C]lauses in

[CBAs] which purport to relieve public employers from liability

for violations of federal constitutional and civil rights are void as

against public policy.” Cramer, 1990 WL 169640, at *4

(following Stamford). Cramer concluded that, “[w]ithout such a

role, public employe[r]s would have no incentive to fulfill their

constitutional duties.” Jd. (emphasis added).

The Third Circuit declined to follow Stamford and Cramer.

Hohe, 956 F.2d at 411 (citing Cramer and others). Shortly after

Hohe, the Sixth Circuit addressed the issue again, in Weaver.

Weaver found Stamford’s reasoning more persuasive than Hoke’s,

declaring that “the indemnification agreement . . . was repugnant

to public policy, and therefore, invalid,” for two reasons. First,

the clause “protect[s] the university from any financial conse-

quences of going along with procedures selected by the union

that fail to comply with the constitutional standards enunciated

in Hudson.” Second, the court recognized that “the university as

a public employer had duties separate and apart from those of the |

union.” Weaver, 970 F.2d at 1538 (citations omitted). The Sixth |

Circuit concluded that a “clause that relieves the employer of all |

consequences for its failure to assume and conscientiously carry

out its duties, including even the cost of defending legal actions,

is against public policy.” Id.

~.

Most recently, the Tenth Circuit in Wessel adopted the

majority view that indemnification clauses in this context are void

as against public policy. Wessel rejected the assertion that a public

; employer can “do little, if anything, to detect and prevent”

Hudson violations. 299 F.3d at 1197. Wessel concluded that “if

the Supreme Court had only been concerned with the union’s

ability to carry out the Hudson requirements, it would not have

placed the burden on both parties.” Jd. at 1198 (citing Hudson,

475 U.S. at 307 n.20).

bE EES: 5 EVR ierca Min

III. THE IMPORTANT QUESTION AS TO THE APPROPRIATE

REMEDY DIRECTLY ADDRESSES THE CONTINUED

VITALITY OF HUDSON’S PROTECTIONS.

+ han eat,

A. The Conflict with Hudson.

While Hudson declined to specify the appropriate remedy,

implicit in its holding is the conclusion that failure to comply

with the “constitutional requirements” means that a union may

not “collect[]” fees. 475 U.S. at 310. In contrast, the Ninth ~

Circuit’s reversal of the award of partial restitution is premised

upon the concept that agency fee seizures absent Hudson compli-

ance can be “cured” by post-seizure notice and procedures. Both

theoretical and practical considerations doom this concept.

Oe a ae eee

— ee abe oes te Mite? Pr Rew

First, a subsequent notice cannot, by hypothesis, “cure”

failure to provide notice, since a notice requirement inherently

presupposes a temporal component.’ Hudson imposes this

” For this reason, in part, this Court rejected similar arguments,

holding that violators cannot escape liability by issuing the notice

adequate as to its content and procedures after being sued. Hudson, 475

U.S. at 305 n.14 (“we consider the procedure as it was presented to the

District Court”); see also Knight, 131 F.3d at 811-12, 814-15 (reversing

two district court decisions deeming “moot” nonmembers’ claims about

an illegal demand for payment of agency fees).

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component with its declaration of “the constitutional require-

ments for the . . . collection of agency fees,” thus mandating that

adequate notice and procedures precede agency fee seizures. Id.

(emphasis added); see also id. at 305, quoting Abood, 431 U.S. at

244 (Stevens, J., concurring) (reaffirming principle that “the

Union should not be permitted to exact a service fee from

nonmembers without first establishing a procedure”) (emphasis

added). Thus, the Court mandated an “advance reduction of

dues” presupposing pre-seizure calculation and notice. 475 U.S.

at 304, 306, 309 (three references); see also id. at 305-06 (“A

forced exaction followed by a rebate equal to the amount

improperly expended is . . . not a permissible response to the

nonunion employees’ objections”).

This conclusion is confirmed by Hudson’s context as a limited

exception to the rule that an “essential principle of due process is

that a deprivation of life, liberty, or property “be preceded by

notice and opportunity for hearing appropriate to the nature of

the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

542 (1985), quoting Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 313 (1950) (emphasis added). This is the

normal constitutional principle: “the root requirement of the

Due Process Clause [is] ‘that an individual be given an opportu-

nity for a hearing before he is deprived of any significant property

interest.” Loudermill, 470 U.S. at 542 (original emphasis),

quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971).

Coupled with the content-based regulation of speech that is

the imposition of an “agency shop” and its consequent triggering

of “strict scrutiny,” Hudson’s requirements must be analyzed

through the narrowest prism. The license for unions and public

employers to seize public employees’ property absent pre-seizure

“opportunity for hearing” must be construed through its own

strict limitations, which require adequate financial disclosure

a

; - 25 -

calculating an “advance reduction of dues,” subject to “verifica-

tion by an independent auditor,” 475 U.S. at 307 n.18, prior to

any “collection of agency fees.” Id. at 310. Thus, the notion that

public-employee labor unions can “cure” failure to comply with

Hudson’s requirements simply by issuing a new constitutionally-

adequate notice when hailed into court by the employees whose

rights have been violated by illegal fee seizures fails in light of this

Court’s First-Amendment jurisprudence.

|. Furthermore, this Court mandated that unions escrow

“potential objectors” monies pending “a reasonably prompt :

Opportunity to challenge the amount of the fee before an

impartial decisionmaker,” in which “to have his objections

| addressed in an expeditious, fair, and objective manner.” Id.

Practically, a tardy notice can “cure” neither of these failures.* Ar

most, such a belated notice can provide, tardily, the requisite

financial disclosure. However, it cannot retroactively es-

crow—and therefore prevent the involuntary use of—monies

“reasonably in dispute” or, here, render any review “reasonably

prompt” in relation to the fee seizures. Thus, the Ninth Circuit’s

premise overlooks two important elements of Hudson’s mandate.

* The Ninth Circuit has indicated that a four-to-five month delay

: is permissible. Grunwald r. San Bernardino City Unified Sch. Dist., 994

| F.2d 1370, 1372, 1377 (9th Cir. 1993). Other courts have held similar

or longer delays to be impermissible. Harrison p. Massachusetts Soc. of

Professors, 405 Mass. 56, 66 (1989) (Mass. 1989) (150-day delay

: impermissible); Prescott v. County of El Dorado, 915 F. Supp. 1080,

1091 (E.D. Cal. 1996) (year-long delay impermissible); McGlumphy v.

Fraternal Order of Police, 633 F. Supp. 1074, 1083 (N.D. Ohio 1986)

(year-long delay impermissible); see also Perry v. Machinists Local 2569,

708 F.2d 1258, 1262 (7th Cir. 1983) (eighteen months before refund

“cumbersome” and “unfair”).

~ o

B. The Conflict Among the Courts.

The Circuits and state courts are deeply divided as to the

appropriate monetary remedy when fees are seized in violation of

Hudson. The Ninth Circuit’s ruling on full restitution admittedly

represents a majority view among the courts of appeals (one

which disregards this Court’s mandates, see § III(A), supra).

However, its reversal of the award of partial restitution is a

distinctly minority view, contrary to the views of other Circuits

and courts, and even other panels within the Ninth Circuit.

Predicated upon a view of union entitlement to nonmem-

bers’ fees, three circuits and one state supreme court deem full

restitution inappropriate when fees are seized in violation of

Hudson’s “constitutional requirements.” Lowary v. Lexington Local

Bad. of Educ., 903 F.2d 422, 432-33 (6th Cir. 1990); Weaver, 970

F.2d at 1533-34; Gilpin v. AFSCME, 875 F.2d 1310, 1313-14

(7th Cir. 1989); Wessel, 299 F.3d at 1194-95; Browne v. Wiscon-

sin Employment Relations Comm’n, 169 Wis. 2d 79, 130-34

(1992); cf Prescott I, 177 F.3d at 1109 (same).

On the other hand, three state supreme courts have affirmed

awards of full restitution. Elvin v. Oregon Pub. Employees Union,

313 Or. 165, 176-80 (1992) (affirming administrative award);

Wareham Educ. Ass’n v. Massachusetts Labor Relations Comm’n,

430 Mass. 81, 89-90 (1999) (granting restitution where no audit

supplied); Gibney v. Toledo Bad. of Educ., 40 Ohio. St. 3d 152, 157-

58 (1988). Moreover, the Ninth Circuit has held that a union

which “failed to satisfy Hudson’s requirements . . . was not

entitled to the fees that it collected.” Knight, 131 F.3d at 815;°

” Like Prescott I, the panel declared that Knight “said the union was

not entitled to the full amount of fees it collected.” App. A at 12a

(emphasis added). The emphasized words did not appear in Knight's

(continued...)

2.

see also Dean vy. TWA, 924 F.2d 805, 809 (9th Cir. 1991) (under

Railway Labor Act, nonmember is privileged to withhold dues

demanded absent compliance with Hudson).

The panel’s reversal of the District Court’s damages award is

a minority position. Two other circuits and state supreme court

denying full restitution have held that the minimally-appropriate

damages remedy for collections absent Hudson compliance is the

nonchargeable portion of the fee. Lowary, 903 F.2d at 432-33

(Sixth Circuit); Weaver, 970 F.2d at 1533-34 (same); Wessel, 299

F.3d at 1194-95 (Tenth Circuit); Browne, 169 Wis. 2d at 133

(“rights are sufficiently protected by requiring the unions to

refund the excess amounts deducted, plus interest”). The panel’s

decision even conflicts with other Ninth Circuit panels in Dean,

924 F.2d at 809 (under RLA, without procedures in place, union

“has no right . . . to collect fees for use in any union activity

beyond collective bargaining”), Prescott I, 177 F.3d at 1109-10,

and Knight, 131 F.3d at 815, as construed by Prescott I. For this

reason, the Court should grant the Petition as to the important

question presented on the appropriate monetary remedy for fees

seized in violation of Hudson’s requirements.

IV. THE IMPORTANCE OF THE ISSUES PRESENTED.

These questions manifestly are important, both in practice

and principle, as this Court recognized by granting certiorari in

cases such as Ellis, Hudson, Beck, Lehnert, Miller, and Prescott.

The questions are important in practice because their

resolution will affect a large number of employees subject to

” (...continued)

holding, which reversed “the district court[’s] . . . holding that. . .

Patterson was not entitled to a full refund of all collected fees as a

remedy for the defective Hudson notice.” Knight, 131 F.3d at 815.

. =

public-sector forced-unionism agreements. Such agreements are

lawful in at least twenty (20) states and the District of Columbia.

Milton L. Chappell, Seeking a New Foundation: Legislative and

Practical Alternatives to the Current Monopoly Bargaining Model

That Will Enhance the Viability of Independent Teacher Groups, 16

Gov't Union Rev. 1, 23-28 (table) (Summer 1995). As the cases

above illustrate, public employee unions frequently assume the

employer’s liability in order to obtain and enforce forced-union-

ism agreements.” Their sole purpose is to ensure that public

employers seize fees notwithstanding union defiance of Hudson’s

requirements. Resolution of the first three questions will affect

the administration of such agreements nationwide.

Whether public officials are immune from liability when they

seize agency fees, and whether public employers and officials may

be indemnified by labor unions from liability for seizing fees is

important in principle, too. Requiring public employees to

support financially their monopoly bargaining representative

implicates fundamental constitutional rights. Hudson, 475 U.S.

at 301 n.3; see also Ellis, 466 U.S. at 455. Questions as to how

the government's responsibility, 475 U.S. at 307 n.20, is to be

enforced against government complicity in the efforts of discrete,

locally-powerful groups to violate the constitutional rights of

another discrete, less-politically powerful group, see Wilson v.

Garcia, 471 U.S. 261, 276 (1985), necessarily are important.

Indeed, they are at the core of the congressional policy embodied

in § 1983, which is to create a remedy “against those who

representing a State in some capacity [a]re unable or unwilling to

enforce a state law.” Monroe, 365 U.S. at 175-76.

’® California’s statute authorizing forced unionism for local public

employees requires indemnification where the forced-fee requirement is

imposed without a CBA. Cal. Gov’t Code § 3502.5(b).

» =

This Court’s intervention is necessary to establish conclu-

sively nationwide that public officials who surrender government

employees’ unfettered right to choose whether to support their

monopoly bargaining representative cannot avoid their “responsi-

bility” under Hudson, 475 U.S. at 307 n.20. It is necessary to

guarantee that public officials cannot, without economic conse-

quence and in league with a labor union, “subject, or cause[] to

be subjected, any citizen of the United States . . . to the depriva-

tion of any rights, privileges, or immunities secured by the

Constitution and laws.” 42 U.S.C. § 1983.

Also of compelling importance is determination of whether

unions defying Hudson may nevertheless retain agency fees

illegally collected from employees. Aside from the sheer magni-

tude of the amount at issue—nearly $3 million awarded by the

District Court, out of more than $14 million seized—resolution

of that question is necessary to determine whether Hudson’s

protections have any meaningful and continuing vitality in the

face of union intransigence and artful evasions. Cf. Jeff Canfield,

What a Sham(e): The Broken Beck System in the Real World

Workplace, 47 Wayne L. Rev. 1049, 1050 (Fall 2001) (arguing

Beck as construed by unions and the National Labor Relations

Board “makes it nearly impossible for average employees to

successfully assert those rights granted by [this] Court”).

The Ninth Circuit’s denial of meaningful monetary damages

is an invitation for public-sector unions to roll the dice, disregard

Or attempt to evade Hudson (which happened in this case) and

take their chances against the improbable happenstance that their

victims will sue. The Ninth Circuit has drawn public-sector

unions a virtual roadmap for artful evasion of Hudson, where

“good faith” is defined as doing as little as possible in response to

suit, and only after federal injunctive relief is entered. App. A at

4a, 15a; App. Eat 41a. Indeed, unavoidably implicit in the lower

«Ws

courts’ view that full restitution is somehow “unfair” is the

conclusion that unions doing nothing to comply with Hudson’s

mandate are nevertheless entitled to the chargeable portion of

agency fees.

This case is a uniquely appropriate vehicle for addressing the

remedial issue. Here, CSEA failed to comply with Hudson’s

requirement to provide “verification by an independent auditor,”

475 U.S. at 307 n.18, but cannot complain of the “burden” or

expense of doing so. See, ¢.g., Hartk, 298 F.3d at 869. Rather,

privileged to seize more than $1 million monthly from 37,000

employees, CSEA nevertheless simply refused to spend $12,000

(about 30¢ per employee) to provide them with audited financial

disclosure it already possessed. R. 32.

CONCLUSION

For the reasons stated above, this petition for writ of

certiorari should be granted, and the case set for plenary briefing

and argument on the important questions presented herein.

Respectfully submitted,

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 PETITIONERS

*Counsel of Record

April 2003