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In the Supreme Court of the United States No. 14-915 In the Supreme Court of the United States _____________________________________ REBECCA FRIEDRICHS, ET AL., PETITIONER, v. CALIFORNIA TEACHERS ASSOCIATION, ET AL., RESPONDENT. _____________________________________ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _____________________________________ BRIEF FOR PETITIONERS _____________________________________ DANIELLE J. MCCALL PETER J. MARDIAN UNIVERSITY OF PENNSYLVANIA LAW SCHOOL 3501 Sansom St. Philadelphia, PA 19104 Counsel for Petitioners October 16, 2015 i QUESTIONS PRESENTED Abood v. Detroit Board of Education, in authorizing public-sector agency shops, empowered States to condition public employment on union support. Under this regime, public employees must finance union collective bargaining practices, irrespective of their personal ideologies. As a provision of agency-shop arrangements, opt-out procedures require nonmembers to affirmatively object to subsidizing the unions’ purely political endeavors. 1. Should Abood v. Detroit Board of Education be overruled, and public-sector agency shops invalidated under the First Amendment? 2. With affirmative consent as a viable alternative, does it violate the First Amendment to require nonmembers to annually and affirmatively object to financially supporting unions’ political speech? ii PARTIES TO THE PROCEEDING Petitioners, Plaintiffs-Appellants below, are: Rebecca Friedrichs; Scott Wilford; Jelena Figueroa; George W. White, Jr.; Kevin Roughton; Peggy Searcy; Jose Manso; Harlan Elrich; Karen Cuen; Irene Zavala; and Christian Educators Association International Inc. Christian Educators Association International is a non-profit religious organization. Respondents, Defendants-Appellees below, are: the California Teachers Association; National Education Association; Saddle-Back Valley Educators Association; Savanna District Teachers Association; Orange Unified Education Association Inc.; Kern High School Teachers Association; National Education Association, Jurupa; Santa Anna Educators Association Inc.; Teachers Association of Norwalk, La Mirada Area; Sanger Unified Teachers Association; Associated Chino Teachers; San Luis Obispo County Education Association; Sue Johnson; Clint Harwick; Michael L. Christensen; Donald E. Carter; Elliot Duchon; Thelma Melendez de Santa Ana; Ruth Perez; Marcus P. Johnson; Wayne Joseph; and Julian D. Crocker. Kamala D. Harris was a Defendant-Intervenor in the action below. iii TABLE OF CONTENTS OPINIONS BELOW ................................................... 1 JURISDICTION ......................................................... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS....................................................... 1 STATEMENT OF THE CASE ................................... 1 SUMMARY OF ARGUMENT .................................... 6 ARGUMENT .............................................................. 8 I. PUBLIC-SECTOR AGENCY FEES VIOLATE THE FIRST AMENDMENT. 8 A. Public-sector Agency Fees Burden Core Political Speech and Are, Therefore, Subject to Strict Scrutiny. ...................... 9 1. When they are required to finance collective bargaining, nonmembers are forced to support union beliefs of necessary government expenditures. .... 11 2. Nonmembers’ political speech is further burdened when the State mandates their support of singular education policy perspectives. .......................................... 12 B. Agency-Shop Practices Are Neither Justified by Compelling Interests Nor Narrowly Tailored to Serve Any Purported State Ends. .......................... 13 1. Preventing free ridership is generally not a compelling interest and is not implicated in this context. .................... 14 iv 2. Agency-shop systems are not the least restrictive means of eliminating free riders. .................................................... 17 3. Agency shops are similarly unnecessary to effectuate the State’s interest in promoting labor peace. ........................................... 19 II. THE PRINCIPLES OF STARE DECISIS DO NOT PRECLUDE THE ABROGATION OF ABOOD. ................ 20 A. Abood Conflated Statutory and Constitutional Arguments and Downplayed the Material Incongruities of Public and Private Action. ................... 21 1. Abood erred in its adoption of arguments from Hanson and Street, which contained little to no constitutional analysis. ....... 22 2. Abood erred in its failure to appreciate the differences between private and public sector agency fees. ................................. 24 B. Abood’s Bifurcation of Chargeable and Nonchargeable Expenses Is Unworkable. ............................................................... 25 1. Both collective bargaining and partisan lobbying are too ensconced in political ideology to be bifurcated in the way the Abood Court sought. ............................. 25 2. The Court’s efforts to remedy confusion in the wake of Abood have largely been unsuccessful. ......................................... 26 C. Reliance Interests Do Not Discourage the Decision to Overturn Abood, They Propel Its Necessity. ........................................ 28 v III. THE OPT OUT PROCEDURES SANCTIONED IN ABOOD SIMILARLY VIOLATE THE FIRST AMENDMENT BECAUSE THEY CANNOT WITHSTAND EXACTING SCRUTINY AND ARE WITHOUT PRECEDENTIAL SUPPORT. ............................................ 30 A. Opt-out Systems Lack the Justification of Compelling Interests and Are Not Tailored to Minimize Constitutional Impairment. .......................................... 31 1. The compelling interests articulated in Abood are not implicated by opt-out practices and thus, cannot justify such systems. ................................................. 32 2. Opt-in procedures effectuate union interests without infringing on constitutional liberties. ......................... 34 B. Opt-out Systems Fly in the Face of Over Seventy-five Years of Constitutional Precedent That Requires Voluntary, Explicit Relinquishment of Fundamental Rights. ................................................... 35 IV. CALIFORNIA’S SYSTEM DEMONSTRATES THE NEED TO INVALIDATE OPT-OUT PROCEDURES, ESPECIALLY IF ABOOD IS NOT OVERTURNED. ....... 37 CONCLUSION ......................................................... 39 vi TABLE OF AUTHORITIES SUPREME COURT CASES Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) ....................................... passim Aetna Insurance Co. v. Kennedy ex rel. Bogash, 301 U.S. 389 (1937) .............................................. 36 Arizona v. Gant, 556 U.S. 332 (2009) .................................. 22, 28, 29 Brown v. Hartlage, 456 U.S. 45 (1982) ................................................ 36 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932) .............................................. 21 Chicago Teachers Union v. Hudson, 475 U.S. 302 (1986) .............................................. 34 Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010) ........................................ 10, 20 Edelman v. Jordan, 415 U.S. 651 (1974) .............................................. 36 Elrod v. Burns, 427 U.S. 347 (1976) .............................................. 31 Fed. Election Comm'n v. Wis. Right To Life, Inc., 551 U.S. 449 (2007) .............................................. 20 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) .............................................. 32 Glidden Co. v. Zdanok, 370 U.S. 530 (1962) ............................................. 20 Harris v. Quinn, 134 S. Ct. 2618 (2014) ................................... passim International Ass’n of Machinists v. Street, 367 U.S. 740 (1961) .............................................. 32 Johnson v. Zerbst, 304 U.S. 458 (1938) .............................................. 36 Knox v. Serv. Emps. Int'l Union, Local 1000, 132 S. Ct. 2277 (2012) ................................... passim vii Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991) .................................. 15, 26, 27 McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) .............................................. 10 Payne v. Tennessee, 501 U.S. 808 (1991) .................................. 21, 25, 30 Railway Employes' Department v. Hanson, 351 U.S. 225 (1956) .............................................. 23 Riley v. Nat'l Fed'n of the Blind of N. Carolina, Inc., 487 U.S. 781 (1988) ................................................ 8 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ................................................ 8 Snyder v. Phelps, 562 U.S. 443 (2011) .......................................... 9, 10 Swift & Co. v. Wickham, 382 U.S. 111 (1965) .............................................. 25 U.S. v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) .............................................. 34 Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) .......................................... 14 CIRCUIT COURT CASES Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668 (8th Cir. 1986) ................................ 12 Sweeney v. Pence, 767 F.3d 654 (7th Cir. 2014) ................................ 29 REGULATIONS Regs. of Cal. PERB § 32992 ............................. 3, 4, 37 Regs. of Cal. PERB § 32994 ............................. 4, 5, 38 SECONDARY SOURCES Bruce Biddle & David Berliner, What Research Says About Small Classes and Their Effects, Policy Perspectives. ......................................................... 12 viii Harry G. Hutchison, Reclaiming the Labor Movement Through Union Dues? A Postmodern Perspective in the
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