Knox v. Service Employees
567 U.S. ___ (2012)

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Justia Opinion Summary
California law permits public employees to create an agency shop bargaining unit so that all employees are represented by a union. Employees who do not join must pay "chargeable expenses;" the union may not require nonmembers to fund ideological projects. In 2005, SEIU, a public-sector union, sent its annual "Hudson notice," setting and capping monthly dues, and stating that the fee could increase without notice. That month, the Governor called for a special election on propositions opposed by SEIU. After the 30-day objection period, SEIU sent a letter announcing a temporary 25% dues increase and elimination of the cap: an "Emergency Temporary Assessment to Build a Political Fight-Back Fund." Nonmembers could not avoid paying. The district court entered summary judgment favoring a class of nonmembers who paid into the fund. The Ninth Circuit reversed, employing a balancing test: whether procedures reasonably accommodated interests of the union, the employer, and nonmember employees. The Supreme Court reversed, holding that the case is not moot, despite SEIU offering a refund. When a state establishes an agency shop that exacts union fees as a condition of public employment, dissenting employees are forced to support an organization with whose principles they may disagree. Compulsory subsidies for private speech are subject to exacting First Amendment scrutiny and cannot be sustained unless there is a comprehensive regulatory scheme and compulsory fees are a necessary incident of the larger regulatory purpose that justified the required association. When a union imposes a special assessment or dues increase to meet undisclosed expenses, it must provide fresh notice and may not exact funds without consent. Failure to provide a fresh Hudson notice was unjustified; treatment of nonmembers who opted out after the initial Hudson notice also ran violated the First Amendment. They were required to pay 56.35% of the special assessment even though all the money was slated for electoral uses.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .

SUPREME COURT OF THE UNITED STATES

Syllabus

KNOX et al. v. SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000

certiorari to the united states court of appeals for the ninth circuit

No. 10–1121. Argued January 10, 2012—Decided June 21, 2012

California law permits public-sector employees in a bargaining unit to decide by majority vote to create an “agency shop” arrangement under which all the employees are represented by a union. Even employees who do not join the union must pay an annual fee for “chargeable expenses,” i.e., the cost of nonpolitical union services related to collective bargaining. Under Abood v. Detroit Bd. of Ed., 431 U. S. 209 , a public-sector union can bill nonmembers for chargeable expenses but may not require them to fund its political or ideological projects. Teachers v. Hudson, 475 U. S. 292 –311, sets out requirements that a union must meet in order to collect regular fees from nonmembers without violating their rights.

          In June 2005, respondent, a public-sector union (SEIU), sent to California employees its annual Hudson notice, setting and capping monthly dues and estimating that 56.35% of its total expenditures in the coming year would be chargeable expenses. A nonmember had 30 days to object to full payment of dues but would still have to pay the chargeable portion. The notice stated that the fee was subject to increase without further notice. That same month, the Governor called for a special election on, inter alia, two ballot propositions opposed by the SEIU. After the 30-day objection period ended, the SEIU sent a letter to unit employees announcing a temporary 25% increase in dues and a temporary elimination of the monthly dues cap, billing the move as an “Emergency Temporary Assessment to Build a Political Fight-Back Fund.” The purpose of the fund was to help achieve the union’s political objectives in the special election and in the upcoming November 2006 election. The union noted that the fund would be used “for a broad range of political expenses, including television and radio advertising, direct mail, voter registration, voter education, and get out the vote activities in our work sites and in our communities across California.” Nonunion employees were not given any choice as to whether they would pay into the fund.

          Petitioners, on behalf of nonunion employees who paid into the fund, brought a class action against the SEIU alleging violation of their First Amendment rights. The Federal District Court granted petitioners summary judgment. Ruling that the special assessment was for entirely political purposes, it ordered the SEIU to send a new notice giving class members 45 days to object and to provide those who object a full refund of contributions to the fund. The Ninth Circuit reversed, concluding that Hudson prescribed a balancing test under which the proper inquiry is whether the SEIU’s procedures reasonably accommodated the interests of the union, the employer, and the nonmember employees.

Held:

     1. This case is not moot. Although the SEIU offered a full refund to all class members after certiorari was granted, a live controversy remains. The voluntary cessation of challenged conduct does not ordinarily render a case moot because that conduct could be resumed as soon as the case is dismissed. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283 . Since the SEIU continues to defend the fund’s legality, it would not necessarily refrain from collecting similar fees in the future. Even if concerns about voluntary cessation were inapplicable because petitioners did not seek prospective relief, there would still be a live controversy as to the adequacy of the refund notice the SEIU sent pursuant to the District Court’s order. Pp. 6−8.

     2. Under the First Amendment, when a union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent. Pp. 8−23.

          (a) A close connection exists between this Nation’s commitment to self-government and the rights protected by the First Amendment, see, e.g., Brown v. Hartlage, 456 U. S. 45 −53, which creates “an open marketplace” in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference, New York State Bd. of Elections v. Lopez Torres, 552 U. S 196, 202. The government may not prohibit the dissemination of ideas it disfavors, nor compel the endorsement of ideas that it approves. See, e.g., R. A. V. v. St. Paul, 505 U. S. 377 . And the ability of like-minded individuals to associate for the purpose of expressing commonly held views may not be curtailed. See, e.g., Roberts v. United States Jaycees, 468 U. S. 609 . Closely related to compelled speech and compelled association is compelled funding of the speech of private speakers or groups. Compulsory subsidies for private speech are thus subject to exacting First Amendment scrutiny and cannot be sustained unless, first, there is a comprehensive regulatory scheme involving a “mandated association” among those who are required to pay the subsidy, United States v. United Foods, Inc., 533 U. S. 405 , and, second, compulsory fees are levied only insofar as they are a “necessary incident” of the “larger regulatory purpose which justified the required association,” ibid. Pp. 8−10.

          (b) When a State establishes an “agency shop” that exacts compulsory union fees as a condition of public employment, “[t]he dissenting employee is forced to support financially an organization with whose principles and demands he may disagree.” Ellis v. Railway Clerks, 466 U. S. 435 . This form of compelled speech and association imposes a “significant impingement on First Amendment rights.” Ibid. The justification for permitting a union to collect fees from nonmembers—to prevent them from free-riding on the union’s efforts—is an anomaly. Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues―rather than exempting them unless they opt in―represents a remarkable boon for unions, creating a risk that the fees nonmembers pay will be used to further political and ideological ends with which they do not agree. Thus, Hudson, far from calling for a balancing of rights or interests, made it clear that any procedure for exacting fees from unwilling contributors must be “carefully tailored to minimize the infringement” of free speech rights, 475 U. S. 302 −303, and it cited cases holding that measures burdening the freedom of speech or association must serve a compelling interest and must not be significantly broader than necessary to serve that interest. Pp. 10−13.

          (c) There is no justification for the SEIU’s failure to provide a fresh Hudson notice. Hudson rests on the principle that nonmembers should not be required to fund a union’s political and ideological projects unless they choose to do so after having “a fair opportunity” to assess the impact of paying for nonchargeable union activities. 475 U. S., at 303. The SEIU’s procedure cannot be considered to have met Hudson’s requirement that fee-collection procedures be carefully tailored to minimize impingement on First Amendment rights. The SEIU argues that nonmembers who objected to the special assessment but were not given the opportunity to opt out would have been given the chance to recover the funds by opting out when the next annual notice was sent, and that the amount of dues payable the following year by objecting nonmembers would decrease if the special assessment were found to be for nonchargeable purposes. But this decrease would not fully recompense nonmembers, who would not have paid to support the special assessment if given the choice. In any event, even a full refund would not undo the First Amendment violations, since the First Amendment does not permit a union to extract a loan from unwilling nonmembers even if the money is later paid back in full. Pp. 14−17.

          (d) The SEIU’s treatment of nonmembers who opted out when the initial Hudson notice was sent also ran afoul of the First Amendment. They were required to pay 56.35% of the special assessment even though all the money was slated for nonchargeable, electoral uses. And the SEIU’s claim that the assessment was a windfall because chargeable expenses turned out to be 66.26% is unpersuasive. First, the SEIU’s understanding of the breadth of chargeable expenses is so expansive that it is hard to place much reliance on its statistics. “Lobbying the electorate,” which the SEIU claims is chargeable, is nothing more than another term for supporting political causes and candidates. Second, even if the SEIU’s statistics are accurate, it does not follow that it was proper to charge objecting nonmembers any particular percentage of the special assessment. If, as the SEIU argues, it is not possible to accurately determine in advance the percentage of union funds that will be used for an upcoming year’s chargeable purposes, there is a risk that unconsenting nonmembers will have paid too much or too little. That risk should be borne by the side whose constitutional rights are not at stake. If the nonmembers pay too much, their First Amendment rights are infringed. But, if they pay too little, no constitutional right of the union is violated because it has no constitutional right to receive any payment from those employees. Pp. 17−23.

628 F. 3d 1115, reversed and remanded.

     Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Sotomayor, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined. Breyer, J., filed a dissenting opinion, in which Kagan, J., joined.

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