Thursday, June 21, 2012

Union Special Assessment Procedure Violates First Amendment

A divided Supreme Court today ruled in Knox v. SEIU that a union must provide notice and opt-in for a proposed special assessment in a public-sector agency shop.  We covered the background and oral arguments here.

The majority opinion leaves long-standing rules about union assessments for public-sector agency shops hanging by a thread.  In addition to its ruling on special assessments--a question that was open before this case--the ruling takes sharp issue with the idea that the First Amendment permits a public-sector union to provide notice and opt-out for its regular, annual assessments.  

The ruling is a blow to unions' ability to collect special assessments.  It says that the First Amendment requires notice and opt-in for those.  But the ruling also signals the majority's discontent with the long-standing rules on regular assessments.  The ruling all but held those rules--notice and opt-out--unconstitutional.  (Those rules, of course, were well beyond the scope of the case.  But the majority sent a strong signal that it would consider their constitutionality, if not outright rule them unconstitutional, if given even half a chance.)

Justice Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.  Justices Sotomayor and Ginsburg concurred in the judgment, and argued that the majority's ruling--requiring notice and opt-in--went far afield of the arguments and briefing.  Justices Breyer and Kagan dissented.

We'll provide more analysis shortly.


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