Monday, October 6, 2008
Update: More on Locke from the First Amendment Law Center and Tony Mauro.
The Supreme Court held its oral argument in Locke v. Karass today (see here for a brief summary). You can see the full transcript yourself, but here's my take on it. You can boil down the Justices concern to one basic question (with apologies to Janet Jackson): what have you done for me lately? The Justices repeatedly ask both sides what the local or nonunion employee gets for the dues in question. The concern appeared to be that many of the Justices did not want to force objectors to pay for irrelevant charges, but were also mindful of the possibility that charges such as the extra-unit litigation expenses at issue in the case may help the objector's unit in the future.
James Young argued for the objectors and started off arguing for a line not allowing a union to charge for public speech. Justice Scalia responded with a view echoed by many other Justices:
But, of course, they wouldn't be subsidizing it if -- if, indeed, it is some kind of a -- essentially an insurance scheme. They -- they contribute to the national union, and in exchange the national union defends their interest just as it defends the interest of other unions.
In perhaps a preview of the way the case could come out, Scalia was concerned that the lower court didn't address whether the local could demand any action from the national union based on its payments.
Young responded, however, that even a pooled insurance model for the union fees would be unconstitutional as long as a local were paying for litigation expenses of another local. This brought up concerns about how to draw the line among chargeable and non-chargable dues, including this discussion with Justice Kennedy:
JUSTICE KENNEDY: I did want to understand your position. Suppose there is a statewide contract for public employees and one union brings a suit to interpret a provision of that collective bargaining agreement having to do with overtime or holidays or something. And then it notifies the other union, we're going to have to drop this litigation because we can't afford it. Even though it ultimately may affect you down the line, you're not a party. I don't see the harm in allowing the other union to subsidize or contribute -- use whatever verb you want -- that litigation -- that litigation.
JUSTICE KENNEDY: What -- what -- what harm are we trying to prevent here?
MR. YOUNG: Well, obviously First Amendment harm, Justice Kennedy. But I think understanding -- if I understand your hypothetical --
JUSTICE KENNEDY: The First Amendment can be -- can be a sword or a shield. This union wants to use it as a sword in order to promote, in order to protect its rights under the collective bargaining agreement. I don't see the harm.
Jeremiah Collins argued for the unions, stressing that a local union should be able to seek out help with litigation and charge objectors those expenses. This prompted concerns from Justice Alito and others about a significant disparity--say onion involved in a lot of litigation taking a lot of money from locals with objectors that don't have much litigation costs. The argument then turned to what, if any, responsibility the National has to locals paying these dues. Collins suggested that, because the relationship was contractual, there was at least a duty of good faith and fair dealing in the National's use of those fees (and a cause of action). That prompted the following from Scalia:
JUSTICE SCALIA: The issue is not whether that's a fair thing for the national union to do. The
issue is whether the person who is being compelled against his will to pay dues to the union is getting anything back for that compelled payment. And even though the national union may be acting in an entirely fair fashion, given its national objectives, the -- the compelled payment is not doing what our cases seem to say it must do. It has to be paying for services rendered.
MR. COLLINS: What -- the value the -- the objector is getting is not have a guarantee of services. He has the potential for services far beyond what could ever be paid for out of the local's own affiliation fees.
Ultimately, Justice Kennedy (and we know that's who you really care about), showed his major concern:
JUSTICE KENNEDY: Well, one of the difficulties it seems to me is the Petitioner's position with the sort of all or nothing approach. But you seemed to be taking the mirror position of that. Your argument is all or nothing on your side. I don't get much help from either side as to what the standard should be. I know germane is obviously a malleable word, but we are looking to see if there is some test that we can use that's not all or nothing.
I suspect that the Court will look for some sort of middle ground. I'll guess a 5-4 vote, with Kennedy as the swing, in which the Court holds that extra-unit litigation is generally "germane." Another possibility is a remand for more facts on what the relationship between the local and national looked like. The hope is that the Court will help explain "germane" more, but beyond holding on the specific facts here, I wouldn't bet on it.