Thursday, June 21, 2012

SCOTUS: New Decisions

I. Southern Union - 1st Cir reversed 6-3. And this is interesting: Breyer dissents, joined by Kennedy and Alito.  This is about whether it's necessary for the jury to find each fact that leads to a higher fine by a reasonable doubt - or whether a judge can do it.  Sotomayor: "The Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant’s maximum potential sentence. We have applied this principle in numerous cases where the sen- tence was imprisonment or death. The question here is whether the same rule applies to sentences of criminal fines. We hold that it does."  Juries must decide, even with fines.  Breyer, Kennedy, and Alito want to give the power to judges - drawing a distinction on those facts which involve judge's sentencing decisions - and they think the majority resolution is unworkable.

II. Knox v SEIU - Alito opinion, 9th Cir reversed, 7-2, Breyer dissent, joined by Kagan. Sotomayor concurs, Ginsburg joined her.  "Whether a state can require its employees to pay a special union fee that will be spent for political purposes without first giving the employees information about the fee and a chance to object to it." I'm going to focus on this one the most, because I think it is the most important and the most political of the decisions that came down today.

The Alito Opinion:

1. The case is not moot - because SEIU is still asserting that it can levy the fees at issue in the case, even though they did made a post-cert refund of the money in question.

2. The First Amendment means not only that you have the freedom to express yourself, but also that the government may not prohibit or compel speech or association based on its approval or disapproval thereof.  Corollary: the government cannot compel you to spend your money to fund private speech you don't like.

3. Alito doesn't like unions.  I'm sorry, I can't read this passage any other way:

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.” Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech and association that imposes a “significant impingement on First Amendment rights.” Our cases to date have tolerated this “impingement,” and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake. 
“The primary purpose” of permitting unions to collect fees from nonmembers, we have said, is “to prevent non- members from free-riding on the union’s efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred.” Such free-rider arguments, however, are generally insufficient to overcome First Amendment objections. Consider the following examples: 
“If a community association engages in a clean-up campaign or opposes encroachments by industrial de- velopment, no one suggests that all residents or property owners who benefit be required to contribute. If a parent-teacher association raises money for the school library, assessments are not levied on all parents. If an association of university professors has as a major function bringing pressure on universities to observe standards of tenure and academic freedom, most professors would consider it an outrage to be required to join. If a medical association lobbies against regulation of fees, not all doctors who share in the benefits share in the costs.” 
Acceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly—one that we have found to be justified by the interest in furthering “labor peace.” But it is an anomaly nevertheless. 
Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues—as opposed to exempting them from making such payments unless they opt in—represents a remarkable boon for unions. Courts “do not presume acquiescence in the loss of fundamental rights.”  Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union’s political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment?  
Shouldn’t the default rule comport with the probable preferences of most nonmembers? And isn’t it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues? An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. But a “[u]nion should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.” [Citations omitted, emphasis mine.]

4. Alito wants to draw a distinction between opt-out and opt-in schemes.  Then he wants to place the onus on unions to get non-members to opt-in to fees that Alito doesn't like.

5. Here comes a sarcastic swipe at the generally more-liberal 9th Circ: "Contrary to the view of the Ninth Circuit panel majority, we did not call for a balancing of the 'right' of the union to collect an agency fee against the First Amend- ment rights of nonmembers."  Those are some sarcastic quotes around "right" there.

6. Alito is warming you up to revisit previous more pro-union cases: "By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate. The SEIU, however, asks us to go farther. It asks us to approve a proce- dure under which (a) a special assessment billed for use in electoral campaigns was assessed without providing a new opportunity for nonmembers to decide whether they wished to contribute to this effort and (b) nonmembers who previously opted out were nevertheless required to pay more than half of the special assessment even though the union had said that the purpose of the fund was to mount a political campaign and that it would not be used for ordinary union expenses. This aggressive use of power by the SEIU to collect fees from nonmembers is indefensible." [Emphasis mine.]

7. SEIU should have provided a new Hudson notice.  Alito would have liked it to be an opt-in notice rather than an opt-out one.

8. If SEIU had to incur costs in implementing the non-members opt-out plan, it should pay for them, as the party whose First Amendment rights are not on the line. (Or: when in doubt, the Union should pay.)

9. The Court reversed and remanded so that the 9th Circuit will be the ones deciding what should happen, but Alito made it pretty clear what he thinks should happen.  

Note: There's this little nugget in Alito's opinion, which I think actually argues against Citizens United, but which conservatives would probably use in favor of Citizens United (isn't the law grand?): "The First Amendment creates “an open marketplace” in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference. The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves. And the ability of like-minded individuals to associate for the purpose of expressing commonly held views may not be curtailed." [Citations omitted.]

The Sotomayor Concurrence (with which Ginsburg joined):

1. Sotomayor and Ginsburg believe SEIU was required to provide a new opt-out notice, and they think most of the rest of what Alito said was a judicial grab - that nobody asked them to revisit larger First Amendment questions, or to change the standard from requiring an opt-out to an opt-in notice.  Sotomayor and Ginsburg are saying that Alito and the majority are out-of-bounds on the law of this case, and, it sounds like, that they are being political (at the end of this passage, Sotomayor cleverly cites and quotes from an Alito opinion and also cites and quotes a dissent by Scalia and Thomas) -

When a public-sector union imposes a special assessment intended to fund solely political lobbying efforts, the First Amendment requires that the union provide non-members an opportunity to opt out of the contribution of funds. I therefore concur in the Court’s judgment. 
I concur only in the judgment, however, because I cannot agree with the majority’s decision to address unnecessarily significant constitutional issues well outside the scope of the questions presented and briefing. By doing so, the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the Court’s proper role in our system of separated powers...
Petitioners did not question the validity of our precedents, which consistently have recognized that an opt-out system of fee collection comports with the Constitution. They did not argue that the Constitution requires an opt-in system of fee collection in the context of special assessments or dues increases or, indeed, in any context. Not surprisingly, respondents did not address such a prospect. 
Under this Court’s Rule 14.1(a), “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” “[W]e disregard [that rule] ‘only in the most exceptional cases,’ where reasons of urgency or economy suggest the need to address the unpresented question in the case under consideration.” The majority does not claim any such exceptional circumstance here. Yet it reaches out to hold that “when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.” The majority thus decides, for the very first time, that the First Amendment does require an opt-in system in some circumstances: the levying of a special assessment or dues increase. The majority announces its novel rule without any analysis of potential countervailing arguments and without any reflection on the reliance interests our old rules have engendered. 
The majority’s choice to reach an issue not presented by the parties, briefed, or argued, disregards our rules. And it ignores a fundamental premise of our adversarial system: “‘that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.’” [Citations omitted, emphasis mine.]

2. Sotomayor also argues that the majority does not even make itself clear what is to be required going forward.  She mentions the majority's "novel" rule more than once, this is to underscore that the majority is making new law, not simply using precedent to build its legal decision.  Hey, that's what might be called activist judging.

3. And Sotomayor is pretty angry about the anti-union crap Alito pulls, "To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise. It deprives the parties and potential amici of the opportunity to brief and argue the question. It deprives us of the benefit of argument that the parties, with concrete interests in the question, are surely better positioned than we to set forth."  She then quotes Alito from a different opinion again, “It is undesirable for us to decide a matter of this importance in a case in which we do not have the benefit of briefing by the parties and in which potential amici had little notice that the matter might be decided.”  How do I know she's angry?  "Not content with our task, prescribed by Article III, of answering constitutional questions, the majority today decides to ask them as well."  That's pretty snarky right there.  And it's her last sentence.  That's a legal zinger right there.

The Breyer Dissent (with which Kagan Joined):

1. Breyer and Kagan think SEIU didn't have to provide a new notice to nonmembers of the arguably political fees, because they say the Court held in Hudson that if the Union was basing its fees on the expenses of the previous year that that's okay and doesn't require a new notice.

2. Breyer is not happy with the majority's step outside the current case and the Court's precedent, either. The language he uses is what I would point to - "along with every related case the Court has ever decided;" "If there are good reasons... they are not the reasons the Court provides;" "The Court further complains;" "it is hard to believe any such assumption could implicitly lurk;" "it is hard to believe that the Members of this Court... were not fully aware of these obvious facts."  These quotes are in context below:
The Court’s response to these problems, particularly the administrative calculation problems, is apparently to depart yet further from the Court’s earlier holdings. It seems to say that an objector can withhold 100%, not simply of a special assessment made for political purposes, but of any special assessment whatsoever, including an assessment made solely for the purpose of paying for extra chargeable costs, such as extended contract negotiations, pension plan experts, or newly assessed contributions to replenish a national union’s collective-bargaining assis- tance funds. Although this rule is comparatively simple to administer, it cannot be reconciled with the Court’s previous constitutional holdings. Abood, along with every related case the Court has ever decided, makes clear that the Constitution allows a union to assess nonmembers a pro rata share of fees insofar as they are used to pay for these kinds of collective- bargaining expenses. How could the majority now hold to the contrary?
If there are good reasons for requiring departure from the basic Hudson-approved administrative system, they are not the reasons the Court provides... 
More specifically, the Court suggests that the Constitution prohibits the union’s classification of money spent “‘lobbying . . . the electorate’” as a chargeable expense. But California state law explicitly permits the union to classify some lobbying expenses as charge-able. No one has attacked the constitutionality of California’s law; no brief argues the question; and this Court does not normally find state laws unconstitutional without, at least, giving those who favor the law an opportunity to argue the matter.
The Court further complains that the basic administrative system requires an objecting nonmember to “come up with the resources to mount” a “legal challenge” to the union’s allocation “in a timely fashion.” That concern too is misplaced. The union has offered to pay for neutral arbitration of such disputes before the American Arbitration Association. And, again, insofar as the Court casts doubt on the constitutional validity of the basic system, the Court does so without the benefit of argument.
Finally, the Court argues that (Step 1) Hudson is “predicated on the assumption that a union’s allocation of funds for chargeable and nonchargeable purposes is not likely to vary greatly from one year to the next,” ante, at 18; that (Step 2) this assumption does not apply to midyear assessments; hence (Step 3) what appears binding precedent (namely Hudson) does not bind the Court in its interpretation of the Constitution as applied to those assessments. 
I must jump this logical ship, however, at Step 1. I cannot find in Hudson the “assumption” of uniform expenditures that the Court says underlies it. The assumption does not appear there explicitly. And it is hard to believe any such assumption could implicitly lurk within a case involving a union’s political expenditures. Those expenditures inevitably vary from political season to season. They inevitably depend upon the number and kind of union-related matters currently visible on the political agenda. And it is hard to believe that the Members of this Court, when deciding Abood, were not fully aware of these obvious facts.  [Citations removed, emphasis mine.]

3. Breyer agrees with Sotomayor on the reasoning for why the opt-in change is wrong.  "It runs directly contrary to precedent. No party asked that we do so. The matter has not been fully argued in this Court or in the courts below. I agree with her about this matter...  There is no good reason for the Court suddenly to enter the debate, much less now to decide that the Constitution resolves it. Of course, principles of stare decisis are not absolute. But the Court cannot be right when it departs from those principles without benefit of argument in a matter of such importance."

III. Dorsey v. Hill - Breyer, 7th cir vacated and remanded, 5-4, Scalia dissents, joined by CJ, Alito, Thomas.  "Whether the Fair Sentencing Act of 2010, which reduced the sentences for defendants who are convicted of crack cocaine offenses, applies to defendants who were convicted before the Act went into effect but sentenced after it."  It does.  "The Fair Sentencing Act’s new, lower mandatory minimums apply to the post-Act sentencing of pre-Act offenders... Six considerations, taken together, show that Congress intended the Fair Sentencing Act’s more lenient penalties to apply to offenders who committed crimes before August 3, 2010, but were sentenced after that date."

IV. FCC v. Fox - Kennedy, 2nd Cir vacated and remanded, 8-0 (Sotomayor did not participate, Ginsburg concurs in judgment only).  "Whether the Federal Communications Commission’s standards for indecency on television are too vague to be constitutional."  This was a very narrow decision. The Court said that based on the lack of fair notice by the FCC to the companies that the FCC found part of the broadcasts indecent, the standards applied by the FCC were unconstitutionally vague.

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