Agency Fees Remain Valid after Supreme Court Splits 4-4 on Friedrichs

While some predicted agency fees would be invalidated through this highly publicized lawsuit, the Supreme Court’s 4-4 split decision today in Friedrichs v. California Teachers Association means California’s mandatory agency fees laws withstand the most recent challenge.

As we commented last October, the Supreme Court agreed to hear a challenge from 10 California teachers alleging the mandatory fees they were required to pay in lieu of union dues were unconstitutional.  In the lower courts, the teachers argued these “agency fees” infringed on their rights to free speech since the fees were used, in part, for lobbying.  The federal District Court and the Ninth Circuit Court of Appeals both followed established case law holding agency fees did not violate the Constitution.

After the Supreme Court agreed to hear the case, many legal pundits expected the Court’s five conservative justices to vote as a block to strike down agency fees, which would have continued a trend in recent Supreme Court decisions.  However, after oral arguments in January, Justice Antonin Scalia (who was expected to be among the justices to declare agency fees unconstitutional) unexpectedly passed away.  As a result, many people predicted the Supreme Court would become deadlocked 4-4 on the constitutionality of agency fees.

Today, that prediction became reality as the Supreme Court issued a “per curiam” opinion, stating simply that the Ninth Circuit’s “judgment is affirmed by an equally divided Court.”  Since the Supreme Court deadlocked on the teachers’ challenge, the Ninth Circuit’s decision upholding agency fees remains intact.  The Supreme Court could agree to consider the case again, or to consider a similar case from another lower court, once Justice Scalia’s replacement is seated.

As a practical matter, a decision invalidating agency fees had the potential to cause widespread disruption in collective bargaining, and the Court’s decision to preserve the status quo eliminates the need for public entities to sanitize agreements of what could have been unlawful agency fee language.  Additionally, given the makeup of the California Legislature, a likely response to a successful Friedrichs challenge might have been emergency legislation to adopt new agency fee statutes in an attempt to comply with the Court’s ruling while preserving the ability of unions to maintain revenue streams.

For the moment, agency fees remain constitutional and any bargained-for arrangements for deducting agency fees from employees’ paychecks should continue.


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