i would ask if anyone is having any difficulty give us some kind of signal and we will certainly address because we're gathering together here you know i think you have an opportunity for you to hear our questions for you so we begin our our session this morning with  the very st things that we look at it standing is whether there has been in beijing a legal right that kids go through in injury in fact and so we look to injury in fact but we basically sa that legally that invasion of illegal right analysis later for the mayor it's typical but as i understand you defining what that legal right is that has been invaded it really has two parts one part is that you think you should get basically immediate repeat maybe that's just wrong but with something close to immediate repayment and then the nd part is that you aren't bound by the membership application anymore so your legal right has two things to do and what we're supposed to look at understanding is whether there has been under that definition a legal right whether there's been an injury in fact  says well fine but but you had a membership application that got you better treatment then then then otherwise and so how exactly how exactly are you hurt by  over the constitutionality of section six of the workplace democracy and answer the nd question which is related to the st is whether our clients have contractually waive their rights to withhold payments from the union after resigning or union deductions to stop so with respect to article three standing standing must be assessed at the moment the complaint is filed post filing events may be relevant to but they have no bearing whatsoever on article three standing and there's no question that our clients in the smith with occasion had standing when they st joined this lawsuit if we look at the time that plaintiffs sandburg santiago and porson joined the case in early july janice had been decided they were facing the prospect of having their wages tapped in september despite their recent resignations from union membership and the threat of that continued diversion of their wages imposed injury in fact that allowed them to challenge the constitutionality of section six what and we're not going that far but certainly this was a recently enacted statute in the state had every intention of forcing only later after we filed our lawsuit did the new jersey education association announce that it would not enforce the statute as written that came later after we filed the lawsuit so that development may be relevant to the next question but it can't possibly distort our clients and your standing ha by the world that existed on the moment the complaint was filed or if it's an amended complaint and a new planet is joining at the moment the amended complaint is filed so it's your position that if the bill if it's a new statute even though it's only on the books and there's says that it was issued in response to the smith lawsuit that was filed so again the guidance can be relevant to whether the piece is moot or whether some of our claims have become but that i'm still can't be relevant to the standing question because that guidance did not exist when plaintiffs polson santiago and sandberg filed the lawsuit in july now it's over i'm sorry no we have evidence just by way of example mr sander  i understand from the record there was a ministry error which led to the continuous drawl but they were acting to provide him the benefit isn't that evidence that they were in force in the st and he has to remember of the out again within that ten day window described statute so when sandberg sued he was facing the possibility that his paycheck would continue to be tapped when the njt issue their guidance in september we had standing at the time we filed because no guidance document existed at that time and the plaintiffs were entitled to declare a party really youth at the very least they had standing to see the cleric turn away from to make sure their rights would be standing is satisfied here in let's say that were moved so you've got problems with the guidance document you say it's transitional it's other stuff like this size only to a transition period to sun to follow but was there any way could move this lawsuit by something that they would do or is it your position that basically the lawsuit is on if this is a legal term unmovable because the engineer there's nothing that the n j could ever do to make this case i don't believe there would be because anything the njt a would do the voluntary sation and normally voluntary sation is not a little lost there can be some circumstances  immediately that gets a lot closer to move just because that member resign they aren't there collude back into an agency fees or representation fees space ever again they opted out moment they file their complaint there was the threat of future in force because the statute said at the time you have to keep paying dues and it's before the guy in stock comes out and then the n g a says here we're going to give you all your money back and let you out of the yes your honor i think you run your revenge on behalf of the union at bally's i'm going to focus my argument on the union membership agreements and a mystery apart from the state attorney general's office will address the constitutional challenge to the new jersey statute the district emitted that they understood by signing these agreements that they were authorizing membership in the union and that payment of union dues through payroll deduction and those agreements expressly stated on their face the payroll deduction can be terminated only  never addressed the issue i have contracts signed by union members people who unlike mr janice in that case people who had actually read opted in who had taken affirmative steps to demonstrate that they want to be members of the union and had authorized the deduction of union dues from their wages when the supreme court was discussing the concept of waiver and janice they were doing so in the context of people like mr janice who unlike the plaintiffs here at declining union membership never entered into an agreement with the union and never agreed to pay any money to the union and the court ending in discussing a waiver in that context was looking at whether could could somebody like mr janice who had not affirmatively opted out  nonmembers only in this case focuses on members in large part but one of the things that struck me is really is you think about an employee when they win with them they got a decision to make under the abboud regime under the prejean they they had a decision they could either be a member if i understand it join and they could pay one hundred percent you do or they could say i don't want to and they could pay eighty five percent a representational fee to pepsi that's how i understand it you may know better than i do that might be too simple but but it was essentially those two dollars choices now it strikes me that when janice comes along janice says that nd choice that eighty five percent choice that's unconstitutional that you don't get that choice isn't there so it seems then that what we're looking at is employees who had a choice but one of the options was unconstitutional is there i mean is there any support in the law that says when you give someone a choice so called sure these between one option and an unconstitutional option and after genesis was the choice between membership and not membership and all of these plaintiffs admit that they understood membership was optional they were not required to join the the cost difference between the two dollars obviously changed after janice that the if the choice of non membership carried with it the representation fee at the time that these plaintiffs made their decision which then became zero after genesis but that puts them no differently situated than for example the criminal defendant in the brady case from the supreme court that cited in our  he had a choice between pleading accepting the plea to group a clear agreement or going to trial and risking the possibility of the death penalty supreme court later invalidates that death penalty statute so it in that sense he also had the other option and that the one that he didn't take was an unconstitutional choice because it carried with it and unconstitutional what the court later held with an unconstitutional penalty under the statute that existed at the time that was later invalidated that supreme court but the court said that does not make th choice involuntary because you what you look at is under the then applicable law was he correctly informed of the options that he had and under that applicable law he was the same is true here under the then applicable law which was the supreme court's that they chose the option of membership in order to get the additional rights and benefits that came with membership and and the and the fact that they received the benefit of that bargain they received membership rights they received access to benefit programs many of these plaintiffs participated in those benefit programs over the years which are only ringback available to do's paying members they received the benefit that they wanted from selecting the option of payroll deduction which is that they as they describe it in their words it was a more convenient method of paying their membership dues and they all admitted that they affirmatively checked the box on the membership form to select the option of payroll deduction so these plaintiffs on this factual record they absolutely knew and understood what they were agreeing to and there is no st amendment violation in holding them to their end of the bargain that's what the th circuit in the balgo case just recently decided and that's what you know this this addressed a situation where someone entered into a contract motivated by a statute by a statutory requirement that the supreme court later invalidated and this court in caltech rejected the argument that later change in the law rendered the decision by the coal company in that case involuntary or invalid because what and what the court focused on was the fact that they had received the benefit of their bargain they had made a decision which as this court put it may have been improvident in hindsight but at the time they made that decision they received consideration and in exchange they enjoyed the benefit of the bargain the other party to the agreement relied on the commitment that the coal company had made and the court rejected the argument that the coal company made which is very similar to the argument here that it would be unfair to hold us to this agreement and make payments that the supreme court has determined are unconstitutional and this court said no that won't that wouldn't be unfair and it's not a penalty because it was part of the neutral exchange supported by consideration that you entered into and that's the same thing that happened here the plaintiffs here acknowledge that day that they understood there were certain rights and benefits that were only available to them if they chose membership and they knowing that they had a choice between membership and not membership they chose membership because the difference in cost was worth it to them those additional rights and benefits and they enjoyed the benefit of that bargain in some cases for some plaintiff for nearly twenty years they received all the rights and benefits for union membership and in exchange they committed to paying membership dues for a certain period of time janice did never dealt with somebody who had made a contractual agreement to pay and it never suggested that a contractual agreement to pay is insufficient to authorize the payment of membership dues that's i'd like to ask you a question about the facts it was alluded to i alluded to it with  create a factual dispute as to whether they have standing to challenge the ten day requirement if not one so absent to respond to that st of all the documents in the record where the response by the township contains in there that says if you have questions contact the union about this nobody contacted that that is evident in the record neither of the parents contacted the union to ask about what the policy is and you know it also it's not going to create a factual dispute because the fact of the matter is the ten day window was never part that that is a fact that is not disputed because the the appellant submitted their resignations in july and they were let out in september which was the earliest date they actually were when they actually their dues deductions actually stopped earlier than they otherwise would have under the terms of the contract the union provided them the benefit of the rd opt out date that the that that the statute provided and so there is no evidence that the union applied it tend that there is no ten day window or if no window requirement of provision at all in the membership agreement signed by all of these plaintiffs here and there is no evidence in the record that actually specifically say say in there that members who are wishing to terminate can and continue to be able to submit notification of their desire at any time during the year so there is no change in position and there is no evidence that the union ever even you know pretty that these guidance documents coming out that the union had ever held anybody who was wishing to revoke their dues authorization to a ten day window period had no effect on their ability to terminate their dues deductions my argument today rests on a simple truth appellants have never suffered an injury on account of the yankee and even if the da had caused harm to  d this time in question and distinction between standing in the fact is whether we evaluate standing from the moment of filing or from the vantage point of today the outcome is the same because at the moment of final neither the state nor the union a and therefore there was never any article three injuries the state has never interpreted the w t in the more restrictive way in which opponents construe it and misstate has consistently help but if your honour's had any misgivings about deciding this case on standing there is enter another equally compelling reason to dismiss this case under a structural grounds namely under a move this analysis these claims are mood for a couple of reasons st every opponent who has attempted to revoke his or her dues authorizations has by now done so successfully and nd your honour's you've been telling us i think about of who or are you called the floor but it some call the rd option i guess under these contracts for when they can revoke wrath i'd like to ask you about the standing on the thirty day period you contend that the plaintiffs cannot  establish injury in fact either because it per thirty days didn't cause its injury or because it would not be redress of all but don't they still have to comply with their obligation which differently maybe you should tell me why they lack standing to challenge the thirty day period well if they lack standing to challenge the thirty day period or honor because they were pound by their dues authorizations to continue paying dues a basic in the case of said  company had an existing legal claim challenging a certain statute the company also knew their claim existed and decided to give up that play if out so it's nothing like the situation here where the question is can the individual waiver right they didn't anyone that way and i mean i'm not saying it was i'm not saying it was our intent but when i when i said it seems like your argument undermines what the opinion held yeah well it was like four years later five years later that the supreme court said oh that rule now applies retroactively so i mean when i think about retroactive i mean one mobile maybe the g but getting to just on it indicated gideon's rights but it didn't other people weren't sure in a supreme court to say oh now this implies retroactive meet don't we need something like that from the supreme court on janice to kind of track but i think more importantly here we're talking about liability after janice the only question with respect to retroactivity indirectly if i could individuals knowingly waive their right before but my point out the somewhat and i want to well the absurdity perhaps of that would be that if your argument was correct you would take it back and wipe on a boot contract contract law is a lot of general applicability laws of general applicability don't they want to ban the st amendment so i think there's a lot of other conditions precedent that need to be satisfied before we can even get the waiver i understand what you just said thank you i think we have we have gone well over the time that this is going to very informative discussion and helpful to corby thank you for participating in this somewhat unusual approach but it has been productive and on behalf of the