and good morning to everyone i see four lawyers we have who are on the st case this morning so let's get started can you all hear me yes all right that's who had our st kiss this morning as bennett please the court this case presents two issues for this court to decide the st issue is whether the plaintiffs provided affirmative consent to waive her st amendment right not to pay money to a union the defendant violated plaintiff's free speech rights and freedoms association right by granting labor a labor union the power to speak on plants behalf as her exclusive representative to the public employer forced to associate with a union she doesn't have to pay the union dues should have to sign a membership form and become a member she can pick it outside the workforce with some rain or wear a button that union represent her and her interests when the union when the union basically collectively bargained with the government or as the as janice recognized collective bargaining is similar to  is similar to a lobby so she's being forced to associate with a political organization that's lobbying on her behalf for things that she may not agree with so she does not want to associate with the group that lobbying for her for things that she may not want to go at if i didn't that was for the person who represents me in current race and that person purports to represent all of the people in their district it's ask forced association well i think that's a little bit different because we're talking a government representative and that's a a state revery federal representative that whose job it is under our system of government to represent the people in his district  we're talking about here is a private party who lobbies the government on your behalf even with things that you don't agree with so more apt analogy i think would be the young person here isn't the united states is about to impose a draft he signed up for an officer training program you know on the assumption that he will get a better assignment if he's out with teares than if he stray have to silence a contract obligating him to a certain amount of time in service gets the benefit of the training programs the education the better assignment then he finds out that the war has changed and at his age he no longer could have been conscripted under your theory that had he known at the time that he couldn't be conscript his contractual obligation to the military i don't know the answer to that but i guess i would push back on the analogy i think that you're making with the st question that this case brings up and that is  whether mr bennett is worst can be forced to pay or whether or actually more accurately whether the government can withhold union dues from ms than a paycheck without her  affirmative consent and i guess what i would say is that in this case we're not challenging the contract to a real range meant we're challenging the government system whereby the the school district in this case withhold money dues from miss bennett's pay check with out her affirmative consent based on nothing more than the union so and in this case it's a little bit different because she's not saying that she should she has the ability to renege on her contract what she's saying is that at the time that because janice requires a waiver and part of waiving one's constitutional rights requires that that person know that they're waving their constitutional rights in obviously missed then it could not have known that she was waving her constitutional rights at the time because janice wasn't at the site and and furthermore another reason why she couldn't have waived her constitutional rights was because she couldn't freely choose to not pay the union she had to pay the union regardless and and the you right that we're talking about is the right not to have union money or your money taken from your paycheck and given to the union so i guess i won't i'm sorry i'm sorry didn't it answer your example but i guess what i would say is i don't think that example is consistent with the situation in this case that arc is what she you know that her consent could not have been knowing because she didn't know about your illness and under that theory consent can never be knowing except for people who crystal ball seems to me well i think it could be i mean obviously it can be known now now that janice this decided and i think what what you're speaking to is the issue of what seems a little bit unfair that this knowing requirement is being pushed back in time and i guess what i would say to that is are two things one is that the supreme court has consistently recognized that it's opinions on on statutes and constitutional issues are retroactive but secondly if one is concerned about that that affect e based on a fairness argument and in this case while we don't concede and i don't want to waive my right to challenge that i think you need to was wrongly decided janice to certainly applies to this panel and so once concerned about going back in time i'm in the fairness of that you can still rule in my favor and allow the defendants to have affirmative defense for damages before jan so that only damages after janice when obviously they should have received when they should have received her affirmative consent and if she would have signed something then they might have argued that she knew of her right there basing taking union dues after janice on something she signed before janet's which by definition she can't have have known and she can't have waived that right so i think if one is concerned about the fantasy of taking union dues that in damages from before i think janice to provides a response to that fairness argument mr schwab this is john  on i forget what the term is but it was in a published opinion i believe and i guess i would say is i think that the th circuit got it wrong and i can explain why i think that and i think well yeah and would you also york yes except for i think my point is that i think janice does explicitly cover this in the language in janice and and i can explain why if if you like her so i could take you this section to be sort of the most important section this is where you would refer your law students to if you wanted to get the answer to what janice was about and there's four paragraphs the st two i think are the most important the  paragraph is the ruling it says of food is overturned and it says that you can't take agencies these without consent and then that explains why it says that violates amid the these employees st amendment right and then after that there's a paragraph and there's three sentences and i think these three sentences are the most important senses in genesis for this particular case is that neither an agency's b nor any other payment to the union may be deducted from a nonmembers wages nor may any other attempts the made to collect such a payment unless the employee affirmatively consents to pay by agreeing to pay nonmembers or waving their st amendment rights in such a waiver cannot be presumed rather to be effective the waiver must be really given and shown by clear and compelling evidence left employees clearly  affirmatively consent before any money is taken from them the standard cannot be met so the st thing i want to point out is that the union and and other descendants they grab onto this word nonmember it says nonmember twice and says not members wages and he says by agreeing to pay nonmembers are waving their st amendment right and they say well see this doesn't apply to bennett this applies to nonmembers like mark gents the problem with that argument is of course what we're talking about is whether the union part in the dues deduction authorisation whether those documents are of sufficient to waive mismanage right when miss bennett sign those documents she was a nonmember and so this section of janice i think applies to her furthermore in the nd sense it says by a to pay nonmembers there waving their st memoranda well that can apply to people in mr janice's position because mr janice never agreed to pay anything so this section doesn't apply to people in the street janice's position it applies to people who agreed to pay money to the union and what it says is by agreeing to pay those nonmembers are waving their st amendment rights and therefore they have to go through a procedure they have to show that it is because the waiver can't be presumed they have to show that the waiver was freely given and they have to show there's clear and compelling evidence for the waiver because she couldn't have union money was taken from her either as a member or as a nonmember and and therefore she could not have she could not have waived  i will be addressing the common issues in the brief that the unions file jointly but the school district after me counsel for the school district will briefly address the arguments specific to them and then i counsel for the state defendants will address plain challenge to exclusive representation i'd like to start with count one of plaintiff's complaint and specifically the question of whether plaintiff has shown that her constitutional rights were violated when union dues were deducted from her paycheck as judge flom alluded to earlier a lot of courts have considered this very question since the supreme court's jenna's decision and in two thousand and eighteen i count more than twenty in every one of those courts including the district court union membership agreements and there's a good reason why the courts are in agreement on this it's not as though this case is sort of arose out of a vacuum and the reason for that the fountain head for these decisions is the supreme court's decision cowles media case where cowan and the court held that it did not violate the st amendment to enforce an agreement between a political operative and newspaper reporters even though that agreement clearly restricted the newspaper's st amendment right to publish newsworthy information and the reason why the cohen court held that there was no constitutional violation was in the court's words that the restriction to which the newspaper had agreed was self benefits including for example the right to vote on the ratification of collective bargaining agreements which is the rate that she exercised even after janice in august of twenty the payment this clear in his opening presentation that that this is a contract that in forcible under principles of illinois law just as the newspaper reporters promise in the cohen case was in forcible under generally apply couple principles of minnesota now like to address the plaintiff's argument that the supreme court's janice decision is what governs here and what requires a different result as this court recognize in its genesis decision  supreme court janice was a case about the compelled subsidization of private speech because mr janice who would exercise his right not to join the union none the less had agency fees deducted from his paycheck against his will paychecks this in contrast is not a case about compelled speech as i mentioned plaintiff chose to join the union and as part of that membership commitment consented to have annual dues ducted from her paycheck so she situated entirely differently from mr janice and other nonmembers whose agency fees were challenges in genesis well as in the supreme court's earlier agency few cases like knox and harris versus quinn when you have a contract like this the right to join the union or do i exercise my right not to join the union she chose a former option mr janice chose that latter option the constitutional right not to join a union and this court recognizing the how and decision  when she signed her advise membership agreement and the critical point and the th circuit made this point in the ballot al case as well as the rd circuit that choosing to pay union dues cannot be decoupled from the decision to join the union and the supreme court i made a similar point in the harris versus quinn curious when the court said you know it can be presumed when you have a union that's an exclusive representative that a high percentage of our new unit members became union why plaintiffs janice argument fails it's that it's well established that changes in the law even changes in the constitutional law do not permit court to invalidate a contract on the ground one of the counter parties to the contract in retrospect  wouldn't have entered into the g o p had known about the change in the law at the time the contract was signed this is clear from among other cases the supreme court's decision in the brady chase and where the court this court has issued several decisions reinforcing brady including the bones case that we cited in our brief which is the case a rd circuit very recently quoted at length in the fisher decision  dues until the escape period opens i mean suppose a union decides to affiliated with the ku klux klan shouldn't employees be permitted to withhold financial support immediately so the particular the sort of window period the fifteen day window period i miss bennett's card  you know she's she that's the focus of the amicus brief here plaintiff is that as i read her complaint her breach of these is not challenging that period on the ground that it's violates the constitution because fifteen days is too short you know or something like that but as to the broader point i would say that you know when when an individual enters into an agreement with any private membership associate union or otherwise and as part of that agrees to pay dues that agreement is an forcible and does not violate the constitution here you know she agreed to this one year dues commitment that was  revokable in an annual period she received benefits in exchange for that and you know if the supreme court said in the granite state case that we cited in our brief the general rule of voluntary associations is that individuals can join and resign as they fisi fit subject of course the court said to pay any financial obligations that they were doing our thing and that's you know exactly what happened  bennett did resign her union membership a few months before her window period came up and she was able to stop the jews deductions that's a right that she has under state law to resign her union there's also the explicit representation count i'm happy to take questions on that but i know this counsel for the state defendants that will be focusing on that is well in his five minutes and if the court has no further questions we would simply ask that the just  of the state action argument will just outline and that is a lack of any official ca or practice of the school district proximately caused any alleged constitutional harm in this case as required  brief to in reply and importantly plaintiff concedes as she must that the school district did not and could not play any role in her decision to join the union and sign her heart and that the district has quote no role authority or identify a constitutional harm here which she cannot under this court's decision and straus mono requires both the government policy and proximate cause between that policy and alleged harm neither are present here the district's role as with the city in this or telling this helen decision and the state in the supreme court's one decision was simply to implement a private decision or the union membership decision for these reasons we respectfully only public labor relations act and in doing so this court recognized that night and how the similar exclusive representations that you did st amendment and consistent with other circuits this court reasoned that  in presents the same arguments that this court rejected in hell like the hill plaintiffs argues that exclusive representation is subject exacting scrutiny and cannot satisfy that standard and again like the hill pla that compulsory consideration janice did not mention night and janice actually to permit the excuse of representation by itself is permissible and that states can keep their labor relations systems exactly as they are with the full exception of  time track between the union and mr bennett this i think this is the issue that is confusing is confusing many courts and that is this case isn't about the contract that ms bennett signed with the union this this lawsuit and janet is about the system that the state mandates and that the school district implemented a collective bargaining agreement with the union whereby the union as the exclusive representative gives the names of of its members to the school district and the school district withhold dues from those those members and give in give them back to give that money to the union that's the issue that janice addresses when it talks about  when it talks about waiving the right you have a right not to be compelled by the government to have them take your money and give them to a another a private organization now the issue is and this is why i think the contract issue is wrong the issue is whether the contract that janice or that bennett signed in the in the  action authorization whether that constitutes a waiver under the janice analysis and maybe it does but the reason that i think it doesn't here is for the reasons that i gave it she couldn't have known that she had a right at the time she signed it she didn't have the right not to paid not to have her employer she did not have a right to not have her employer take out money on behalf of the union that's what we're talking about here that's where the state action comes from there goes there's a law that says that the school district passed the withhold money on behalf of the union for its members that's the issue the issue is not whether or not  signed the union card or whether she's obligated as a member under the union the the question is whether this scheme that the government has set up to withhold dues i'm he have a private organization without m bennett's consent is constitutional now again she doesn't she did not consent because at that time she could not have decided whether she could not have decided not to give money to the union even if she didn't join and i think that i think that's the issue and i think that's why the courts have gone iran they the issue is about the government not about her joining the union an requires the school district to withhold dues from from the union and you know we talk about the private organizations there's no private organization that has other than the unions that have a state law that says that the government has to withhold money on their return after their members you can't if i wanted to do if i wanted to have my government employer take out money for the n r a or or for the g o p or for the democratic party they're not going to they're not going to do that unless they have some agreement there's no agreement there's no other organization like that and that's where the state action comes from not we're not talking about the  are the contracts you signed with the union we're talking about the law that requires the school district withhold money from her paycheck and i see my time just about up so i answer any questions and and