morning your honour's in may it please the court my name is james young and i represent ken midi and more than a dozen other named plaintiffs in the class of thousands in fact tens of thousands of nonunion state of california employees plaintiffs below in  appeal mr me he the media and ms mcelroy to our plaintiffs are with us today to witness this argument with the court's permission i'd like to reserve three minutes for rebuttal sure thank you the posture of this case is the court is well aware has changed agency fees from nonunion public sector employees are unconstitutional as a violation of their first amendment rights specifically and in addition to its main holding janice made to subsidiary holdings that are relevant to the outcome of this case you didn't address this particular issue there recklessly no your honor in the sense that the specific is not governed by the general they didn't specifically address this issue but they generally sa and i quote that neither an agency fee nor any other payment to the union may be deducted from a nonmembers wages nor made any other attempt to be made to collect such a payment unless employee affirmative exceptions since there are no exceptions it does apply to this case so it governs this case further went on to note that by agreeing to pay nonmembers or waving their first amendment rights in such a waiver cannot be presumed moer or moreover excuse me the court noted that to be a fact if the waiver must be freely given and shown by clear and compelling evidence it is for this reason that many of lower court decisions were cited by a cia local one thousand and supplemental briefing simply aren't those cases addressed union members who subsequently janice attempted to resign from union membership or attempted to resign some cases and to revoke their dues checkoff authorizations those are not political this case in this case don member fees for nonmembers are seized without any form of consent it's a special exception written by the california legislature to normal wage withholding laws let me in let me ask you what's the relief that yours ok and the relief that you're still seeking is is a refund of all fees that really guilty seized from the nonmembers story back through the step through the statute of limitation that's correct your honor i believe we specify actually may have been but that was a far that was certainly as far as it goes let me ask why why don't we just vacate the judgment below and sin this thing back to the district court  according to janice because your honor the district court i mean reeling that we need to say this court needs to say the mitchell is no longer good law and that's why a reversal is necessary with a declaration that mitchell is over rules i realize that up an ordinary course of things three judge panel is in this circuit do not overrule prior decision making but the ex one of the exceptions to that judge guys as i'm sure you're aware is when there is intervening some and controlling supreme court janice's that intervening in and controlling supreme court authority on the issue of what may be seized from nonmembers wages without their consent and affirmative consent so the yes i understand as i understand it and you can correct me if i'm wrong because i'm just reading what they presented to that i believe that is true your honor but that's really not relevant to this appeal because this appeal deals with both retrospective relief it may affect the prospect of relief but that's a matter for the district court i mean isn't that something the district would have to actually determine yes except that that it really that would certainly be something for the district court to determine in the first instance it doesn't it doesn't need to be addressed by this court while we i view the the union's brief on those issues was as i say actor in these types of claims as the eyes i believe this court has held but the bottom line is that those are matters for the district court to determine in the first instance not not this court th correct because you can imagine this is very is issues sure i agree i agree judge but the point is that that should be determined by the district court in the first instance this court is merely called upon in this appeal to reverse the judgment you're well michel determined that it was acceptable for a union to extract from non consenting members who failed to respond to a union notice fees exceed the maximum the could be constitutionally required in essence it was opt in versus opt out in the vernacular as developed this was we're dealing with yes yes our position was that for anything exceeding the maximum maximum amount that could be required they had to opt in rather rather than dissent is not to be presumed con sent should not be president and in following mitchell the applying mitchell the district court held that knox had not overruled mitchell saying that mitchell's nair to knox was narrowly drawn apply only to temporary special assessments and therefore the street admonition and remained good law and that unions could extract from nonmembers more than could constitutionally be required as long as they had responded to the union's notice in janice the court specifically overruled that saying that affirmative consent is required for all exactions from public sector employees and therefore mitchell subsequent show is overruled by the supreme court and should be specifically stated so stated by this court so that on remand in its reversal the district court can apply the appropriate legal standard and not be concerned that this court may say well actually we didn't overrule mitchell it has i  not to write your decision for you your honors but mitchell must be over rule because of genesis of that there cobb we believe there can be no real question you want to comment on the authority that the other side provided they provided a case you provide a assume to use refute versus ground there as it was a g v r i'm not sure there's much comment to be made but i'm assuming they're going to say well since the supreme court and perhaps some like my colleague didn't have that at hand the seventh circuit has since ruled and rejected some of the relief sought and i found my flippant comment that this is if that means my younger colleague is going to go on back to the supreme court but more accurately refute versus rauner i believe may have addressed people who at some point had signed union dues check off cards so its application to the facts of this case are not relevant this case is very specifically limited to people who are non members and under california's statutory provisions under the dills act nonmembers aren't required to sign anything if they sign nothing the money comes out of their paycheck anyway we have to sign i believe that privilege for federal taxation only happens for medicare and social security taxes otherwise we all have to sign w two but the state of california wages under california state law the dills act provides that members have to sign to see check off authorizations nonmembers do not state controller takes that money automatically so there is no issue of concept here at all with regard to the plaintiffs in the class plaintiffs represent they're all nonmembers union fees were taken from their wages in voluntarily and without any form of consent whatsoever so cases where you're dealing with medicare medicaid providers personal care assistance such as in the harris case and and proud refute versus rauner is actually a subset of that case on remained from the supreme court are dealing with people who at one point i believe and i wasn't simply involved in the case but it i believe had at some point signed some form  of consent to have the fees deducted from their wages or perhaps may have even been joined the union voluntarily i'm not quite sure so i'm not certain of that as i am of the other i see that my time is you want to save some time for my i would good morning may please the court jeffrey demain for the union representing the union i'm going to speak for up to thirteen minutes so i may run run out of things to say before that and then mr chang who's representing the state controller is going to take the last two minutes thank you your honor i think as as it's been discussed with mr young this case doesn't raise the same question as janice to does this district court determined that under existing law the union had a right to use the opt out system it didn't violate anyone's constitutional rights in janice the supreme court held that you can't collect any agency fees at all which is both the the non chargeable and the chargeable part although janice didn't address the question of whether you can constitutionally use an opt out system to collect the non chargeable portion of the fees it's essentially mooted that question because if you can't collect any fees you can't collect the you can't use in an opt out system to collect  chargeable portion of the fees because you just can't collect any fees at all so there is no non chargeable portion to be opted out of at this point and although the union although i think it's clear that the district court's decision was correct at the time it was issued it can no longer stand after jams so we're asking this court to merely vacate the decision below and to  for further proceedings in light of janice now the plaintiffs have said in their supplemental brief that the court can't just reverse can't just vacate the decision below it has to reverse it they say that that vacating in remanding for further proceedings in light of an intervening case is illogical and makes no sense is what they said the only reason i cited verses around or as additional authority this morning reverse so there's certainly nothing stopping the this court from doing that we don't think this court we meaning the union we don't think this court needs to address any issues at this time  the only reason that i grieve to my supplemental brief the moodiness issue slightly and the good faith issue in the class issue is to show the court that there there are issues that the district court needs to determine on remand mr mr young in his brief seems to suggest that this court should reverse and re man for entry of appropriate judgment and remedial order that seems completely wrong to me because in fact the judgment for the union that was previously issued could be issued again on re manned although for different reasons as i think i laid out in my brief has ceased as of the date of janet's june twenty seventh of this year also the remaining claim for damages we believe the union and there a number of issues to determine for the district court to determine that the the most significant being the good faith defense it's very possible that the and we hope that the district court will enter a judgment in favor of the union on so we think that any direction from this court as to how the re man should come out would be premature your honor and i think the last i think i really only have one more thing to say i'm happy to try and answer questions if the court has any questions mr young seem to think that the court needed to say something about mitchell i don't believe the court needs to we're not we're not going to rely on mitchell i think i would agree with mr young that mitchell is just been pr essentially by janice when and when we go down to the district court we're not going to rely on mitchell i mean mitchell will rely on mitchell to the extent that mitchell was good law at the time that the district court issued its decision but that you know that in other words mitchell supports the good faith defense that at the time the union collected the fees it was constitutional for it to do so and it relied in good faith on existing california statutes that had been the constitutionality of which had been approved by this court but as of june twenty seventh twenty eighteen we understand that mitchell mitchell can survive janice that's that's not an issue of your honor so i'm happy to try and answer any questions if the court gone away with janice to i believe that's gone away with janice to i think janice rewrote the entire fifty some year history or forty six year history of fair share few law in the public sector your honor speaker change on behalf of the state controller there are no contest issues concerning the state controller your honors appellants agree that sovereign immunity applies to preclude award of past damages against the controller whether your honour's decide to vacate every burst we ask you to affirm that specific aspect of the judgment below but i'm here if your honour's having your questions otherwise i'll rest on the a little smaller just to address a couple of issues and correct a couple of points far be it for me to disagree with my colleague mr to maine actually is forty one year history of public sector agency feel on a forty six years i know he wouldn't want to make that mistake again the dealing with the issue of the g v e r in rifi that i don't believe there is a similar consideration in light of the new case and even at and it even happened in prescott judge paez i understand but i understand it does happen but it's necessary for this court to overrule mitchell in this case even the defendant considers it a dead letter and it's you know why well here here's one why is it necessary for us to do it here's why michel isn't a good law now and it was a good law even when it was decided under the principles expressed by the supreme court at harper versus virginia board of taxation the history and you know what about now well history is retro retroactivity is part of supreme court history judged by as its only history it's not good law and it can't be relied it would be inappropriate for be relied upon as part of the good faith defense and judge and i'm sorry i missed your question i guess the question though is that getting back to the now ok all the argument you're making there might be additional factual aryans you want to make why is this report less not say that the did there are serious impediments that were discussed by the district court in its decision in this case to doing so but that was all there are as i said there are serious impediment at whatever standards that this court has stated that the district court recognized when it refused to say that knocks over rule it now but we're ok we're after jeff the other side is just acknowledge today and i'm sure you bring the district attention and things gone all of they said forty six years you said forty one years when you both agree as the sea change in the interests of judicial economy or honor and frankly due regard for its own decision making this court should say that janice that mitchell is no longer good law it has the opportunity to do so in this case yes i appreciate the advice but is there anything that prevent district where from doing the same thing i suppose not your honor except the impediments of the decisions that were identified by the district court previously why take that risk that's the purpose of appeals and unless the court has further questions i see my time's expired i thank the court for its attention thank you very much thank you killfile for your arguments we appreciate it the matter is minute and that concludes our question for today