thank you good morning your honor is may please the court my name is joshua lip shots and i represent the plaintiffs in this matter remember speak up at the microphone because it's not a very good microphone this in the truck a truck for us but i get a little closer here california's teachers unions are empowered by establishing that there is no effective relief for meaning for the court to provide and that's a quote from the oregon advocacy center decision from this court in two thousand and three plaintiffs request in the complaint for such additional or different relief as the  for equitable restitution of the due that my clients have already paid since the inception of this lawsuit when this last it started just before the lawsuit started my clients sent letters to their unions requesting that they be allowed to with her the money for the political p forced to contribute their money to the political agenda of the unions that's the issue in this case is whether you can be forced to spend your money on the union's political activities but if you're if you're  be in the union now because she's taken a promotion and you're crazy and i'm going to tell you that there's some continuing prospect of relief that those plaintiffs have so there's plaintiffs have is an equitable restitution claim that fits within the same allegations and claims that they that they filed with the court and if you others do not accept that position there are still twenty one motion to draw in the american association of american educators as another plaintiff in this case doesn't want equitable and it's reasons to seek relief and arguably misaligned with those of the original plaintiffs and also then you have to overcome the hurdle that at this late stage in the proceedings what ther ok members are not subject to the union speech supporting their political activities and so a favorable decision would not change that fact so how does a have standing under the first prong of patent and then also you argue that some of a members would like to join unions and would do so absent unions alleged unconstitutional activities but your proposed amended complaint is not any identify any particular member of invalidate the agency shop arrangement moving the teachers who decide not to join the unions won't have to pay anything at all not even the collective bargaining portion of the fees that will necessarily change the status as a bargaining representative for the for the for the membership for the teachers and rights is that in this is in the record this is in the complaint that the plan in the event that that happens is to actually step the pressure on teachers make it even harder for teachers to make the decision not to join the union remains as free as any other energy to participate in the electoral process with all available funds other than the state coerced agency fees lacking affirmative permission but you argue that even the unions own internal fee for political activities state coworkers so how do you reconcile your position with davenport statement that the unions may freely use funds to engage in politics in other words under your political activities if there's a rational correlation between those things the reason is because the unions have decided and come up with a strategy together with the state of california that course is teachers into joining the unions and even tell the literature they say they a union not to support your clients are members so that they chosen for you claim coerced but they chose that they are members to train the unions so why does that distinction not life insurance that the unions offering you have to go out and spend according to the u s thousands of dollars to get those benefits those benefits could be negotiated by the union be paid directly by the employer that's exactly right in fact if you're a school yeah isn't that amazing if you're not a teacher you get the attorney leave but somehow the humans are not powerful enough to negotiate on behalf of teachers to get paid maternity leave it's not that they're not powerful enough it's before we go on just because there are a lot of issues here either my colleagues want to ask questions at this point or would you rather wait we're going ok so adequate time repack you very much appreciate thank you circuit docket forty three page three and actually while i'm here i will just read it to the court so that we're on the same page and this is the motion to intervene this is the motion to   set terms and conditions for membership benefits to an injunction barring barring the superintendents from deducting from teachers paychecks the political part of dues and free an injunction prohibiting the exclusive request for relief doesn't understand that well two points your honor first that is the exact circumstance that was in seven words there was a big shiny sign that said we're displaying all monetary damages they just told the court what they were seeking circumstance where the justify was brit was involved in a desegregation suit and parents wanted to be added to the case and they had different theories and different types of relief and judged then judge kennedy said the proper course there is to move to intervene in the district court or to or to follow your own laws i think if i were to make the plaintiff's argument here as to the same the plaintiffs argued that their members are put to the same and constitutional choice  well the point now is that they cannot be seeking the same relief because the only claim the only potential claim that the teacher plaintiffs have left is a restitution claim and the only potential claim eighty has as you as of course already pointed out they can't they don't have standing for a monetary damages claim and if i could to circle back let me just give you the language of seven words and seven words the court concluded that the party had waived any damages claim in this and didn't read its general prayer for relief to not include a damages claim because quote it was made after two years of litigation were over two years here after various representations that they were seeking only declaratory injunctive relief here we have three complaints we have two motions to dismiss in the district court we have six findings that the plaintiffs have made in this court it's the sixth filing and you can scour the complaint in the lower court rethink he will be there's no discussion of damages or any monetary relief and that distinguishes it from obrist in that record there was the amount that the that the restitution cost for the interpreter and it was in the record the supreme court cited to it there's nothing like that here and and so to finish the point on seven words it was only after a motion to dismiss at the eleventh hour that is exactly the circumstance we find ourselves in here and five and our motion dismissed for moving this this is after they had already filed a letter notifying the court that at least two of the plaintiffs from this is already after they f a motion to join only then do we find a restitution claim and if they if your honor is correct they were kind of holding a restitution claim they should have been frank with the court in the motion to join so that the court would know well they're seeking some of the same relief and not all of the same relief so how are you damaged how are we dems if they were allowed i think the steps that tim yeah i think the way to think about this is if your is the harm to the unions and the tactical advantage they would gain by being added to the case now and remember the supreme court said only attack with you anyway they can say can see you anyway i don't like the fact that that but if you want the back many times throughout the years i have no doubts i understand that you want to but in let me just give you the practical example if you're eighty and you want to sue the unions for this type of a claim you've had you have a whole host of problems standing being one which the court he talks about a constitutional theory that it all makes sense case you get one of the core questions in the case answered before the threshold questions standing other twelve the six issues and that puts us at a disadvantage and it gives them an advantage i'm skeptical whether they would even file  some supreme court for the first time and the money case your honor and recalling the laney standing was not it was not concluded they lack standing there was just a question of standing so the co that will be at least in the first cut of that will get handled in the district court and so on the mess issue it in california credit union league versus city of anaheim we have that we could grant a motion to join to retroactively carry jurisdictional to fact assuming we find that this case is moot there is such a jurisdictional to fact assuming a e meets the standard union the supreme court concluded that that type of claim could not be brought without the united states involved in the case that was not an article three jurisdictional problem like we have here and the same thing goes for the diversity jurisdiction cases and say newman right but as i was saying earlier in the laney the court did not conclude that the union lacked standing there was just some question of standing there for they just added the union member just to avoid the problem altogether the court did not conclude that he's was moved and in fact the plane of site no case where any a public court has ever added a new party on appeal to resurrect an already moved case and in fact the second circuit has specifically held that adding parties on appeal to resurrect to move case is an inappropriate use of that authority so let's let's talk a little bit about the merits just because we're here and and we have to address that threshold issue but let's assume that we get to the merits should we stay this case pending the outcome of janice if we get to the merits so i don't think you need to stay the case pending the decision in jazz for three reasons one your question doesn't allow me to answer which is that he's already moved so you should dismiss it on that but even if the court concludes the case is a moot and wants to address the merits of state action janice i think by opposing counsel and i agree on something janice does not address state action and that case illinois what's being challenge is illinois law that requires that you pay the unions a fee as a condition of public employment that's plainly state action it's never been contended otherwise so there is no state action element at issue in janice of the court is not going to say much that's relevant to this case and the number two and again i think judge county has already pointed out this in all of the many of the few cases the supreme court has explicitly said it is unconstitutional leasers constitutional problems with compelling employees to pay a fee to the unions as a condition of public employment but the court says in several decisions make no mistake we are we are not saying that unions cannot engage in politics with voluntary union dues that majority in a booth said that the employer for certain benefits and has a captive market state given monopoly power to coerce people to join to get those benefits  exclusive representation responsibilities does not convert every action and makes into into state action and the seventh circuit has likewise held otherwise think about every decision that becomes a state action problem expelling a member not pursuing a grievance these are all cases that courts right beside those involve the unions role as exclusive representative granted authority by the state but that's not state action because the state is not involved in this specific decision and i see a running trying time so i want to be crystal clear with the court  this compulsion theory my opponent said something that is just not true he said that in california to get maternity leave benefits you have to join our unions that is not not true under california law every teacher pursuant to the education code gets ten sick days a year and they never expire and you can carry them over and you can take them to new districts so if you work five years late so you don't wait six you can how much time ten days a year for for money to do that so you get twelve weeks of childcare leave at differential pay and you have disability benefits this is unique only to california teachers and other public employees don't have this you get five months of disability leave the union's insurance plan it's not really in the record they kind of they want to they want to you know ok but it's right till little bit circular and a sense that without the agency shop statutes individual teachers are competing organizations could negotiate for employment benefits including life and disability they are prohibited from doing so under current law so why isn't that facts sufficient to find the decision to provide only their members with such benefits state action because the state action doctrine holds that you look at the states involved and judge wilson got this completely right this state does not have any say whatsoever in whether we offer benefits the contours of those benefits even since this litigation has been going on the details of these benefit plans have changed there are many of them are contracted out to private insurance companies which as anyone knows they change the terms of these things and i assure you there hasn't been phone calls with the state in how to craft these benefits the state is not involved at all in decision to offer them the particulars of them whatsoever well let me let me ask you this i know we're going over but where we're going to go over a little bit on this and so i want to make sure since you don't have a rebuttal time that we get to this if i don't have the phatic lee if we were to find state action in the union's condition a membership on pain of political judge wilson reached only the state action question and we briefed only the state action question in this court i think it would be appropriate to allow the district or and allows take a run at all the different reasons why there's no first and the here and one of the core ones is very important is as the for circuit setting kidwell the relief that the plaintiff see here a court imposed alterations to the union's internal membership rules would violate the union's own first and then associational rights at the very least we if you we've asked you a lot of questions and you're not going to get rebuttal if you want if you need a couple of minutes right now to cover something that you want to i'll give it to you if i could i want to address a couple more things that my opponent mentioned the first is he said that in hud they keep the supreme court case hudson that they were state action they are there for their state action here recall that the hudson hudson regime is all about the the post of boutique uring with the agency fee regime which we all acknowledge when the government conditions public employment on paying a fee to the union that is state action so the hudson issue and all that notice of that's about that the constitutional regulation that makes that compelled constitutional so that's just a component of the of the state action and the union is a joint actor when it's compelling fees so i think hudsons easily distinguishable i want to touch on the other two benefits that they mention my opponent said that you can't participate in collective bargaining you have no say in your school district unless you join the unions also not true under clear california law leverage well let me let me give you a few that are meaningful number one california state court decisions of how the unions must take him eaning full input from nonmembers if we don't take meaningful if we don't take meaningful input o discriminating as nonmembers we have violated the duty of care which is nice people you put me in i think it means what we do which is we you know there's you can do things like surveys you do open meetings that involve non members you allow them to have input let's remember also that the bargaining is actually done by localized teachers these are their coworkers they can they can create forms and do to gain input from nonmembers so there's lots of places for meaningful input at the union side and at the school to it just means listening to somebody speak in a participating in labor management committees actually not true either as judge wilson pointed out nonmembers can participate by the plain language of the collective bargaining agreements and even then as your honor understands very well sometimes that's just listening but the core is that we don't discriminate against nonmembers so if there was this kind of discrimination this imagine bargaining and scheme here that the plaintiffs have alleged could bring an unfair labor practice charge under california labor law and that the appropriate place for this is not to constitutionalized private decisions of private organizations particularly one that so well regulated by california labor law and then the last point i want to mention is just the dismissal proceeding they say that we don't that we could use our power at the bargaining table i wish it were as much as my opponent suggests to bargain for legal services legal services protections for our members or for nonmembers remember under california public employment law the dismissal proceeding is not subject to collective bargaining it's simply something that we can't bargain over it's all statutory and so what they're at what they're saying is that we could get school districts to fund the warriors that sue the school district in dismissal proceedings which are only then it's possible but there are a whole host of conflict of interest problems and the reason why we don't do it is because it's and we wrestle control it's easier just to have members fund this and then they don't have to leave this to the vagaries of the bargain table they can just have that right it's also important member nonmembers are not left out in the cold they have a right to this process they were right to an attorney and if they prevail they even get attorneys fees so this coercive scheme that they say is so hard on members who don't join the union i think if we look at our economy you know a lot of these benefits reasonably read to include an equitable claim for restitution the question as to whether to bring in as a plaintiff in this case comes down to prejudice how would the killers have been a little bit differently to disciplinary event yeah it's something the case well we're over here is a systematic discrimination against non members using the state's collective bargaining powers the because the unions are required to protect the interests of hers and then they're going to say this is a quote because twenty six thirty seven of the opinion this means that the room cannot for example negotiating differently on behalf of members versus nothing i can see you bring your actions along for labor practices but as a section nine hundred eighty three damage claim is little bit more difficult for me to comprehend well it certainly is an unfair labor that the reason that these unfair labor practices are also first amendment violations is that the entire agency shop regime is justified under the first amendment because the unions have a corresponding duty not to discriminate against nonmembers