Case 2:05-cv-02198-MCE-KJM Document 161 Filed 08/26/2008 Page 1 of 2

1 JEFFREY B. DEMAIN (SBN 126715)

PEDER J. THOREEN (SBN 217081)

2 Altshuler Berzon LLP

177 Post Street, Suite 300

3 San Francisco, California 94108 Telephone: (415) 421-7151

4

Facsimile: (415) 362-8064 jdemain@altshulerberzon.com

5 pthoreen@altshulerberzon.com

6

Attorneys for Defendant Service Employees International Union, Local 1000

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 DIANNE KNOX; WILLIAM L. BLAYLOCK; )

EDWARD L. DOBROWOLSKI, JR.; KARYN )

11 GIL; THOMAS JACOB HASS; PATRICK )

JOHNSON; AND JON JUMPER, ON BEHALF )

12 OF THEMSELVES AND THE CLASS THEY )

SEEK TO REPRESENT,

)

13

)

Plaintiffs,

)

14

)

v.

)

15 STEVE WESTLY, Controller, State of

) )

16

California; AND CALIFORNIA STATE

)

EMPLOYEES ASSOCIATION, LOCAL 1000, )

17

SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO-CLC,

) )

18

Defendants.

) )

) 19 _______________________________________ )

No. 2:05-CV-2198 MCE (KJM)
DEFENDANT SEIU LOCAL 1000’S AMENDED NOTICE OF APPEAL

20

21

Notice is hereby given that Service Employees International Union Local 1000 (hereinafter

22 “Local 1000”), one of the defendants in the above-captioned case, hereby appeals to the United States

23 Court of Appeals for the Ninth Circuit from the Judgment in a Civil Case entered in this action on 24 August 12, 2008 (Docket No. 159), which was entered in accordance with the Court’s Order Granting 25 Plaintiffs’ Unopposed Motions (Docket No. 150) entered in this action on June 17, 2008, as well as all 26 other judgments or orders merged or incorporated into that Judgment and Order, in fact or by operation 27 of law, including but not limited to the Judgment in a Civil Case entered in this action on March 28,

28
DEFENDANT SEIU LOCAL 1000’s AMENDED NOTICE OF APPEAL Knox, et a l. v. Westly, et al., C ase No . 2 :0 5-CV-2198 M C E (K JM )

Case 2:05-cv-02198-MCE-KJM Document 161 Filed 08/26/2008 Page 2 of 2

1 2008 (Docket No. 140), which was entered in accordance with the Court’s Memorandum and Order

2 entered in this action on March 28, 2008 (Docket No. 139), the Court’s Memorandum and Order entered

3 in this action on February 12, 2007 (Docket No. 92), and the Court’s Order entered in this action on

4 November 1, 2006 (Docket No. 81).

5

Dated: August 26, 2008.

6

JEFFREY B. DEMAIN

7

PEDER J. THOREEN Altshuler Berzon LLP

8

By: /s/ Jeffrey B. Demain

9

Jeffrey B. Demain

10

Attorneys for Defendant

Service Employees International Union, Local 1000

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
DEFENDANT SEIU LOCAL 1000’s AMENDED NOTICE OF APPEAL Knox, et a l. v. Westly, et al., C ase No . 2 :0 5-CV-2198 M C E (K JM )

 
 1 W. JAMES YOUNG, Esq.

c/o National Right to Work Legal

2

Defense Foundation, Inc.

8001 Braddock Road, Suite 600 3 Springfield, Virginia 22160

(703) 321-8510

4

STEVEN R. BURLINGHAM, Esq. 5 California Bar No. 88544

Gary, Till & Burlingham 6 5330 Madison Avenue, Suite F

Sacramento, California 95841

7 (916) 332-8122

Facsimile — (916) 332-8153

8

ATTORNEYS FOR PLAINTIFFS AND 9 THE CLASS THEY SEEK TO REPRESENT

__________________________________________________________________________________

10

UNITED STATES DISTRICT COURT

11

FOR THE EASTERN DISTRICT OF CALIFORNIA

12

13 DIANNE KNOX; et al., ON BEHALF OF
14 THEMSELVES AND THE CLASS THEY SEEK TO REPRESENT,
15 Plaintiffs,
16 v.
17 STEVE WESTLY, Controller, State of California;
18 et al.,

19

Defendants.

CASE NO. 2:05-cv-02198 MCE KJM
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND/OR A PRELIMINARY INJUNCTION
HEARING DATE: TBD TIME: TBD
COURTROOM OF JUDGE ENGLAND, COURTROOM 3, 15TH FLOOR

20

21 I.

STATEMENT OF FACTS

22

Plaintiffs Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr.,

23 Karyn Gil, Thomas Jacob Hass, Patrick Johnson, and Jon Jumper are, and were at all times mentioned

24 herein, individuals employed by various instrumentalities of the State of California. As such, they are

25 “state employees” within the meaning of the Ralph C. Dills Act, CAL. GOVT. CODE, § 3513(c). Most

26 of the Plaintiffs are employed in a bargaining unit designated as “Bargaining Unit 1,” which is one

27 bargaining unit of State employees among several represented, exclusively for purposes of collective

28 bargaining with their employer, by Defendant California State Employees Association, Local 1000,

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 1

1 Service Employees International Union, AFL-CIO, CLC (hereinafter “CSEA”). All Plaintiffs save

2 Mssrs. Conover and Ricker are not members of CSEA and have not, at any time material hereto, been

3 members of CSEA and/or its affiliates, and nevertheless have been and are subject to the automatic

4 seizure of agency fees, including the temporary assessment. Until on or after 1 October 2005, when he

5 resigned from union membership, Plaintiff Conover was a member of CSEA and/or its affiliates, and

6 full union dues were deducted monthly from his wages.

7

Defendant Steven Westly (hereinafter “Westly”) is the Controller of the State of California. As

8 such, he is charged with the responsibility of issuing wages to employees of the State and/or its

9 Departments, including Plaintiffs, and processing all deductions therefore, including for union dues

10 and so-called “fair share” fees pursuant to “agency shop” agreements. Defendant California State

11 Employees Association, Local 1000, Service Employees International Union, AFL-CIO, CLC

12 (“CSEA” or “the union”) is an “employee organization” as defined in the Ralph C. Dills Act, CAL.

13 GOVT. CODE, § 3513(a), and has been recognized as the exclusive representative under said law for

14 collective bargaining purposes of all State employees in Bargaining Units 1, 3, 4, 11, 14, 15, 17, 20,

15 and 21. On information and belief, Defendant CSEA is a nonprofit corporation formed and existing

16 under the laws of the State of California.

17

Acting in concert under color of state law — to-wit, the Ralph C. Dills Act, CAL. GOVT. CODE

18 § 3512, et seq. — the State of California has recognized CSEA as the exclusive bargaining agent for

19 the Plaintiffs and other State employees in bargaining units designated as Bargaining Units 1

20 (Professional, Administrative, Financial, and Staff Services bargaining unit), 3 (Education and Library

21 bargaining unit), 4 (Office and Allied workers bargaining unit), 11 (Engineering and Scientific

22 Technician bargaining unit), 14 (Printing Trades bargaining unit), 15 (Allied Services bargaining unit),

23 17 (Registered Nurses bargaining unit), 20 (Medical and Social Services Specialists bargaining unit),

24 and 21 (Education, Library, and Maritime bargaining unit). CSEA and the State of California have

25 entered into a series of Memoranda of Understanding (“MOUs”) controlling the terms and conditions

26 of employment for Plaintiffs and the class and subclasses of State employees Plaintiffs seek to

27 represent. Pursuant to the Ralph C. Dills Act, CAL. GOVT. CODE § 3512, the MOUs governing these

28 bargaining units include a provision requiring that all State employees in Bargaining Units 1, 3, 4, 11,

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 2

1 14, 15, 17, 20, and 21 join CSEA as formal union members, or have deducted from their wages agency

2 fees, as a condition of continued public employment.

3

On or about 30 July 2005,1 the Local 1000 (CSEA) Council proposed an “Emergency

4 Temporary Assessment to Build a Political Fight-Back Fund” for “use[]d for a broad range of political

5 expenses, including television and radio advertising, direct mail, voter registration, voter education,

6 and get out the vote activities in our work sites and in our communities across California,” specifically

7 stating that “The Fund will not be used for regular costs of the union -- such as office rent, staff

8 salaries or routine equipment replacement, etc.” Complaint, Exhibit A. On or about 27 August, CSEA

9 General Council delegates voted to impose a “temporary dues increase (1/4th of 1 percent of salary)”

10 or assessment, effective 1 September, to create what CSEA characterizes as “a Political Fight Back

11 Fund to be used for advertising, mail, voter registration and education, and get-out-the-vote

12 activities....” CSEA Unity, September 2005, page 1, Complaint, Exhibit B.

13

CSEA’s temporary assessment, which actually ranges from 25% to 36% depending on the job

14 classification and monthly salary, began with the 30 September, paycheck issued to State employees,

15 and is targeted primarily, if not wholly, at the defeat of certain ballot propositions in a special election

16 to be held on 8 November, fighting, inter alia, the Governor’s electoral and political financing

17 policies, and to support other political and nonbargaining actions. Specifically, the temporary

18 assessment will “be used specifically in the political arenas of California to defend and advance the

19 interests of members of Local 1000 and the important public services they provide,” and will be “used

20 for a broad range of political expenses, including television and radio advertising, direct mail, voter

21 registration, voter education, and get out the vote activities in ... work sites and in ... communities

22 across California.” CSEA has represented specifically that “The Fund will not be used for regular

23 costs of the union — such as office rent, staff salaries or routine equipment replacement, etc.,” and that

24 this temporary assessment will generate approximately $12 million for CSEA’s political activities.

25 Complaint, Exhibit A.

26

CSEA’s temporary assessment began with the 30 September paychecks issued to State

27

28

1 Unless otherwise noted, all dates stated herein are 2005.

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 3

1 employees. The normal $45.00 per month dues cap does not apply to this temporary assessment, and

2 monthly dues now range from $29.78 for a janitor to $61.25 for an education consultant. Union dues

3 in the amount of $66.77 was deducted from Plaintiff Conover’s September paycheck. CSEA opposes

4 Propositions 75 & 76. The Alliance for a Better California, a coalition of the State’s public employee

5 labor unions, of which CSEA is a member which it actively supports, also opposes Propositions 74,

6 77, & 78, and supports Propositions 79 & 80. CSEA has contributed to the Alliance and other political

7 committees opposing Propositions 75 & 76. However, Plaintiffs support some or all of the

8 propositions CSEA opposes, oppose some or all of the propositions CSEA supports, and/or do not

9 believe that their dues or forced fees should be used on any ballot proposition and other political and

10 nonbargaining activities.

11

CSEA has reported to the California Secretary of State the following contributions, set forth in

12 reports available at http://cal-access.ss.ca.gov/Campaign/Committees/Detail.aspx?id=1271482&

13 session=2005&view=contributions):

14

a. Since 1 September 2005, direct monetary contributions in the amount of $1.75

15

million in opposition to Proposition 75, and $750,000 in Opposition to Proposition 76;

16

b. Since 1 January 2005, direct monetary contributions in the amount of $1.5

17

million to the “Alliance for a Better California,” whose website (http://www.betterca.com/)

18

reports opposition to Propositions 74, 75, 76, 77, and 78, and supports Propositions 79 and 80;

19

and

20

c. Since 1 August 2005, non-monetary contributions in the amount of $59,590.74

21

to the “Alliance for a Better California,” whose website (http://www.betterca.com/) reports

22

opposition to Propositions 74, 75, 76, 77, and 78, and supports Propositions 79 and 80.

23

Plaintiffs also have a First Amendment right to adequate procedures which will, inter alia, give

24 the employees adequate advance notice of the political and other nonbargaining uses to which the

25 temporary assessment is targeted. Such notice would allow them to make an informed decision on

26 whether their union dues and/or agency fees are (or will be) used for political and other nonbargaining

27 activities which conflict with their own personal preferences so that they can prevent the use of their

28 moneys for ballot propositions and other political and nonbargaining activities that they oppose. See

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 4

1 Teachers Local No. 1 v. Hudson, 475 U.S. 292, 306-10 (1986); Cummings v. Connell, 177 F.Supp.2d

2 1060 (E.D.CAL. 2001).

3

During the month of June, CSEA sent a notice (“CSEA’s Notice”) to most or all of its

4 nonmember employees. This notice preceded the vote for a temporary assessment by approximately

5 two-to-three months, contained no notice that a political dues and fees increase would be included in

6 the 2005-06 dues and fees, and stated that “Dues are subject to change without further notice to fee

7 payers.” Complaint, Exhibit C. CSEA’s Notice set the agency fee to be seized from 1 July 2005,

8 through 30 June 2006 (“2005-06 fiscal year”), at 99.1% of dues. CSEA’s Notice also informed

9 nonmembers that a reduced agency fee of 56.35% of CSEA’s annual dues, or 0.5635% of pay, would

10 be charged to nonmembers who objected to paying the full agency fee and requested a rebate pursuant

11 to the procedures and deadlines outlined in CSEA’s Notice. The 56.35% is based on CSEA’s actual

12 expenditures for the year ending 31 December 2004, in which CSEA calculated chargeable

13 expenditures to be 56.35% of its total expenditures.

14

On or about 31 August, CSEA sent another letter, addressed to “Local 1000 Members and Fair

15 Share Fee Payers.” As it affected union members, inter alia, said letter announced the dues increase,

16 and stated that “The $45 per month cap on our regular dues of 1% of gross pay will continue in effect,

17 but will not apply to this additional .0025 temporary increase.” As it affected nonmember objectors,

18 inter alia, said letter announced that “Fair Share fees will rise by .002478 of gross monthly salary.”

19 Complaint, Exhibit D.

20

Since 1 September, the agency fee deducted from the wages of all nonmember objectors by

21 Westly and transmitted to CSEA for its political and ideological spending has been increased by at

22 least 0.2478% of salary, a 24.78% - 35.75% or more increase of monthly fees paid. Thus, the actual

23 reduced agency fee charged objecting nonmembers in 2005-06 includes 99.12% of the 25% temporary

24 assessment, which increase has been imposed solely for nonchargeable political and ideological

25 purposes, resulting in a forced loan from them that will be spent on the ballot propositions and other

26 political and nonbargaining activities to which they object. Since 1 September, the agency fee

27 deducted from the wages of nonmembers failing to object by Westly and transmitted to CSEA for its

28 spending has been increased by 0.2478% of salary, a 24.78% - 35.78% increase of monthly fees paid.

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 5

1

Moreover, CSEA’s pre-1 September, spending on the ballot propositions and other political

2 and nonbargaining activities facilitated by the temporary assessment will not be included in setting the

3 new reduced agency fee percentage until 2006, more than six months after the initial seizures; and the

4 1 September through 8 November, spending on the ballot propositions and other political and

5 nonbargaining activities facilitated by the fee increase will not be included in setting the new reduced

6 agency fee percentage until 2007, eighteen months later. CSEA’s usual agency fee procedure allows

7 CSEA to force nonmembers to loan it the increased fee amount to spend and use on the ballot

8 propositions and other political and nonbargaining activities, which CSEA will not begin to “repay”

9 for six months and not fully “repay” until eighteen months after the first seizures. In addition, CSEA’s

10 repayment of the forced loan is contingent upon the nonmember remaining employed by the State in a

11 bargaining unit represented by CSEA, and objection in both of the subsequent years.

12

In early September, after receiving CSEA’s 31 August letter, Complaint, Exhibit D, Plaintiff

13 Dobrowolski called CSEA’s Sacramento office, and was told to call its Riverside office. He did so,

14 and left a message for Jodi Smith, area manager, asking that she call him back. Smith returned his call

15 and stated that, even if Dobrowolski objected to the payment of the full agency fees, via a letter in

16 June, there was nothing he could do about the September increase for the temporary assessment. She

17 also stated that “we are in the fight of our lives,” and that the temporary assessment was needed, and

18 that there was nothing that could be done to stop CSEA’s expenditure of the temporary assessment for

19 political purposes.

20

As a result of the timing of CSEA’s increase in their dues and fees, the minimum procedures

21 required by the First and Fourteenth Amendments to the United States Constitution, as explained in

22 Hudson, have not been provided to the employees and the class they seek to represent, all of whom are

23 potential objectors to CSEA’s use of the increase in the dues and fees primarily, if not wholly, for

24 ballot propositions, political and other nonbargaining purposes. Specifically, CSEA has not provided

25 Plaintiffs Knox, Blaylock, Dobrowolski, Gil, Hass, Johnson, Jumper, and other nonmember State

26 employees with an opportunity to object to the use of the fee increase on the ballot propositions,

27 politics and other nonbargaining activities; and an immediate refund or reduction of the increased fee

28 amount. Absent such immediate procedural protections, the nonmember State employees are forced to

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 6

1 loan the increase in their fees to CSEA for its use and spending on the ballot propositions, politics and

2 other nonbargaining activities which they oppose and which they cannot constitutionally be required to

3 subsidize.

4

Furthermore, since the Complaint was prepared, CSEA has sent to nonmembers objecting to

5 the dues/fees increase a letter, dated 27 October, stating that the increased fees will be expended upon

6 a “campaign with aspects that focus on political actions and initiatives....” Declaration of W. James

7 Young, Exhibit A. Said letter further falsely states that “the Supreme Court has stated that [its Hudson

8 audit] must occur at the end of the fiscal year in which the activities take place, because next year’s

9 objecting fee-payer must be based on that audit.” Id. Said letter further states that “This campaign

10 will entail much workplace organizing....” Id.

11

12 II. STANDARD FOR GRANTING A TEMPORARY RESTRAINING ORDER

13

In the Ninth Circuit, to qualify for a restraining order, the movant must show: “either (1) a

14 combination of probable success on the merits and the possibility of irreparable harm, or (2) that

15 serious questions are raised and the balance of hardships tips sharply in the moving party’s favor.”

16 Mayo v. United States Gov’t Printing Office, 839 F.Supp. 697, 700 (N.D.CAL. 1992), aff’d, 9 F.3d

17 1450 (9TH CIR. 1993); Senate of State of California v. Mosbacher, 968 F.2d 974, 977 (9TH CIR. 1992)

18 (preliminary injunction standard); see also Patterson v. Anchorage School District, 145 LRRM (BNA)

19 2932 (D.AK. 1994) (granting a temporary restraining order prohibiting termination of non-paying non-

20 members because “fair share fee” procedures were likely to be held unlawful); cf. Prescott v. County of

21 El Dorado, 915 F.Supp. 1080, 1084-92 (E.D.CAL. 1996) (preliminary injunction granted against likely

22 unlawful procedures regarding “fair share fee” seizures); Lucid v. City of San Francisco, 136 LRRM

23 (BNA) 2877, 2879-81 (N.D.CAL. 1991) (same); Lowary v. Lexington Local School Board, 854 F.2d

24 131, 134-35 (6TH CIR. 1988) (same). These standards have been applied to issue temporary restraining

25 orders and/or preliminary injunctions in the context of the seizure of agency fees in the absence of full

26

27

28

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 7

1 Hudson compliance in ten reported cases, five in California.2

2

3 III. ARGUMENT

4

A. Authority And Requirements For Enforcement Of An Agency Shop.

5

The authority of public employee unions to act as collective bargaining agents arises from

6 statute, for they possess no entitlement to the authority to bargain exclusively or collectively with a

7 public employer. City of Charlotte v. Firefighters Local 660, 426 U.S. 283, 286-88 (1976). Likewise,

8 a monopoly bargaining representative’s authority to force nonmembers to support its collective

9 bargaining activities is a privilege, not a matter of right. Certain conditions precedent must be satisfied

10 before a public employee union may compel nonmembers to provide them with support even of its

11 bargaining activities.

12

First, a statute must authorize entry into agency shop agreements. See, e.g., 29 U.S.C.

13 § 158(a)(3) (National Labor Relations Act); 45 U.S.C. § 152, Eleventh (Railway Labor Act); Ralph C.

14 Dills Act, CAL. GOVT. CODE § 3512, et seq.; see also Abood v. Detroit Board of Education, 431 U.S.

15 209, 223-25 (1977) (explaining governmental interests justifying allowance of agency shop). Second,

16 a union and employer must agree to impose such a requirement in their collective bargaining

17

18

2 Swanson v. University of Hawaii Prof’l Assembly, 269 F.Supp.2d 1252, 1260-61 (D.HAW.

2003); Cummings v. Connell, 163 LRRM (BNA) 2086, 2094-95 (E.D.CAL. 1999); DeBont v. City of

19 Poway, 158 LRRM (BNA) 2754, 2757-59 (S.D.CAL. 1998); Prescott v. County of El Dorado, 915

F.Supp. 1080, 1092 (E.D.CAL. 1996); Reese v. City of Columbus, 798 F.Supp. 463, 472 (S.D.OHIO 20 1992), continuation of the preliminary injunction, 826 F.Supp. 1115, 1122 (S.D.OHIO 1993); Lucid

21

v. City of San Francisco, 136 LRRM (BNA) 2877, 2879-81 (N.D.CAL. 1991); Cramer v. Matish, 129 LRRM (BNA) 2489, 2489-90 (W.D.MICH. 1988); Fort Wayne Educ. Ass’n v. Aldrich, 527 N.E.2d

22 201, 209 (IND.CT.APP. 1988); Damiano v. Matish, 122 LRRM (BNA) 3158, 3158-59 (W.D.MICH. 1986); Perry v. City of Fort Wayne, 542 F.Supp. 268, 274 (N.D.IND. 1982), aff’d sub nom. Perry v.

23 Local 2569, Machinists, 708 F.2d 1258 (7TH CIR. 1983); see also Weaver v. University of Cincinnati,

24

970 F.2d 1523, 1534 (6TH CIR. 1992) (where “fees have been collected under a plan that does not comport with Hudson, the proper remedy is an injunction”); earlier ruling, 942 F.2d 1039, 1045 (6TH

25 CIR. 1991) (a “court must issue a preliminary injunction when a union’s notice or objection procedures are constitutionally deficient under Hudson.”); Lowary v. Lexington Local Board of Education, 854

26 F.2d 131, 134-35 (6TH CIR. 1988) (once “the district court has found it likely that the procedures will

be found ... to violate Hudson, it constitutes an abuse of discretion for the court to allow fairshare 27 fees to be collected even if the collected fees are placed in an escrow account”).

28

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 8

1 agreement.

2

Third — and most relevant to this case — as it applies to public employment, the union and

3 employer must comply with “the constitutional requirements for the ... collection of agency fees.” 475

4 U.S. at 310.3 Absent satisfaction of any one of these requirements — including the last — unions lack

5 any lawful authority to exact monies from nonmembers. Knight v. Kenai Peninsula Borough School

6 District, 131 F.3d 807, 815 (9TH CIR. 1997) (“Because it provided inadequate notice, [the union] failed

7 to satisfy Hudson’s requirements and was not entitled to the fees that it collected”); cf. Dean, 924 F.2d

8 at 809 (nonmember under RLA is privileged to withhold dues from union failing to comply with

9 Hudson’s requirements).

10

Thus, nonunion public employees can be compelled, consistent with the Constitution, to bear

11 only their pro rata share of the costs of collective bargaining, contract administration, and grievance

12 adjustment. Abood, 431 U.S. at 222. However, before a union and/or a public employer are entitled to

13 take any action to enforce such an obligation, they must comply with “the constitutional requirements

14 for the ... collection of agency fees,” Hudson, 475 U.S. at 310, for the First, Fifth, and Fourteenth

15 Amendments require that certain notice and procedural protections be provided to public employees

16 exercising their right to refrain from membership in employee organizations but subjected to the

17 seizure of agency or “service fees” when their employer agrees to such a clause in the agreement

18 governing their terms and conditions of employment. Id., 475 U.S. at 306; see also Abood, supra;

19 Tierney II, 824 F.2d at 1502.

20

The four procedural safeguards which “the government and union have a responsibility to

21 provide [to all ‘potential objectors’]... that minimize that impingement [on First Amendment rights]

22 and that facilitate a nonunion employee’s ability to protect his rights,” Hudson, 475 U.S. at 307 n.20 &

23 306, are: (1) the good-faith advance reduction of the fee to no more than that portion of the union’s

24 expenditures required for its execution of its duties as the nonmembers’ exclusive bargaining

25

26

3 The Court explicitly recognized that this a joint responsibility. “Since the agency shop itself

is ‘a significant impingement on First Amendment rights,’ Ellis [v. Railway Clerks], 466 U.S. [435,] at 27 455 [(1984)], the government and the union have a responsibility to provide procedures that

28

minimize that impingement and that facilitate a nonunion employee’s ability to protect his rights.” Hudson, 475 U.S. at 307 n.20 (emphasis added).

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 9

1 representative, Hudson, 475 U.S. at 305-06, 310; (2) financial disclosure given prior to any demand for

2 or collection of the reduced fee adequate to allow nonmembers to gauge the propriety of the union’s

3 fee and to make an intelligent decision whether to challenge the fee calculation before an impartial

4 decisionmaker, 475 U.S. at 306-07, 310; (3) opportunity to challenge the fee calculation before an

5 impartial decisionmaker, 475 U.S. at 307-09, 310; and (4) an escrow of the amounts reasonably in

6 dispute pending such challenges. 475 U.S. at 309-10.

7

Two goals are served by procedural safeguards. First, they insure that the fees seized include

8 only the employee’s pro rata share of constitutionally chargeable costs. Hudson’s holding — that the

9 decision set forth “the constitutional requirements for the Union’s collection of agency fees” — insures

10 against both misuse of seized funds and excessive collections. 475 U.S. at 310 (emphasis added).

11 Second, procedural safeguards “facilitate a nonunion employee’s ability to protect his rights.” 475

12 U.S. at 303 & 307 n.20.

13

Moreover, the agency shop clearly impinges on Nonmembers’ First-Amendment rights:

14

To compel employees financially to support their collective-bargaining representative

has an impact on their First Amendment interests.... To be required to help finance the

15

union as a collective-bargaining agent might well be thought, therefore, to interfere in

some way with an employee’s freedom to associate for the advancement of ideas, or to

16

refrain from doing so, as he sees fit.

17 Abood, 431 U.S. at 232. The Supreme Court also has noted that “Mandating speech that a speaker

18 would not otherwise make necessarily alters the content of the speech. We therefore consider the Act

19 as a content-based regulation of speech.” Riley, 487 U.S. at 795. Of course, content-based regulation

20 of speech triggers the highest level of judicial evaluation, “strict scrutiny.” Rosenberger v. Rector &

21 Visitors of the University of Virginia, 515 U.S. 819, 828 (1995) (content-based discrimination is

22 presumptively unconstitutional); Burson v. Freeman, 504 U.S. 191, 197-98 (1992) (content-based

23 restrictions are subject to “exacting scrutiny,” “strict scrutiny,” with a showing that the “regulation is

24 necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end”)

25 (citations omitted).

26 ////

27 ////

28 ////

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 10

1

B. Defendants Provided No Opportunity To Object And Challenge After Imposing A

Dues Increase Solely For Political Spending.

2

3

As this Court is keenly aware, CSEA is already subject to a judgment declaring that it violated

4 constitutional standards by seizing agency fees in violation of Hudson’s requirements. Cummings v.

5 Connell, 177 F.Supp.2d 1060, 1073 (E.D.CAL. 2001). Importantly, this Court found that “injunctive

6 relief is no longer warranted” when, after four unsuccessful efforts, CSEA finally provided to a class of

7 approximately 37,000 nonmembers adequate notice and procedures under Hudson.

8

This case, however, goes beyond CSEA’s mere failure to provide adequate notice and

9 procedural protections under Hudson regarding its special assessment, which is specifically, self-

10 consciously, and totally devoted to nonchargeable political and ideological expenditures for CSEA’s

11 campaign against the impending electoral propositions. Complaint, Exhibits A, B, & D.

12

CSEA’s monthly dues and fees increase, which began with the 30 September paycheck, and

13 continued with the 31 October paycheck, is targeted wholly at the defeat of certain ballot propositions

14 in a special election to be held on 8 November, to fight the Governor’s education policies, and take

15 other political and nonbargaining actions. Complaint, Exhibit A (motion proposing increase, stating

16 that the funds raised will be used for an “Emergency Temporary Assessment to Build a Political Fight-

17 Back Fund” to be “use[]d for a broad range of political expenses, including television and radio

18 advertising, direct mail, voter registration, voter education, and get out the vote activities in our work

19 sites and in our communities across California,” and specifically stating that “The Fund will not be

20 used for regular costs of the union -- such as office rent, staff salaries or routine equipment

21 replacement, etc.”).

22

CSEA opposes Propositions 74, 75, 76 and 77 and supports Propositions 79 and 80, and is a

23 member of and has contributed funds to the Alliance for a Better California (“ABC”), a coalition of the

24 state’s public labor unions. Young Decl., ¶ 6. Since 1 January, CSEA has given more than $1.5

25 million to ABC. Id. Since 1 September, CSEA has made additional contributions of $2.5 million for

26 the defeat of Propositions 75 & 76. Id.

27

Hudson requires unions to provide “an adequate explanation for the advance reduction of

28 dues,” 475 U.S. at 309, including notice of the political and other nonbargaining expenditures so that

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 11

1 “potential objectors,” id. at 306, can make an informed decision whether to object and prevent the use

2 of their moneys for political and other nonbargaining activities that they oppose. This notice is

3 commonly referred to as the “Hudson” notice.

4

During the month of June, CSEA sent out its Hudson notice to nonmember State employees

5 that it represents and from whom it seizes agency fees. Complaint, Exhibit C. This notice preceded the

6 decision to impose an increase in the compulsory fees by approximately two to three months, and

7 contained no notice that an increase in the fees to pay wholly for campaigns related to ballot

8 propositions, political, and other nonbargaining activities would be included in the last third of the

9 2005 fee year.

10

CSEA’s June notice set the agency fee to be seized from 1 July 2005, through 30 June 2006

11 (“2005-06 fiscal year”), at 99.1% of dues. CSEA’s 2005 Notice also informed nonmembers that a

12 reduced agency fee of 56.35% of CSEA’s annual dues, or 0.5635% of pay, would be charged to

13 nonmembers who objected to paying the full agency fee and requested a rebate pursuant to the

14 procedures and deadlines outlined in CSEA’s 2005 Notice. The 56.35% is based on CSEA’s actual

15 expenditures for the year ending 31 December 2004, in which CSEA calculated chargeable

16 expenditures to be 56.35% of its total expenditures.

17

Since 1 September, the agency fee seized from the wages of all nonmember objectors by

18 Westly and transmitted to CSEA for its spending has been increased by 0.2478% of salary, a 24.78% -

19 35.75% or more increase of monthly fees paid. Thus, the actual reduced agency fee charged objecting

20 nonmembers in 2005-06 includes 99.12% of the 25% temporary assessment, which increase has been

21 imposed solely for nonchargeable political and ideological purposes, resulting in a forced loan from

22 them that will be spent on the ballot propositions and other political and nonbargaining activities to

23 which they object. Complaint, ¶ 34.

24

However, CSEA’s pre-1 September 2005, spending on the ballot propositions and other

25 political and nonbargaining activities facilitated by the temporary assessment will not be included in

26 setting the new reduced agency fee percentage until 2006, more than six months after the initial

27 seizures; and the 1 September through 8 November 2005, spending on the ballot propositions and

28 other political and nonbargaining activities facilitated by the fee increase will not be included in setting

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 12

1 the new reduced agency fee percentage until 2007, eighteen months later. CSEA’s usual agency fee

2 procedure allows CSEA to force nonmembers to loan it the increased fee amount to spend and use on

3 the ballot propositions and other political and nonbargaining activities, which CSEA will not begin to

4 “repay” for six months and not fully “repay” until eighteen months after the first seizures. In addition,

5 CSEA’s repayment of the forced loan is contingent upon the nonmember remaining employed by the

6 State in a bargaining unit represented by CSEA, and objection in both of the subsequent years.

7

In order to discharge its constitutional obligations, a labor union representing public employees

8 must provide a notice to all “potential objectors,” Hudson, 475 U.S. at 306, including all nonunion

9 employees, in the bargaining unit alerting them to all of their rights under Hudson, including the right

10 to prevent the union from using their dues and fees on political matters, and how those rights can be

11 effected. Hudson, 475 U.S. at 305-06, 310. These requirements must be strictly followed. Prescott,

12 915 F.Supp. at 1092; Lucid, 136 LRRM at 2881; Tierney v. City of Toledo, 824 F.2d 1497, 1507 (6TH

13 CIR. 1987).

14

In other words, implementation of the adequate procedural safeguards is a precondition to the

15 constitutional collection and use of the increase in dues and fees imposed by Defendants here. To date,

16 Defendants have failed to provide any of the procedural safeguards required by Hudson for the

17 increases.

18

This failure is compounded by the fact that the increases are targeted wholly to defeat certain

19 ballot propositions, and take other political and nonbargaining actions. These Supreme Court cases

20 and their progeny make clear that, when a union increases its dues and fees solely for political

21 purposes, it must treat that increase in the existing nonchargeable percentage, notwithstanding the

22 usual procedure that the chargeable amount is calculated “on the basis of [the union’s] expenses during

23 the preceding year.” Hudson, 475 U.S. at 307 n.18. In this extraordinary circumstance, to follow

24 normal procedures would fail to meet Hudson’s standard that the procedure used by the unions must

25 adequately protect the basic distinction drawn in Abood.

26

“(T)he objective must be to devise a way of preventing compulsory subsidization of

ideological activity by employees who object thereto without restricting the Union’s

27

ability to require every employee to contribute to the cost of collective-bargaining

activities.” [Abood, 432 U.S.], at 237.

28

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 13

1 Hudson, 475 U.S. at 302 (emphasis added).

2

Because the sole purpose of CSEA’s increase here is nonchargeable ideological activities, there

3 are no collective-bargaining activities that need to be protected or balanced. Indeed, most Hudson

4 cases present the Court with protection of nonmembers’ procedural rights, i.e., addressing their

5 “federal right to challenge a procedure that may not have resulted in any improper expenditures —

6 whether, in other words, even if the union has not used any of the money it has collected from

7 objecting employees to promote political activities unrelated to its role in collective bargaining, the

8 plaintiffs can still complain that they have been deprived of the liberty secured them by the

9 Constitution,” Hudson v. Teachers Local No. 1, 743 F.2d 1187, 1192 (7TH CIR. 1984), aff’d 475 U.S.

10 292 (1986). However, this Court presents, in addition to that Hudson procedural claim, the fact that

11 CSEA is violating at least some of Plaintiffs’ and the nonmembers’ substantive right to prevent CSEA

12 from using their funds for its political and ideological activities. Grunwald v. San Bernardino City

13 Unified School District, 994 F.2d. 1370, 1373-74 (9TH CIR. 1993). Therefore, the only relevant

14 consideration here regarding the increase is to prevent the “compulsory subsidization of ideological

15 activity by the employees who object.”4 CSEA’s normal procedures do not prevent the subsidization

16 of ideological activity caused by the increase; to the contrary, CSEA insists that it possesses some sort

17 of entitlement to force objecting nonmembers to subsidize its instant campaigns. Young Decl., Exhibit

18 A. Accordingly, the collection of the increase by CSEA on 30 September and 31 October have caused

19 irreparable harm to the “potential objectors.” Hudson, 475 U.S. at 306. “Irreparable harm will result if

20 ... a preliminary injunction is not issued.” Damiano, 122 LRRM at 3158.

21

22

C. Plaintiffs Demonstrate A High Degree of Probability Of Success On The

Merits Of Their Claim.

23

24

Existing authority demonstrates that Plaintiffs demonstrate a high degree of probability of

25

26

4 The “dollar amount in [sic] issue is irrelevant. Because no fees may be collected in the

absence of constitutionally adequate notice and procedures, the district court erred in determining that 27 ‘[a] withholding of approximately ... $100.00 per month in total from five plaintiffs in an escrow

28

account for a period of a few months does not constitute irreparable injury.’” Weaver, 942 F.2d at 1045 (emphasis in original).

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 14

1 success on the merits of their claim that when an increase in fees directed political and ideological

2 purposes must be added to the existing rebate/reduction so it is not charged to objecting nonmembers

3 and a Hudson notice must be distributed to all nonmembers before a union can have access to the

4 increase from those who do not object after receiving notice of the purpose(s) of the increase.

5

Accordingly, when an increase becomes effective during the dues/fee year, like CSEA’s, then

6 the union must either not collect the increase from all nonmembers or inform all “potential objectors”

7 through a new or supplemental Hudson notice that they may object to and have their fees reduced, and

8 thus, prevent the union’s spending of the increase on politics and other nonbargaining activities. Like

9 the union in Hudson, CSEA “merely offer[s] dissenters the possibility of a rebate.” Hudson, 475 U.S.

10 at 305. But “[a] forced exaction followed by a rebate equal to the amount improperly expended is thus

11 not a permissible response to the nonunion employees’ objections.” Id. at 305-06. Therefore,

12 "[a]mounts which indisputably cannot be retained by the union over a member’s objection should be

13 promptly refunded with interest from the date of objection. .... The union must ... pay any amount

14 refundable beyond reasonable dispute as soon as it receives ... the member’s objection.” Breaux v.

15 Agricultural Labor Relations Bd., 265 Cal. Rptr. 904, 918, 919 (CT.APP. 1990); accord Dean v. TWA,

16 924 F.2d 805, 809 (9TH CIR. 1991) (failure to reduce fees is inconsistent with the Supreme Court’s

17 rejection of any type of rebate remedy). Here, Plaintiffs have shown that they are likely to succeed on

18 their claim that Defendants have taken the increase in fees in violation of the First Amendment, and

19 threaten to continue to do so. Together with the earlier showing of irreparable harm, this is sufficient

20 to support the granting of a temporary restraining order. Patterson v. Anchorage School Dist., 145

21 LRRM (BNA) 2832 (D.AK. 1994); Cramer, 129 LRRM at 2489-90.5

22

23

24

5 This is also sufficient to support the granting of a TRO or preliminary injunction. Prescott,

25

915 F.Supp. at 1084-92; Lucid, 136 LRRM at 2879-81; Cummings, 163 LRRM at 2094-95; Reese, 798 F.Supp. at 472; cf. DeBont, 158 LRRM at 2757-59 (irreparable harm and the balance of hardship tips

26 sharply in the employee’s favor); Swanson, 269 F. Supp.2d at 1260-61 (same); Damiano, 122 LRRM

at 3158-59 (irreparable harm and a fair ground for litigation); Lowary, 124 LRRM at 2520 (escrow of 27 the collected fees upon the showing of a likelihood of irreparable harm and the public interest favors

28

the injunction); Perry, 542 F.Supp. at 274 (reinstating plaintiff to her job and placing fees in the registry of the court upon the showing of irreparable harm and reasonable likelihood of prevailing).

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 15

1

D. The Balance Of Hardships Tips Decisively In Plaintiffs’ Favor.

2

The balance of hardships favors Plaintiffs. Unless a temporary restraining order and/or

3 injunction issues against the seizure and spending of the increase in dues and fees on the ballot

4 propositions and other political and nonbargaining activities is granted, Plaintiffs will suffer immediate

5 and continuing First Amendment injuries. Once the Nonmembers’ monies are spent,6 contrary to their

6 wishes, to affect the outcome of the ballot propositions on the 8 November, ballot, the Nonmembers’

7 First Amendment rights are irretrievably lost. The results of the election cannot be undone.

8

On the other hand, an improperly-issued temporary restraining order and/or injunction will

9 affect Defendants not at all. Defendant Westly has no stake in these elections at all, other than the

10 same stake as any other California citizen. Defendant CSEA will merely be delayed in using the

11 increase from employees to which they only have a state law, not a constitutional, entitlement. It is

12 important to remember that the requested temporary restraining order and/or injunction would not

13 apply to most agency fees at all. It would only apply to the increase in dues and fees dedicated solely

14 for political purposes.

15

The requested temporary restraining order and/or injunction would prevent the continued

16 collection of that increase only from nonmembers,7 and it would only place the increase already seized

17 in the registry of the Court or a Court-supervised escrow account until CSEA distributes an appropriate

18 Hudson notice and determines which nonmembers object to the increase being spent on politics8 and

19 which do not. At that time, the increase in dues and fees from the nonobjectors will be released from

20

21

6 We would remind the Court that no injunction is sought against the taking of the dues

increase as to union members, such as Plaintiff R. Paul Ricker.

22 7 Several courts have issued preliminary injunctions against the collection of fees in the

23 absence of full Hudson compliance even when the union had already placed the fees in escrow.

Weaver, 942 F.2d at 1045-46; Lowary, 854 F.2d at 134-35; Cummings, 163 LRRM at 2094-95; 24 Lehnert v. Ferris Faculty Ass’n, 707 F.Supp. 1490, 1495 n.4 (W.D.MICH. 1989), aff’d, 893 F.2d 111

25 (6TH CIR. 1989).

26

8 Under the First Amendment, the dues and fees of objectors cannot include money for a

union to use on its own political activities, but are limited to the bargaining activities of the 27 union. Abood, 431 U.S. at 235-36. See also Cummings, 163 LRRM at 2095 (“The strong

28

protections for First Amendment rights, however, outweigh [the unions’] potential short term loss of fair share fees”).

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 16

1 the escrow and returned to CSEA and it will be permitted to collect the increase. Under the requested

2 temporary restraining order and/or injunction, CSEA risks no loss in the eventual use and spending of

3 the dues and fees from nonobjectors.

4

Moreover, CSEA will not be illegitimately prevented from spending money on the ballot

5 propositions and other political and nonbargaining activities during the pendency of the temporary

6 restraining order and/or injunction. If it is confident in the support of the employees in purports to

7 represent in their support for its political and ideological agenda, it will certainly be able to recover

8 that money. And CSEA holds the “keys” to the enjoined money because the sooner it provides the

9 Hudson notice, the sooner it can claim and use the enjoined money from those nonmembers who do

10 not object to CSEA’s use of their monies on ballot propositions and other political and nonbargaining

11 matters.

12

Furthermore, if CSEA had followed the constitutional requirements of Hudson back when it

13 imposed the fee increase in August, it would have had lawful access to the increase from those who

14 did not object when they began receiving it after 30 September. Now that it has failed to comply with

15 the “constitutional requirements for the Union’s collection of agency fees,” Hudson, 475 U.S. at 310, it

16 may have to endure a temporary denial in the use of the increase from those who eventually do not

17 object to CSEA’s use of their moneys for politics. This is a small price to pay for assuring that the

18 unions do not irreparably harm the First Amendment rights of those who do not want their moneys

19 used for politics.

20

“The strong protections for First Amendment rights outweighs [CSEA’s] short-term loss of

21 fees and any inconvenience suffered by [it].” Swanson, 269 F.Supp.2d at 1261. “[CSEA] can

22 demonstrate no injury of comparable importance which would result from the issuance of an

23 injunction. Defendants have no right to collect fees from nonmembers using an invalid collection

24 procedure.” Reese, 798 F. Supp. at 472. Numerous other courts in Hudson enforcement actions have

25 also found that “in balancing the harm between the parties, ... the scale tips in favor of the plaintiff.”

26 Damiano, 122 LRRM at 3158; DeBont, 158 LRRM at 2757-59; Prescott, 915 F.Supp. at 1092.

27

28

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 17

1

E. The Public Interest Favors Entry Of The Requested Relief.

2

It is obvious that the public interest is served by requiring unions to comply with the Hudson’s

3 requirements, designed to protect First Amendment rights, prior to seizing monies from the workers’

4 paychecks. Lowary, 124 LRRM at 2520; Perry, 542 F.Supp. at 275; Reese, 798 F. Supp. at 472.

5 “[T]he public’s interest in upholding first amendment freedoms of political expression favors the

6 granting of a preliminary injunction.” Swanson, 269 F.Supp.2d at 1260-61. The Sixth Circuit found

7 that a preliminary injunction in these circumstances not only did not harm others, but it served the

8 public interest.

9

Because we have found [the union’s] agency fee collection scheme in violation of the

requirements of Hudson, it follows that the First Amendment rights of other

10

nonmembers are also abridged. Thus, not only would a preliminary injunction in this

case not harm others, it would benefit many.... Not only would such an agreement be in

11

the public interest, it is constitutionally mandated in Hudson.

12 Weaver, 942 F.2d at 1047 (emphasis in original). The public interest is particularly keen here, where

13 CSEA is using fees from objecting employees for political purposes to distort the political process.

14

15

F. Class-Wide Application Of The Temporary Restraining Order And/Or

Preliminary Injunction

16

17

In Reese, 798 F. Supp. at 472, the court granted, prior to class certification, class-wide

18 preliminary injunctive relief against the taking of “fair share fees,” based on a likely violation of

19 Hudson, protecting a proposed class of all non-union employees in those bargaining units affected by

20 the fee. The court reasoned that it was likely to certify the class on the merits. Accord Damiano, 122

21 LRRM at 3160 (exercising its equitable powers, court covered not only named plaintiffs but also

22 members of the class described in the complaint). Here, Plaintiffs anticipate promptly filing their

23 Motion for Class Certification, and Plaintiffs’ counsel already has been certified as class counsel for at

24 least one class by this Court. Cummings, supra. For the reasons expressed in Reese and Damiano, this

25 Court should grant class-wide preliminary relief here.

26

27

G. Waiver of Bond or Minimal Bond

28

Ordinarily, the entry of preliminary relief requires the posting of security. Rule 65(c),

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 18

1 FED.R.CIV.P. In the Ninth Circuit, the trial court has discretion to determine the amount of the bond.

2 Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9TH CIR. 1999). In setting bond amounts, courts

3 generally take special precaution to ensure that plaintiffs bringing suit under 42 U.S.C. § 1983

4 are not thereby effectively denied access to judicial review. In some cases, courts have not required a

5 bond. See, e.g., Smith v. Board of Election Comm’rs, 591 F.Supp. 70, 72 (N.D.ILL. 1984) (no bond

6 required in § 1983 action because the vindication of a constitutional right should not depend upon a

7 plaintiff’s financial status); accord Cramer, 129 LRRM at 2490 (temporary restraining order issued

8 without bond), further proceedings, 705 F.Supp. 1234 (W.D.MICH. 1988) (preliminary injunction);

9 see also Swanson, 269 F.Supp.2d at 1261 (court waived the bond requirement where union failed to

10 comply with Hudson); Damiano, 122 LRRM at 3160 (preliminary injunction without bond granted

11 against state employer’s deduction of agency fees); Damiano v. Matish, 830 F.2d 1363, 1368 (6TH

12 CIR. 1987) (injunction against fee deduction pending appeal granted without bond); Lucid, 136 LRRM

13 at 2881 (preliminary injunction against fee deduction granted without bond). In other cases, only a

14 minimal bond was required. See Lowary, 124 LRRM at 2521 (preliminary injunction against fee

15 deduction granted with $100 bond); Prescott, 915 F.Supp. at 1092 (same). In addition, courts are

16 generally more solicitous of the rights of access of individuals seeking relief, as opposed to

17 commercial entities. Cupolo v. Bay Area Rapid Transit, 5 F.Supp.2d 1078, 1086 (N.D.CAL. 1998)

18 (citing Elliott v. Kiesewetter, 98 F.3d 47, 59 (3D CIR. 1996)). Here, Plaintiffs are individual State

19 employees represented by a non-profit legal foundation. Neither the individual Plaintiffs nor their

20 legal representative will be able to post a substantial bond. Further, this case involves the threatened

21 taking of a relatively small amount of money from each Nonmember in alleged violation of the

22 Constitution. Moreover, the money already seized is being placed in the registry of the Court or a

23 Court-supervised escrow account, further reducing the need for any bond.

24

25 IV. CONCLUSION

26

Because Defendants are currently distorting the political process by seizing from objecting

27 nonmembers a “special assessment” and spending it solely for political and ideological purposes, and

28 because as to other nonmembers Defendants failed utterly to comply with “the constitutional

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 19

1 requirements for the ... collection of agency fees,” Hudson, 475 U.S. at 310, with regard to CSEA’s

2 special “assessment” solely for its political and ideological activities, this Court should immediately

3 issue, pending final adjudication of the Nonmembers’ prayer for permanent relief, a temporary

4 restraining order and/or preliminary injunction, restraining Defendants Westly, his agents, assistants,

5 successors, employees, attorneys, and all other persons acting in concert or cooperation with him or at

6 his direction or under his control, from seizing increased agency fees from Plaintiffs and the class

7 and/or subclass Plaintiffs seek to represent, and preliminarily enjoining Defendants, and all of them,

8 their agents, assistants, successors, employees, attorneys, and all other persons acting in concert or

9 cooperation with them or at their direction or under their control from taking any further steps to

10 enforce those portions of the so-called “Fair Share Agreements” or agency shop sections of the various

11 memoranda of understanding between the State of California and Defendant CSEA specified above,

12 until a constitutionally adequate notice has been provided and constitutionally adequate procedures are

13 in place and operating, and further order of this Court, and further restraining Defendant CSEA from

14 using any of the increases already seized and requiring that all increases in dues and fees be placed in

15 the registry of the Court or a Court-supervised escrow account until further order of the Court.

16 DATED: 2 November 2005

17

Respectfully submitted,

18

/s/ Steven R. Burlingham

19

STEVEN R. BURLINGHAM, Esq.

California Bar No. 88544

20

Gary, Till & Burlingham

5330 Madison Avenue, Suite F

21

Sacramento, California 95841

(916) 332-8122

22

Facsimile — (916) 332-8153

23

/s/ W. James Young

24

W. JAMES YOUNG, Esq.

c/o National Right to Work Legal

25

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

26

Springfield, Virginia 22160

(703) 321-8510 27

ATTORNEYS FOR PLAINTIFFS AND THE CLASS THEY

28

SEEK TO REPRESENT

PLAINTIFFS’ MEMO IN SUPPORT OF MOTION FOR A TRO AND/OR PRELIMINARY INJUNCTION — Case No. 2:05-cv-02198 MCE KJM PAGE - 20

 
 Case 2:05-cv-02198-MCE-KJM Document 39 Filed 02/17/2006 Page 1 of 9

1 STEPHEN P. BERZON (SBN 46540) JEFFREY B. DEMAIN (SBN 126715)
2 PEDER J. THOREEN (SBN 217081) Altshuler, Berzon, Nussbaum,
3 Rubin & Demain 177 Post Street, Suite 300
4 San Francisco, California 94108 Telephone: (415) 421-7151
5 Facsimile: (415) 362-8064 sberzon@altshulerberzon.com
6 jdemain@altshulerberzon.com pthoreen@altshulerberzon.com
7
Attorneys for Defendant 8 Service Employees International Union,
Local 1000 9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE EASTERN DISTRICT OF CALIFORNIA

12

DIANNE KNOX; WILLIAM L. BLAYLOCK; )

13 ROBERT A. CONOVER; EDWARD L.

)

DOBROWOLSKI, JR.; KARYN GIL;

)

14 THOMAS JACOB HASS; PATRICK

)

JOHNSON; JON JUMPER; AND R. PAUL )

15 RICKER, ON BEHALF OF THEMSELVES )

AND THE CLASS THEY SEEK TO

)

16 REPRESENT,

)

)

17

Plaintiffs,

)

)

18

v.

)

)

19 STEVE WESTLY, Controller, State of

)

California; AND CALIFORNIA STATE

)

20 EMPLOYEES ASSOCIATION, LOCAL 1000, )

SERVICE EMPLOYEES INTERNATIONAL )

21 UNION, AFL-CIO-CLC,

)

)

22

Defendants.

)

_______________________________________ )

23

No. 2:05-CV-2198 MCE (KJM)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT
Date: March 20, 2006 Time: 9:00 a.m. Judge Hon. Morrison C. England, Jr. Place: Courtroom 3
15th Floor

24

25

26

27

28

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S MEMO. OF P&As IN SUPPORT OF MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT Knox, et a l. v. Westly, et al., C ase No. 2 :05-C V-2198 M C E (K JM )

Case 2:05-cv-02198-MCE-KJM Document 39 Filed 02/17/2006 Page 2 of 9

1

INTRODUCTION

2

Defendant Service Employees International Union, Local 1000 (the “Union”) hereby

3 seeks the dismissal of the claim brought by plaintiff R. Paul Ricker from this case on the

4 ground that he lacks standing to bring the claim alleged (and therefore the Court lacks subject

5 matter jurisdiction over him). The undisputed evidence also demonstrates that summary

6 adjudication should be entered in the Union’s favor on Mr. Ricker’s merits claim.

7

Mr. Ricker is the only one of the plaintiffs who was a member of the Union at the time

8 of the filing of the Complaint in this action. See the Union’s Statement of Undisputed Facts

9 (“SUF”) ¶ 1. The sole allegations of the Complaint regarding plaintiff Ricker (and the class of

10 Union members he seeks to represent) are that the Union “has not provided” them “with: (1) an

11 opportunity to resign and, as nonmembers, raise an objection to the use of the dues/fee increase

12 on the ballot propositions, politics and other nonbargaining activities; and (2) an immediate

13 refund or reduction of the increase dues/fee amount.” Id. ¶ 2. However, Mr. Ricker’s

14 deposition testimony shows that these allegations are untrue. As we discuss in detail below, he

15 admitted that he has never been denied the opportunity to resign his Union membership, that he

16 has been informed and long been aware of his right to resign and of his right to pay a reduced

17 fair share fee if he were to resign, and that, notwithstanding his knowledge of these rights, he

18 has affirmatively chosen to remain a Union member. See discussion, infra, at pages 2-3, 5-7.

19 Since Mr. Ricker has admittedly not incurred the injuries alleged in the Complaint, he lacks

20 standing to sue. And since the Union provided him with an opportunity to resign and become a

21 non-member and fair share fee objector, summary adjudication against him on his merits claim

22 is also appropriate.

23

BACKGROUND

24

This putative class action is brought by a group of California public employees who are

25 represented by the Union. SUF ¶ 3. The plaintiffs include both a dues-paying Union member,

26 Mr. Ricker, and non-members, so-called “fair share fee payers” who contribute fair share fees

27 to the Union. Id. ¶ 4; see 11/8/05 Order at 3, Docket No. 23 (detailing basis upon which

28 nonmembers contribute fair share fees to Union). The allegations in the Complaint center

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S MEMO. OF P&As IN SUPPORT OF

MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT

Knox, et a l. v. Westly, et al., C ase No. 2 :05-C V-2198 M C E (K JM )

1

Case 2:05-cv-02198-MCE-KJM Document 39 Filed 02/17/2006 Page 3 of 9

1 around a temporary assessment enacted by the Union in Summer 2005 and effective beginning

2 with the September 2005 payroll (paid by the State on the first day of October), which has been

3 charged to members and fair share fee payers in addition to regular fees and dues. SUF ¶ 5.

4 Plaintiffs allege that the procedures followed by the Union in the passage, implementation, and

5 spending of the temporary assessment violated plaintiffs’ rights under the First and Fourteenth

6 Amendments of the Constitution. Id. ¶ 6.

7

As set forth in the Complaint, the alleged rights of member and non-member plaintiffs

8 with respect to the assessment and collection of the 2005 temporary assessment are separate and

9 distinct. Compare id. ¶ 2 with id. ¶ 7. As to non-members, plaintiffs claim that their rights 10 have been infringed because the Union allegedly failed to provide them with “an opportunity to

11 object to the use of the fee increase on . . . ballot propositions [in the November 8, 2005

12 California special election], politics and other nonbargaining activities; and an immediate

13 refund or reduction in the increased fee amount.” Id. ¶ 7; but cf. 11/8/05 Order at 5-6 (noting

14 that procedures followed by Union as to non-members were “unquestionably permitted” under

15 relevant Supreme Court precedent). But as to members, plaintiffs make a separate claim that

16 members’ rights have been infringed because the Union allegedly failed to provide them with

17 “(1) an opportunity to resign and, as nonmembers, raise an objection to the use of the dues/fee

18 increase on the [November 8] ballot propositions, politics and other nonbargaining activities;

19 and (2) an immediate refund or reduction of the increased dues/fee amount.” SUF ¶ 2.

20

The present motion seeks to dismiss the claim of plaintiff Ricker, the only current

21 Union member plaintiff, from this case. Plaintiff Ricker has been a member of the Union

22 continuously since March 17, 1999. Id. ¶ 8. Collective bargaining agreements that have

23 governed the terms and conditions of Mr. Ricker’s employment explain that he has the right to

24 resign his Union membership at any time and become a fair share fee payer. Id. ¶ 9. They

25 state, in relevant part:

26

When fair share fees are in effect, an employee may withdraw from membership

in the Union by sending a signed withdrawal letter to the Union with a copy to

27

State Controller at any time. An employee who so withdraws his/her

membership shall be subject to paying a Fair Share fee, if such a fee is

28

applicable.

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S MEMO. OF P&As IN SUPPORT OF

MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT

Knox, et a l. v. Westly, et al., C ase No. 2 :05-C V-2198 M C E (K JM )

2

Case 2:05-cv-02198-MCE-KJM Document 39 Filed 02/17/2006 Page 4 of 9

1 Id. ¶ 10. These collective bargaining agreements are and have been posted on and publicly

2 available through the Union’s and the California Department of Personnel Administration’s

3 websites. Id. ¶ 11.1/ Moreover, the Union sent Mr. Ricker a copy of his bargaining unit’s

4 collective bargaining agreement in 2003 or 2004, which he admitted he keeps on a shelf and

5 refers to when he has any questions regarding his employment. Id. ¶ 12.

6

Indeed, Mr. Ricker specifically testified in his deposition that he is aware that he does

7 not have to be a member of the Union, and that he can instead choose to resign his membership

8 and become a fair share fee payer. Id. ¶ 13. Since the day he joined the Union in 1999, Mr.

9 Ricker has also been aware that fair share fee payers have the ability to pay less money to the

10 Union than members pay in Union dues. Id. ¶ 14. And he testified that he is aware that fair

11 share fee payers have the specific right to object to paying for certain Union expenditures,

12 including some political expenditures. Id. ¶ 15.

13

Mr. Ricker admitted that he knew there was a vote on the temporary assessment by the

14 Union’s General Council. Id. ¶ 16. Mr. Ricker also knew, prior to its effective date, that the

15 assessment had passed, by virtue of a letter sent to all Union members and fair share fee payers

16 on August 31, 2005. Id. ¶ 17. Despite his knowledge that the temporary assessment had passed

17 and would increase his Union dues, Mr. Ricker decided not to resign his membership because

18 he prefers to retain the voting rights he enjoys as a Union member. Id. ¶ 18.

19

ARGUMENT

20 A. Legal Standards

21

The Union brings this motion to dismiss for lack of Article III standing – a matter of

22 subject matter jurisdiction – pursuant to Federal Rule of Civil Procedure 12(h)(3); this motion

23 is substantially identical to a Rule 12(b)(1) motion to dismiss.2/ The Court may consider and

24

25

1/ Although the most recent collective bargaining agreement has expired, its terms

26 remain in effect during the current contract negotiations by operation of law. Cal. Gov’t Code § 3517.8(a).

27

2/ A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction must be filed 28 before the filing of a responsive pleading. Fed. R. Civ. P. 12(b). Rule 12(h)(3) preserves a

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S MEMO. OF P&As IN SUPPORT OF

MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT

Knox, et a l. v. Westly, et al., C ase No. 2 :05-C V-2198 M C E (K JM )

3

Case 2:05-cv-02198-MCE-KJM Document 39 Filed 02/17/2006 Page 5 of 9

1 weigh extrinsic evidence in the context of a motion to dismiss under Rule 12(b)(1). Autery v.

2 United States, 424 F.3d 944, 956 (9th Cir. 2005); Roberts v. Corrothers, 812 F.2d 1173, 1177

3 (9th Cir. 1987) (where a jurisdictional issue is separable from the merits the court may hear

4 evidence and resolve factual disputes and no presumptive truthfulness attaches to plaintiff’s

5 allegations). Moreover, all of the material facts regarding the present motion are undisputed.

6 Therefore, partial summary judgment in favor of the Union on plaintiff Ricker’s claim on the

7 merits is also appropriate. Fed. R. Civ. P. 56(c); cf. Autery, 424 F.3d at 956 (where

8 jurisdictional issue and merits are intertwined, court should employ summary judgment

9 standard).

10

A plaintiff bears the burden of demonstrating Article III standing. Lujan v. Defenders of

11 Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136 (1992). As with other jurisdictional

12 challenges, when a defendant challenges the underlying factual basis for Article III standing by

13 way of a Rule 12(b)(1) motion accompanied by affidavits or other evidence (as opposed to

14 simply challenging the facial sufficiency of the allegations), “the party opposing the motion

15 must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject

16 matter jurisdiction.” Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir.

17 2003); accord Defenders of Wildlife, 504 U.S. at 561, 112 S. Ct. at 2136-37.

18

In order to satisfy the standing requirements of Article III of the Constitution, a plaintiff

19 bears the burden of showing that: “(1) [he] has suffered an injury-in-fact, (2) the injury is fairly

20 traceable to the challenged action of the defendant, and (3) the injury is likely to be redressed by

21 a favorable decision.” Loritz v. United States Court of Appeals, 382 F.3d 990, 991-92 (9th Cir.

22 2004); see also United States v. Hays, 515 U.S. 737, 743, 115 S. Ct. 2431, 2435 (1995) (party

23 seeking the exercise of jurisdiction in his favor bears burden).

24

25 defendant’s right to raise lack of subject matter jurisdiction, which of course can be raised at 26 any time, after filing an answer. Therefore, although identical in substance to a Rule 12(b)(1)
motion, this motion is most properly characterized as a Rule 12(h)(3) motion. Elvig v. Calvin 27 Presbyterian Church, 375 F.3d 951, 955 n.2 (9th Cir. 2004); Augustine v. United States, 704
F.2d 1074, 1075 n.3 (9th Cir. 1983); Cent. Valley Ag Enters. v. United States, 326 B.R. 807, 28 810 (E.D. Cal. 2005).

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S MEMO. OF P&As IN SUPPORT OF

MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT

Knox, et a l. v. Westly, et al., C ase No. 2 :05-C V-2198 M C E (K JM )

4

Case 2:05-cv-02198-MCE-KJM Document 39 Filed 02/17/2006 Page 6 of 9

1

“[T]he standing inquiry requires careful judicial examination of a complaint’s

2 allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the

3 particular claims asserted.” Allen v. Wright, 468 U.S. 737, 752, 104 S. Ct. 3315, 3325 (1984)

4 (emphasis added). The Supreme Court has “consistently stressed that a plaintiff’s complaint

5 must establish that he has a ‘personal stake’ in the alleged dispute, and that the alleged injury

6 suffered is particularized as to him.” Raines v. Byrd, 521 U.S. 811, 819, 117 S. Ct. 2312, 2317

7 (1997); see County of Riverside v. McLaughlin, 500 U.S. 44, 51, 111 S. Ct. 1661, 1667 (1991)

8 (“At the core of the standing doctrine is the requirement that a plaintiff allege personal injury

9 fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the

10 requested relief” (quotation marks and citations omitted)). Federal courts are without subject

11 matter jurisdiction over plaintiffs who lack Article III standing, and the claims of such plaintiffs

12 must be dismissed. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004).

13 B. Standing

14

Plaintiff Ricker lacks standing because he has plainly not suffered an injury-in-fact that

15 is traceable to the challenged action of the Union. The injury allegedly suffered by Union

16 members like Mr. Ricker is unambiguously set forth in the Complaint:

17

[the Union] has not provided [Plaintiff Ricker] and other member State

employees, who are potential objections, with: (1) an opportunity to resign and,

18

as nonmembers, raise an objection to the use of the dues/fee increase on the

ballot propositions, politics and other nonbargaining activities; and (2) an

19

immediate refund or reduction of the increased dues/fee amount.

20 SUF ¶ 2 (emphasis added).

21

During his deposition, Mr. Ricker expressly disavowed the allegation that he has been

22 denied an opportunity to resign:

23

Q. Now, it is fair to say, isn’t it, that the [Union] has never denied you the

opportunity to resign your membership in the [Union] and become a fair

24

share fee payer, correct?

25

A. No.

26

Q. In other words, that is fair to say?

27

A. Yes.

28 Id. ¶ 19.

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S MEMO. OF P&As IN SUPPORT OF

MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT

Knox, et a l. v. Westly, et al., C ase No. 2 :05-C V-2198 M C E (K JM )

5

Case 2:05-cv-02198-MCE-KJM Document 39 Filed 02/17/2006 Page 7 of 9

1

The evidence demonstrates that Mr. Ricker had no choice but to disavow the claim

2 alleged in the Complaint. Mr. Ricker testified that, from the day he joined the Union in 1999,

3 he was aware that he could opt to become a fair share fee payer and contribute less than a

4 member would to the Union (i.e., receive a reduction of his Union contributions). Id. ¶ 20. But 5 he decided to become a full member so that he could enjoy voting rights. Id. Moreover, Mr.

6 Ricker is aware that fair share fee payers have the right to object to paying for certain Union

7 expenditures, such as certain political expenditures. Id. ¶ 15. The governing, publicly-

8 available collective bargaining agreements verify Mr. Ricker’s understanding. Id. ¶¶ 9-10.

9 Knowing this, Mr. Ricker nonetheless decided to retain his membership rather than resign and

10 pay a reduced fair share fee. Id. ¶ 18.

11

Indeed, Mr. Ricker has not merely been a Union member, but an active Union member

12 who has participated in activities and obtained benefits available only to Union members. He

13 participated in a steward training in 1999 or 2000, and he has been a Union steward since then.

14 Id. ¶ 21. Mr. Ricker has voted in one or more contract ratification elections, and he has voted

15 in one or more union officer elections. Id. ¶ 22. He ran unsuccessfully for election as a

16 delegate to the Union’s General Council in 2005. Id. ¶ 23. And, for the last two or three years,

17 he has been a member of the Union’s Legal Club, which offers reduced-priced legal services to

18 members. Id. ¶ 24.

19

Mr. Ricker’s testimony makes clear that his disagreement with the Union is not the

20 claim alleged in the Complaint, but rather an entirely different dispute that is not alleged

21 anywhere in the Complaint:

22

Q. . . . Now, as you understand it, your claim in this case is not that you

were denied an opportunity to resign from the [Union] and become a

23

fair share fee payor [sic]. Your claim is that you believe you should

have the legal right to remain [a Union] member but object to paying for

24

this temporary assessment, correct?

25

A. Correct.

26 Id. ¶ 25 (emphasis added).

27

Mr. Ricker could have resigned his Union membership prior to the passage of the

28 temporary assessment in the summer of 2005. He could have resigned prior to the effective

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S MEMO. OF P&As IN SUPPORT OF

MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT

Knox, et a l. v. Westly, et al., C ase No. 2 :05-C V-2198 M C E (K JM )

6

Case 2:05-cv-02198-MCE-KJM Document 39 Filed 02/17/2006 Page 8 of 9

1 date of the temporary assessment in September 2005. He could have resigned prior to filing

2 this lawsuit. He did none of these things. Instead, he has chosen to remain a Union member

3 after the passage of the temporary assessment, through its effective date, and after the filing of

4 this lawsuit. Id. ¶ 26. But, having freely chosen not to resign with full knowledge of his right 5 to resign, Mr. Ricker is in no position to claim that the Union denied him the opportunity to

6 resign and become a fair share fee payer, which is the only claim in the Complaint relevant to a

7 member, and which he has expressly disavowed.

8

In sum, Mr. Ricker cannot establish any of the three prongs required for constitutional

9 standing. See Loritz, 382 F.3d at 991-92. He has plainly not suffered an “injury in fact” of the 10 type alleged in the Complaint. Because he has not suffered the injury alleged in the Complaint,

11 no alleged injury relevant to Mr. Ricker can be “fairly traceable” to the actions of the Union.

12 Finally, because he has suffered no injury, Mr. Ricker cannot demonstrate redressability.

13 Clearly, none of the relief sought in the Complaint could “redress” an injury that has not been

14 suffered. As the Supreme Court held in Steel Co. v. Citizens for a Better Environment, 523

15 U.S. 83, 107, 118 S. Ct. 1003, 1019 (1998): “[r]elief that does not remedy the injury suffered

16 cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability

17 requirement.”

18

Therefore, Mr. Ricker has no standing to pursue the claim alleged on his and other

19 Union members’ behalf. See Rivas v. Rail Delivery Serv., Inc., 423 F.3d 1079, 1083 (9th Cir.

20 2005) (plaintiff lacks standing where the acts alleged have caused the plaintiff no injury);

21 Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 554 (9th Cir. 2003) (no standing

22 where injury cannot be traced to the challenged provisions); Casey v. Lewis, 4 F.3d 1516, 1519

23 (9th Cir. 1993) (standing only where plaintiffs are directly injured by the challenged practices).

24 He is not a “particular plaintiff . . . entitled to an adjudication of the particular claims

25 asserted.” Allen, 468 U.S. at 752, 104 S. Ct. at 3325 (emphasis added). Nor is “the alleged

26 injury suffered . . . particularized as to him” such that he has a “‘personal stake’ in the alleged

27 dispute.” Raines, 521 U.S. at 819, 117 S. Ct. at 2317.

28 ///

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S MEMO. OF P&As IN SUPPORT OF

MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT

Knox, et a l. v. Westly, et al., C ase No. 2 :05-C V-2198 M C E (K JM )

7

Case 2:05-cv-02198-MCE-KJM Document 39 Filed 02/17/2006 Page 9 of 9

1 C. Merits

2

The undisputed facts demonstrate that Mr. Ricker’s member claim must also fail on the

3 merits. Mr. Ricker’s undisputed deposition testimony that the Union does provide members 4 with “an opportunity to resign and, as nonmembers, raise an objection” to the use of fees for

5 certain nonbargaining purposes (SUF ¶ 2) expressly contradicts the material allegations of the

6 Complaint. Thus, the Union is also entitled to summary adjudication of Mr. Ricker’s merits

7 claim.

8

CONCLUSION

9

For the foregoing reasons, the Union respectfully requests that the Court grant the

10 Union’s motion to dismiss and for summary judgment as to Plaintiff Ricker’s claim.

11

12 DATED: February 17, 2006

Respectfully submitted,

13

STEPHEN P. BERZON

JEFFREY B. DEMAIN

14

PEDER J. THOREEN

ALTSHULER, BERZON, NUSSBAUM,

15

RUBIN & DEMAIN

16

By: /s/ Peder J. Thoreen

17

Peder J. Thoreen

18

Attorneys for Defendant

Service Employees International Union, Local 1000

19

20

21

22

23

24

25

26

27

28

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000'S MEMO. OF P&As IN SUPPORT OF

MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

Knox, et a l. v. Westly, et al., C ase No. 2 :05-C V-2198 M C E (K JM )

8

 
 Case 2:05-cv-02198-MCE-KJM Document 63 Filed 09/29/2006 Page 1 of 2

1 STEPHEN P. BERZON (SBN 46540) JEFFREY B. DEMAIN (SBN 126715)
2 PEDERJ. THOREEN(SBN217081) Altshuler, Berzon, Nussbaum,
3 Rubin & Demain 177 Post Street, Suite 300
4 San Francisco, California 94108 Telephone: (415) 421-7151
5 Facsimile: (415) 362-8064 sberzon@altshulerberzon.com
6 jdemain@altshulerberzon.com pthoreen@altshulerberzon.com

7 Attorneys for Defendant Service EI~.ployees International Union,
8 Local 1000
9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE EASTERN DISTRICT OF CALIFORNIA
11

12 DIANNE KNOX; WILLIAM L. BLAYLOCK; )

EDWARD L. DOBROWOLSKI, JR.; KARYN )

13 GIL; THOMAS JACOB HASS; PATRICK )

JOHNSON; AND JON JUMPER, ON BEHALF)

14 OF THEMSELVES AND THE CLASS THEY )

SEEK TO REPRESENT,

)

15 Plaintiffs,

) )

16

v.

) )

)

17 STEVE WESTLY, Controller, State of

)

California; AND CALIFORNIA STATE

)

18 EMPLOYEES ASSOCIATION, LOCAL 1000, )

SERVICE EMPLOYEES INTERNATIONAL )

19 UNION, AFL-CIO-CLC,

)

)

20

Defendants.

)

)

21 --------------------------------------------------)

22

No. 2:05-CV-2198 MCE (KJM)
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000'S NOTICE OF MOTION FOR SUMMARY JUDGMENT
Date: October 30,2006 Time: 9:00 a.m. Judge Hon. Morrison C. England, Jr. Place: Courtroom 3
15th Floor

23

24

25

26

27
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000'S
28 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
Knox, et al. v. Westly, et a!., Case No. 2:05-CV-2198 MCE (KJM)

Case 2:05-cv-02198-MCE-KJM Document 63 Filed 09/29/2006 Page 2 of 2

1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

2

PLEASE TAKE NOTICE that on October 30,2006, at 9:00 a.m. in Courtroom 3 of the above-

3 entitled Court, located at 501 "I" Street, Sacramento, California, before the Honorable Morrison C.

4 England, Jr., defendant Service Employees International Union, Local 1000 (the "Union") will and
5 hereby does move the Court, pursuant to Federal Rule of Civil Procedure 56, for an order granting
6 summary judgment on all remaining claims in this action because the relief plaintiffs seek, a notice to all
Union nonmembers prior to the Union's implementation of a fair share fee increase, is contrary to long7
standing Supreme Court and Ninth Circuit law and is not warranted on the facts of this case. 8
This motion will be based upon this notice of motion and motion, the accompanying 9
memorandum ofpoints and authorities, the accompanying declarations of Lee King and Richard M. 10
Graham, any reply papers that we may file, the Court's complete file and records in this action, and such 11
other and further matters as the Court may properly consider at the hearing. 12'

13 DATED: September 28,2006
14 15 16 17 18 19 20

Respectfully submitted,
STEPHEN P. BERZON JEFFREY B. DEMAIN PEDER J. THOREEN ALTSHULER, BERZON, NUSSBAUM,
RUBIN & DEMAIN
BBy:y_-:-_,-_/=s~//-~=sP:/-~=Pe'~-e7~dd=e~r~~~J"J.~,..~.-T=~Th~h~~oo~=r.:er~ee~e~~nn~~__________ Peder J. Thoreen
Attorneys for Defendant Service Employees International Union, Local 1000

21

22

23

24

25

26

27

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000'S

28 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

Knox, et ai. v. Westiy, et ai., Case No. 2:05-CV-2198 MCE (KIM)

1

 
 Case 2:05-cv-02198-MCE-KJM Document 38 Filed 02/17/2006 Page 1 of 2

1 STEPHEN P. BERZON (SBN 46540) JEFFREY B. DEMAIN (SBN 126715)
2 PEDER J. THOREEN (SBN 217081) Altshuler, Berzon, Nussbaum,
3 Rubin & Demain 177 Post Street, Suite 300
4 San Francisco, California 94108 Telephone: (415) 421-7151
5 Facsimile: (415) 362-8064 sberzon@altshulerberzon.com
6 jdemain@altshulerberzon.com pthoreen@altshulerberzon.com
7
Attorneys for Defendant 8 Service Employees International Union,
Local 1000 9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE EASTERN DISTRICT OF CALIFORNIA

12

DIANNE KNOX; WILLIAM L. BLAYLOCK; )

13 ROBERT A. CONOVER; EDWARD L.

)

DOBROWOLSKI, JR.; KARYN GIL;

)

14 THOMAS JACOB HASS; PATRICK

)

JOHNSON; JON JUMPER; AND R. PAUL )

15 RICKER, ON BEHALF OF THEMSELVES )

AND THE CLASS THEY SEEK TO

)

16 REPRESENT,

)

)

17

Plaintiffs,

)

)

18

v.

)

)

19 STEVE WESTLY, Controller, State of

)

California; AND CALIFORNIA STATE

)

20 EMPLOYEES ASSOCIATION, LOCAL 1000, )

SERVICE EMPLOYEES INTERNATIONAL )

21 UNION, AFL-CIO-CLC,

)

)

22

Defendants.

)

_______________________________________ )

23

No. 2:05-CV-2198 MCE (KJM)
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S NOTICE OF MOTION AND MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT
Date: March 20, 2006 Time: 9:00 a.m. Judge Hon. Morrison C. England, Jr. Place: Courtroom 3
15th Floor

24

25

26

27

28
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S NOTICE OF MOTION AND MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT Knox, et a l. v. Westly, et al., C ase No. 2 :05-C V-2198 M C E (K JM )

Case 2:05-cv-02198-MCE-KJM Document 38 Filed 02/17/2006 Page 2 of 2

1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

2

PLEASE TAKE NOTICE that on March 20, 2006, at 9:00 a.m. in Courtroom 3 of the

3 above-entitled Court, located at 501 “I” Street, Sacramento, California, before the Honorable

4 Morrison C. England, Jr., defendant Service Employees International Union, Local 1000 (the

5 “Union”) will and hereby does move the Court, pursuant to Federal Rules of Civil Procedure

6 12(h)(3) and 56, for an order dismissing and summarily adjudicating the claims of Plaintiff R.

7 Paul Ricker because he lacks standing to sue and/or because there is no genuine dispute as to

8 any material fact and the Union is entitled to judgment as a matter of law on Mr. Ricker’s

9 claim.

10

This motion will be based upon this notice of motion and motion, the accompanying

11 memorandum of points and authorities, the accompanying declaration of Jeffrey B. Demain, the

12 accompanying statement of undisputed facts, any reply papers that we may file, the Court’s

13 complete file and records in this action, and such other and further matters as the Court may

14 properly consider at the hearing.

15

16 DATED: February 17, 2006

Respectfully submitted,

17

STEPHEN P. BERZON

JEFFREY B. DEMAIN

18

PEDER J. THOREEN

ALTSHULER, BERZON, NUSSBAUM,

19

RUBIN & DEMAIN

20

By: /s/ Peder J. Thoreen

21

Peder J. Thoreen

22

Attorneys for Defendant

Service Employees International Union, Local 1000

23

24

25

26

27

28

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000’S NOTICE OF MOTION AND MOTION

TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT

Knox, et a l. v. Westly, et al., C ase No. 2 :05-C V-2198 M C E (K JM )

1

 
 Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 1 of 12

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 DIANNE KNOX; WILLIAM L. BLAYLOCK; ROBERT A. CONOVER;
12 EDWARD L. DOBROWOLSKI, JR.; KARYN GIL; THOMAS JACOB HASS;
13 PATRICK JOHNSON; and JON JUMPER, On Behalf of
14 Themselves and the Class They Seek to Represent,
15 Plaintiffs,
16

No. 2:05-cv-2198-MCE-KJM

17

v.

MEMORANDUM AND ORDER

18 STEVE WESTLY, Controller, State of California; and
19 CALIFORNIA STATE EMPLOYEES ASSOCIATION, LOCAL 1000,
20 SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO-
21 CLC,

22

Defendants.

23

24

----oo0oo----

25

Through the present action, Plaintiffs, state employees,

26 seek redress against Defendants Steve Westly and California State

27 Employees Association, Local 1000, Service Employees

28 International Union, AFL-CIO, CLC (“CSEA” or “the Union”).

1

Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 2 of 12

1

Plaintiffs allege that Defendants violated their First,

2 Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983 by,

3 inter alia, using Plaintiffs’ monies to support political causes

4 without satisfying the procedural safeguards compelled by Chicago

5 Teachers Union v. Hudson, 475 U.S. 292 (1986).

6

Before the Court is Defendant’s Motion for Summary Judgment.

7 For the reasons stated below, Defendant’s Motion is DENIED.

8

9

BACKGROUND

10

11

The Court has already set forth a partial factual background

12 for this action in its Order dated August 15, 2006, which is

13 incorporated by reference herein. Mem. & Order 2-4, August 15,

14 2006. In addition to that background, the following facts are

15 salient to the present inquiry. On or about July 30, 2005,

16 Defendants proposed an “Emergency Temporary Assessment to Build a

17 Political Fight-Back Fund” for use on “a broad range of political

18 expenses, including television and radio advertising, direct

19 mail, voter registration, voter education, and get out the vote

20 activities in our work sites and in our communities across

21 California.” Clerk’s Docket No. 1, Exhibit A. The proposal

22 further clarified that “The funds from this emergency temporary

23 assessment will be used specifically in the political arenas of

24 California to defend and advance the interests of members of

25 Local 1000 and the important public services they provide.” Id.

26 (emphasis added).

27 ///

28 ///

2

Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 3 of 12

1 The proposal went on to explain that “The Fund will not be used

2 for regular costs of the union - such as office rent, staff

3 salaries or routine equipment replacement, etc.” Id. As opposed

4 to being used on regular costs of the union, the Fight Back Fund

5 was targeted primarily at defeating certain ballot propositions

6 in a special election which was held on November 8, 2005. The

7 temporary assessment was scheduled to terminate on December 31,

8 2006. Def. Stmt. of Undisp. Facts, ¶ 20. In total, the

9 temporary assessment was expected to raise approximately

10 $12,000,000 in additional capital for CSEA’s use. Id. ¶ 21.

11

12

STANDARD

13

14

The Federal Rules of Civil Procedure provide for summary

15 judgment when “the pleadings, depositions, answers to

16 interrogatories, and admissions on file, together with

17 affidavits, if any, show that there is no genuine issue as to any

18 material fact and that the moving party is entitled to a judgment

19 as a matter of law.” Fed. R. Civ. P. 56(c). One of the

20 principal purposes of Rule 56 is to dispose of factually

21 unsupported claims or defenses. Celotex Corp. v. Catrett, 477

22 U.S. 317, 325 (1986).

23

Rule 56 also allows a court to grant summary adjudication on

24 part of a claim or defense. See Fed. R. Civ. P. 56(a) (“A party

25 seeking to recover upon a claim ... may ... move ... for a

26 summary judgment in the party’s favor upon all or any part

27 thereof.”); see also Allstate Ins. Co. v. Madan, 889 F. Supp.

28 374, 378-79 (C.D. Cal. 1995).

3

Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 4 of 12

1

The standard that applies to a motion for summary

2 adjudication is the same as that which applies to a motion for

3 summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v.

4 ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).

5

Under summary judgment practice, the moving party

always bears the initial responsibility of informing

6

the district court of the basis for its motion, and

identifying those portions of ‘the pleadings,

7

depositions, answers to interrogatories, and admissions

on file together with the affidavits, if any,’ which it

8

believes demonstrate the absence of a genuine issue of

material fact.

9

10 Celotex Corp. v. Catrett, 477 U.S. at 323 (quoting Rule 56(c)).

11

If the moving party meets its initial responsibility, the

12 burden then shifts to the opposing party to establish that a

13 genuine issue as to any material fact actually does exist.

14 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

15 585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.

16 253, 288-89 (1968).

17

In attempting to establish the existence of this factual

18 dispute, the opposing party must tender evidence of specific

19 facts in the form of affidavits, and/or admissible discovery

20 material, in support of its contention that the dispute exists.

21 Fed. R. Civ. P. 56(e). The opposing party must demonstrate that

22 the fact in contention is material, i.e., a fact that might

23 affect the outcome of the suit under the governing law, and that

24 the dispute is genuine, i.e., the evidence is such that a

25 reasonable jury could return a verdict for the nonmoving party.

26 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52

27 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and Paper

28 Workers, 971 F.2d 347, 355 (9th Cir. 1987).

4

Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 5 of 12

1 Stated another way, “before the evidence is left to the jury,

2 there is a preliminary question for the judge, not whether there

3 is literally no evidence, but whether there is any upon which a

4 jury could properly proceed to find a verdict for the party

5 producing it, upon whom the onus of proof is imposed.” Anderson,

6 477 U.S. at 251 (quoting Improvement Co. v. Munson, 14 Wall. 442,

7 448, 20 L.Ed. 867 (1872)). As the Supreme Court explained,

8 “[w]hen the moving party has carried its burden under Rule 56(c),

9 its opponent must do more than simply show that there is some

10 metaphysical doubt as to the material facts .... Where the record

11 taken as a whole could not lead a rational trier of fact to find

12 for the nonmoving party, there is no ‘genuine issue for trial.’”

13 Matsushita, 475 U.S. at 586-87.

14

In resolving a summary judgment motion, the evidence of the

15 opposing party is to be believed, and all reasonable inferences

16 that may be drawn from the facts placed before the court must be

17 drawn in favor of the opposing party. Anderson, 477 U.S. at 255.

18 Nevertheless, inferences are not drawn out of the air, and it is

19 the opposing party’s obligation to produce a factual predicate

20 from which the inference may be drawn. Richards v. Nielsen

21 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985).

22

23

ANALYSIS

24

25

Plaintiffs central contention is that CSEA imposed a twenty

26 five to thirty five percent increase in nonmember state workers’

27 agency fees without satisfying the requisite constitutional

28 protections inherent in the First and Fourteenth Amendments.

5

Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 6 of 12

1 For support, Plaintiffs rely on Chi. Teachers Union, Local No. 1,

2 AFT, AFL-CIO, et. al., v. Hudson, et. al., wherein the Supreme

3 Court balanced the right of a union to require every employee to

4 contribute to the cost of collective-bargaining activities

5 against the right of objecting nonmembers to be free from

6 compulsory subsidization of ideological activities with which

7 they disagree. Id. at 303 (citing Abood v. Detroit Bd. of Educ.,

8 431 U.S. 209, 237 (1977).

9

In striking that balance, the Court articulated at least

10 three fundamental requirements that must be met in order to

11 protect the constitutional rights and interests of both unions

12 and individuals. Specifically, in order for a union to

13 constitutionally seize funds from nonmember workers, the union

14 must provide an adequate explanation of the basis for the fee,

15 must provide a reasonably prompt opportunity to challenge the

16 amount of the fee before an impartial decision maker, and place

17 in escrow the amounts reasonably in dispute while such challenges

18 are pending. Hudson, 475 U.S. at 310.

19

Here, CSEA provided Plaintiffs with a notice of proposed

20 dues for 2005-2006 on June 30, 2005 (“June Hudson Notice”). That

21 notice did not expressly set forth the special assessment later

22 imposed on all state workers, including Plaintiff nonunion state

23 workers. The question raised by the imposition of this special

24 assessment is whether the June Hudson Notice was sufficient to

25 satisfy the Hudson procedural safeguards as to the special

26 assessment or whether an additional safeguard in the form of a

27 mid-year Hudson notice was required given the unusual nature and

28 magnitude of the assessment.

6

Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 7 of 12

1

When the Court first analyzed this issue, it was in the

2 context of a preliminary injunction which is an extraordinary

3 remedy, and places on Plaintiffs the burden of proving the

4 propriety of such a remedy by clear and convincing evidence. See

5 Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 442 (1974).

6 In light of the extreme remedy sought, the Court found that

7 Plaintiffs failed to show that the balance of hardships tipped

8 sharply in favor of granting the requested injunction. The

9 Plaintiff’s Motion was, accordingly, denied.

10

As noted above, the Court is presently considering a Motion

11 for Summary Judgment brought by the Defendants. In this context,

12 the Court is operating under a different standard than that

13 presented by Plaintiffs’ earlier Motion for Temporary Restraining

14 Order and/or Preliminary Injunction. Rather than Plaintiffs

15 bearing the burden of showing the hardships tip sharply in their

16 favor warranting the extreme remedy of injunction, Defendants now

17 bear the burden of informing the Court of the basis for its

18 motion, and identifying those portions of the pleadings which it

19 believes demonstrate the absence of a genuine issue of material

20 fact and entitle them to judgment as a matter of law. Celotex,

21 477 U.S. at 323.

22

23 A. Constitutional Safeguards

24

25

Plaintiffs assert that the June Hudson Notice was

26 constitutionally infirm because the special assessment

27 constituted a twenty five to thirty six percent fee increase

28 without an opportunity to object to this increase.

7

Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 8 of 12

1 Plaintiffs go on to argue that given the Union’s express intent

2 to use the special assessment for the sole purpose of speaking to

3 political issues, their First Amendment rights have been

4 abridged.

5

CSEA rebuts that Hudson does not require additional notice

6 for a mid-year change in agency fees. CSEA further avers that

7 Hudson, together with Ninth Circuit precedent, requires unions’

8 yearly notices be based on proposed expenditures computed from

9 the prior year’s audited figures. CSEA expressly claims there is

10 no mandate whatsoever that Hudson notice disclosures be based on

11 projected expenditures. In addition, CSEA objects to Plaintiffs’

12 contention that the Special Assessment was purely for political

13 purposes. Rather, CSEA contends some of the assessment was

14 expended for purposes chargeable to all state workers whether

15 union members or not. This being the case, CSEA argues that it,

16 too, has a right to speak and mandating a mid-year Hudson notice

17 impermissibly abridges that right.

18

The Court first notes that CSEA’s position is largely

19 grounded in a footnote contained in the seminal Hudson case where

20 the Supreme Court recognized that “...there are practical reasons

21 why absolute precision in the calculation of the charge to

22 nonmembers cannot be expected or required." Hudson, 475 U.S. at

23 307, n. 18. CSEA contends the foregoing footnote expressly

24 permits an increase in dues, no matter the percentage in that

25 increase, without further adherence to the procedural safeguards

26 so carefully crafted in Hudson and its progeny. The Court

27 disagrees.

28 ///

8

Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 9 of 12

1

While footnote 18 wisely recognizes that a union cannot,

2 with “absolute precision,” forecast sums that will ultimately be

3 charged in a succeeding year, this accession does not efface the

4 procedural edict so deliberately charged in Hudson.

5 Specifically, that nonunion members receive: 1) an adequate

6 explanation of the basis for fair share fees collected, 2) a

7 reasonably prompt opportunity to challenge the amount of the fee

8 before an impartial decision maker, and 3) that disputed funds be

9 placed in escrow while such challenges are pending. Id. at 310.

10

Additionally, footnote 18 itself recognizes that although a

11 union need not provide members with an exhaustive and detailed

12 list of all its expenditures, an adequate disclosure surely would

13 include the major categories of expenses. Id. at 307. The

14 special assessment here, exacted against all state workers

15 without explanation, without an opportunity to object and without

16 an escrow to hold disputed sums, ultimately resulted in

17 $12,000,000 of additional revenue for CSEA. To the extent that

18 sum was expended “in the political arenas of California to defend

19 and advance the interests of members of Local 1000,” it is

20 certainly a major category of expense.

21

To the extent CSEA argues the June Hudson Notice satisfied

22 the later twenty five to thirty five percent increase in fair

23 share fee payers’ dues, the Court finds otherwise.

24 ///

25 ///

26 ///

27 ///

28 ///

9

Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 10 of 12

1 First, the Supreme Court has warned “the Union should not be

2 permitted to exact a service fee from nonmembers without first

3 establishing a procedure which will avoid the risk that their

4 funds will be used, even temporarily, to finance ideological

5 activities unrelated to collective bargaining.” Id. at 305

6 (citing Abood, 431 U.S. at 244.) The Court further explained

7 that the interest in not being compelled to subsidize the

8 propagation of political or ideological views one opposes is

9 clear. Hudson, 475 U.S. at 305. The Court emphasized the point

10 by quoting comments of Thomas Jefferson and James Madison

11 regarding the “tyrannical character of forcing an individual to

12 contribute even ‘three pence’ for the ‘propagation of opinions

13 which he disbelieves.’” Id. (internal quotations omitted).

14

Here, CSEA extracted a material increase in fair share fees

15 from nonmember state workers, at least in part, for the

16 propagation of opinions with which many disbelieved without

17 providing them an opportunity to object nor to be heard before a

18 neutral decision maker. The Court can hardly describe the June

19 Hudson Notice as sufficient to address the First Amendment

20 concerns raised by a twenty five to thirty five percent special

21 assessment imposed mid-year and resulting in a $12,000,000

22 Political Fight Back Fund.

23

CSEA contends the constitutional balance struck in Hudson

24 and clarified in footnote 18 permits it to collect fees from

25 nonmember state workers and remit those nonchargeable sums in the

26 subsequent year. The Court does not read Hudson so broadly. In

27 fact, Hudson stated quite the opposite when the Court explained

28 that, “a pure rebate approach is inadequate.” Id. at 303-304.

10

Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 11 of 12

1 The Court went on to provide that “[U]nder ... a [rebate]

2 approach, in which the union refunds to the nonunion employee any

3 money to which the union was not entitled, the union obtains an

4 involuntary loan for purposes to which the employee objects.”

5 Id. (internal citations and quotations omitted). Accordingly,

6 while practical limitations foreclose absolute precision in a

7 Hudson notice, the facts of the present case are far more aligned

8 with a “pure rebate approach” than the mild variance contemplated

9 by footnote 18.

10

The fact that the involuntary extraction of sums by CSEA

11 from nonmember state workers implicates rights protected by the

12 First Amendment requires that the procedure for protecting those

13 rights be “carefully tailored to minimize any possible

14 infringement.” Id. at 303. The Court will reserve judgment as

15 to whether CSEA’s procedure with respect to the special

16 assessment can be described as being “carefully tailored” and

17 calculated to mitigate the possibility of violating Plaintiffs’

18 First Amendment rights as that question is not here presented.

19 However, the Court is presented with the question of whether CSEA

20 has provided sufficient reason why it should prevail in this

21 action as a matter of law. The Court finds that it has not.

22 Accordingly, CSEA’s Motion for Summary Judgment is DENIED.

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

11

Case 2:05-cv-02198-MCE-KJM Document 92 Filed 02/12/2007 Page 12 of 12

1

CONCLUSION

2

3

For the reasons set forth above, CSEA’s Motion for Summary

4 Judgment is denied.

5

IT IS SO ORDERED.

6 Dated: February 12, 2007
7

8

_____________________________

9

MORRISON C. ENGLAND, JR.

UNITED STATES DISTRICT JUDGE

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12

 
 Case 2:05-cv-02198-MCE-KJM Document 81 Filed 11/01/2006 Page 1 of 9

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 DIANNE KNOX; WILLIAM L. BLAYLOCK; ROBERT A. CONOVER;
12 EDWARD L. DOBROWOLSKI, JR.; KARYN GIL; THOMAS JACOB HASS;
13 PATRICK JOHNSON; and JON JUMPER, On Behalf of
14 Themselves and the Class They Seek to Represent,
15 Plaintiffs,
16

NO. 2:05-CV-2198-MCE-KJM

17

v.

ORDER

18 STEVE WESTLY, Controller, State of California; and
19 CALIFORNIA STATE EMPLOYEES ASSOCIATION, LOCAL 1000,
20 SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO-
21 CLC,

22

Defendants.

23

24

----oo0oo----

25

Through the present action, Plaintiffs, state employees,

26 have sued Defendants Steve Westly and California State Employees

27 Association, Local 1000, Service Employees International Union,

28 AFL-CIO, CLC (“CSEA” or “the Union”).

1

Case 2:05-cv-02198-MCE-KJM Document 81 Filed 11/01/2006 Page 2 of 9

1

Plaintiffs allege that Defendants violated their First,

2 Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983 by,

3 inter alia, using Plaintiffs’ monies to support political causes

4 without satisfying the procedural safeguards compelled by Chicago

5 Teachers Union v. Hudson, 475 U.S. 292 (1986).

6

Before the Court is Plaintiffs’ Motion for Class

7 Certification. For the reasons stated below, Plaintiffs’ Motion

8 is granted.

9

BACKGROUND

10

11

The Court has already set forth a detailed factual

12 background for this action in its Order dated August 15, 2006,

13 which is incorporated by reference and need not be reproduced

14 herein. Mem. & Order 2-4, August 15, 2006. In that Order, the

15 Court granted the Union’s Motion for Judgment on the Pleadings as

16 to Plaintiff Conover’s claims as a Union member. Id. As a

17 result of that August 15, 2006, Order, Plaintiffs have withdrawn

18 that portion of their Motion seeking to certify Union members as

19 part of the class. The Court agrees that, given the dismissal of

20 Plaintiff Conover’s claims as a Union member, certification as to

21 a class consisting of Union members cannot be sustained.

22 Plaintiff Conover, however, was not himself dismissed in that

23 Order and remains a Plaintiff in this litigation as a non-union

24 Plaintiff.

25 ///

26 ///

27 ///

28 ///

2

Case 2:05-cv-02198-MCE-KJM Document 81 Filed 11/01/2006 Page 3 of 9

1

STANDARD

2

3

A court may certify a class if a plaintiff demonstrates that

4 all of the prerequisites of Federal Rule of Civil Procedure 23(a)

5 have been met, and that at least one of the requirements of

6 Federal Rule of Civil Procedure 23(b) have been met. See Fed. R.

7 Civ. P. 23; see also Valentino v. Carter-Wallace, Inc., 97 F.3d

8 1227, 1234 (9th Cir. 1996). Before certifying a class, the trial

9 court must conduct a “rigorous analysis” to determine whether the

10 party seeking certification has met the prerequisites of Rule 23.

11 Id. at 1233. While the trial court has broad discretion to

12 certify a class, its discretion must be exercised within the

13 framework of Rule 23. Zinser v. Accufix Research Inst., Inc.,

14 253 F.3d 1180, 1186 (9th Cir. 2001).

15

Rule 23(a) provides four prerequisites that must be

16 satisfied for class certification: (1) the class must be so

17 numerous that joinder of all members is impracticable, (2)

18 questions of law or fact exist that are common to the class, (3)

19 the claims or defenses of the representative parties are typical

20 of the claims or defenses of the class, and (4) the

21 representative parties will fairly and adequately protect the

22 interests of the class. See Fed. R. Civ. P. 23(a). In addition,

23 a plaintiff must establish one of the following: (1) that there

24 is a risk of substantial prejudice from separate actions; (2)

25 that declaratory or injunctive relief benefitting the class as a

26 whole would be appropriate; or (3) that common questions of law

27 or fact predominate and the class action is superior to other

28 available methods of adjudication. See Fed. R. Civ. P. 23(b).

3

Case 2:05-cv-02198-MCE-KJM Document 81 Filed 11/01/2006 Page 4 of 9

1

ANALYSIS

2

3 1. Numerosity

4

5

As noted above, a class must be “so numerous that joinder of

6 all members is impracticable” before the action is class

7 certified. Fed. R. Civ. P. 23(a). A class numbering several

8 thousand satisfies the numerosity requirement with ease. Baird

9 v. Ca. Faculty Ass’n, 2000 U.S. Dist. LEXIS 13594, *8 (D. Cal.

10 2000) (citations and quotations omitted). Plaintiffs allege the

11 class in this case is in the thousands and may be in the tens of

12 thousands. Compl. ¶ 12. Such an allegation is sufficient to

13 meet the numerosity requirement of Rule 23.

14

15 2. Commonality

16

17

A class has sufficient commonality if there are “questions

18 of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2).

19 The commonality preconditions of Rule 23(a)(2) are less rigorous

20 than the companion requirements of Rule 23(b)(3). Hanlon v.

21 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). Indeed,

22 Rule 23(a)(2) has been construed permissively. Id. All

23 questions of fact and law need not be common to satisfy the rule.

24 The existence of shared legal issues with divergent factual

25 predicates is sufficient, as is a common core of salient facts

26 coupled with disparate legal remedies within the class. Id.

27 ///

28 ///

4

Case 2:05-cv-02198-MCE-KJM Document 81 Filed 11/01/2006 Page 5 of 9

1

Here, the core legal theory advanced by Plaintiffs is that

2 each was deprived of his or her constitutional right to an

3 adequate explanation of the use of the fee increase; notice of

4 the right to object to and not pay for that portion of the

5 increase being used on the ballot propositions, politics and

6 other non-bargaining activities; a prompt opportunity to

7 challenge the amount of the increase, if any, that the Union

8 claims was spent on collective bargaining; and an escrow of the

9 amount in dispute. See Hudson, 475 U.S. at 307-10.

10

The foregoing allegations are plainly common questions of

11 law as to all proposed class members. Plaintiffs allege an

12 identical right not to have their fair share fee seized without

13 the protections afforded by Hudson. Accordingly, the Court finds

14 the requirement of commonality is met.

15

16 3. Typicality

17

18

The typicality prerequisite of Rule 23(a) is fulfilled if

19 “the claims or defenses of the representative parties are typical

20 of the claims or defenses of the class.” Fed. R. Civ. P.

21 23(a)(3). Under the rule’s permissive standards, representative

22 claims are “typical” if they are reasonably co-extensive with

23 those of absent class members; they need not be substantially

24 identical. Hanlon, 150 F.3d at 1020.

25

CSEA vigorously contends that a class consisting of both

26 objecting and non-objecting non-union members is insufficiently

27 typical for class certification.

28 ///

5

Case 2:05-cv-02198-MCE-KJM Document 81 Filed 11/01/2006 Page 6 of 9

1 More precisely, CSEA contends that typicality does not exist

2 because there are defenses to liability that exist against the

3 class that do not exist against the named Plaintiffs. CSEA

4 argues that both the objector and non-objector subclasses

5 received a Hudson notice in June 2005. That notice, they allege,

6 specifically alerted all non-members that their fair share fee is

7 “subject to change without further notice to fee payers.” Compl.

8 ¶ 31. Given the foregoing language being included in the June

9 Hudson notice, CSEA contends it will assert consent as a defense

10 to the non-objecting class members. A defense that cannot, by

11 definition, exist against the objecting named Plaintiffs.

12

As an initial matter, the suggestion that actual objectors

13 cannot represent a class of potential objectors has already been

14 rejected in this District. See Friedman v. Cal. State Employees

15 Ass’n, 163 LRRM (BNA) 2924, 2327 (E.D. Cal. 2000). In addition,

16 the theory of Plaintiffs’ case is that the June notice itself was

17 inadequate. Under that theory, whether a party objected or did

18 not object is irrelevant because a requirement to object does not

19 arise until adequate notice has been given. Consequently, the

20 Court finds sufficient typicality to certify the class.

21

22 4. Adequacy of Representation

23

24

The final hurdle interposed by Rule 23(a) is that “the

25 representative parties will fairly and adequately protect the

26 interests of the class.” Fed. R. Civ. P. 23(a)(4).

27 ///

28 ///

6

Case 2:05-cv-02198-MCE-KJM Document 81 Filed 11/01/2006 Page 7 of 9

1 To satisfy constitutional due process concerns, absent class

2 members must be afforded adequate representation before entry of

3 a judgment which binds them. See Hansberry v. Lee, 311 U.S. 32,

4 42-43 (1940). Resolution of two questions determines legal

5 adequacy: (1) do the named plaintiffs and their counsel have any

6 conflicts of interest with other class members and (2) will the

7 named plaintiffs and their counsel prosecute the action

8 vigorously on behalf of the class? See Hanlon, 150 F.3d at 1020

9 (citing Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507,

10 512 (9th Cir. 1978)).

11

Defendants here contend that the proposed class cannot be

12 certified because of a conflict of interest. This conflict

13 arises, they argue, because Plaintiffs are seeking punitive

14 damages. During the oral argument before this Court, Plaintiffs

15 clarified they were not seeking punitive damages and stipulated

16 to amend their Complaint to remove any reference or claim for

17 punitive damages. In light of this action by plaintiffs, CSEA’s

18 conflict of interest argument fails.

19

Further, the Ninth Circuit recently clarified that even had

20 Plaintiffs not agreed to forego a pursuit of punitive damages,

21 CSEA’s argument would nonetheless have failed. This circuit does

22 not favor denial of class certification on the basis of

23 speculative conflicts. See Cummings v. Connell, 316 F.3d 886,

24 896 (9th Cir. 2003); see also Blackie v. Barrack, 524 F.2d 891,

25 909 (9th Cir. 1975) (noting that class members might have

26 differing interests at later stages of litigation, but that

27 “potential conflicts” do not present a valid reason for refusing

28 to certify a class). Accordingly, the Court finds the

7

Case 2:05-cv-02198-MCE-KJM Document 81 Filed 11/01/2006 Page 8 of 9

1 requirement of adequacy of representation satisfied.

2 5. Rule 23(b)(1)(A)

3

4

A class action may be certified under this subsection if

5 individual litigation would create the possibility of

6 inconsistent adjudications that “would establish incompatible

7 standards of conduct for the party opposing the class.” Fed. R.

8 Civ. P. 23(b)(1)(A). Plaintiffs argue that all the proposed

9 class members of potential objectors are owed the same duties

10 under Hudson and that each, therefore, could bring an action to

11 enforce his or her rights in either a state or federal forum.

12 This scenario, Plaintiffs allege, would subject Defendants to a

13 risk of incompatible standards of conduct as to their duties to

14 members of the proposed class. The Court agrees. To the extent

15 each state worker was entitled to a Hudson notice regarding the

16 special assessment but did not receive that notice, each would

17 have an independent cause of action for this alleged violation.

18 Such a wide group of potential litigants could certainly give

19 rise to incompatible standards of conduct. Accordingly, the

20 Court finds this action proper for class certification under

21 Federal Rule of Civil Procedure 12(b)(1)(A).

22

23 6. Appointment of Class Counsel

24

25

Plaintiffs request that W. James Young, a staff attorney

26 employed by the National Right to Work Legal Defense Foundation,

27 Inc., be appointed as class counsel pursuant to Federal Rule of

28 Civil Procedure 23.

8

Case 2:05-cv-02198-MCE-KJM Document 81 Filed 11/01/2006 Page 9 of 9

1 Defendants do not object to Plaintiffs’ request or controvert in

2 any way Mr. Young’s ability to fairly and adequately represent

3 the class. In addition, Plaintiffs have provided sufficient

4 evidence that Mr. Young is competent to pursue this action on

5 behalf of the class. In light of foregoing and the Court’s

6 determination that Plaintiffs’ Motion for Class Certification

7 should be granted, the Court hereby appoints Mr. Young as class

8 counsel.

9

10

CONCLUSION

11

12

The Court hereby grants Plaintiffs’ Motion for Class

13 Certification. The Court finds that the named Plaintiffs are

14 adequate representatives of the class of individuals who pay

15 compulsory fees to CSEA who are not members and who have, at one

16 time or another, specifically objected to the use of their agency

17 fees for politics or other non-bargaining activities. The Court

18 further finds that Plaintiff Conover is an adequate

19 representative of the class of individuals who pay compulsory

20 fees to CSEA who are not members and who have not at any time

21 objected to the use of their agency fees for politics or other

22 non-bargaining activities.

23

IT IS SO ORDERED.

24 DATED: October 31, 2006

25

_____________________________

26

MORRISON C. ENGLAND, JR

27

UNITED STATES DISTRICT JUDGE

28

9

 
 Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 1 of 27

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 DIANNE KNOX; WILLIAM L. BLAYLOCK; ROBERT A. CONOVER;
12 EDWARD L. DOBROWOLSKI, JR.; KARYN GIL; THOMAS JACOB HASS;
13 PATRICK JOHNSON; and JON JUMPER, On Behalf of Themselves and the
14 Class They Seek to Represent,

No. 2:05-cv-02198-MCE-KJM

15

Plaintiffs,

16 v.
17 STEVE WESTLY, Controller,
18 State of California; and CALIFORNIA STATE EMPLOYEES
19 ASSOCIATION, LOCAL 1000, SERVICE EMPLOYEES
20 INTERNATIONAL UNION, AFL-CIOCLC,
21 Defendants.
22

MEMORANDUM AND ORDER

23 ----oo0oo----
24

25

26 ///

27 ///

28 ///

1

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 2 of 27

1

Through the present action, Plaintiffs, state employees, seek

2 redress against Defendants, Steve Westly, the Controller of the

3 State of California (“Controller”), and California State Employees

4 Association, Local 1000, Service Employees International Union,

5 AFL-CIO, CLC (“the Union”), for violations of their First, Fifth, 6 and Fourteenth Amendment rights under 42 U.S.C. § 1983 by, inter 7 alia, using Plaintiffs’ monies to support political causes without

8 satisfying constitutionally required procedural safeguards as

9 compelled by Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).

10

Plaintiffs seek Summary Judgment as to the case in its

11 entirety, or, alternatively, Summary Adjudication of individual

12 claims, arguing that Defendants failed to provide any notice to

13 employees regarding the basis for the temporary assessment

14 imposed by the Union from September 2005 through December of

15 2006. Defendants filed a cross-motion seeking Partial Summary

16 Judgment as to the nonobjecting class of Plaintiffs, arguing that

17 those Plaintiffs consented to the use of their wages to fund the

18 Union’s temporary assessement when they failed to object after

19 receiving the Union’s annual Hudson notice. Defendants also ask

20 that this Court grant Summary Adjudication limiting the relevant

21 time period of Plaintiffs’ claims to September 2005 through June

22 2006 (inclusive). For the reasons set forth below, Plaintiffs’

23 Motion is granted, and Defendants’ Motion is granted in part and 24 denied in part.1

25 ///

26

27

1 Because it is determined that oral argument would not be

of material assistance, the Court ordered this matter submitted 28 on the briefing. E.D. Cal. Local Rule 78-230(h).

2

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 3 of 27

1

BACKGROUND

2

3

Though the following underlying facts material to the

4 disposition of this Motion are undisputed, the Court is aware

5 that the parties’ characterizations of those facts diverge

6 greatly.

7

Plaintiffs represent two classes of nonunion employees,

8 those who objected to the Union’s June 2005 Hudson Notice

9 (“objectors”) and those who did not (“nonobjectors”)

10 (collectively “Plaintiffs”). See Pls.’ Statement of Undisputed

11 Material Facts and Defs.’ Response Thereto, No. 11 (“UF”).

12 Defendants are the State Controller and the Union. Id., Nos. 8-

13 9.

14

The State of California has recognized the Union as the

15 exclusive bargaining agent for the Plaintiffs and other State

16 employees in bargaining units designated as Bargaining Units 1,

17 3, 4, 11, 14, 15, 17, 20, and 21. Id., No. 16. The Union and

18 the State of California have entered a series of Memoranda of

19 Understanding (“MOUs”) controlling the terms and conditions of

20 employment for Plaintiffs. Id. One such MOU includes a

21 provision requiring that all State employees in these Bargaining

22 Units join the Union as formal Union members, or if opting not to

23 join, have deducted from their wages a proportionate amount of

24 agency fees. Id., No. 17.

25

The Union issues a notice pursuant to Hudson every June.

26 This constitutionally required “Hudson notice” is meant to

27 provide nonmembers with, inter alia, an adequate explanation of

28 the basis of the agency fee. Hudson at 310.

3

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 4 of 27

1 Additionally the notice provides that, for thirty (30) days after

2 it is issued, nonunion employees can object to the collection of

3 full union dues and can elect instead to have only the reduced

4 rate deducted during the upcoming fee year. Finally, during that

5 30-day period, nonmembers can also challenge the Union’s

6 calculation of its chargeable and nonchargeable expenses. Such

7 challenges are resolved by an impartial decisionmaker. UF,

8 No. 18.

9

In June, 2005, the Union issued its annual Hudson notice

10 (“2005 Hudson Notice”). This notice did not indicate that a

11 temporary assessment would be included in the 2005-06 dues and

12 fees, but stated that “[d]ues are subject to change without

13 further notice to fee payers.” Id., No. 27.

14

The 2005 Hudson Notice set the agency fee to be deducted

15 from nonunion employee paychecks for the 2005-06 fiscal year at

16 99.1% of dues. That Notice also informed nonmembers that the

17 reduced agency fee (“fair share fee”) of 56.35% of the Union’s

18 annual dues, would be charged to nonmembers who objected to

19 paying the full agency fee and who requested a rebate pursuant to

20 the procedures and deadlines outlined in the Notice. The 56.35%

21 was based on the Union’s actual expenditures for the year ending

22 December 31, 2004, in which the Union calculated chargeable

23 expenditures to be 56.35% of its total expenditures. Id.,

24 No. 28.

25 ///

26 ///

27 ///

28 ///

4

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 5 of 27

1

On July 30, 2005, the Union proposed an “Emergency Temporary

2 Assessment to Build a Political Fight-Back Fund” (“Assessment”)

3 for “use for a broad range of political expenses, including

4 television and radio advertising, direct mail, voter

5 registration, voter education, and get out the vote activities in

6 our work sites and in our communities across California,”

7 specifically stating that “[t]he Fund will not be used for

8 regular costs of the union – such as office rent, staff salaries

9 or routine equipment replacement, etc.” Id., No. 20.

10 Additionally, the Union claimed that the Assessment was to “be

11 used specifically in the political arenas of California to defend

12 and advance the interests of members of the Union and the 13 important public services they provide.”2 This Assessment was

14 expected to raise $12 million for the Union. Id., No. 23. On

15 August 27, 2005, Union delegates to the CSEA General Council

16 voted to implement the temporary dues increase of one-fourth of

17 one percent of salary to create this “Political Fight Back Fund.”

18 Id., No. 22.

19 ///

20 ///

21 ///

22 ///

23
2 The Court notes Defendants’ assertion that the Assessment 24 was actually used “for a broad variety of expenditures, many of
which were for chargeable activities.” As is discussed, infra, 25 this is not material to the disposition of this Motion.
Additionally, the Court is cognizant of Defendants’ position that 26 none of their publications at the time the Assessment was adopted
actually stated that the Assessment would be used “exclusively” 27 for purposes set forth in those quotations or “exclusively” for
nonchargeable expenditures. This, too, is immaterial to the 28 Court’s disposition of the current Motion.

5

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 6 of 27

1

On August 31, 2005, the Union sent another letter, addressed

2 to “Local 1000 Members and Fair Share Fee Payers.” The letter

3 stated that Union members were subject to a dues increase and

4 that “[t]he $45 per month cap on...regular dues of 1% of gross

5 pay [would] continue in effect, but [would] not apply to this

6 additional .0025 temporary increase.” Id., No. 29. That letter

7 also claimed that the Union would use the funds from the

8 Assessment to “defeat Proposition 76 and Proposition 75 on

9 November 8.” Additionally, according to the Union, it intended

10 to “defeat another attack on [its] pension plan” in June of 2006,

11 and “[i]n November 2006, [it would] need to elect a governor and

12 a legislature who support public employees and the services

13 [they] provide.” Compl., Exh. D.

14

After receiving this letter, Plaintiff Dobrowolski called

15 the Union’s Sacramento office, and was directed to its Riverside

16 office where he left a message for Jodi Smith, area manager.

17 Smith returned his call and stated that, even if Dobrowolski

18 objected to the payment of the full agency fee, there was nothing

19 he could do about the September increase for the Assessment. She

20 also stated that “we are in the fight of our lives,” that the

21 Assessment was needed, and that there was nothing that could be

22 done to stop the Union’s expenditure of that Assessment for

23 political purposes. UF, No. 34.

24

Pursuant to the Assessment, the Controller began deducting

25 additional fees at the end of September, 2005. Id., No. 31.

26 Plaintiffs subsequently initiated this action in November of that

27 year.

28 ///

6

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 7 of 27

1

STANDARD

2

3

The Federal Rules of Civil Procedure provide for summary

4 judgment when “the pleadings, depositions, answers to

5 interrogatories, and admissions on file, together with

6 affidavits, if any, show that there is no genuine issue as to any

7 material fact and that the moving party is entitled to a judgment

8 as a matter of law.” Fed. R. Civ. P. 56(c). One of the

9 principal purposes of Rule 56 is to dispose of factually

10 unsupported claims or defenses. Celotex Corp. v. Catrett, 477

11 U.S. 317, 325 (1986).

12

Rule 56 also allows a court to grant summary adjudication on

13 part of a claim or defense. See Fed. R. Civ. P. 56(a) (“A party

14 claiming relief may move...for summary judgment on all or part of

15 the claim.”); see also Allstate Ins. Co. v. Madan, 889 F. Supp.

16 374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter

17 Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).

18

The standard that applies to a motion for summary

19 adjudication is the same as that which applies to a motion for

20 summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v.

21 ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).

22

Under summary judgment practice, the moving party

always bears the initial responsibility of informing

23

the district court of the basis for its motion, and

identifying those portions of ‘the pleadings,

24

depositions, answers to interrogatories, and admissions

on file together with the affidavits, if any,’ which it

25

believes demonstrate the absence of a genuine issue of

material fact.

26

27 Celotex at 323(quoting Rule 56(c)).

28 ///

7

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 8 of 27

1

If the moving party meets its initial responsibility, the

2 burden then shifts to the opposing party to establish that a

3 genuine issue as to any material fact actually does exist.

4 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

5 585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.

6 253, 288-89 (1968).

7

In attempting to establish the existence of this factual

8 dispute, the opposing party must tender evidence of specific

9 facts in the form of affidavits, and/or admissible discovery

10 material, in support of its contention that the dispute exists.

11 Fed. R. Civ. P. 56(e). The opposing party must demonstrate that

12 the fact in contention is material, i.e., a fact that might

13 affect the outcome of the suit under the governing law, and that

14 the dispute is genuine, i.e., the evidence is such that a

15 reasonable jury could return a verdict for the nonmoving party.

16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52

17 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper

18 Workers, 971 F.2d 347, 355 (9th Cir. 1987). Stated another way,

19 “before the evidence is left to the jury, there is a preliminary

20 question for the judge, not whether there is literally no

21 evidence, but whether there is any upon which a jury could

22 properly proceed to find a verdict for the party producing it,

23 upon whom the onus of proof is imposed.” Anderson, 477 U.S. at

24 251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20

25 L.Ed. 867 (1872)).

26 ///

27 ///

28 ///

8

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 9 of 27

1 As the Supreme Court explained, “[w]hen the moving party has

2 carried its burden under Rule 56(c), its opponent must do more

3 than simply show that there is some metaphysical doubt as to the

4 material facts .... Where the record taken as a whole could not

5 lead a rational trier of fact to find for the nonmoving party,

6 there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at

7 586-87.

8

In resolving a summary judgment motion, the evidence of the

9 opposing party is to be believed, and all reasonable inferences

10 that may be drawn from the facts placed before the court must be

11 drawn in favor of the opposing party. Anderson, 477 U.S. at 255.

12 Nevertheless, inferences are not drawn out of the air, and it is

13 the opposing party’s obligation to produce a factual predicate

14 from which the inference may be drawn. Richards v. Nielsen

15 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),

16 aff’d, 810 F.2d 898 (9th Cir. 1987).

17

18

ANALYSIS

19 I. PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

20

A. The 2005 Hudson Notice Did Not Provide an Adequate

Explanation of the Basis of the Assessment

21

22

The dispute in this case, while of great import, is over a

23 relatively simple question: Did Defendants’ June 2005 Hudson

24 Notice provide “an adequate explanation of the basis” supporting

25 the subsequent September 2005 Assessment?

26 ///

27 ///

28 ///

9

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 10 of 27

1

This somewhat narrow issue is drawn against a broader

2 backdrop of First Amendment jurisprudence. There is no question

3 that “[r]equiring nonunion employees to support their collective-

4 bargaining representative ‘has an impact upon their First

5 Amendment interests.” Hudson at 301 (quoting Abood v. Detroit

6 Bd. of Educ., 431 U.S. 209, 222 (1977)). Nevertheless, it is

7 constitutional for a “public employer to designate a union as the

8 exclusive collective-bargaining representative of its employees,

9 and to require nonunion employees, as a condition of employment,

10 to pay a fair share of the union’s costs of negotiating and

11 administering a collective-bargaining agreement .... [H]owever,

12 ... nonunion employees do have a constitutional right to ‘prevent

13 the Union’s spending a part of their required service fees to

14 contribute to political candidates and to express political views

15 unrelated to its duties as exclusive bargaining representative.’”

16 Hudson at 301-302 (quoting Abood at 234). The fees charged to

17 nonunion employees for services related to a union’s collective-

18 bargaining activities are termed “fair share” fees.

19

In Hudson, the Supreme Court elaborated “that the

20 constitutional requirements for the Union’s collection of agency

21 fees include an adequate explanation of the basis for the fee, a

22 reasonably prompt opportunity to challenge the amount of the fee

23 before an impartial decisionmaker, and an escrow for the amounts

24 reasonably in dispute while such challenges are pending.” Hudson

25 at 310. Notices issued pursuant to this language have come to be

26 known as “Hudson Notices.” Wagner v. Prof’l Eng’rs in Cal.

27 Gov’t, 354 F.3d 1036, 1039 (9th Cir. 2004).

28 ///

10

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 11 of 27

1

After receiving a Hudson notice, “the nonunion employee has

2 the burden of raising an objection, but ... the union retains the

3 burden of proof” as to the appropriate proportion of fair share

4 fees. Hudson at 306 (citing Abood at 239-240 (“Since the unions

5 possess the facts and records from which the proportion of

6 political to total union expenditures can reasonably be

7 calculated, basic considerations of fairness compel that they,

8 not the individual employees, bear the burden of [proof].”)).

9 Additionally, the important policies underlying Hudson inform the

10 determination of whether a Hudson notice is adequate. “Basic

11 considerations of fairness, as well as concern for the First

12 Amendment rights at stake,...dictate that the potential objectors

13 be given sufficient information to gauge the propriety of the

14 union’s fee.” Hudson at 306. “Leaving the nonunion employees in

15 the dark about the source of the figure for the agency fee-and

16 requiring them to object in order to receive information-does not

17 adequately protect the careful distinctions drawn in [prior case

18 law].” Hudson at 306.

19

Hudson has been interpreted in later cases as setting the

20 minimum constitutional protections that a union must provide

21 nonunion employees. See Davenport v. Wash. Educ. Ass’n, ___ U.S.

22 ___, 127 S. Ct. 2372, 2379 (2007). Indeed, our Supreme Court has

23 referred to the Hudson requirements as a “constitutional floor.”

24 Id.

25 ///

26 ///

27 ///

28 ///

11

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 12 of 27

1

To date, only the Northern District of California has had

2 the opportunity to address the Hudson requirements on facts

3 similar to this case. On two separate occasions that court

4 determined that a union’s annual Hudson notice provided adequate

5 information to supply a basis for a newly-imposed, post-objection

6 period, 10% increase in fees and dues. See Liegmann v. Cal.

7 Teachers Ass’n, 395 F. Supp. 2d 922 (N.D. Cal. 2005) (addressing

8 the question in the context of an application for a Temporary

9 Restraining Order (“TRO”)) (Liegmann I); Liegmann v. Cal.

10 Teachers Ass’n, 2006 WL 1795123 (N.D. Cal. 2006) (addressing the

11 issue in the context of cross-motions for summary judgment)

12 (Liegmann II).

13

In Liegmann I, that court was confronted with facts similar

14 to those this Court considers today. That union issued its

15 annual Hudson notice and subsequently implemented an

16 approximately 10% increase in dues and fair share fees to be used

17 either wholly or partially for political purposes. Liegmann I at

18 925-927. Under the standard for reviewing TRO applications, that

19 court had to balance the potential hardships to the parties.

20 Liegmann I at 925. The court balanced the union’s and the

21 nonobjectors’ constitutional rights against those of the

22 objectors and determined that the employee plaintiffs had failed 23 to show that the balance tipped in their favor.3 Id. at 926.

24 ///

25

26

3 To the extent the Northern District relied on an apparent

need to protect the union’s constitutional entitlement to 27 nonunion employees’ fees, that decision cannot stand. See

Davenport v. Washington Education Association, ___ U.S. ___, 127 28 S. Ct. 2372, 2379 (2007).

12

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 13 of 27

1

When examining the likelihood of success on the merits, the

2 Liegman I court stated, “This Court declines to find nonmembers

3 are further entitled to another Hudson Notice, in advance,

4 detailing exactly how much of the additional revenue generated by

5 a fee increase will be spent on which purpose. There is nothing

6 in Hudson or subsequent authority which requires that Hudson

7 Notices provide such advance detail.” Liegmann I at 927. That

8 court went on to determine that nothing in the facts indicated

9 that the “increase [was] so extraordinary that it require[d] a

10 departure from the procedure approved in Hudson.” Id. at 927.

11

In Liegmann II, the Northern District revisited the same

12 facts in the more developed posture of cross-motions for summary

13 judgment. As in this case, that union argued, and that court

14 agreed, that the standard Hudson notice provided adequate

15 information regarding the subsequent dues increase. Liegmann II

16 at *3. That court further determined that the assessment was not

17 so extraordinary as to warrant a departure from customary Hudson

18 procedures. Notably, that court did not have before it a case

19 raising the “question of whether an assessment for purely

20 political purposes would necessitate a deviation from Hudson

21 because the facts of [that] case [did] not raise such a

22 question.” Liegmann II at *5.

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

13

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 14 of 27

1

This Court, too, need only engage in a straight-forward

2 Hudson analysis to determine whether, under traditional

3 principles, the Union’s 2005 Hudson Notice was adequate to 4 provide a basis for its Assessment.4

5

Critical to the current endeavor, and hotly disputed between

6 the parties, is the characterization of the Assessment. As a

7 threshold issue, this Court will address the parties’

8 disagreement regarding the actual magnitude of the Assessment’s

9 impact. Plaintiffs state that the Assessment resulted in a 25-

10 35% increase in fees paid by nonmembers. Defendants, to the

11 contrary, attempt to align their cause with Liegmann, where the

12 court addressed a 10% increase in fair share fees, by arguing

13 that current objectors only saw an increase of 14.09%.

14 Defendants reach this conclusion by pointing out that, at least

15 for those who objected to the 2005 Hudson Notice, the only

16 portion of the increase they would be required to pay is 56.35%

17 of the 25% increase, which equates to a 14.09% increase in the 18 deduction from the objector’s salary.5 This figure is somewhat

19 misleading, however, because it refers only to the increase in

20 the percentage of salary deducted from objectors’ wages and not

21 to the percentage increase in fair share fees paid by nonunion

22 employees.

23 ///

24 4 Because the Court finds the 2005 Hudson Notice legally
25 inadequate under its traditional Hudson analysis, it is not necessary to consider whether the current facts, when compared to
26 those in the Liegmann cases, present such an extraordinary set of circumstances as to warrant a departure from Hudson.
27
5 The percentage of salary deducted from nonobjectors 28 increased by 24.775% (99.1% x 25%).

14

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 15 of 27

1

Plaintiffs’ characterization of the percentage increase in

2 fair share fees is more on point. Standard dues paid by those

3 objectors earning $4500 per month would be capped at 1% of

4 salary, or $45, per month. The Assessment was not subject to

5 this cap. Therefore, someone earning $4500 would be assessed an

6 additional .25% of his or her salary, or $11.25. Since this

7 person was an objector, he or she would only be required to pay

8 56.35% of the above union dues. In this case, that equals an

9 additional $6.34, which is approximately a 14% increase when

10 compared to the $45 monthly dues. However, objectors would not

11 have paid $45 in union dues. They would have paid only their pro

12 rata share, 56.35% of $45, which is approximately $25.34.

13 Therefore, the $6.34 increase actually equates to an increase of 14 approximately 25% in fair share fees.6

15

Additionally, because the standard dues are capped at 1% of

16 salary, and the Assessment was not subject to this cap, those

17 objectors who earned in excess of $4500 per month, would see this 18 proportion grow as their salaries increased.7 Therefore, the

19 fair share fees paid by both objectors and nonobjectors actually

20 increased by a much greater margin than Defendants would like to

21 suggest.

22 6 A nonobjector would see the same increase (99.1% x $45.00
23 = $44.60; 99.1% x $11.25 = $11.15; $11.15/$44.60 = 25%).

24

7 As an example, an objector earing earning $6000 per month

would pay only his pro rata share of 1% of his monthly salary, 25 capped at $45, again $25.34. However, the cap would not limit

the amount allocated to him for the Assessment. Therefore, he 26 would be required to pay his pro rata share of .25% of 1% of his

salary, in this case an additional $8.45. This equates to an 27 increase in his fair share fee of approximately 33%. A

nonobjector earning the same amount would see the same 28 approximate increase.

15

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 16 of 27

1 This increase represents a material change in the amount of funds

2 nonunion employees were required to contribute to Union

3 expenditures.

4

More importantly, however, is a determination of the nature

5 of the Assessment. Plaintiffs ask the Court to view the

6 Assessment as a fund intended solely for political and

7 ideological purposes. Defendants disagree and request this Court

8 view it as an ordinary dues and fees increase. This distinction

9 is relevant because there is no case law directly on point

10 dealing with an assessment intended solely to fund political and

11 ideological goals. However, this Court finds that the semantic

12 arguments are not dispositive and engages in the current

13 discussion only to clarify its opinion. Regardless of how the

14 assessment is cast, the Courts’ decision is the same.

15

Based on the Union’s own initial characterization of the

16 Assessment, the fund was intended for political purposes. The

17 Court is cognizant of the fact that, in retrospect, the Union may

18 be able to show that the entire fund was not used for

19 nonchargeable, political or ideological purposes. Based on that,

20 Defendants appear to argue that if any of the Assessment’s funds

21 were spent on chargeable activities, the Assessment should be

22 treated as an ordinary dues and fees increase. This argument

23 defies logic.

24 ///

25 ///

26 ///

27 ///

28 ///

16

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 17 of 27

1

First and foremost, the Union specifically couched its

2 proposed assessment as an “Emergency Temporary Assessment to

3 Build a Political Fight-Back Fund” for “use for a broad range of

4 political expenses, including television and radio advertising,

5 direct mail, voter registration, voter education, and get out the

6 vote activities in our work sites and in our communities across

7 California.” Additionally, the Union stated that the fund was

8 not to be used “for regular costs of the union - such as office

9 rent, staff salaries or routine equipment replacement, etc.”

10 Rather, it was to “be used specifically in the political arenas

11 of California to defend and advance the interests of members of

12 the Union and the important public services they provide.” See

13 UF, Nos. 20, 23.

14

When employees were officially notified of the Assessment,

15 the Union stated that it intended to use the funds to “defeat

16 Proposition 76 and Proposition 75,” to “defeat another attack on

17 [its] pension plan” in June of 2006, and to “elect a governor and

18 a legislature who [would] support public employees and the

19 services [they] provide” in November of 2006. Id., No 29; See

20 Compl., Exh. D. It is hard to imagine any circumstances in which

21 it could be more clear that an Assessment was passed for

22 political and ideological purposes.

23

Nevertheless, the Union argues that not all of the funds

24 were used for political purposes, and, even if they were, not all

25 political purposes are nonchargeable. However, the adequacy of

26 Hudson notices should not be viewed through a lens skewed by the

27 benefit of hindsight.

28 ///

17

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 18 of 27

1

The undisputed facts surrounding the implementation of the

2 Assessment evidence that the Union fully intended to use the 12

3 million additional dollars it anticipated to raise for political

4 purposes. Following the Union’s logic, it should be required

5 only to show that some small fraction of this fund was used for

6 chargeable purposes in order to justify subverting its Hudson

7 responsibilities.

8

Defendants call for the Court to be practical. However,

9 they cannot simultaneously avoid that call for practicality

10 themselves. The Union controls the categorization of its own

11 expenses. Following Defendants’ reasoning, there could never

12 exist an assessment for purely political purposes because it is

13 quite likely that some small portion of such a fund would, from a

14 practical perspective, always be chargeable. It would follow

15 that all post-notice, post-objection period assessments would be

16 considered dues and fees increases, covered by an already issued

17 Hudson notice. Unions would then be permitted to pass any such

18 future assessments as long as those funds built in the most

19 minute chargeable cushion, a cushion that is, from a practical

20 perspective, almost inevitable. Without repercussion, Unions

21 would be free to, even if inadvertently, trample on the First

22 Amendment rights of dissenters.

23

This strategy must fail. Even if every cent of the

24 assessment was not intended to be used for entirely political

25 purposes, it is clear that the Union’s intent was to depart

26 drastically from its typical spending regime and to focus on

27 activities that were political or ideological in nature.

28 ///

18

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 19 of 27

1 This shift represents a material difference from that

2 contemplated under the standard dues structure to which the 2005

3 Hudson Notice was directed and rendered the Hudson notice

4 obsolete as to that Assessment.

5

Defendants adamantly object to being required to provide a

6 second Hudson notice. Since they are required to base such

7 notices on audited figures, they argue that it is impossible to

8 provide an “advance” notice. However, advance notice is exactly

9 what Hudson requires. It is an advance notice provided to

10 nonunion employees so that they may make an informed decision as

11 to whether or not they object to the use of their funds for

12 political or ideological purposes. The Supreme Court’s

13 recognition that these notices would necessarily depend on prior

14 years’ financials does not change the underlying function of the

15 notice itself.

16

Defendants belabor the Supreme Court’s nod to practicality

17 in footnote 18 of the Hudson opinion. The Court there stated,

18 “We continue to recognize that there are practical reasons why

19 ‘[a]bsolute precision’ in the calculation of the charge to

20 nonmembers cannot be ‘expected or required.’” Hudson at 307

21 n.18. The Court went on, “Thus, for instance, the Union cannot

22 be faulted for calculating its fee on the basis of its expenses

23 during the preceding year.” Id. At no point did the Court state

24 that this procedure was the only constitutionally mandated manner

25 in which to prepare a Hudson notice. The Court simply noted

26 that, in the case of an annual notice, it was understandable that

27 the union relied on the prior year’s figures.

28 ///

19

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 20 of 27

1

Notably, however, there is at least some nexus between using

2 the whole of the prior year’s expenditures as a benchmark for the

3 whole of anticipated current year’s expenditures, which could

4 reasonably be expected to remain at a similar level. In that

5 instance, the nonunion employee is being asked to compare one

6 year’s apples to the next year’s apples. However, in the current

7 case, the nonunion employees were never given any opportunity to

8 make such an informed decision as to the Assessment. Rather,

9 after implementing the increase, the Union took the position that

10 nonunion employees had already been given an opportunity to make

11 an informed decision as to the Assessment by means of the 2005

12 Hudson Notice. The Union now turns a blind eye to the

13 inconsistency inherent in asking nonunion employees to compare

14 apples, in the form of the prior year’s financials, to oranges,

15 in the form of a new Assessment, an Assessment which was not to

16 be utilized for Union operations, but was instead earmarked for

17 discrete political purposes.

18

Defendants’ argument that it must rely on audited financial

19 figures which the Assessment has not yet generated is inapposite.

20 Defendants are correct that the Hudson Court stated “adequate

21 disclosure surely would include...verification by an independent

22 auditor.” Hudson at 307 n.18. However, the Ninth Circuit has

23 held that “while a formal audit is not always required, the union

24 must provide a statement of its chargeable and nonchargeable

25 expenses, together with an independent verification that the

26 expenses were actually incurred.” Harik v. Cal. Teachers Ass’n,

27 326 F.3d 1042, 1046 (9th Cir. 2003).

28 ///

20

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 21 of 27

1 “This passage certainly indicates that, although the Union must

2 provide a breakdown between chargeable and nonchargeable

3 expenses, the audit does not verify that the allocation is

4 correct, but that the expenses were indeed spent the way the

5 Union claims.” Cummings v. Connell, 316 F.3d 886, 892 (9th Cir.

6 2003) (rejecting the claim that an allocation audit was

7 required). “What is required is a real independent verification

8 of the financial data in question to make sure that expenditures

9 are being made the way the union says they are.” Id. (quoting

10 Prescott v. County of El Dorado, 177 F.3d 1102, 1107 (9th Cir.

11 1999), vacated and remanded on other grounds, 528 U.S. 1111

12 (2000), reinstated in relevant part, 204 F.3d 984 (9th Cir.

13 2000)).

14

Defendants had audited financials from the prior year from

15 which they were able to construct the requisite 2005 Hudson

16 Notice. Those expenditures were not necessarily relevant,

17 however, to allocations within the subsequent Assessment. It was

18 within the Union’s purview to determine which additional

19 expenditures were chargeable or nonchargeable. See Harik at

20 1046. It follows that it was up to the Union to determine the

21 relevant major categories of expenses as well. The auditor

22 merely “make[s] sure that expenditures are being made the way the

23 union says they are.” Prescott at 1107. Therefore, the Union

24 could have looked at the purpose of the Assessment and determined

25 which of its major categories of expenses should be allocated to

26 that fund. Those figures had been audited based on the prior

27 year’s information, as is acceptable under Hudson. The burden is

28 on the Union to put forth the TYPE of relevant expenditures.

21

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 22 of 27

1 The Court’s methodology provides the means by which the Union

2 could have met that burden by issuing a second, verified Hudson

3 notice, specific to the Assessment, without estimating exact

4 future revenue expenditures.

5

Ultimately, the crux of the analysis is “adequate

6 information.” The Supreme Court determined that, under the

7 Hudson facts, use of prior year’s financials was “adequate.” See

8 Hudson at 307 n.18. The Union’s use of its financials was not

9 adequate here because the categories of expenses included in the

10 2005 Hudson Notice were not relevant to the purposes for which

11 the funds in the Assessment were to be used. The Assessment,

12 even according to the Union’s own statements, was always intended

13 to provide a stream of funds whose use departed drastically from

14 standard Union spending.

15

A contrary decision from the one reached today would allow

16 unions to run roughshod over dissenting nonmembers by imposing a

17 post-objection period, “almost” purely political assessment,

18 holding the funds hostage, and then using those funds, even if

19 temporarily, for impermissible purposes.

20

An advance reduction by the amount of the fair share

21 percentage in the 2005 Hudson Notice does not alter this

22 analysis. As the Supreme Court has emphasized, “[A] remedy which

23 merely offers dissenters the possibility of a rebate does not

24 avoid the risk that dissenters’ funds may be used temporarily for

25 an improper purpose.” Hudson at 305.

26 ///

27 ///

28 ///

22

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 23 of 27

1 “A forced exaction followed by a rebate equal to the amount

2 improperly expended is thus not a permissible response to the 3 nonunion employees’ objections.” Hudson at 305-306.8

4

Regardless of whether couched in terms of the Constitution

5 or in terms of common sense, the 2005 Hudson Notice could not

6 possibly have supplied the requisite information with which

7 nonmembers could make an informed choice of whether or not to

8 object to the Assessment. Accordingly, this Court finds that the

9 2005 Hudson Notice was inadequate to provide a basis for the

10 Union’s Assessment.

11

12

B. New Notice is the Appropriate Remedy to Address the

Harm to Plaintiffs as a Result of the Inadequate 2005

13

Hudson Notice

14

15

“An inadequate notice gives fee payers insufficient

16 information with which to decide whether or not to object to

17 paying portions of the fee that are unrelated to representational

18 activities. A new, conforming notice, with a renewed opportunity

19 for fee payers to object to paying nonchargeable amounts,

20 addresses that harm.

21

22

8 Defendants’ attempt to dismiss constitutional concerns

because everything worked out in favor of the nonmember employees 23 after the fact is irrelevant. The question is not whether, in

retrospect, nonunion employees actually benefitted by being 24 “undercharged.” Rather, the question is whether those employees

were provided the constitutionally required minimum information 25 to make a forward-looking decision. They were not.

Additionally, Defendants’ argument hinges on the fact that the 26 chargeable funds expended overall increased. However, the

chargeable expenditures attributed to the Assessment were 27.35% 27 in 2005 and 18.77% in 2006, much lower than those attributed to

the standard Union dues and fees. Union’s Opp’n to Pls.’ Motion 28 for Summary Judgment, 12:13-15.

23

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 24 of 27

1 Following a new, conforming notice, fee payers could object, and

2 objectors would be entitled to a refund of the nonchargeable

3 portion of the fee, with interest.” Wagner at 1041. “[B]ecause

4 the injury that fee payers suffer from an inadequate Hudson

5 notice is the lack of an informed opportunity to object, the

6 proper remedy is for the union to issue proper notice and give

7 another opportunity for objection.” Id. at 1042 (emphasis in

8 original). These objectors will be entitled to receive a refund, 9 with interest, of the nonchargeable amount.9 See Id. at 1043.

10

11

C. Summary of Resolution of Plaintiffs’ Motion

12

13

The 2005 Hudson Notice, which detailed expenditures

14 regarding all Union activities, not just the limited activities

15 to be covered by the Assessment, could, by no stretch of the

16 imagination, have been applicable to this special fund. A second

17 Hudson notice was required in the case of this Assessment, not

18 because the 2005 Hudson Notice could not conceivably cover any

19 assessment or dues increase, but because the actual notice in

20 this case was inadequate to provide the requisite information

21 regarding the specific Assessment. See Hudson at 307 (“[T]he

22 original information given to the nonunion employees was

23 inadequate.”)

24 ///

25 ///

26
9 The Wagner court considered it relevant that there was no 27 evidence presented that the union had acted in bad faith. Id. at
1042. Since the same is true here, the Court need not engage in 28 any further analysis on this point.

24

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 25 of 27

1

Defendants essentially rely on the argument that Hudson and

2 its progeny left them a convenient loophole, one which now allows

3 them to subvert the central protections Hudson is meant to

4 provide. However, no self-asserted loophole will allow

5 Defendants to avoid the Constitution. The Hudson Court

6 articulated the minimum protections required under the First

7 Amendment. This Court will not undermine that interpretation by

8 allowing Defendants to hollowly assert that they adhered to

9 constitutional requirements by issuing a standard Hudson notice,

10 which, in actuality, failed to provide any “adequate explanation”

11 as to how the subsequent Assessment would be used.

12

Accordingly, Plaintiffs’ Motion for Summary Judgment is

13 granted. The Union shall issue a proper Hudson notice as to the

14 Assessment, with a renewed opportunity for nonmembers to object

15 to paying the nonchargeable portion of the fee. The Union is

16 ordered to issue nonmembers who, pursuant to this proper notice,

17 object to the Assessment a refund, with interest, of that amount.

18 Wagner at 1043.

19

20 II. DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION

21

A. Nonobjectors Did Not Consent to the Assessment by

Failing to Object to 2005 Hudson Notice

22

23

Defendants argue that nonobjectors have no claim against the

24 Union for the wrongful use of funds exacted from their paychecks

25 under the 2005 Hudson Notice since they did not object to that

26 Notice. This is basically the same claim, though differently

27 dressed, that Defendants’ raised in their already denied first

28 motion for summary judgment.

25

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 26 of 27

1 This Court need not address Defendants’ argument that “silence

2 equals consent” under the Constitution. In order for the

3 nonunion employees’ failure to object to have any legal

4 significance, the 2005 Hudson Notice must have been valid and

5 sufficient to cover the Asessment. See Wagner at 1043 (“Th[e]

6 principle [that plaintiffs burden of objection attaches only on

7 provision of proper notice] makes sense, for it would be unfair

8 to require a nonmember to object when the nonmember has, as a

9 matter of law, not been adequately informed of the facts.”).

10 Because this Court holds that the 2005 Hudson Notice was not

11 adequate as to the Assessment, nonobjectors could not have

12 legally consented to the relevant subsequent deductions.

13 Defendants’ Motion for Summary Adjudication as to the class of

14 nonobjectors is denied.

15

16

B. Plaintiffs’ Claims Are Limited to the Time Period

Encompassed by the Union’s 2005 Hudson Notice

17

18

Defendants also argue that any alleged wrong that occurred

19 due to the lack of an adequate Hudson notice was remedied when

20 the Union issued its subsequent Hudson notice in June of 2006.

21 See Wagner and discussion, supra.

22

Since the proper remedy for the current wrong is a new

23 Hudson notice and since Plaintiffs have not challenged the

24 adequacy of the Union’s 2006 or 2007 Hudson notices, this Court

25 agrees with Defendants that the only time period relevant to the

26 current dispute is September 2005 through June 2006 (inclusive).

27 Hence, Defendants’ Motion for Summary Adjudication as to the

28 relevant time period is granted.

26

Case 2:05-cv-02198-MCE-KJM Document 139 Filed 03/28/2008 Page 27 of 27

1

CONCLUSION

2

3

Plaintiffs’ Motion for Summary Judgment is GRANTED.

4 Defendants are ordered to issue, within sixty (60) days following

5 the date of this Order, a proper Hudson notice as to the 2005

6 Assessment, offering nonmembers a forty-five (45) day period in

7 which to object. The Union shall thereafter issue to those

8 nonmembers who object to this new Hudson notice a refund of the

9 nonchargeable portion of the Assessment. Pursuant to 28 U.S.C. §

10 1961, the Union shall further issue to those nonmembers all

11 interest accruing from the date(s) upon which nonchargeable

12 deductions were taken.

13

Defendants’ Motion for Summary Adjudication as to the

14 nonobjector class is DENIED and Defendants’ Motion asking the

15 Court to limit the relevant time period to September 2005 through

16 June 2006 (inclusive) is GRANTED.

17

The Clerk of the Court is directed to enter judgment in

18 favor of Plaintiffs and close the file.

19

IT IS SO ORDERED.

20

21 Dated: March 27, 2008

22

_____________________________

23

MORRISON C. ENGLAND, JR.

UNITED STATES DISTRICT JUDGE

24

25

26

27

28

27

 
 Case 2:05-cv-02198-MCE-KJM Document 102 Filed 07/17/2007 Page 1 of 3

1 W. JAMES YOUNG, Esq.

c/o National Right to Work Legal

2

Defense Foundation, Inc.

8001 Braddock Road, Suite 600 3 Springfield, Virginia 22160

(703) 321-8510

4

STEVEN R. BURLINGHAM, Esq. 5 California Bar No. 88544

Gary, Till & Burlingham 6 5330 Madison Avenue, Suite F

Sacramento, California 95841

7 (916) 332-8122

Facsimile — (916) 332-8153

8

ATTORNEYS FOR PLAINTIFFS AND 9 THE CLASS THEY REPRESENT

_________________________________________________________________________________

10

UNITED STATES DISTRICT COURT

11

FOR THE EASTERN DISTRICT OF CALIFORNIA

12

13 DIANNE KNOX; et al., ON BEHALF OF THEMSELVES
14 AND THE CLASS THEY REPRESENT,

15

Plaintiffs,

16 v.

17 STEVE WESTLY, Controller, State of California; et al.,
18 Defendants.
19

CASE NO. 2:05-cv-02198 MCE KJM
CORRECTED NOTICE OF MOTION; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION
HEARING DATE: Friday, 17 August 2007 TIME: 9:00 a.m. COURTROOM OF JUDGE ENGLAND, COURTROOM 3, 15TH FLOOR

20

21

PLEASE TAKE NOTICE that on Friday, 17 August 2007, at 9:00 a.m., or as soon thereafter as

22 counsel may be heard in Courtroom 3, 15th Floor of the United States District Court for the Eastern

23 District of California, located at 501 I Street, Sacramento, California, 95814, Plaintiffs Dianne Knox,

24 et al., on behalf of themselves and the class they represent (“the Employees”), by their undersigned

25 counsel, will move the Court, pursuant to Rule 56(a), FED.R.CIV.P., and CIV.L.R. 56-260(a),

26 E.D.CAL., for the entry of Summary Judgment in favor of the Employees and against Defendants, and

27 all of them, based upon the grounds that there is no genuine issue as to any material fact. See Celotex 28 Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248

CORRECTED NOTICE OF MOTION; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT — Case No. 2:05-cv-02198 MCE KJM

PAGE - 1

Case 2:05-cv-02198-MCE-KJM Document 102 Filed 07/17/2007 Page 2 of 3

1 (1986). Please note the corrected date for hearing on Plaintiffs’ Motion (Clerk’s Docket Nos. 98, 99,

2 100, and 101).

3 DATED: 17 July 2007

4

Respectfully submitted,

5

STEVEN R. BURLINGHAM, Esq.

California Bar No. 88544

6

Gary, Till & Burlingham

5330 Madison Avenue, Suite F

7

Sacramento, California 95841

(916) 332-8122

8

Facsimile — (916) 332-8153

9

/s/ W. James Young

10

W. JAMES YOUNG, Esq.

11

c/o National Right to Work Legal

Defense Foundation, Inc.

12

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

13

(703) 321-8510

14

ATTORNEYS FOR PLAINTIFFS AND THE CLASS THEY

REPRESENT

15

16

17

H:\WP\California Cases\Knox.CA\Summary Judgment\Corrected Notice.wpd

Tuesday, 17 July 2007, 10:54:15 AM
18

19

20

21

22

23

24

25

26

27

28

CORRECTED NOTICE OF MOTION; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT — Case No. 2:05-cv-02198 MCE KJM

PAGE - 2

Case 2:05-cv-02198-MCE-KJM Document 102 Filed 07/17/2007 Page 3 of 3

1

CERTIFICATE OF SERVICE

2

I, W. James Young, counsel for Plaintiffs, hereby certify that I electronically filed with the

3 Clerk of Court the foregoing Corrected Notice Of Motion, Plaintiffs’ Motion For Summary

4 Judgment And/Or For Summary Adjudication, using the CM/ECF system which will send

5 notification of such filing to all counsel of record, this 17th day of July, 2007.

6 /s/ W. James Young
7 W. JAMES YOUNG
8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CORRECTED NOTICE OF MOTION; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT — Case No. 2:05-cv-02198 MCE KJM

PAGE - 3

 
 Case 2:05-cv-02198-MCE-KJM Document 62 Filed 09/22/2006 Page 1 of 3

1 W. JAMES YOUNG, Esq.

c/o National Right to Work Legal

2

Defense Foundation, Inc.

8001 Braddock Road, Suite 600 3 Springfield, Virginia 22160

(703) 321-8510

4

STEVEN R. BURLINGHAM, Esq. 5 California Bar No. 88544

Gary, Till & Burlingham 6 5330 Madison Avenue, Suite F

Sacramento, California 95841

7 (916) 332-8122

Facsimile — (916) 332-8153

8

ATTORNEYS FOR PLAINTIFFS AND 9 THE CLASS THEY SEEK TO REPRESENT

_________________________________________________________________________________

10

UNITED STATES DISTRICT COURT

11

FOR THE EASTERN DISTRICT OF CALIFORNIA

12

13 DIANNE KNOX; et al., ON BEHALF OF THEMSELVES
14 AND THE CLASS THEY SEEK TO REPRESENT,

15

Plaintiffs,

16 v.

17 STEVE WESTLY, Controller, State of California; et al.,
18 Defendants.
19

CASE NO. 2:05-cv-02198 MCE KJM
PLAINTIFFS’ CORRECTED SECOND REVISED NOTICE OF MOTION; RENEWED MOTION FOR CLASS CERTIFICATION
HEARING DATE: Monday, 16 October 2006 TIME: 9:00 a.m. COURTROOM OF JUDGE ENGLAND, COURTROOM 3, 15TH FLOOR

20

21

22

23 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

24

PLEASE TAKE NOTICE, pursuant to Rule 23, FED.R.CIV.P., and CIV. L.R. 23-205,

25 E.D.CAL., that, due to an inadvertent error, the Motion set for hearing on Monday, 16 October 2006 at

26 9:00 a.m., or as soon thereafter as counsel may be heard, in the Courtroom or Chambers of the

27 Honorable Morrison C. England, Jr., United States District Judge, Courtroom 3, Fifteenth Floor, 28 United States Courthouse, 501 “I” Street, Sacramento, California, by Plaintiffs Dianne Knox, et al.,

Plaintiffs’ Corrected Second Notice of Hearing on Their Renewed Motion for Class Certification — Case No. 2:05-cv-02198 MCE KJM

PAGE - 1

Case 2:05-cv-02198-MCE-KJM Document 62 Filed 09/22/2006 Page 2 of 3

1 through counsel, is for their previously-filed Renewed Motion for Class Certification at Clerk’s Docket

2 No. 45, not Clerk’s Docket No. 17. This hearing is rescheduled from 7 August pursuant to this Court’s

3 Order of 11 July 2006 (Clerk’s Docket No. 59).

4 DATED: 22 September 2006

5

Respectfully submitted,

6

/s/ Steven R. Burlingham

7

STEVEN R. BURLINGHAM, Esq.

California Bar No. 88544

8

Gary, Till & Burlingham

5330 Madison Avenue, Suite F

9

Sacramento, California 95841

(916) 332-8122

10

Facsimile — (916) 332-8153

11

/s/ W. James Young

12

W. JAMES YOUNG, Esq.

c/o National Right to Work Legal

13

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

14

Springfield, Virginia 22160

(703) 321-8510 15

ATTORNEYS FOR PLAINTIFFS AND THE CLASS THEY

16

SEEK TO REPRESENT

17

18

H:\WP\California Cases\Knox.CA\Class\Notice2Cor.ren.wpd

19

Friday, 22 September 2006, 14:20:6 PM

20

21

22

23

24

25

26

27

28

Plaintiffs’ Corrected Second Notice of Hearing on Their Renewed Motion for Class Certification — Case No. 2:05-cv-02198 MCE KJM

PAGE - 2

Case 2:05-cv-02198-MCE-KJM Document 62 Filed 09/22/2006 Page 3 of 3

1

CERTIFICATE OF SERVICE

2

I, W. James Young, counsel for Plaintiffs, hereby certify that I electronically filed with the

3 Clerk of Court the foregoing Plaintiffs’ Corrected Second Revised Notice of Motion; Renewed

4 Motion for Class Certification, using the CM/ECF system which will send notification of such filing

5 to Defendants’ counsel, this 22nd day of September, 2006.

6 /s/ W. James Young
7 W. JAMES YOUNG
8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiffs’ Corrected Second Notice of Hearing on Their Renewed Motion for Class Certification — Case No. 2:05-cv-02198 MCE KJM

PAGE - 3

 
 Case 2:05-cv-02198-MCE-KJM Document 141 Filed 04/07/2008 Page 1 of 6

1 W. JAMES YOUNG, Esq.

c/o National Right to Work Legal

2

Defense Foundation, Inc.

8001 Braddock Road, Suite 600 3 Springfield, Virginia 22160

(703) 321-8510

4

STEVEN R. BURLINGHAM, Esq. 5 California Bar No. 88544

Gary, Till & Burlingham 6 5330 Madison Avenue, Suite F

Sacramento, California 95841

7 (916) 332-8122

Facsimile — (916) 332-8153

8

ATTORNEYS FOR PLAINTIFFS AND 9 THE CLASSES THEY REPRESENT

_________________________________________________________________________________

10

UNITED STATES DISTRICT COURT

11

FOR THE EASTERN DISTRICT OF CALIFORNIA

12

13 DIANNE KNOX; et al., ON BEHALF OF
14 THEMSELVES AND THE CLASSES THEY REPRESENT,
15 Plaintiffs,
16 v.
17 JOHN CHIANG, Controller, State of California; et
18 al.,1

19

Defendants.

20

21

22

23

CASE NO. 2:05-cv-02198 MCE KJM
PLAINTIFFS’ UNOPPOSED MOTIONS FOR PARTIAL RECONSIDERATION (LOCAL RULE 78-230(k)) AND/OR FOR RELIEF FROM JUDGMENT (RULE 60, FED.R.CIV.P.) AND TO STAY BRIEFING AND CONSIDERATION OF AN AWARD OF ATTORNEYS' FEES AND COSTS PURSUANT TO 42 U.S.C. § 1988 PENDING APPEAL OR, IN THE ALTERNATIVE, FOR AN EXTENSION OF TIME IN WHICH TO FILE THEIR APPLICATION (LOCAL RULE 54-293)
HEARING DATE: Friday, 30 May 2008 TIME: 9:00 a.m. COURTROOM OF JUDGE ENGLAND, COURTROOM 3, 15TH FLOOR

24

COME NOW Plaintiffs, Dianne Knox, et al., on behalf of themselves and the classes they

25 represent (collectively, “the Nonmembers”), and respectfully move the Court as follows:

26

1. Pursuant to Local Rule 78-230(k), the Nonmembers respectfully move the Court to

27 1 Pursuant to Rule 25(d)(1), FED.R.CIV.P., State Controller John Chiang is automatically
28 substituted as a Defendant in this action in place of his predecessor, Steve Westly.

PLAINTIFFS’ POST-JUDGMENT MOTIONS — Case No. 2:05-cv-02198 MCE KJM

PAGE - 1

Case 2:05-cv-02198-MCE-KJM Document 141 Filed 04/07/2008 Page 2 of 6

1 reconsider partially its Memorandum and Order dated 27 March 2008, Clerk’s Docket No. 139

2 (entered on 28 March 2008), pursuant to Local Rule 78-230(k), and/or in the alternative, for relief from

3 judgment, pursuant to Rule 60, FED.R.CIV.P. (permitting corrections based upon oversight).

4

a. Specifically, in its Memorandum and Order, Clerk’s Docket No. 139, this Court

5

held that “the proper remedy for the current wrong is a new Hudson notice,” Clerk’s Docket

6

No. 139 at 26, and did not award nominal damages; however, the Court did not specifically

7

consider and reject an award of nominal damages in this case.

8

b. Among the relief sought by the Nonmembers, nominal damages were

9

specifically requested, both in their Complaint (Clerk’s Docket No. 1 at 14, Prayer for Relief,

10

¶ E), and as part of their Motion for Summary Judgment (Clerk’s Docket No. 119 at 9:14-17).

11

c. The Ninth Circuit has specifically held, in the context of a union’s violation of

12

the requirements of Teachers Local No. 1 v. Hudson, 475 U.S. 292, 306-10 (1986), that “each

13

class member whose constitutional rights were violated is entitled to nominal damages.”

14

Cummings v. Connell, 402 F.3d 936, 944 (9TH CIR. 2005).

15

d. Defendants have authorized the Nonmembers’ undersigned counsel to represent

16

to the Court that they do not oppose the Nonmembers’ instant motion, although they reserve

17

the right to contend on appeal that no nominal damages are warranted because they did not

18

violate the First Amendment, or the requirements of the First Amendment as interpreted by

19

Hudson, and/or that no nominal damages are warranted with regard to the members of any

20

class or subclass that was improperly certified. The Nonmembers agree that they will not

21

contend on appeal that Defendants have waived any such argument by not opposing the

22

Nonmembers’ instant Motion.

23

2. Pursuant to 42 U.S.C. § 1988, Rule 54(d)(2)(B), FED.R.CIV.P., and Rule 54-293,

24 E.D.CAL., the Nonmembers also respectfully move the Court to Stay Briefing and Consideration of an

25 Award of Attorneys’ Fees and Costs Pursuant to 42 U.S.C. § 1988, pending decision on Local 1000’s

26 anticipated appeal from this Court’s final judgment in this action. In the alternative, the Nonmembers

27 respectfully move the Court for an Extension of Time in Which to File Their Application for

28 Attorneys’ Fees and Costs Pursuant to 42 U.S.C. § 1988. In support of this Motion, the Nonmembers

PLAINTIFFS’ POST-JUDGMENT MOTIONS — Case No. 2:05-cv-02198 MCE KJM

PAGE - 2

Case 2:05-cv-02198-MCE-KJM Document 141 Filed 04/07/2008 Page 3 of 6

1 show the following:

2

a. Local 1000 has expressed to the Nonmembers’ counsel its intent to appeal from

3

this Court’s judgment.

4

b. Obviously, the outcome of the above-referenced appeal likely will affect the

5

ultimate determination of a § 1988 fee award, insofar it impacts upon the extent to which the

6

Nonmembers are “prevailing parties” within the meaning of the statute and relevant Supreme

7

Court and Ninth Circuit precedent on that issue. See Texas State Teachers Ass’n v. Garland

8

Indep. School Dist., 490 U.S. 782 (1989); Hewitt v. Helms, 482 U.S. 755 (1987); Blum v.

9

Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983); see also Doty v.

10

County of Lassen, 37 F.3d 540, 547-48 (9TH CIR. 1994); Martinez v. Wilson, 32 F.3d 1415,

11

1422 (9TH CIR. 1994); Rock Creek Limited Partnership v. State Water Resources Control

12

Board, 972 F.2d 274, 277 (9TH CIR. 1994).

13

c. The parties agree that judicial economy is best served by staying briefing,

14

argument, and consideration of Plaintiffs’ Petition for Attorneys’ Fees and Costs Pursuant to 42

15

U.S.C. § 1988, pending determination of the appeal filed in this case. In light of Local 1000’s

16

anticipated appeal, to require briefing at this time for an award under 42 U.S.C. § 1988 would

17

open the possibilities of duplicating, or making unnecessary, efforts on that question. That is,

18

if Local 1000 prevails on appeal, in whole or in part, the balancing of factors made in arguing

19

in support of such an award — including the magnitude of such an award — may be

20

significantly altered, or obviated entirely. This potential serves neither the interests of judicial

21

economy, nor the interests of any of the parties to this litigation, particularly Defendants, since

22

time spent in preparation of a second, modified fee petition may be compensable under the

23

statute (and, of course, would require the Defendants to respond to two separate petitions).

24

Gates v. Rowland, 39 F.3d 1439, 1448-49 (9TH CIR. 1994).

25

d. Although the Nonmembers are already clearly “prevailing parties” regarding

26

some of the issues raised in the instant lawsuit, they recognize that the novelty of the Court’s

27

application of the law to these facts may be resolved differently on appeal, thus making it

28

premature to brief, argue, and adjudicate at this time the issue of an award pursuant to 42

PLAINTIFFS’ POST-JUDGMENT MOTIONS — Case No. 2:05-cv-02198 MCE KJM

PAGE - 3

Case 2:05-cv-02198-MCE-KJM Document 141 Filed 04/07/2008 Page 4 of 6

1

U.S.C. § 1988. See, e.g., Gates v. Rowland, 39 F.3d at 1450 (suggesting that fee applications

2

in an on-going process should be considered together for purposes of judicial economy).

3

e. This Motion is made within the time required for the filing of fee petitions

4

pursuant to Rule 54(d)(2)(B), FED.R.CIV.P., and Rule 54-293, E.D.CAL., which requires that all

5

motions for attorneys’ fees and costs be filed within thirty (30) days after the entry of judgment.

6

f. Should this Motion be denied, and in the alternative, the Nonmembers

7

respectfully request, pursuant to Rule 54(d)(2)(B), FED.R.CIV.P., and Rule 54-293, E.D.CAL.,

8

an extension of time for filing the application, currently due on 28 April 2008, until not earlier

9

than 2 June 2008. In support of said request, the Nonmembers show the following:

10

i. The Nonmembers’ undersigned counsel is also Counsel of Record for

11

Petitioners in Locke v. Karass, No. 06-710, accepted for plenary review by the United

12

States Supreme Court on 19 February, and Petitioners’ Brief is currently due on

13

Monday, 5 May;

14

ii. The Nonmembers’ undersigned counsel represents individuals in an

15

action currently pending before the National Labor Relations Board in which exceptions

16

are due to be filed on Wednesday, 30 April 2008; and

17

iii. The Nonmembers’ undersigned counsel represents as lead counsel a

18

class of nonunion City of Philadelphia employees in Mitchell v. City of Philadelphia,

19

Case No. 99cv6306, in which trial is scheduled to resume on Monday, 14 April 2008,

20

and is anticipated to last at least five more days.

21

g. Counsel for Defendants have authorized the Nonmembers’ undersigned counsel

22

to represent to the Court that they do not oppose the Nonmembers’ instant Motion.

23

WHEREFORE, the Nonmembers respectfully move the Court for entry of an Order awarding

24 them, in addition to the other relief awarded by the Court, nominal damages to be paid in the amount

25 of one dollar ($1.00) to each member of the class.

26

AND FURTHER, the Nonmembers respectfully move the Court for entry of an Order directing

27 that briefing and consideration of Plaintiffs’ entitlement to an award of attorneys’ fees and costs

28 pursuant to 42 U.S.C. § 1988 is stayed pending appeal, and shall be due not later than thirty (30) days

PLAINTIFFS’ POST-JUDGMENT MOTIONS — Case No. 2:05-cv-02198 MCE KJM

PAGE - 4

Case 2:05-cv-02198-MCE-KJM Document 141 Filed 04/07/2008 Page 5 of 6

1 after the issuance of mandate or other disposition by the United States Court of Appeals for the Ninth

2 Circuit or, in the alternative, that Plaintiffs’ Petition for Attorneys’ Fees and Costs Pursuant to 42

3 U.S.C. § 1988 shall be filed not later than 2 June 2008.

4 DATED: 4 April 2008

5

Respectfully submitted,

6

STEVEN R. BURLINGHAM, Esq.

California Bar No. 88544

7

Gary, Till & Burlingham

5330 Madison Avenue, Suite F

8

Sacramento, California 95841

(916) 332-8122

9

Facsimile — (916) 332-8153

10

/s/ W. James Young

11

W. JAMES YOUNG, Esq.

c/o National Right to Work Legal

12

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

13

Springfield, Virginia 22160

(703) 321-8510 14

ATTORNEYS FOR PLAINTIFFS AND THE CLASSES

15

THEY REPRESENT

16

17

F:\Knox.CA\Summary Judgment\PartReconsider.mot.wpd

18

Friday, 4 April 2008, 18:52:5 PM

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ POST-JUDGMENT MOTIONS — Case No. 2:05-cv-02198 MCE KJM

PAGE - 5

Case 2:05-cv-02198-MCE-KJM Document 141 Filed 04/07/2008 Page 6 of 6

1

CERTIFICATE OF SERVICE

2

I, W. James Young, counsel for Plaintiffs, hereby certify that I electronically filed with the

3 Clerk of Court the foregoing Plaintiffs’ Unopposed Motions for Partial Reconsideration (Local

4 Rule 78-230(k)) and/or for Relief from Judgment (Rule 60(a), FED.R.CIV.P.) and to Stay Briefing

5 and Consideration of an Award of Attorneys’ Fees and Costs Pursuant to 42 U.S.C. § 1988

6 Pending Appeal or, in the Alternative, for an Extension of Time in Which to File Their

7 Application, using the CM/ECF system which will send notification of such filing to all counsel of

8 record, this 4th day of April, 2008.

9 /s/ W. James Young
10 W. JAMES YOUNG
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ POST-JUDGMENT MOTIONS — Case No. 2:05-cv-02198 MCE KJM

PAGE - 6

 
 Case 2:05-cv-02198-MCE-KJM Document 144 Filed 04/17/2008 Page 1 of 5

1 JEFFREY B. DEMAIN (SBN 126715) PEDER J. THOREEN (SBN 217081)
2 Altshuler Berzon LLP 177 Post Street, Suite 300
3 San Francisco, California 94108 Telephone: (415) 421-7151
4 Facsimile: (415) 362-8064 jdemain@altshulerberzon.com
5 pthoreen@altshulerberzon.com

6

Attorneys for Defendant Service Employees International Union,

7 Local 1000

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 DIANNE KNOX; WILLIAM L. BLAYLOCK; )

EDWARD L. DOBROWOLSKI, JR.; KARYN )

12 GIL; THOMAS JACOB HASS; PATRICK )

JOHNSON; AND JON JUMPER, ON BEHALF )

13 OF THEMSELVES AND THE CLASS THEY )

SEEK TO REPRESENT,

)

14

)

Plaintiffs,

)

15

)

v.

)

16 STEVE WESTLY, Controller, State of

) )

17

California; AND CALIFORNIA STATE

)

EMPLOYEES ASSOCIATION, LOCAL 1000, )

18

SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO-CLC,

) )

19

Defendants.

) )

) 20 _______________________________________ )

21

No. 2:05-CV-02198 MCE (KJM)
STIPULATION OF ALL PARTIES FOR STAY PENDING APPEAL; ORDER THEREON
Date: N/A Time: N/A Judge Hon. Morrison C. England, Jr. Place: Courtroom 3
15th Floor

22

23

24

25

26

27

28
STIP. FOR STAY PENDING APPEAL; [PROP.] ORDER Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

Case 2:05-cv-02198-MCE-KJM Document 144 Filed 04/17/2008 Page 2 of 5

1

STIPULATION

2

All of the parties to the above-captioned case1/ hereby stipulate to a stay of the remedy ordered by

3 the Court in its Memorandum and Order of March 28, 2008 (Docket No. 139), and incorporated into its

4 Judgment in a Civil Case of the same date (Docket No. 140), pending exhaustion or abandonment of

5 appellate remedies, pursuant to the Court’s authority under Federal Rule of Civil Procedure 62(c). In

6 support thereof, Defendant Service Employees International Union Local 1000 (hereinafter “Local

7 1000”) shows as follows:

8

1. Local 1000 intends to appeal this Court’s Judgment in this case to the Ninth Circuit.

9

2. The remedy ordered by this Court requires Local 1000 to issue, within 60 days after the date

10 of the Court’s Order, a Hudson notice regarding the 2005 temporary fee increase to the fee payers, afford

11 them a new opportunity to object to paying the non-chargeable portion of that increase for the period

12 from September 2005 through June 2006, and refund to all such objectors the non-chargeable portion,

13 with interest. See Memorandum and Order (Docket No. 139) at 27.

14

3. Local 1000’s new Hudson notice is required to be issued, under the Court’s March 28, 2008

15 Order, on or before May 27, 2008.

16

4. The Ninth Circuit will clearly not be able to resolve Local 1000’s anticipated appeal prior to

17 May 27, 2008.

18

5. If Local 1000 is required to comply with this Court’s March 28 Order by issuing a new

19 Hudson notice and providing refunds to fee payers who submit objections in response thereto, it will

20 have provided all of the relief that this Court has ordered and its appeal may thereby be mooted, at least

21 in part. Once Local 1000 has issued a new Hudson notice and provided refunds, the Ninth Circuit would 22 be unable to reverse or otherwise “undo” that sequence of events even if it were to sustain Local 1000’s 23 appeal and reverse this Court’s Order. Similarly, under this scenario, Local 1000 would have no way to 24 recover the refunds it would have paid to the fee payers. Thus, in order to preserve the Ninth Circuit’s 25 ability to adjudicate the appeal and provide effective relief should it sustain the appeal, in other words, to

26

27

1/ In November 2006, John Chiang was elected to serve as California State Controller, succeeding defendant Steve Westly. Mr. Chiang is automatically substituted as a defendant in place of

28 Mr. Westly, pursuant to Federal Rule of Civil Procedure 25(d).

STIP. FOR STAY PENDING APPEAL; [PROP.] ORDER

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

1

Case 2:05-cv-02198-MCE-KJM Document 144 Filed 04/17/2008 Page 3 of 5

1 preserve Local 1000’s right to obtain effective appellate review, this Court’s Order should be stayed

2 pending the exhaustion or abandonment of appellate remedies. See, e.g., Providence Journal Co. v. FBI,

3 595 F.2d 889, 890 (1st Cir. 1979) (staying mandatory injunction pending appeal where compliance with

4 injunction would destroy appellants’ rights to secure meaningful appellate review of district court’s

5 decision); Alexander v. Chesapeake, Potomac and Tidewater Books, 190 F.R.D. 190, 194 (E.D. Va.

6 1999) (staying mandatory injunction pending appeal where compliance with injunction would have been

7 irreversible); Miller v. LaSea Broadcasting, Inc., 927 F. Supp. 1148, 1152 (E. D. Wis. 1997) (staying,

8 pending appeal, mandatory injunction requiring sale of television station where “[i]t could be difficult, if

9 not impossible, to undo the sale” if the injunction were reversed on appeal). For that reason, a stay is

10 well warranted, especially since Local 1000 has (at the least) raised serious legal questions going to the

11 merits of the case, in light of the novelty of the central question raised by the lawsuit and in light of the

12 Northern District of California’s decision in Liegmann v. California Teachers Ass’n, 2006 WL 1795123

13 (N.D. Cal. June 28, 2006).

14

6. Federal Rule of Civil Procedure 62(c) gives this Court the authority to stay its judgment

15 pending appeal, permitting the Court to “suspend, modify, restore, or grant an injunction on terms for

16 bond or other terms that secure the opposing party’s rights.”

17

7. Stays of remedial orders pending appeal are frequently granted in fair share fee cases. Indeed,

18 in the last two such cases from this Court that were appealed to and resolved by the Ninth Circuit,

19 Wagner v. Prof’l Eng’rs in Cal. Government, 354 F.3d 1036 (9th Cir. 2004), and Cummings v. Connell, 20 316 F.3d 886 (9th Cir. 2003), this Court entered stays pending appeal.

21

The undersigned parties hereby stipulate that the Court should stay its March 28, 2008

22 Memorandum and Order, and the Judgment thereon, pending the exhaustion or abandonment of all

23 appellate remedies, and that there is good cause for such a stay as set forth above. The undersigned

24 parties also stipulate that if this Court enters an Order for nominal damages in the amount of $1.00 per

25 class member, as requested in Plaintiffs’ pending motion for partial reconsideration (Docket No. 141),

26 Local 1000 should be ordered to post security to stay such an award pending appeal, pursuant to Eastern

27 District Local Civil Rule 65.1-151, and that the appropriate amount of security for such an award would

28

STIP. FOR STAY PENDING APPEAL; [PROP.] ORDER

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

2

Case 2:05-cv-02198-MCE-KJM Document 144 Filed 04/17/2008 Page 4 of 5

1 be $35,000 (28,000 class members times 125%, pursuant to Eastern District Local Civil Rule 65.1-

2 151(d)).

3

The undersigned parties hereby respectfully request the Court to issue the [Proposed] Order set

4 forth below granting the stay discussed herein.

5

The foregoing is so stipulated and agreed by the undersigned parties.

6

Respectfully submitted,

7

JEFFREY B. DEMAIN

PEDER J. THOREEN

8

Altshuler Berzon LLP

9 Dated: April 15, 2008.
10

By: /s/ Jeffrey B. Demain Jeffrey B. Demain

11

Attorneys for Defendant

Service Employees International Union, Local 1000

12

13

W. JAMES YOUNG, Esq. (admitted pro hac vice)

c/o National Right to Work Legal Defense Foundation, Inc.

14

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

15

(703) 321-8510

16

STEVEN R. BURLINGHAM, Esq.

California Bar No. 88544

17

Gary, Till & Burlingham

5330 Madison Avenue, Suite F

18

Sacramento, California 95841

(916) 332-8122

19

Facsimile — (916) 332-8153

20 Dated: April 15, 2008.
21

By: /s/ W. James Young (as authorized on April 12, 2008) W. James Young

22

Attorneys for Plaintiffs and the Classes They Represent

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

STIP. FOR STAY PENDING APPEAL; [PROP.] ORDER

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

3

Case 2:05-cv-02198-MCE-KJM Document 144 Filed 04/17/2008 Page 5 of 5

1

EDMUND G. BROWN JR., Attorney General

CHRISTOPHER E. KRUEGER,

2

Senior Assistant Attorney General

DOUGLAS J. WOODS (SBN 161531),

3

Supervising Deputy Attorney General

1301 I Street

4

P.O. Box 944255

Sacramento, California 94244-2550

5

Telephone: (916) 324-4663

Fax:

(916) 324-5567

6

Email:

Douglas.Woods@doj.ca.gov

7

Dated: April 15, 2008.

8

9

By: /s/ Douglas J. Woods (as authorized on April 14, 2008) Douglas J. Woods
Attorneys for Defendant John Chiang

10

ORDER

11

IT IS SO ORDERED. The remedy ordered in this Court’s Memorandum and Order of March 28,

12 2008 (Docket No. 139), incorporated into its Judgment in a Civil Case of the same date (Docket No.

13 140), is hereby stayed pending exhaustion or abandonment of all appellate remedies. If the Court

14 subsequently orders any additional remedy in response to Plaintiffs’ pending post-judgment motions

15 (Docket No. 141), such additional remedy shall also be stayed pending exhaustion or abandonment of all

16 appellate remedies. If any such additional remedy includes money damages, Defendant Service

17 Employees International Union Local 1000 shall apply to this Court for approval of security to stay that

18 damage award pending appeal.

19 Dated: April 17, 2008 20 21 22

________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

23

24

25

26

27

28

STIP. FOR STAY PENDING APPEAL; [PROP.] ORDER

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

4

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 DIANNE KNOX, et al., on behalf of themselves and the classes they
12 represent,

No. 2:05-cv-02198-MCE-KJM

13

Plaintiffs,

ORDER

14

v.

15 JOHN CHIANG, Controller, State of California, et al.,
16
Defendants. 17

18

19

Through this action, Plaintiffs, state employees, seek redress against Defendants

20 John Chiang, the Controller of the State of California, and California State Employees

21 Association, Local 1000, Service Employees International Union, AFL-CIO, CLC (“the

22 Union” or “SEIU”), for violations of their First, Fifth, and Fourteenth Amendment rights

23 under 42 U.S.C. § 1983 by using Plaintiffs’ monies to support political causes without

24 satisfying constitutionally required safeguards.

25

On March 28, 2008, this Court issued an order granting summary judgment to

26 Plaintiffs, and granting in part Defendants’ cross-motion for partial summary judgment.

27 (ECF No. 139.) Defendants appealed, and the Ninth Circuit reversed and remanded.

28 628 F.3d 1115 (9th Cir. 2010). 1

1 The Supreme Court of the United States granted certiorari. 131 S. Ct. 3061 (2011). The

2 Supreme Court reversed and remanded the Ninth Circuit’s decision. 132 S. Ct. 2277,

3 2284 (2012). The Ninth Circuit then vacated this Court’s decision in its entirety, and

4 remanded the case to this Court “for further proceedings consistent with the Supreme

5 Court’s opinion.” (ECF No. 183.)

6

On October 15, 2012, Plaintiffs filed the instant motion, requesting that the Court

7 enter amended judgment on remand. (ECF No. 184.) Defendants do not oppose the

8 motion, but request that the Court order that Defendants have 120 days to comply.

9 (ECF No. 186.) Plaintiffs state that they agree that SEIU should be accorded “a

10 sufficient time within which to provide these refunds” and that the proposed 120-day

11 period seems reasonable under the circumstances. (ECF No. 187.) Plaintiffs also

12 request that the Court direct SEIU to make monthly reports to Plaintiffs’ counsel on

13 SEIU’s progress in complying with the Court’s Judgment, providing the names of each

14 class member to which a refund has been made, the State bargaining unit by which

15 each class member is employer, the dates of those payments, and the total amount

16 refunded to each class member. Plaintiffs further request that a letter explaining the

17 purpose of the refund be distributed with the refunds issued by SEIU.

18

The facts and analysis relevant to the instant motion are fully set forth in the

19 opinion of the United States Supreme Court. 132 S. Ct. 2277. In accordance with that

20 opinion, it is hereby ordered that:

21

1. Judgment is entered for Plaintiffs.

22

2. Defendant SEIU shall refund to Plaintiffs all monies exacted for the

23 “Emergency Temporary Assessment to Build a Political Fight-Back Fund,” for the entirety

24 of the period during which the assessment was exacted, plus interest.

25

3. Plaintiffs are awarded nominal damages in the amount of one dollar

26 ($1.00). See Cummings v. Connell, 402 F.3d 936, 944 (9th Cir. 2005).

27

4. Defendant SEIU shall refund Plaintiffs and pay nominal damages within

28 one hundred twenty (120) days from the date this judgment is entered. 2

1

5. Defendant SEIU shall make reports every thirty (30) days to the Court,

2 providing:

3

a) The names of each class member to whom a refund has been made;

4

b) The State bargaining unit by which each class member is employed;

5

c) The date(s) of the payments; and

6

d) The total amount refunded to each class member.

7

6. Defendant SEIU shall include with each refund sent to each Plaintiff a letter

8 explaining the purpose of the refund, over the signature of Plaintiffs’ counsel, in a form

9 mutually agreeable to the parties.

10

IT IS SO ORDERED.

11 12 Dated: December 4, 2012
13
14

__________________________________ MORRISON C. ENGLAND, JR UNITED STATES DISTRICT JUDGE

15

16

DEAC_Signature-END:

17

18

c4d6b0d3

19

20

21

22

23

24

25

26

27

28 3

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 DIANNE KNOX, et al., ON BEHALF OF THEMSELVES AND THE CLASSES
12 THEY REPRESENT,

No. 2:05-cv-02198-MCE-CKD

13

Plaintiffs,

MEMORANDUM AND ORDER

14

v.

15 JOHN CHIANG, Controller, State of California, et al.,
16
Defendants. 17

18

19

Through this action, Plaintiffs, state employees, sought redress from Defendants

20 Controller of the State of California John Chiang (“the Controller”) and Service

21 Employees International Union, Local 1000 (“the Union” or “SEIU”) (collectively

22 “Defendants”) for violations of Plaintiffs’ First, Fifth and Fourteenth Amendment rights

23 pursuant to 42 U.S.C. § 1983. Plaintiffs alleged, and the Supreme Court of the United

24 States ultimately held, that Defendants used Plaintiffs’ monies to support political causes

25 without satisfying constitutionally required procedural safeguards.

26

Presently before the Court is Plaintiffs’ Motion for Attorney’s Fees and Expenses

27 pursuant to 42 U.S.C. § 1988. (Pls.’ Mot. Att’y Fees, Jan. 2, 2013, ECF No. 192.)

28 /// 1

1 Defendant SEIU filed a timely opposition to Plaintiffs’ Motion (Def.’s Opp’n, Feb. 28,

2 2013, ECF No. 206) which the Controller joined (Joinder, Feb. 28, 2013, ECF No. 208).

3 Plaintiffs filed a reply (Pls.’ Reply, March 14, 2013, ECF No. 210) and subsequently filed

4 a Notice of Partial Withdrawal of the request for expenses (Pls.’ Notice, March 19, 2013,

5 ECF No. 212).

6

Also before the Court is Defendant SEIU’s Motion for Clarification (ECF

7 No. 198). Plaintiffs filed a timely response to the Motion for Clarification (Pls.’ Response,

8 Jan. 25, 2013, ECF No. 202) and Defendant SEIU filed a Reply (Def.’s Reply, Jan. 31, 9 2013, ECF No. 203).1

10

For the reasons set forth below, Plaintiffs’ Motion for Attorney’s Fees and

11 Expenses is GRANTED, and Defendant SEIU’s Motion for Clarification is also

12 GRANTED.

13

14

LEGAL BACKGROUND2

15

16

Under California law, public-sector employees in a bargaining unit may decide by

17 majority vote to create an “agency shop” arrangement under which all the employees are

18 represented by a union selected by the majority. Cal. Gov’t Code § 3502.5(a) (2010).

19 While employees in the unit are not required to join the union, they must nevertheless

20 pay the union an annual fee to cover the cost of union services related to collective

21 bargaining (so-called chargeable expenses). See Lehnert v. Ferris Faculty Ass’n,

22 500 U.S. 507, 524 (1991); Machinists v. Street, 367 U.S. 740, 760 (1961). The Supreme

23 Court has recognized that such arrangements represent an “impingement” on the First

24 Amendment rights of nonmembers.

25

26

1 Because oral argument will not be of material assistance, the Court orders these matters submitted on the briefs. E.D. Cal. Local R. 230(g).

27

2 The following summary of the legal background of this case is taken, sometimes verbatim, from

the Supreme Court’s opinion in this case. Knox v. Serv. Employees Int'l Union, Local 1000, 132 S. Ct.
28 2277, 2284-85 (2012).

2

1 Teachers v. Hudson, 475 U.S. 292, 307 n.20 (1986); see also Davenport v. Wash. Ed.

2 Ass’n, 551 U.S. 177, 181 (2007) (“[A]gency-shop arrangements in the public sector raise

3 First Amendment concerns because they force individuals to contribute money to unions

4 as a condition of government employment”); Street, 367 U.S. at 749 (union shop

5 presents First Amendment “questions of the utmost gravity”). Thus, in Abood v. Detroit

6 Bd. of Ed., 431 U.S. 209 (1977), the Supreme Court held that a public-sector union,

7 while permitted to bill nonmembers for chargeable expenses, may not require

8 nonmembers to fund its political and ideological projects. In Hudson, the Court identified

9 procedural requirements that a union must meet to collect fees from nonmembers

10 without violating their rights. 475 U.S. at 302–11. There, the Court also held that the

11 First Amendment does not permit a public-sector union to adopt procedures that have

12 the effect of requiring objecting nonmembers to lend the union money to be used for

13 political, ideological, and other purposes not germane to collective bargaining. Id. at

14 305. In the interest of administrative convenience, however, the Hudson Court

15 concluded that a union “cannot be faulted” for calculating the fee that nonmembers must

16 pay “on the basis of its expenses during the preceding year.” Id. at 307 n.18.

17

18

FACTUAL AND PROCEDURAL BACKGROUND3

19

20

In June 2005, Defendant SEIU sent out its regular Hudson notice informing

21 employees what the agency fee would be for the year ahead. The notice set monthly

22 dues at 1% of an employee's gross monthly salary but capped monthly dues at $45.

23 Based on the most recently audited year, Defendant SEIU estimated that 56.35% of its

24 total expenditures in the coming year would be dedicated to chargeable collective-

25 bargaining activities.

26 ///

27
3 The following recitation of facts is taken, sometimes verbatim, from the Supreme Court’s opinion
28 in this case. Knox, 132 S. Ct. at 2285-86 (internal citations omitted).
3

1 Thus, if a nonunion employee objected within 30 days to payment of the full amount of

2 union dues, the objecting employee was required to pay only 56.35% of total dues.

3 Defendant SEIU's notice also included a feature that was not present in Hudson: The

4 notice stated that the agency fee was subject to increase at any time without further

5 notice. During this time, the citizens of the State of California were engaged in a wide-

6 ranging political debate regarding state budget deficits and, in particular, the budget

7 consequences of growing compensation for public employees backed by powerful

8 public-sector unions.

9

On June 13, 2005, Governor Arnold Schwarzenegger called for a special election

10 to be held in November 2005 where voters would consider various ballot propositions

11 aimed at state-level structural reforms. Two of the most controversial issues on the

12 ballot were Propositions 75 and 76. Proposition 75 would have required unions to obtain

13 employees' affirmative consent before charging them fees to be used for political

14 purposes. Proposition 76 would have limited state spending and would have given the

15 Governor the ability under some circumstances to reduce state appropriations for public-

16 employee compensation. Defendant SEIU joined a coalition of public-sector unions in

17 vigorously opposing these measures. Calling itself the “Alliance for a Better California,”

18 the group would eventually raise “more than $10 million, with almost all of it coming from

19 public employee unions, including $2.75 million from state worker unions, $4.7 million

20 from the California Teachers Association, and $700,000 from school workers unions.”

21

On July 30, shortly after the end of the thirty-day objection period for the June

22 Hudson notice, Defendant SEIU proposed a temporary 25% increase in employee fees,

23 which it billed as an “Emergency Temporary Assessment to Build a Political Fight-Back

24 Fund.” The proposal stated that the money was needed to achieve the union's political

25 objectives, both in the special November 2005 election and in the November 2006

26 election.

27 ///

28 /// 4

1 According to the proposal, money in the Fight-Back Fund would be used for a broad

2 range of political expenses, including television and radio advertising, direct mail, voter

3 registration, voter education and get out the vote activities in work sites and in

4 communities across California. The proposal specifically stated that “[t]he Fund will not

5 be used for regular costs of the union—such as office rent, staff salaries or routine

6 equipment replacement, etc.” It noted that “all other public worker unions are in the

7 process of raising the extraordinary funds needed to defeat the Governor.” And it

8 concluded: “Each of us must do our part to turn back these initiatives which would allow

9 the Governor to destroy our wages and benefits and even our jobs, and threaten the

10 well-being of all Californians.” On August 27, Defendant SEIU's General Council voted

11 to implement the proposal.

12

On August 31, Defendant SEIU sent out a letter addressed to “Local 1000

13 Members and Fair Share Fee Payers,” announcing that, for a limited period, their fees

14 would be raised to 1.25% of gross monthly salary and the $45-per-month cap on regular

15 dues would not apply. The letter explained that the union would use the fund to “defeat

16 Proposition 76 and Proposition 75 on November 8,” and to “defeat another attack on [its]

17 pension plan” in June 2006. The letter also informed employees that, in the following

18 year, the money would help “to elect a governor and a legislature who support public

19 employees and the services [they] provide.”

20

After receiving this letter, one of the Plaintiffs in this case called Defendant SEIU's

21 offices to complain that the union was levying the special assessment for political

22 purposes without giving employees a fair opportunity to object. One of Defendant

23 SEIU’s area managers responded that “even if [the employee] objected to the payment

24 of the full agency fee, there was nothing he could do about the September increase for

25 the Assessment.” (ECF No. 139.) “She also stated that ‘we are in the fight of our lives,’

26 that the Assessment was needed, and that there was nothing that could be done to stop

27 the Union's expenditure of that Assessment for political purposes.” Id.

28 /// 5

1 As a consolation, however, those employees who had filed timely objections after the

2 regular June Hudson notice were required to pay only 56.35% of the temporary

3 increase.

4

Plaintiffs filed this class-action suit on behalf of 28,000 nonunion employees who

5 were forced to contribute money to the Political Fight-Back Fund. On March 28, 2008,

6 this Court issued an order granting summary judgment to Plaintiffs, and granting in part

7 Defendants’ cross-motion for partial summary judgment. (Order, ECF No. 139.)

8 Defendants appealed, and the Ninth Circuit reversed and remanded. 628 F.3d 1115

9 (9th Cir. 2010). In accordance with the Ninth Circuit’s opinion, this Court then issued an

10 order denying Plaintiffs’ motion for Summary Judgment and reversing the denial of

11 Defendant’s partial motion for summary judgment. (ECF No. 178.) Plaintiffs then

12 appealed, and the Supreme Court of the United States granted certiorari. 131 S. Ct.

13 3061 (2011). The Supreme Court reversed and remanded the Ninth Circuit’s decision.

14 132 S. Ct. 2277, 2284 (2012). The Ninth Circuit then vacated this Court’s decision in its

15 entirety and remanded the case to this Court “for further proceedings consistent with the

16 Supreme Court’s opinion.” (ECF No. 183.) On December 4, 2012, this Court entered

17 judgment in favor of Plaintiffs and ordered that “Defendant SEIU shall refund to Plaintiffs

18 all monies exacted for the ‘Emergency Temporary Assessment to Build a Political Fight-

19 Back Fund,’ for the entirety of the period during which the assessment was exacted, plus

20 interest.” (Order 2, ECF No. 190.) Defendants now seek clarification of the Court’s

21 December 4 Order. (ECF No. 198.) Specifically, Defendants ask the Court to clarify the

22 applicable interest rate for the prejudgment interest that Defendants must pay. (Id.)

23 Plaintiffs ask that the Court award them their reasonable attorney’s fees and expenses

24 (ECF No. 192).

25 ///

26 ///

27 ///

28 /// 6

1

STANDARD

2

A. Standard for Attorney’s Fees

3

4

The Civil Rights Attorney's Fees Awards Act of 1976 permits the award of

5 attorney's fees in civil rights actions. 42 U.S.C. § 1988. The statute provides, in

6 pertinent part: “In any action or proceeding to enforce a provision of [42 U.S.C. § 1983]

7 . . . , the court, in its discretion, may allow the prevailing party, other than the United

8 States, a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988(b). A

9 “prevailing party” under § 1988 is a party who “succeed[s] on any significant issue in

10 litigation which achieves some of the benefit the parties sought in bringing suit.”

11 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “Reasonableness” is the benchmark for

12 attorney’s fees awards under 42 U.S.C. § 1988. 42 U.S.C. § 1988(b); Hensley, 461 U.S.

13 at 433.

14

The “reasonableness” determination is a two-step process. First, the court should

15 calculate a “lodestar” by “multiplying the number of hours reasonably spent on the

16 litigation by a reasonable hourly rate.” McCown v. City of Fontana Fire Dep't, 565 F.3d

17 1097, 1102 (9th Cir. 2009). The appropriate number of hours includes all time

18 “reasonably expended in pursuit of the ultimate result achieved in the same manner that

19 an attorney traditionally is compensated by a fee-paying client for all time reasonably

20 expended on a matter.” Hensley, 461 U.S. at 431. However, in calculating the lodestar,

21 “the district court should exclude hours ‘that are excessive, redundant, or otherwise

22 unnecessary.’” McCown, 565 F.3d at 1102. Although district judges “need not, and

23 should not, become green-eyeshade accountants,” Fox v. Vice, 131 S. Ct. 2205, 2216

24 (2011), the court should provide some indication of how it arrived at its conclusions. See

25 Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008) (“When the district

26 court makes its award, it must explain how it came up with the amount.”), Padgett v.

27 Loventhal, 706 F.3d 1205, 2013 WL 491024, *2 (9th Cir. Feb.11, 2013) (“We have long

28 held that district courts must show their work when calculating attorney's fees.”). 7

1 As a general rule, in determining the lodestar figure, “the court should defer to the

2 winning lawyer's professional judgment as to how much time he was required to spend

3 on the case.” Moreno, 534 F.3d at 1112. However, the party seeking an award of

4 attorney's fees bears the burden of producing documentary evidence demonstrating “the

5 number of hours spent, and how it determined the hourly rate(s) requested.” McCown,

6 565 F.3d at 1102. Then the burden shifts to the opposing party to submit evidence

7 “challenging the accuracy and reasonableness of the hours charged or the facts

8 asserted by the prevailing party in its submitted affidavits.” Ruff v. County of Kings, 700

9 F. Supp. 2d 1225, 1228 (E.D. Cal. 2010).

10

The second step of the “reasonableness” determination gives the court discretion

11 to adjust the lodestar figure upward or downward based on an evaluation of several

12 factors articulated by the Ninth Circuit in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67

13 (9th Cir. 1975). McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir. 1995). The

14 Kerr factors include:

15

(1) the time and labor required, (2) the novelty and difficulty of

the questions involved, (3) the skill requisite to perform the

16

legal service properly, (4) the preclusion of other employment

by the attorney due to acceptance of the case, (5) the

17

customary fee, (6) whether the fee is fixed or contingent,

(7) time limitations imposed by the client or the

18

circumstances, (8) the amount involved and the results

obtained, (9) the experience, reputation, and ability of the

19

attorneys, (10) the ‘undesirability’ of the case, (11) the nature

and length of the professional relationship with the client, and

20

(12) awards in similar cases.

21 Kerr, 526 F.2d at 69-70; see also E.D. Cal. Local Rule 293(c) (identifying the same

22 factors as relevant). However, the court should exclude from its consideration factors

23 that are irrelevant or already subsumed in the initial lodestar calculation. McGrath,

24 67 F.3d at 252; see also Blum v. Stenson, 465 U.S. 886, 898-900 (1984) (concluding

25 that such factors as “novelty and complexity of the issues,” “the special skill and

26 experience of counsel,” and “the quality of representation” are generally subsumed

27 within the lodestar calculation).

28 /// 8

1 Because the lodestar figure is presumptively reasonable, “a multiplier may be used to

2 adjust the lodestar amount upward or downward only in rare and exceptional cases,

3 supported by both specific evidence on the record and detailed findings by the lower

4 courts that the lodestar amount is unreasonably low or unreasonably high.” Van Gerwen

5 v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (internal citations and

6 quotations omitted).

7

8

B. Standard for Prejudgment Interest

9

10

28 U.S.C. § 1961 provides that “[i]nterest shall be allowed on any money

11 judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961(a). “The Ninth

12 Circuit has not articulated the standard for awarding prejudgment interest in § 1983

13 cases.” Davis v. Prison Health Servs., C 09-2629 SI, 2012 WL 4462520, *6 (N.D. Cal.

14 Sept. 25, 2012) (citing Murphy v. City of Elko, 976 F. Supp. 1359, 1362 (D. Nev. 1997));

15 see also Ruff v. Cnty. of Kings, No. CV-F-05-631-OWW/GSA, 2009 WL 4572782 (E.D.

16 Cal. Nov. 30, 2009). However, the Ninth Circuit has held that prejudgment interest is an

17 element of compensation and is not a penalty. W. Pac. Fisheries, Inc. v. SS President

18 Grant, 730 F.2d 1280, 1288 (9th Cir. 1984). “Whether interest will be awarded is a

19 question of fairness, lying within the court’s sound discretion, to be answered by

20 balancing the equities.” Wessel v. Buhler, 437 F.2d 279, 284 (9th Cir. 1971).

21

Section 1961 provides that “such interest shall be calculated from the date of the

22 entry of the judgment, at a rate equal to the weekly average 1-year constant maturity

23 Treasury yield, as published by the Board of Governors of the Federal Reserve System,

24 for the calendar week preceding the date of the judgment.” 28 U.S.C. § 1961(a). This

25 interest rate applies to prejudgment interest, unless the court “finds, on substantial

26 evidence, that a different rate is appropriate.”

27 ///

28 /// 9

1 Blanton v. Anzalone, 813 F.2d 1574, 1575 (9th Cir. 1987) (citing Blanton v. Anzalone,

2 760 F.2d 989 (9th Cir. 1985)); see also W. Pac. Fisheries, Inc., 730 F.2d at 1289

3 (requiring substantial evidence to support the district court’s decision to depart from the

4 Treasury bill rate). “‘Substantial evidence’ has been defined as ‘such relevant evidence

5 as a reasonable mind might accept as adequate to support a conclusion.’” Id. at 1576

6 (quoting Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1014 (9th Cir.

7 1985)).

8

9

ANALYSIS

10

A. Attorney’s Fees

11

1. Reasonable Hourly Rate

12

13

In determining attorney’s fees under § 1988, the district court “must strike a

14 balance between granting sufficient fees to attract qualified counsel to civil rights cases

15 and avoiding a windfall to counsel.” Moreno, 534 F.3d at 1111 (internal citations

16 omitted). Reasonable attorney’s fees are calculated according to the prevailing market

17 rate in the relevant legal community. Blum, 465 U.S. at 895. The “relevant legal

18 community” in the lodestar calculation is generally the forum in which the district court

19 sits. Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). However, there is a narrow

20 exception allowing the court to rely on rates outside the local forum when the plaintiff

21 establishes that “local counsel was unavailable, either because they are unwilling or

22 unable to perform because they lack the degree of experience, expertise, or

23 specialization required to handle properly the case.” Id.

24

Here, Plaintiffs state that although this Court sits in Sacramento, “the ‘relevant

25 legal community’ for the purpose of calculating [Plaintiffs’] counsel’s rates could . . . be

26 San Francisco, rather than Sacramento.” (ECF No. 192 at 10.)

27 ///

28 /// 10

1 Plaintiffs contend that San Francisco rates “could” apply because the claims raised in

2 this case are unique, and there is an “apparent lack of Sacramento attorneys and firms .

3 . . experienced and capable enough, and willing to undertake the case . . . .” (ECF No.

4 192 at 10.) To support this contention, Plaintiffs submit the declaration of Steven

5 Burlingham, a Sacramento attorney. Mr. Burlingham states that it is “doubtful that any

6 (perhaps one or two) local Sacramento attorneys would be willing to take on and pursue

7 such a case, given the substantial resources involved, the necessary expenditures of

8 time, and because they lack the degree of experience, expertise, or specialization

9 required to handle properly the case.” (ECF No. 192-2 at 49.)

10

This evidence is inadequate to support a finding that San Francisco rates, rather

11 than Sacramento rates, apply. The only exception to the “local forum” rule applies to

12 situations in which a plaintiff demonstrates that the unavailability of local counsel caused

13 Plaintiff to retain an out-of-area attorney. Barjon, 132 F.3d at 500. The argument that

14 “perhaps one or two local Sacramento attorneys” would have been willing to take on the

15 case does not demonstrate that local counsel was unavailable. To the contrary, this

16 statement suggests to the Court that there were Sacramento attorneys, albeit few, who

17 would have been willing to take this case.

18

Furthermore, Plaintiffs bear the burden of demonstrating that San Francisco rates

19 apply. Here, Plaintiffs make no clear connection to San Francisco as the relevant legal

20 community—Plaintiffs’ attorneys are from Virginia, and this case was litigated primarily in

21 Sacramento. (See ECF No. 192-1, 192-2.) Accordingly, the Court finds that the relevant

22 legal community is Sacramento.

23

The Court must next determine the reasonable hourly rate. The reasonable

24 hourly rate “is not made by reference to rates actually charged by the prevailing party.”

25 Chalmers v. City of L.A., 796 F.2d 1205, 1210 (9th Cir. 1986). Instead, the court should

26 use the prevailing market rate in the community for similar services of lawyers “of

27 reasonably comparable skill, experience, and reputation.” Id. at 1210–11.

28 /// 11

1 Accordingly, in this case, the Court will apply the the prevailing market rate for a civil

2 rights attorney practicing in the Sacramento area. See Taylor v. Chaing, 2009 WL

3 453050, at *9 (E.D. Cal. Feb. 23, 2009) (“The rate to be applied is that of plaintiffs'

4 counsel in the Sacramento area who engage in civil rights actions against governmental

5 entities.”); H.W. v. E. Sierra Unified School Dist., 2012 WL 4469262, at *2 (E.D. Cal.

6 Sept. 27, 2012) (“The rate to be applied is that of . . . counsel in the Sacramento area

7 who engage in civil rights actions.”). The court may use either current or historical

8 prevailing market rates. Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 908

9 (9th Cir. 1995) (internal citation omitted); see also Barjon, 132 F.3d at 502-03 (“[T]he

10 district court may choose to apply either the attorney's current rates to all hours billed or

11 the attorney's historic rates plus interest.”); In re Wash. Pub. Power Supply Sys. Sec.

12 Litig., 19 F.3d 1291, 1305 (9th Cir. 1994) (“Full compensation requires charging current

13 rates for all work done during the litigation, or by using historical rates enhanced by an

14 interest factor.”).

15

The fee applicant bears the burden of demonstrating that “the requested rates are

16 in line with those prevailing in the community for similar services by lawyers of

17 reasonably comparable skill, experience and reputation.” Camacho v. Bridgeport Fin.,

18 Inc., 523 F.3d 973, 980 (9th Cir. 2008) (citation omitted). “[A]ffidavits of the plaintiffs'

19 attorneys and other attorneys regarding prevailing fees in the community . . . are

20 satisfactory evidence of the prevailing market rate” but “do not conclusively establish the

21 prevailing market rate.” Id. In addition to considering affidavits and evidence submitted

22 by the parties, the court may also “rely on its own familiarity with the legal market.”

23 Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011).

24 ///

25 ///

26 ///

27 ///

28 /// 12

1

Plaintiffs' calculations of their attorney's fees are based on the following hourly

2 rates: (1) W. James Young- $500; (2) Raymond J. LaJeunesse, Jr.- $500; (3) Milton L.

3 Chappell- $500; (4) Bruce N. Cameron- $500; (5) Glenn M. Taubman- $500; 4 (6) William L. Messenger- $350.4

5

Mr. Young

6

The Court's own research reveals that the prevailing hourly rate for experienced

7 civil rights attorneys practicing in the Sacramento area does not exceed $400.5 See,

8 e.g., Lehr v. City of Sacramento, 2:07-CV-01565-MCE, 2013 WL 1326546 (E.D. Cal.

9 Apr. 2, 2013) (awarding hourly rate of $400 per hour for one of Sacramento’s most

10 experienced and successful civil rights attorneys); H.W. v. E. Sierra Unified Sch. Dist.,

11 No. 2:11cv-00531 GEB GGH, 2012 WL 4469262, *1-2 (E.D. Cal. Sep. 27, 2012)

12 (concluding that requested hourly rate of $375 per hour was reasonable rate for

13 attorneys practicing civil rights litigation in Sacramento area); Jones v. Cnty. of

14 Sacramento, No. 2:09-CV-01025-DAD, 2011 WL 3584332, *9 (E.D. Cal. Aug. 12, 2011)

15 (concluding that hourly rate of $350 requested in civil rights case by attorney with over

16 35 years of litigation experience was “in line with those prevailing in the Sacramento

17 market for similar services by lawyers of reasonably comparable skills, experience and

18 reputation”); Cosby v. Autozone, Inc., No. 2:08-CV-00505-LKK-DAD, 2010 WL 5232992,

19 *3 (E.D. Cal. Dec. 16, 2010) (finding that $375 per hour was prevailing Sacramento rate

20 for experienced attorneys litigating cases under California's Fair Employment and

21 Housing Act and finding requested fees of $400 and $450 per hour excessive);

22 ///

23 ///

24

25

4 These rates are the Sacramento rates requested by Plaintiffs. Plaintiffs request alternative San Francisco rates, which the Court will not consider as Sacramento is the relevant legal community.

26 See supra.

5 In conducting its research, the Court has paid particular attention to cases decided within two
27 years of the time when Plaintiffs' attorneys began their work in this case. See Bell v. Clackamas Cnty.,
341 F.3d 858, 869 (9th Cir. 2003) (holding that it was an abuse of discretion for the district court “to apply
28 market rates in effect more than two years before the work was performed.”).

13

1 Friedman v. Cal. State Employee Ass'n, No. 2:00-CV-00101-WBS-DAD, 2010 WL

2 2880148, *4 (E.D. Cal. July 21, 2010) (finding $275 per hour reasonable rate for

3 Sacramento civil rights attorneys); Beecham v. City of W. Sacramento,

4 No. 2:07-CV-01115-JAM-EFB, 2009 WL 3824793, *4 (E.D. Cal. Nov. 16, 2009) (finding

5 that $375 per hour was prevailing market rate charged by Sacramento attorneys in civil

6 right case and refusing to award requested $525–$550 per hour fee); Cal. Pro–Life

7 Council, Inc. v. Randolph, No. 2:00-CV-01698-FCD-GGH, 2008 WL 4453627, *4-5 (E.D.

8 Cal. Sept. 30, 2008) (finding hourly rate of $385 for lead trial counsel in civil rights case

9 reasonable for Sacramento market).

10

The Court finds that several factors must be taken into consideration in

11 determining Mr. Young’s hourly rate. First, Mr. Young is an experienced and successful

12 attorney in the areas of labor and constitutional law and successfully argued this case

13 before the United States Supreme Court. (See Decl. W. James Young, ECF No. 192-1.)

14 Furthermore, this case presented novel and complex issues. Thus, the Court will use

15 the hourly rate at the top of the compensation range that exists in the Sacramento legal

16 market for the purpose of calculating Mr. Young’s fees. The Court finds that

17 reimbursement at the rate of $450 per hour is appropriate for the work performed by

18 Mr. Young in this case.

19

Mr. LaJeunesse

20

Mr. LaJeunesse has submitted a declaration stating that he has been practicing

21 employment law since 1971, when he joined the National Right to Work Legal Defense

22 Foundation (Decl. Raymond LaJeunesse, Jr. 23, ECF No. 192-2.) Like Mr. Young,

23 Mr. LaJeunesse has extensive experience with trial and appellate litigation in the areas

24 of labor and constitutional law, in both state and federal court. (ECF No. 192-2 at

25 23-24.) Because Mr. LaJeunesse’s skills and experience and the quality of his work in

26 this case are comparable to those of Mr. Young, the Court finds that the rate of $450 per

27 hour is also a reasonable rate for Mr. LaJeunesse.

28 /// 14

1

Mr. Chappell

2

Mr. Chappell’s declaration states that he began practicing as a staff attorney with

3 the National Right to Work Legal Defense Foundation upon his graduation from law

4 school and admission to the Maryland bar in 1976. (Decl. Milton Chappell 29, ECF

5 No. 192-2.) He has therefore worked as a staff attorney for the Foundation, and

6 practiced employment law, for nearly thirty-seven years. Mr. Chappell also has

7 extensive experience with trial and appellate litigation in the areas of labor and

8 constitutional law, and has been lead counsel for cases before state and federal courts,

9 as well as state labor boards. (Id. at 30.) Because Mr. Chappell’s skills and experience

10 and the quality of his work in this case are comparable to the skills of experience of both

11 Mr. Young and Mr. LaJeunesse, the Court finds that the rate of $450 per hour is also

12 reasonable for Mr. Chappell.

13

Mr. Cameron

14

Mr. Cameron is the Reed Larson Professor of Labor Law and Regent University

15 School of Law and is on staff with the National Right to Work Legal Defense Foundation.

16 (Decl. Bruce Cameron 34, ECF No. 192-2.) Mr. Cameron has been part of the

17 Foundation’s litigation staff since 1976. (Id. at 35.) Thus, like Mr. Chappell,

18 Mr. Cameron has practiced labor and constitutional law for nearly thirty-seven years.

19 Like Messrs. Chappell, LaJeunesse and Young, Mr. Cameron has extensive experience

20 with trial and appellate litigation in employment law cases in both state and federal court.

21 (ECF No. 192-2 at 35.) Because Mr. Cameron’s skills and experience and the quality of

22 his work in this case are comparable to those of his colleagues in this case, the Court

23 finds that the rate of $450 per hour is reasonable for Mr. Cameron.

24

Mr. Taubman

25

Mr. Taubman graduated from Emory Law School in 1980 and received an LLM in

26 Labor Law from Georgetown University Law Center in 1985. Mr. Taubman has been

27 employed as a staff attorney at the National Right to Work Legal Defense Foundation

28 since 1982. (Decl. Glenn Taubman 39, ECF No. 192-2.) 15

1 Mr. Taubman has therefore practiced labor law for nearly thirty-two years. Like his

2 colleagues in this case, Mr. Taubman has practiced as both a trial and appellate attorney

3 in the areas of labor and constitutional law, in both state and federal courts, as well as

4 before state labor boards and the National Labor Relations Board. (Id. at 39-40.) Thus,

5 Mr. Taubman’s skill and experience and the quality of his work in this case are

6 comparable to the skills of his colleagues, listed above. As such, the Court finds that a

7 rate of $450 per hour is reasonable for Mr. Taubman.

8

Mr. Messenger

9

Mr. Messenger graduated from George Washington University School of Law in

10 2001. (Decl. William Messenger 44, ECF No. 192-2.) Upon graduation, Mr. Messenger

11 became employed as a staff attorney with the Foundation. (Id.) Thus, Mr. Messenger

12 has eleven years of experience in labor litigation. As a staff attorney for the Foundation,

13 Mr. Messenger has practiced as both a trial and appellate attorney in the areas of labor

14 and constitutional law. Mr. Messenger has acted, or is currently acting, as lead trial

15 and/or appellate counsel in at least ten cases. (Id. at 45.) Mr. Messenger has also been

16 lead or co-counsel in other cases in state and federal courts, as well as before the

17 National Labor Relations Board. (Id.) Mr. Messenger asks that he be reimbursed at a

18 rate of $350 per hour. (Id. at 46.)

19

However, the Court’s research reveals that a prevailing rate in the Sacramento

20 market for the services of an attorney with skills, experience and reputation similar to

21 those of Mr. Messenger does not exceed $260 per hour. See, e.g., Lehr v. City of

22 Sacramento, 2013 WL 1326546, at *8 (finding $260 per hour was Sacramento market

23 rate for civil rights attorney with 7-10 years of experience); Jones, 2011 WL 3584332, at

24 *9-10 (finding $250 per hour was Sacramento market rate for a civil rights attorney with

25 roughly ten years of litigation experience); Cal. Pro-Life Council, Inc., 2008 WL 4453627,

26 at *4-7 (using $230 to $260 per hour as a reasonable rate for junior partners practicing in

27 the Sacramento area). Accordingly, the Court calculates Mr. Messenger’s attorney’s fee

28 award based on the rate of $260 per hour. 16

1

2. Additional Attorney’s Fees Awards

2

3

Plaintiffs enlisted the services of Neal K. Katyal and his firm Hogan Lovells US,

4 LLP, exclusively for the litigation before the Supreme Court. Plaintiffs seek

5 compensation for Mr. Katyal and Mr. Katyal’s colleagues at Hogan Lovells at a flat rate

6 of $95,000. According to Mr. Katyal’s declaration, his normal hourly rate is $1,190. His

7 colleagues Dominic F. Perella, Catherine Stetson, and Jessica Ellsworth have normal

8 hourly rates of $565, $750 and $630, respectively. Plaintiffs assert that the total lodestar

9 for the hours worked by these attorneys alone is $145,669. However, because Hogan

10 Lovells took on the case at a reduced rate due to the case’s public-interest nature,

11 Plaintiffs seek only to be reimbursed a flat rate of $95,000 for the work performed by

12 Hogan Lovells. Defendants do not contest the flat fee of $95,000. Accordingly, the

13 Court finds that the $95,000 flat fee sought by counsel for Hogan Lovells is a reasonable

14 and appropriate award in this case.

15

Plaintiffs also enlisted the services of Steven Burlingham. Mr. Burlingham is a

16 Sacramento attorney who has been practicing in Sacramento since 1979. (ECF

17 No. 192-2 at 48.) Mr. Burlingham attaches the billing statements, showing the services

18 he performed in this case in his capacity as Plaintiffs’ local counsel. Mr. Burlingham

19 seeks compensation in the amount of $303.50. These records show that Mr. Burlingham

20 made calls, sent emails, and participated in conferences with opposing counsel.

21 Mr. Burlingham also answered calls from the Court regarding motions and stipulations.

22 Mr. Burlingham submits documentation showing the following invoices:

23 ///

24 ///

25 ///

26 ///

27 ///

28 /// 17

1 Numerous calls and email from right to work (Knox. v. Westly) and copies made
2
Call from Attorney Jeff Demain (Knox v. Westly) for information; e-filing and 3 calls to e-filing

$55.00 $55.00

4 Knox v. Wesley [sic]: Telephone message from and conference with opposing $85.50 counsel; review confirming letter
5
Call from Court re: wrong date for summary judgment (Knox v. Wesley [sic]); $24.00 6 call right to work to inform

7 Call from Court re emailing stipulation for judge’s signature and call Laverne $24.00 to inform (Knox v. Westley)
8

Telephone conference re: appearance for Knox v. Chang [sic] 9

$60.00

Total sought: 10

$303.50

11

12

Defendants do not dispute the $303.50 sought by Mr. Burlingham. The Court

13 finds it somewhat problematic that Mr. Burlingham provides no evidence of the time

14 expended in making these phone calls and emails, or how the rates charged were

15 arrived at—whether they are flat rates or an hourly rate, and what the applicable hourly

16 rate is (if any). However, in light of the amount sought and the amount of work

17 performed, the Court finds Mr. Burlingham’s requested attorney’s fee of $303.50

18 reasonable. As such, Plaintiffs are entitled to reimbursement for this amount.

19

20

3. Reduction for Unsuccessful Motion

21

22

In addition to arguing that Defendants violated nonmembers’ constitutional rights,

23 Plaintiffs’ Complaint asserted that Defendant SEIU violated the Constitution by causing

24 deductions to be made for the temporary dues and fees increase from the salaries of

25 members of the Union. Defendant SEIU moved for judgment on the pleadings (“MJOP”)

26 as to Plaintiffs’ claim on behalf of union members.

27 ///

28 18

1 The Court granted Defendant SEIU’s motion and held that Plaintiffs could not bring any

2 cognizable constitutional claim on behalf of union members because there is no state

3 action involved in the payment of union dues.

4

Defendants6 now argue that the compensation requested by Plaintiffs for the 10.5

5 hours of Mr. Young’s time spent working on Plaintiffs’ Opposition to Defendant SEIU’s

6 Motion for Judgment on the Pleadings should be denied. Likewise, Defendants argue

7 that the compensation requested by Plaintiffs for the 29.50 hours of Mr. Young’s time

8 spent working on discovery related to that motion should be denied. Finally, Defendants

9 contend that the Court should deny Plaintiffs’ request for the $1,978.11 incurred in out-

10 of-pocket expenses with regard to that discovery.

11

The law is clear that “[w]here the plaintiff has failed to prevail on a claim that is

12 distinct in all respects from his successful claims, the hours spent on the unsuccessful

13 claim should be excluded in considering the amount of a reasonable fee.” Hensley v.

14 Exkerhart, 461 U.S. 424, 440 (1983). Thus, Plaintiffs agree that the 10.5 hours

15 expended on the Opposition are properly excluded, but maintain that Plaintiffs are

16 entitled to reimbursement for the fees and expenses related to the MJOP discovery.

17

First, Plaintiffs contend that as a matter of procedure, Defendants waived the right

18 to dispute compensation for the fees and expenses related to the MJOP when

19 Defendants failed to object to the bill of costs submitted by Plaintiffs, which included

20 costs for the deposition transcript. (ECF No. 210 at 11.) The Court finds that

21 Defendants did indeed waive their right to challenge costs associated with the MJOP.

22 See, e.g., Konig v. Dal Cerro, No. C 04-02210 WHA, 2008 WL 4628038, *2 (N.D. Cal.

23 Oct. 16, 2008) (citing In re Paoli R.R. Yard DPIB Litig., 221 F.3d 449, 453 (3d Cir.

24 2000)). But failure to object to the bill of costs does not waive Defendants’ right to

25 challenge Plaintiffs’ claim for compensation for the hours and expenses related to the

26 MJOP. Plaintiffs cite to no authority providing that a failure to file an objection to the bill

27

6 Although Defendant SEIU filed the Opposition to Plaintiffs’ Motion for Attorney’s Fees (ECF

No. 206), Defendant Controller filed a Joinder (ECF No. 208). Accordingly, the Court refers to
28 “Defendants” throughout.

19

1 of costs is tantamount to waiver of the right to object to attorney’s fees for that particular

2 item, and the Court is aware of none. Thus, the Court cannot find that Defendants

3 waived the right to dispute Plaintiffs’ compensation for these fees as a procedural matter.

4

Accordingly, the Court must examine whether, as a substantive matter, Plaintiffs

5 are entitled to these fees and expenses. The Supreme Court has made clear that

6 “plaintiffs may receive fees under § 1988 even if they are not victorious on every claim.

7 A civil rights plaintiff who obtains meaningful relief has corrected a violation of federal

8 law and, in so doing, has vindicated Congress's statutory purposes. That ‘result is what

9 matters . . . .’” Fox v. Vice, 131 S. Ct. 2205, 2214 (2011) (quoting Hensley v. Eckerhart,

10 461 U.S. 424, 435 (1983)). Thus, “[a] court should compensate the plaintiff for the time

11 his attorney reasonably spent in achieving the favorable outcome, even if ‘the plaintiff

12 failed to prevail on every contention.’” Id. (citing Hensley, 461 U.S. at 435). Indeed,

13 “attorney work will [often] bear on multiple claims, only some of which are successful.

14 Fees for work which relates only to unsuccessful claims should not be awarded.”

15 Padgett v. Loventhal, 706 F.3d 1205, 1209 (9th Cir. 2013) (citing Hensley, 461 U.S. at

16 436). “[T]he presence of these unsuccessful claims does not immunize a defendant

17 against paying for the attorney’s fees that the plaintiff reasonably incurred in remedying

18 a breach of his civil rights.” Fox, 131 S. Ct. at 2214. The award of attorney’s fees

19 “should not reimburse the plaintiff for work performed on claims that bore no relation to

20 the grant of relief: Such work ‘cannot be deemed to have been expended in pursuit of

21 the ultimate result achieved.’” Fox, 131 S. Ct. at 2214 (quoting Hensley, 461 U.S. at

22 435)). However, “where attorney work proves beneficial to a successful claim, district

23 courts should generally award these fees in full, even if the work is also useful to an

24 unsuccessful claim. In other words, the district court must award fees for the work that

25 contributed to a successful result as if the successful claims were the only ones

26 litigated.” Padgett, 706 F.3d at 1209.

27

The Ninth Circuit has developed a two-part analysis to determine when a plaintiff

28 may recover attorney’s fees for unsuccessful claims. 20

1

First, the court asks whether the claims upon which the

plaintiff failed to prevail were related to the plaintiff's

2

successful claims. If unrelated, the final fee award may not

include time expended on the unsuccessful claims. If the

3

unsuccessful and successful claims are related, then the

court must apply the second part of the analysis, in which the

4

court evaluates the ‘significance of the overall relief obtained

by the plaintiff in relation to the hours reasonably expended

5

on the litigation.’ If the plaintiff obtained ‘excellent results,’ full

compensation may be appropriate, but if only ‘partial or

6

limited success' was obtained, full compensation may be

excessive. Such decisions are within the district court's

7

discretion.

8 Banta v. City of Merrill, CIV. 06-3003-CL, 2007 WL 3543445, *3 (D. Or. Nov. 14, 2007)

9 (citing Thorne v. City of El Segundo, 802 F.2d 1131, 1142 (9th Cir. 1986)). Unrelated

10 claims are “distinctly different” and based on different facts and legal theories, while

11 related claims “involve a common core of facts or [are] based on related legal theories.”

12 Banta, 2007 WL 3543445, at *3 (quoting Hensley, 461 U.S. at 434-35, 437 n.12). In

13 other words, “the test is whether relief sought on the unsuccessful claim is intended to

14 remedy a course of conduct entirely distinct and separate from the course of conduct

15 that gave rise to the injury on which the relief granted is premised. Thus, the focus is to

16 be on whether the unsuccessful and successful claims arose out of the same conduct.”

17 Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 901, 903 (9th Cir. 1995)

18 (quoting Thorne, 802 F.2d at 1141).

19

Here, the Court cannot say that Plaintiffs’ unsuccessful claim, brought on behalf of

20 Plaintiff Conover—a member of Defendant SEIU at the time the special assessment was

21 levied—was intended to remedy a course of conduct “entirely distinct and separate from

22 the course of conduct that gave rise to the injury on which the relief granted is premised.”

23 Schwarz, 73 F.3d at 901. The non-union Plaintiffs asserted that Defendant SEIU failed

24 to give them an adequate opportunity to object to the assessment, as constitutionally

25 required. Plaintiff Conover, on the other hand, asserted that Defendant SEIU failed to

26 give him an adequate opportunity to resign from the Union and, as a non-member, to

27 object to the fee increase.

28 /// 21

1 Thus, Plaintiffs’ successful and unsuccessful claims each relate to Defendant SEIU’s

2 conduct in levying the special assessment and the opportunity (of both members and

3 nonmembers) to object to the assessment. As such, these claims arise out of the same

4 conduct and therefore are related for the purposes of determining whether Plaintiffs may

5 recover fees related to their unsuccessful claim.

6

Next, the Court must assess “the significance of the overall relief obtained by the

7 plaintiff in relation to the hours reasonably expended on the litigation. If the plaintiff

8 obtained ‘excellent results,’ full compensation may be appropriate.” Banta, 2007 WL

9 3543445, at *3 (citing Thorne, 802 F.2d at 1142). Here, Plaintiffs achieved excellent

10 results. Plaintiffs successfully litigated their claims up to the Supreme Court, and the

11 Supreme Court found that Defendant SEIU’s Hudson notice was indeed constitutionally

12 deficient, in violation of Plaintiffs’ First Amendment rights. Knox, 132 S. Ct. 2277.

13 Furthermore, there is no showing that Plaintiffs expended an unreasonable amount of

14 hours in obtaining this result. Accordingly, full compensation for the hours expended on

15 litigating Plaintiffs’ unsuccessful claim is appropriate. See Banta, 2007 WL 3543445, at

16 *3 (citing Thorne, 802 F.2d at 1142).

17 ///

18 ///

19 ///

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28 /// 22

1

4. Lodestar

2

3

For the reasons stated above, the Court calculates Plaintiffs’ lodestar as follows:

4

5 Attorney

Total Hours

6 Mr. Young
7 Mr. LaJeunesse
8 Mr. Chappell
9
Mr. Cameron 10

1771.45 83.00 145.10 53.00

Mr. Taubman 11

75.00

Mr. Messenger 12
Richard J. Clair8 13

70.00 18.70

14 John C. Scully

7.50

15 Sarah E. Hartsfield 64.25

16 Additional Amounts Hogan Lovells
17 Counsel

Hours Claimed 1699.657 71.40 124.40 51.60 70.00 70.00 0.00 0.00 0.00

Awarded Hourly Awarded

Rate

Lodestar

$450 $450 $450 $450 $450 $260 n/a n/a n/a

$764,842.50 $32,130.00 $55,980.00 $23,220.00 $31,500.00 $18,200.00 $0.00 $0.00 $0.00

$95,000.00

$95,000.00

18 Mr. Burlingham 19 Total Awarded Lodestar: $1,021,176.00 20

$303.50

$303.50

21

Thus, the Court finds that the appropriate lodestar in this case, based on the

22 awarded hourly rates, is $1,021,176.00. Plaintiffs do not request a multiplier or suggest

23 that the Kerr factors require any upward adjustment. See 526 F.2d 67.

24

25

7 This number is calculated as the initial amount of hours claims by Mr. Young (1,625.65) minus the 10.5 hours excluded for the MJOP, plus the 34.3 hours spent in preparing Plaintiffs’ Reply, plus the

26

50.2 hours spent preparing Plaintiffs’ Opposition to Defendant SEIU’s Motion for Clarification. (See ECF No. 210-4.)

27

8 Plaintiffs state that they do not seek compensation for Mr. Clair, Mr. Scully, or Ms. Hartsfield, but

have included the hours relating to these individuals to provide the Court with a thorough accounting.
28 (ECF No. 192 at 14.) These attorneys assisted in preparing for, and attended, moot courts. (Id.)

23

1 Furthermore, the lodestar figure is presumptively reasonable, and thus a multiplier

2 should be used “only in rare and exceptional cases.” Van Gerwen, 214 F.3d at 1045.

3 Thus, the Court finds that the lodestar amount is the total compensable attorney’s fees in

4 this case.

5

6

5. Expenses

7

8

“Under § 1988, the prevailing party may recover as part of the award of attorney's

9 fees those out-of-pocket expenses that would normally be charged to a fee paying

10 client.” Dang, 422 F.3d at 814 (internal citations and quotations omitted). “Such out-of-

11 pocket expenses are recoverable when reasonable.” Id.

12

Plaintiffs seek reimbursement of $15,412.93 in out-of-pocket expenses incurred in

13 litigating this case. (ECF No. 192 at 16.) While Defendants argue that Plaintiffs are not

14 entitled to the $1,978.11 in out-of-pocket expenses spent in relation to the MJOP, the

15 Court finds that Plaintiffs are entitled to these expenses because the claim litigated in the

16 MJOP is related to Plaintiffs’ successful claims. See supra. Accordingly, the Court finds

17 that the expenses and costs sought by Plaintiffs to be reasonable and awards Plaintiffs

18 $15,412.93 in out-of-pocket expenses.

19

20

B. Prejudgment Interest

21

22

As set forth above, the Court issued an order on December 4, 2012, stating that

23 “Defendant SEIU shall refund to Plaintiffs all monies exacted for the ‘Emergency

24 Temporary Assessment to Build a Political Fight-Back Fund,” for the entirety of the

25 period during which the assessment was exacted, plus interest.” (ECF No. 190 at 2.)

26 Defendants and Plaintiffs disagree about the applicable prejudgment interest rate.

27 ///

28 /// 24

1 Further, the Court’s prior order, dated March 28, 2008, stated: “[p]ursuant to 28 U.S.C.

2 § 1961, the Union shall further issue to those nonmembers all interest accruing from the

3 date(s) upon which nonchargeable deductions were taken.” (ECF No. 139 at 27.)

4

The Court now affirms its prior application of federal law to the prejudgment

5 interest rate in this case. See, e.g., Ruff, 2009 WL 4572782, at *5-6 (applying § 1961

6 interest rate to § 1983 case); see also W. Pac. Fisheries, Inc., 730 F.2d at 1289 (“We

7 conclude that the measure of interest rates prescribed for post-judgment interest in

8 28 U.S.C. § 1961(a) is also appropriate for fixing the rate for pre-judgment interest in

9 cases such as this, where pre-judgment interest may be awarded, unless the trial judge

10 finds, on substantial evidence, that the equities of the particular case require a different

11 rate.”) As set forth above, under 28 U.S.C. § 1961(a), the applicable interest rate is “the

12 average accepted auction price for the last auction of fifty-two week United States

13 Treasury bills settled immediately prior to the date of judgment.” 28 U.S.C. § 1961(a).

14 This rate may be found by referring to the Federal Reserve website, located at:

15 http://www.federalreserve.gov/RELEASES/h15/.

16

Under § 1961, the applicable interest rate in this case is .18%, which is the

17 Treasury bill (“T-Bill”) rate for the week ending in November 30, 2012. This interest rate

18 is exceptionally low, from both a historical perspective (see ECF No. 202-1 at 1-18

19 (setting forth monthly rates from 1953 through 2012)) and in contrast to the T-Bill rates

20 during the timespan of this case (see id.) At the commencement of this case, the

21 monthly average rate was 3.85%. (Id.) The monthly average rate then peaked at 5.22%

22 in July 2006, and was 1.54% in March 2008, when this Court first entered judgment for

23 Plaintiffs. (Id.) In light of these facts, the Court finds that there is substantial evidence

24 that use of the .18% federal interest rate would, in effect, deny Plaintiffs prejudgment

25 interest, and the equities of this case require the application of the monthly average

26 T-Bill rate in effect at the time that each deduction was made, from September 2005 to

27 December 2006.

28 /// 25

1 See Davis, 2012 WL 4462520, at *6 (finding equities required award of higher rate when

2 federal interest rate was .11%); Ruff, 2009 WL 4572782, at *6 (stating that under Ninth

3 Circuit law, Court has discretion to apply the rate in effect at the time of the wrongful

4 conduct).

5

6

CONCLUSION

7

8

For the reasons just stated, IT IS HEREBY ORDERED THAT:

9

1. Plaintiffs’ Motion for Attorney’s Fees (ECF No. 192) is GRANTED;

10

2. Plaintiffs are awarded attorney’s fees in the amount of $1,021,176.00.

11

3. Plaintiffs are awarded expenses in the amount of $15,412.93.

12

4. Defendant SEIU’s Motion for Clarification (ECF No. 198) is GRANTED;

13

5. The rate of prejudgment interest to be applied is the monthly average

14

Treasury bill rate in effect at the time that each nonchargeable deduction

15

was made.

16

IT IS SO ORDERED.

17 DATED: June 5, 2013

18

19

___________________________________________ MORRISON C. ENGLAND, JR., CHIEF JUDGE

20

UNITED STATES DISTRICT JUDGE

21

22

23

24

25

26

27

28 26

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 DIANNE KNOX, et al., on behalf of themselves and the classes they
12 represent,

13

Plaintiffs,

14

v.

15 JOHN CHIANG, Controller, State of California, et al.,
16
Defendants. 17

No. 2:05-CV-02198-MCE-CMK MEMORANDUM AND ORDER

18

Through this action, Plaintiffs, state employees, sought redress from Defendants

19 Controller of the State of California John Chiang and Service Employees International

20 Union, Local 1000 (“SEIU”) (collectively “Defendants”) for violations of Plaintiffs’ First,

21 Fifth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. Plaintiffs alleged,

22 and the Supreme Court of the United States ultimately held, that Defendants used

23 Plaintiffs’ monies to support political causes without satisfying constitutionally required

24 procedural safeguards. Following entry of judgment, Plaintiffs were awarded attorney’s

25 fees and expenses. Presently before the Court is Plaintiffs’ Motion for Supplemental 26 Attorney’s Fees (“Motion”). For the reasons set forth below, Plaintiffs’ Motion is denied. 1

27
1 Because oral argument will not be of material assistance, the Court orders these matters
28 submitted on the briefs. E.D. Cal. Local R. 230(g).
1

1

BACKGROUND2

2

3

In June 2005, Defendant SEIU sent out its regular Hudson notice informing

4 employees what the agency fee would be for the year ahead. See Teachers v. Hudson,

5 475 U.S. 292 (1986). The notice set monthly dues at 1% of an employee’s gross

6 monthly salary but capped monthly dues at $45. Based on the most recently audited

7 year, SEIU estimated that 56.35% of its total expenditures in the coming year would be

8 dedicated to chargeable collective-bargaining activities. Thus, if a nonunion employee

9 objected within 30 days to payment of the full amount of union dues, the objecting

10 employee was required to pay only 56.35% of total dues. SEIU’s notice also included a

11 feature that was not present in Hudson: The notice stated that the agency fee was

12 subject to increase at any time without further notice.

13

During this time, the citizens of the State of California were engaged in a wide-

14 ranging political debate regarding state budget deficits and, in particular, the budget

15 consequences of growing compensation for public employees backed by powerful

16 public-sector unions. On June 13, 2005, Governor Arnold Schwarzenegger called for a

17 special election to be held in November 2005 where voters would consider various ballot

18 propositions aimed at state-level structural reforms. SEIU joined a coalition of public-

19 sector unions in vigorously opposing various measures. Calling itself the “Alliance for a

20 Better California,” the group would eventually raise “more than $10 million, with almost

21 all of it coming from public employee unions, including $2.75 million from state workers

22 unions, $4.7 million from the California Teachers Association, and $700,000 from school

23 workers unions.”

24

On July 30, shortly after the end of the thirty-day objection period for the June

25 Hudson notice, SEIU proposed a temporary 25% increase in employee fees, which it

26 billed as an “Emergency Temporary Assessment to Build a Political Fight-Back Fund.”

27
2 The following recitation of facts is taken, sometimes verbatim, from the Supreme Court’s opinion
28 in this case. Knox v. Serv. Employees Int’l Union, Local 1000, 132 S. Ct. 2277, 2285-86 (2012).
2

1 The proposal stated that the money was needed to achieve the union’s political

2 objectives, both in the special November 2005 election and in the November 2006

3 election. On August 27, SEIU’s General Council voted to implement the proposal. On

4 August 31, SEIU sent out a letter addressed to “Local 1000 Members and Fair Share

5 Fee Payers,” announcing that, for a limited period, their fees would be raised to 1.25% of

6 gross monthly salary and the $45-per-month cap on regular dues would not apply.

7

After receiving this letter, one of the Plaintiffs in this case called SEIU’s offices to

8 complain that the union was levying the special assessment for political purposes

9 without giving employees a fair opportunity to object. One of SEIU’s area managers

10 responded that “even if [the employee] objected to the payment of the full agency fee,

11 there was nothing he could do about the September increase for the Assessment.” ECF

12 No. 139. “She also stated that ‘we are in the fight of our lives,’ that the Assessment was

13 needed, and that there was nothing that could be done to stop the Union’s expenditure

14 of that Assessment for political purposes.” Id. As a consolation, however, those

15 employees who had filed timely objections after the regular June Hudson notice were

16 required to pay only 56.35% of the temporary increase.

17

Plaintiffs filed this class-action suit on behalf of 28,000 nonunion employees who

18 were forced to contribute money to the Political Fight-Back Fund. On March 28, 2008,

19 this Court issued an order granting summary judgment to Plaintiffs and granting in part

20 Defendants’ cross-motion for partial summary judgment. ECF No. 139. Defendants

21 appealed, and the Ninth Circuit reversed and remanded. 628 F.3d 1115 (9th Cir. 2010).

22 In accordance with the Ninth Circuit’s opinion, this Court then issued an order denying

23 Plaintiffs’ motion for summary judgment and reversing the denial of Defendants’ partial

24 motion for summary judgment. ECF No. 178. Plaintiffs then appealed, and the Supreme

25 Court of the United States granted certiorari. 131 S. Ct. 3061 (2011). The Supreme

26 Court reversed and remanded the Ninth Circuit’s decision. 132 S. Ct. 2277, 2284

27 (2012). The Ninth Circuit then vacated this Court’s decision in its entirety and remanded

28 the case to this Court for further proceedings consistent with the Supreme Court’s 3

1 opinion. ECF No. 183. On December 4, 2012, this Court entered judgment in favor of

2 Plaintiffs and ordered that SEIU shall refund to Plaintiffs all monies exacted for the

3 Emergency Temporary Assessment to Build a Political Fight-Back Fund, for the entirety

4 of the period during which the assessment was exacted, plus interest. ECF No. 190. On

5 June 5, 2013, this Court granted Plaintiffs’ motion for attorney’s fees, awarding Plaintiffs

6 $1,021,176.00 in attorney’s fees and $15,412.93 in expenses. ECF No. 216. Plaintiffs

7 now petition the Court for supplemental attorney’s fees. ECF No. 223.

8

9

STANDARD

10

11

The Civil Rights Attorney’s Fees Awards Act of 1976 permits the award of

12 attorney’s fees in civil rights actions. 42 U.S.C. § 1988. The statute provides, in

13 pertinent part: “In any action or proceeding to enforce a provision of [42 U.S.C. § 1983]

14 . . . , the court, in its discretion, may allow the prevailing party, other than the United

15 States, a reasonable attorney’s fee as part of the costs.” Id. § 1988(b). A “prevailing

16 party” under § 1988 is a party who “succeed[s] on any significant issue in litigation which

17 achieves some of the benefit the parties sought in bringing the suit.” Hensley v.

18 Eckerhart, 461 U.S. 424, 433 (1983). “Reasonableness” is the benchmark for attorney’s

19 fees awards under § 1988. 42 U.S.C. § 1988(b); Hensley, 461 U.S. at 433.

20

The Federal Rules of Civil Procedure3 provide that a party moving for attorney’s

21 fees must “state the amount sought or provide a fair estimate of it.” Fed. R. Civ. P.

22 54(d)(2)(B)(iii). The Rules further dictate that “[u]nless a statute or a court order provides

23 otherwise, the motion must . . . be filed no later than 14 days after the entry of

24 judgment . . . .” Fed. R. Civ. P. 54(d)(2)(B)(i). Local Rule 293(a) of the United States

25 District Court for the Eastern District of California extends the time for filing of a motion to

26 28 days after entry of final judgment. E.D. Cal. Local R. 293(a).

27
3 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
28 otherwise noted.
4

1

ANALYSIS

2

3

In accordance with the Court’s judgment, SEIU issued refunds totaling

4 $4,839,277.73 to a total of 42,149 members. ECF No. 223 at 2.4 Additionally, SEIU was

5 ordered to pay Plaintiffs $1,021,176.00 in attorney’s fees and $15,412.93 in expenses.

6 ECF No. 216 at 26. Plaintiffs now contend that they are entitled to an award of

7 supplemental attorney’s fees, in the amount of $33,412.50, for 74.25 hours expended

8 relating to distribution of the judgment proceeds. ECF No. 223 at 2. Plaintiffs base their

9 request on the “virtual deluge of telephone calls, e-mails, and regular mail inquiries

10 regarding the refunds being distributed, raising a variety of questions.” Id.

11

Under Local Rule 293(a), a motion for attorney’s fees must be filed no later than

12 28 days after entry of final judgment. E.D. Cal. Local R. 293(a). Judgment was entered

13 for Plaintiffs on December 4, 2012. ECF No. 190. Plaintiffs filed the instant motion on

14 February 6, 2014, well beyond 28 days following the entry of judgment. ECF No. 223.

15 Nonetheless, Plaintiffs contend their motion was timely filed because it was filed “well

16 before the twenty-eighth (28th) day after entry of the Court’s Minute Order closing the

17 case.” Id. at 2. As SEIU correctly indicates, however, in Plaintiffs’ original motion for

18 attorney’s fees, they refer to the Court’s December 4, 2012 Order as the entry of

19 judgment. ECF No. 192 at 8. Further, Rule 54(a) defines ‘judgment’ as “a decree and

20 any order from which an appeal lies.” Fed. R. Civ. P. 54(a). The Court’s Minute Order

21 simply closed the case and is not an appealable order; judgment was entered on

22 December 4, 2012. ECF No. 190. Accordingly, Plaintiffs’ assertion that the Court’s

23 Minute Order is the final entry of judgment lacks merit, and Plaintiffs’ Motion is untimely.

24

“Although ‘the 14-day period is not jurisdictional, the failure to comply [with Rule

25 54] should be sufficient reason to deny the fee motion, absent some compelling showing

26 of good cause.’” Yeager v. AT&T Mobility, LLC, 2:07-cv-02517-KJM-GGH, 2013 WL

27 4676755 at *5 (E.D. Cal. Aug. 30, 2013) (quoting Kona Enters., Inc. v. Estate of Bishop,

28

4 Unless otherwise indicated, all page citations are to the ECF assigned page numbers.

5

1 229 F.3d 877, 889-90 (9th Cir. 2000)). Plaintiffs contend that good cause is satisfied “by

2 the sheer realities of the situation,” and that it is “self-evidently unreasonable to suggest

3 that the Nonmembers could have predicted, with any degree of certitude, the time

4 necessary to monitor distribution of the judgment proceeds . . . .” ECF No. 226 at 3. As

5 Plaintiffs’ assertions clearly demonstrate, however, apart from arguing that the attorney’s

6 fees are necessary due to the amount of work expended, Plaintiffs have done nothing to

7 show good cause for failing to timely file a supplemental request for attorney’s fees. In

8 Gonzalez v. Bratton, 247 F. Supp. 2d 432, 434-35 (S.D.N.Y. 2003), the court granted a

9 request for fees filed four months after the original motion for attorney’s fees. Notably,

10 the request for supplemental fees in Gonzalez pertained to work performed by the

11 plaintiff in response to the defendants’ failure to diligently comply with the court’s orders.

12 Id. at 435. Such is not the case here.

13

Plaintiffs are correct that post-judgment monitoring of a consent decree is a

14 compensable activity for which counsel is entitled to a reasonable fee. See Keith v.

15 Volpe, 833 F.2d 850, 855-56 (9th Cir. 1987) (citing several circuits holding that post-

16 judgment monitoring of consent decrees in the context of the Civil Rights Attorney’s Fees

17 Awards Act entitles counsel to a reasonable fee). In Keith, the parties reached a

18 settlement that involved a consent decree providing for a large scale housing program,

19 affirmative action and job training programs, and an environmentally sensitive design for

20 a highway. Id. at 852. The remedy afforded Plaintiffs in this case is of a wholly different

21 nature. As opposed to a decree providing for a major development project, which would

22 undoubtedly require monitoring to ensure compliance with the terms of the decree,

23 Plaintiffs were granted money damages. Moreover, although Plaintiffs argue that the

24 parties and the Court anticipated a monitoring function by Plaintiffs’ counsel, the Court’s

25 order stated that SEIU is to make reports to the Court. ECF No. 190 at 3. There is no

26 mention of Plaintiffs’ counsel performing a monitoring function. Id.

27 ///

28 /// 6

1 Because the remedy is altogether different, and because there was no monitoring

2 function on the part of Plaintiffs’ counsel contemplated by the Court, this case is

3 distinguishable from those relied on by Plaintiffs.

4

Finally, as one district court stated, “If Plaintiff wished to seek fees for the time

5 spent responding to the reply in her initial motion, Rule 54 provides such a mechanism

6 by allowing a party to provide a fair estimate for the amount of fees sought.” Miracle

7 Gash v. Client Servs., Inc., 12-cv-01426-LTB-MJW, 2013 WL 1130717, at *4 (D. Colo.

8 Mar. 18, 2013). Plaintiffs argue that it would be unreasonable to suggest that Plaintiffs’

9 counsel could predict the amount of time necessary to monitor distribution of the

10 judgment proceeds. ECF No. 226 at 3. Notwithstanding the fact that the Court’s Order

11 did not provide for monitoring by Plaintiffs’ counsel, Plaintiffs’ later arguments are

12 inconsistent with this point. For example, Plaintiffs argue that monitoring distribution and

13 answering questions from absent class members was “wholly consistent with—if not

14 mandated by—the Nonmembers’ counsel’s duties as class counsel.” Id. at 8-9. If, as

15 Plaintiffs assert, it was counsel’s duty to provide these services, they certainly should

16 have been reasonably expected. Further, as ordered by the Court, each refund sent by

17 SEIU to each Plaintiff included a letter, drafted and signed by Plaintiffs’ counsel. ECF

18 No. 190 at 3; ECF No. 226-1 at 1-2. This letter explains the distribution scheme and

19 indicates that should any Plaintiff have questions about the case or their refund, they

20 should contact Plaintiffs’ counsel. ECF No. 226-1 at 1-2. Clearly, counsel expected that

21 Plaintiffs would have questions regarding the refunds, and specifically directed that

22 those questions be directed to counsel. Plaintiffs, as indicated in Miracle Gash, could

23 have provided a fair estimate of these fees in a timely request for attorney’s fees.

24 Plaintiffs fail to adequately explain why, in light of these facts, the instant motion comes

25 over one year beyond both entry of judgment and the initial request for fees.

26

While the Court is sympathetic to the fact that Plaintiffs’ counsel expended

27 additional time answering the requests of various class members, there is a need for

28 litigation to come to an end. Rule 54 provides a mechanism by which a party can 7

1 provide an estimate for the amount of fees sought, yet Plaintiff failed to do so and

2 instead filed the instant motion well beyond the time required under Local Rule 293(a).

3 Plaintiffs fail to show good cause for why their untimely request for attorney’s fees should

4 be granted. Accordingly, Plaintiffs’ Motion must be denied.

5

6

CONCLUSION

7

8

For the foregoing reasons, Plaintiffs Supplemental Motion for Attorney’s Fees

9 (ECF No. 223) is DENIED.

10

IT IS SO ORDERED.

11 Dated: April 16, 2014

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 8

 
 628 F.3d 1115 (2010)
Dianne KNOX; William L. Blaylock; Robert A. Conover; Edward L. Dobrowolski, Jr.; Karyn Gil; Thomas Jacob Hass; Patrick Johnson; Jon
Jumper, On Behalf of Themselves and the Class They Seek to Represent, Plaintiffs-Appellees, v.
CALIFORNIA STATE EMPLOYEES ASSOCIATION, LOCAL 1000, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO-CLC,
Defendant-Appellant, and Steve Westly, Controller, State of California, Defendant.
No. 08-16645.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 9, 2009. Filed December 10, 2010.
1116*1116 Jeffrey B. Demain, Altshuler Berzon LLP, San Francisco, CA, for the defendant-appellant.
W. James Young, National Right to Work Legal Defense Foundation, Inc., Springfield, VA, for the plaintiffs-appellees.
1117*1117 Before: J. CLIFFORD WALLACE, DAVID R. THOMPSON and SIDNEY R. THOMAS, Circuit Judges.
Opinion by Judge THOMAS; Dissent by Judge WALLACE.
OPINION
THOMAS, Circuit Judge:
This appeal presents the question of whether a union is required, pursuant to Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986), in addition to an annual fee notice to nonmembers, to send a second notice when adopting a temporary, mid-term fee increase. Under the circumstances presented by this case, we conclude that a second notice is not required, and we reverse the judgment of the district court.
I
A

Congress has long recognized the "important contribution of the union shop to the system of labor relations." Locke v. Karass, 555 U.S. 207, 129 S.Ct. 798, 803, 172 L.Ed.2d 552 (2009) (quoting Abood v. Detroit Bd. of Ed., 431 U.S. 209, 222, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977)). The Supreme Court has underscored this Congressional policy by enforcing the right of a union, as the exclusive collective bargaining representative of its employees, to require nonunion employees to pay a fair share of the union's costs. Ellis v. Bhd. of Ry., Airline and S.S. Clerks, Freight Handlers, Express and Station Employees, 466 U.S. 435, 448, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984). However, the Supreme Court has also recognized the First Amendment limitation on collection of fees from dissenting employees for the support of ideological causes not germane to the union's duties as collective-bargaining agent. Id. at 447, 104 S.Ct. 1883.
In Hudson, the Supreme Court established certain procedural safeguards to balance these interests by requiring "an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending." Id. at 310, 106 S.Ct. 1066. Notices issued pursuant to this language have become known as "Hudson notice[s]." Wagner v. Prof'l Eng'rs in Cal. Gov't, 354 F.3d 1036, 1039 (9th Cir.2004).
After receiving a Hudson notice, "the nonunion employee has the burden of raising an objection, but ... the union retains the burden of proof" as to the appropriate proportion of fair share fees. Hudson, 475 U.S. at 306, 106 S.Ct. 1066. It is the policies underlying Hudson that inform the determination of whether a Hudson notice is adequate: "Basic considerations of fairness, as well as concern for the First Amendment rights at stake, ... dictate that the potential objectors be given sufficient information to gauge the propriety of the union's fee." Id.
B
This appeal involves the adequacy of a Hudson notice given by SEIU Local 1000 (the "Union"), the exclusive bargaining agent for California state employees. The Union and the State of California have entered into a series of Memoranda of Understanding controlling the terms and conditions of employment for employees, including a provision requiring that all State employees in these bargaining units join the Union as formal Union members, or if opting not to join, pay an "agency" or "fair share" fee to the Union for its representational efforts on their behalf. Id. (known as an "agency shop agreement"). The agency fee is calculated as a percentage of the Union dues paid by members of the Union.
1118*1118 The Union issues a Hudson notice to all nonmembers every June. The constitutionally required notice is meant to provide nonmembers with an adequate explanation of the basis of the agency fee. Hudson, 475 U.S. at 310, 106 S.Ct. 1066. The notice contains information regarding the Union's expenditures from the most recently audited prior year, broken down by major category of expense and then, within each category, allocated between "chargeable" and "non-chargeable" classifications. "Chargeable" expenses are those that are "germane" to the union's representational functions, and can be charged to all nonmembers of the union. See Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 519, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991) (Blackmun, J., plurality opinion). "Nonchargeable" expenses are those unrelated to the union's representational functions, such as partisan political expenditures or purely ideological issues. Id. The union may charge nonmembers for non-chargeable expenses, but the nonmember has the option to object, and only be charged a reduced agency fee based upon the percent of the union's total expenditures that can be classified as "chargeable." In addition, the nonmember is not charged for certain union-sponsored benefits, such as a credit union credit card, that are not available to nonmembers.

The financial information in the notice forms the basis for calculating the fee to be paid by nonmembers during the ensuing fee year. The notice also provides that for thirty days after the notice is issued, nonunion employees can object to the collection of the full agency fee, and elect instead to only pay a reduced rate during the upcoming fee year based on the percentage ratio of chargeable expenditures to total expenditures. During that thirty day period, nonmembers can challenge the Union's calculation of its chargeable and non-chargeable expenses, to be resolved by an impartial decision maker. Knox v. Westly, No. 2:05-CV-02198, 2008 WL 850128, at *2 (E.D.Cal. Mar. 28, 2008).
A given agency fee is in effect from July 1 through June 30 of the following year (the "fee year"), at which point the agency fee set forth in the Union's next Hudson notice goes into effect. The 2005 Hudson notice set the agency fee to be paid by nonunion employees as 99.1% of the Union dues.[1] The reduced agency fee of 56.35% of Union dues would be charged to nonmembers who objected to paying the full agency fee, and who requested a reduction pursuant to the procedures and deadlines outlined in the notice. The notice explicitly stated dues and fees were subject to change without further notice to fee payers.
During the summer of 2005, the legislative bodies within the Union debated and approved a temporary assessment (also referred to as a dues and fees increase) equal to .0025, or .25% of Union members' gross wages. The increase took effect at the end of September 2005 and terminated at the end of December 2006, and was expected to raise $12 million for the Union.
Specifically, on July 30, 2005 the Union's Budget Committee proposed an emergency temporary assessment to create what was termed in the agenda item introducing it as a "Political Fight Back Fund." This agenda item stated the Fund "will be used for a broad range of political expenses" in response to several "anti-union" propositions on the November 2005 special election ballot in California, and that the fund "will not be used for regular costs of the union — such as office rent, staff salaries or 1119*1119 routine equipment replacement." Id. On August 27, 2005 Union delegates voted to implement the temporary dues increase. On August 31, 2005, the Union sent a letter to all members and agency fee payers stating that they were subject to the new increase, and that the fund would be used "to defeat Propositions 76 and 75," other future attacks on the Union pension plan, and other activities.
The Union material indicated that the fund would be used for political activities. Yet, in response to inquiries, the Union specifically stated it intended to split the increase "between political actions and collective bargaining actions." Further, not all of the political activities fell into the "non-chargeable" category. The assessment itself included no spending limitations, and the money was actually used for a range of activities, both political and not, and both chargeable and not.[2] Pursuant to the increase, the Controller began collecting additional fees from Plaintiffs at the end of September 2005.
Plaintiffs represent two classes of nonunion employees, those who objected to the Union's 2005 Hudson notice ("objectors") and those who did not ("nonobjectors") (collectively "Plaintiffs"). Knox, 2008 WL 850128, at *2. Plaintiffs initiated this action in November 2005, alleging the assessment violated their First, Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. Plaintiffs filed for summary judgment, and the Union filed a cross-motion for partial summary judgment. The district court granted Plaintiffs' motion in its entirety, and partially granted and partially denied the Union's motion. This timely appeal followed.
We review de novo a district court's grant of summary judgment on the sufficiency of the Hudson notice. Cummings v. Connell, 316 F.3d 886, 890 (9th Cir.2003). On review, we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there

are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004).
II
A
In reviewing the adequacy of the Hudson notice, we employ our usual standard of review, as dictated by Hudson. In that case, the Supreme Court articulated the legal standard to be applied in this analysis as a balancing test, stating that "[t]he objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object 1120*1120 thereto without restricting the Union's ability to require every employee to contribute to the cost of collectivebargaining activities." Hudson, 475 U.S. at 302, 106 S.Ct. 1066 (quoting Abood, 431 U.S. at 237, 97 S.Ct. 1782).
The Plaintiffs argue we should abandon the balancing test established in Hudson, in favor of strict scrutiny review. They argue that this case involves compelling their speech on political issues, and that therefore the government-mandated speech cases, and their application of strict scrutiny should apply, citing Riley v. Nat'l Fed'n of the Blind, 487 U.S. 781, 795, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) and Rosenberger v. Rector & Visitors,515 U.S. 819, 827-29, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). We disagree.
First, Hudson itself articulated the legal standard to be applied, and we are not free to reject the balancing test mandated by the Supreme Court.
Second, we articulated the test in Grunwald v. San Bernardino City Unified Sch. Dist.,994 F.2d 1370 (9th Cir.1993). We noted in that case that in challenges to the First Amendment procedure used by unions, the union need not employ procedures that "would minimize further the burden on agency fee payers." Grunwald, 994 F.2d at 1376 n. 7. "The test, after all, is not whether the union and the [employer] have come up with the system that imposes the least burden on agency fee payers, regardless of cost (a test no system could possibly satisfy); rather we inquire whether the system reasonably accommodates the legitimate interests of the union, the [public employer] and nonmember employees." Id.
Therefore, we will apply the normal Hudson balancing and reasonable accommodation test we have used in the past when deciding challenges to Hudson notice procedures.[3]See, e.g., Wagner, 354 F.3d at 1039; Cummings, 316 F.3d at 890.
B
Applying the balancing test, we conclude that the Union did not violate the Hudsonrequirements. The Supreme Court in Hudson recognized the impossibility of determining the chargeability of a union's anticipated expenditures at the outset of the fee year, and specifically approved calculating the present year's objector fee based on the prior year's total expenditures. The Supreme Court explained, "We continue to recognize that there are practical reasons why absolute precision in the calculation of the charge to nonmembers cannot be expected or required. Thus, for instance, the Union cannot be faulted for calculating its fee on the basis of its expenses during the preceding year." Hudson, 475 U.S. at 307 n. 18, 106 S.Ct. 1066 (internal quotation marks and citations omitted). Hudson thus struck a balance between the rights and burdens in this context, acknowledging that a union is 1121*1121 not constitutionally required to take any and all steps

demanded by fee payers to insure that its annual fee notice accurately predicts its actual spending in the upcoming year.
Use of the prior year method is a practical necessity because, for large public sector unions, the Hudson notice must be based on audited financial statements, with the union's chargeable percentage calculation verified by an independent auditor, and the union must send its fee payers the independent auditor's report with its Hudson notice. Hudson, 475 U.S. at 307 n. 18, 106 S.Ct. 1066. The audit requirement renders impossible any method of determining the chargeability of the upcoming fee year's expenditures other than basing it on the prior year's actual expenditures, because one cannot audit anticipated future expenditures. Until the money has been spent, the auditor cannot determine whether the expenditures which the union claims it made for certain expenses were actually made for those expenses. Prescott v. County of El Dorado, 177 F.3d 1102, 1107 (9th Cir.1999), vac'd & remanded on other grounds, 528 U.S. 1111, 120 S.Ct. 929, 145 L.Ed.2d 807, reinstated in relevant part, 204 F.3d 984 (9th Cir.2000).
The inevitable effect of the Hudson "prior year" method is a lag of at least one year between the time when a union incurs expenditures and when the audited ratio of its chargeable expenditures to total expenditures is applied to calculate the objectors' fee for the next year. Fluctuation is inherent in such a method: in each year, objectors may be "underpaying" or "overpaying" fees when compared to the chargeable percentage of the union's actual expenditures in that year because under Hudson's "prior year" method the fee is based upon the chargeable percentage of the prior year's actual expenses, but the inevitable effect of the Hudson method is that these over- and undercharges even out over time. The Hudson notice can never be more than a prediction, which will inevitably be incorrect as to the union's actual expenditures. The Hudson notice is not, and cannot be expected to be, more than that.
C
The district court faulted the Union for failing to make an accurate prediction in its June 2005 Hudson notice of its actual expenditures in the remainder of that fee year due to the subsequent enactment of the temporary increase. Yet, under the normal Hudsonprocedure, any payments over and above the Union's actual chargeable expenditures in the 2005 fee year would be incorporated into the rate for the next fee year. The Supreme Court has determined that this is sufficiently accurate to comply with the constitutional restrictions. There is no principled distinction to be drawn between the paradigmatic Hudson procedure and the one employed here.
Indeed, in the usual Hudson notice situation, the actual chargeable percentage of a union's actual spending in any given year, as well as the precise dollar amount of dues and fees, will likely vary from the prior year's figures set forth in the applicable Hudsonnotice. The Plaintiffs allege the Union did not provide a procedure that would avoid the risk that nonmembers' funds from the special assessment would be used, even temporarily, to finance nonchargeable activities, but merely offered dissenters the possibility of a rebate. Therefore, the Plaintiffs reason, the procedure is unconstitutional. This construction takes the central Hudson concepts completely out of context and applies them in a way that would not only invalidate the fee increase, but would invalidate the very procedural system decreed by the Supreme Court in Hudson.Plaintiffs appear to argue that because the assessment was 1122*1122 to be used for "purely" political reasons, it could not be constitutionally collected from nonmembers in the first place, and that any collection and then later incorporation of the non-chargeable amount into a future agency fee objector rate would be tantamount to an impermissible rebate of the earlier fee. Yet, the Union had already reduced the fee for objecting nonmembers, and has demonstrated that the assessment was not purely nonchargeable, nor intended to be so. Further, the record belies the assertion that the charges were used "purely" for non-chargeable expenses.[4]

The section of Hudson discussing rebates did not condemn the advance reduction procedure the Union used here, but rather a "pure rebate" system where the union collects a fee that is equal or nearly equal to full dues, and then provides a rebate of the non-chargeable portion to objectors only at the end of the fee year. See Hudson, 475 U.S. at 305, 106 S.Ct. 1066; see also Ellis, 466 U.S. at 443-44, 104 S.Ct. 1883. Here the Union charged objectors only 56.35% of the temporary increase, the chargeable percentage set forth in the June 2005 notice, rather than 100% of the increase followed by a later rebate.
Additionally, the district court's direction that a union must issue a second Hudson notice when it intends "to depart drastically from its typical spending regime and to focus on activities that [are] political or ideological in nature," Knox, 2008 WL 850128 at *8, is practically unworkable. Union spending may vary substantially from year to year — in one year there may be a new collective bargaining agreement negotiated, resulting in a high chargeable percentage for objectors that is followed by an election year that results in a low chargeable percentage for objectors. In fact, for example, the chargeable percentage for 2006, the year incorporating the fee increase spending, was higher than that for the 2005 Hudson notice.
Hudson's prior year method assumes and accepts that a union has no "typical spending regime," and that even though spending might vary dramatically, a single annual notice based upon the prior year's audited finances is constitutionally sufficient. Otherwise, a union's Hudson notice for an upcoming partisan political election year, following a negotiating year, could not be based upon the union's actual total expenditures in the previous year because the union would intend in the coming fee year to "depart drastically from its previous spending regime and to focus on activities that are political or ideological in nature." Yet, this is the system set out by Hudson, and no following case has questioned its continuing vitality. The fact that a projection of expenditures may differ from actual expenditures should surprise no one. The key analytic point for Hudsonpurposes is that proper notice is given and subsequent adjustments made.
The district court's conclusion was also at odds with our precedent. The district court required the Union to come up with a system that imposes the least burden on agency fee payers. However, the legal requirement for unions in this situation is 1123*1123 to establish a system that merely "reasonably accommodates the legitimate interests of the union, the [public employer] and nonmember employees," as is the Union's obligation under Grunwald, 994 F.2d at 1376 n. 7; accord Andrews v. Educ. Ass'n of Cheshire, 829 F.2d 335, 340 (2d Cir. 1987) ("When the union's plan satisfies the standards established by Hudson, the plan should be upheld even if its opponents can put forth some plausible alternative less restrictive of their right not to be coerced to contribute funds to support political activities that they do not wish to support."). The 2005 notice satisfied the standards established by Hudson.
The Supreme Court's decision in Davenport v. Washington Education Ass'n, 551 U.S. 177, 127 S.Ct. 2372, 168 L.Ed.2d 71 (2007), does not lead us to a contrary conclusion. In Davenport, the Supreme Court held the Hudson requirements outline a minimum set of procedures by which a public sector union in an agency shop relationship could meet its constitutional requirements, and that state legislatures may place limitations on a union's entitlement to fees above those laid out in Hudson. Davenport arose in the context of the state of Washington enacting legislation requiring unions to give all nonmembers the objector fee rate unless they affirmatively agreed to be charged for nonchargeable activities (in contrast to the California rule where silence equals consent, rather than dissent). Id. at 182-83, 127 S.Ct. 2372. Davenport held that while the "silence equals consent rule" is constitutional, it is also constitutional for a state to make a "silence equals dissent" rule. Id. at 190-91, 127 S.Ct. 2372. Under Davenport, it is state legislatures, rather than courts, that have the power to implement higher standards. This holding does not alter our conclusion in this case that the 2005 notice was adequate to cover the subsequent dues increase, as Davenport does not speak to such a situation.

III
The Union's notice in this case complied with the Hudson procedural requirements. Therefore, we reverse the district court, and remand with instructions to deny the Plaintiffs' motion for summary judgment. We also reverse the denial of defendant's motion for partial summary judgment regarding the consent of nonobjectors under California law, and remand with instructions to grant the motion. We reverse the award of nominal damages to Plaintiffs.
REVERSED AND REMANDED.
WALLACE, Circuit Judge, dissenting:
I dissent from the majority's opinion because it is not faithful to the principles guiding the Court's decision in Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). The majority begins from an inaccurate account of the interests at stake, and applies the procedures set forth in Hudson without due attention to the distinguishing facts of this case. The result is contrary to well-established First Amendment principles.
I.
I begin with the legal authorization for the agency shop system because it provides the framework for my evaluation of the issues in this case, and because I am of the view that the majority's opinion presents an incomplete account of the relevant legal principles.
A.
The National Labor Relations Act allows the states to regulate their labor relationships with public sector employees. See 29 U.S.C. § 152(2). Many states, including California, allow public-sector unions and government employers to enter into "agency-shop" arrangements. Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 511, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991); Cal. Gov't 1124*1124 Code § 3502.5(a). Defendant SEIU Local 1000 (Union) is the designated bargaining representative for California state employees, pursuant to such an agency-shop arrangement. The Union is legally obligated to represent equally all employees in the bargaining unit. Lucas v. NLRB, 333 F.3d 927, 931-32 (9th Cir.2003). The Union levies a fee on every employee whom it represents in collective bargaining, even if the employee refuses to join the Union. See, e.g., Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 760-764, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). The fees paid by bargaining unit employees who are not members of the Union are commonly known as "agency fees" or "fair share fees." Plaintiffs in this case are eight nonmembers of the Union, representing a class of approximately 28,000 public employees, who are required to pay an agency fee.
Agency-shop arrangements present First Amendment concerns. See id. at 749, 81 S.Ct. 1784 (union shop presents First Amendment "questions of the utmost gravity"); Railway Employees' Dep't v. Hanson, 351 U.S. 225, 236-38, 76 S.Ct. 714, 100 L.Ed. 1112 (1956). These concerns are particularly sharp in the public sector: "agency-shop arrangements in the public sector raise First Amendment concerns because they force individuals to contribute money to unions as a condition of government employment." Davenport v. Wash. Educ. Ass'n, 551 U.S. 177, 181, 127 S.Ct. 2372, 168 L.Ed.2d 71 (2007). The Court explained in Davenport that "[r]egardless of one's views as to the desirability of agency-shop agreements, ... it is undeniably unusual for a government agency to give

a private entity the power, in essence, to tax government employees." Id. at 184, 127 S.Ct. 2372, citing Abood v. Detroit Bd. of Educ., 431 U.S. 209, 255, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977).
Despite the infringement of First Amendment rights engendered by the agency-shop arrangement, the Supreme Court has deemed such arrangements to be constitutionally permissible in principle. See Locke v. Karass, 555 U.S. 207, 129 S.Ct. 798, 801, 172 L.Ed.2d 552 (2009) (holding that "in principle, the government may require this kind of payment [i.e. agency fees] without violating the First Amendment"). The Court has determined that agency-shop arrangements are "justified by the government's interest in promoting labor peace and avoiding the `free-rider' problem that would otherwise accompany union recognition." Lehnert, 500 U.S. at 520-21, 111 S.Ct. 1950; see also Abood, 431 U.S. at 222, 97 S.Ct. 1782.
Importantly, however, a union "[may] not, consistently with the Constitution, collect from dissenting employees any sums for the support of ideological causes not germane to its duties as collectivebargaining agent." Ellis v. Bhd. of Ry., Airline, & S.S. Clerks, 466 U.S. 435, 447, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984). Instead, nonmembers may only be compelled to contribute a fair share of costs germane to collective bargaining. See Bhd. of Ry. & S.S. Clerks v. Allen, 373 U.S. 113, 118-20, 83 S.Ct. 1158, 10 L.Ed.2d 235 (1963). As a corollary, nonmembers have a constitutional right to "prevent the Union's spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative." Abood, 431 U.S. at 234, 97 S.Ct. 1782; see also, e.g., Commc'ns Workers v. Beck, 487 U.S. 735, 762-63, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988); Price v. Int'l Union, United Auto., Aerospace & Agric. Implement Workers, 927 F.2d 88, 90-91 (2d Cir. 1991). "The amount at stake for each individual dissenter does not diminish this concern. For, whatever the amount, the quality of respondents' interest in not being 1125*1125 compelled to subsidize the propagation of political or ideological views that they oppose is clear." Hudson, 475 U.S. at 305, 106 S.Ct. 1066.
B.
In addition, procedural protections are constitutionally required in connection with a union's assessment and collection of an agency fee. In Hudson, the Court considered whether a union's procedure for the collection of agency fees adequately protected the distinction between germane collective bargaining costs and nonchargeable political expenditures. The Court explained that procedural protections were constitutionally required in this context for two reasons:
First, although the government interest in labor peace is strong enough to support an "agency shop" notwithstanding its limited infringement on nonunion employees' constitutional rights, the fact that those rights are protected by the First Amendment requires that the procedure be carefully tailored to minimize the infringement. Second, the nonunion employee — the individual whose First Amendment rights are being affected — must have a fair opportunity to identify the impact of the governmental action on his interests and to assert a meritorious First Amendment claim.
Hudson, 475 U.S. at 302-03, 106 S.Ct. 1066. The Court held that, "[s]ince the agency shop itself is `a significant impingement on First Amendment rights,' ... the government and union have a responsibility to provide procedures that minimize that impingementand that facilitate a nonunion employee's ability to protect his rights." Id. at 307 n. 20, 106 S.Ct. 1066 (emphasis added), quoting Ellis, 466 U.S. at 455, 104 S.Ct. 1883.
In Hudson, the defendant, a teacher's union, had implemented a fair share fee calculated as the proportion of chargeable expenditures in the preceding fiscal year, that is, those expenses related to collective bargaining and contract administration. The union also established a procedure for the

consideration of nonmembers' objections. The union failed, however, to provide nonmembers with any explanation of how the fair share fee was calculated or explanation of the union's procedures. The Court held that the union's procedure was inadequate for three reasons: "because it failed to minimize the risk that nonunion employees' contributions might be used for impermissible purposes, because it failed to provide adequate justification for the advance reduction of dues, and because it failed to offer a reasonably prompt decision by an impartial decisionmaker." Id. at 309, 106 S.Ct. 1066.
First, the procedure at issue in Hudson was constitutionally deficient because it merely offered dissenters the possibility of a rebate; it failed to minimize the possibility that dissenters' funds would be used for an improper purpose in the first place. The Court stressed that the union should not be permitted to exact an agency fee from dissenters "without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining." Id. at 305, 106 S.Ct. 1066 (emphasis added; internal quotation marks omitted), citing Abood, 431 U.S. at 244, 97 S.Ct. 1782 (concurring opinion).
Second, the union's procedures were held constitutionally deficient because employees had not been provided with sufficient information about the basis of the proportionate share: "[b]asic considerations of fairness, as well as concern for the First Amendment rights at stake, also dictate that the potential objectors be given sufficient information to gauge the propriety of the union's fee." Id. at 306, 106 S.Ct. 1066. In Abood, the Court had stated 1126*1126 that it was a union's duty to provide "the facts and records from which the proportion of political to total union expenditures can reasonably be calculated." 431 U.S. at 239-40, n. 40, 97 S.Ct. 1782, quoting Allen, 373 U.S. at 122, 83 S.Ct. 1158. The Court went further in Hudson, holding that the union was required to provide this information without awaiting an objection. Hudson, 475 U.S. at 306, 106 S.Ct. 1066.
Third, Hudson held that there must be a dispute resolution procedure. The Court stated that a union must provide both "a reasonably prompt opportunity to challenge the amount of the fee" as well as "a reasonably prompt decision by an impartial decisionmaker." Id. at 307, 310, 106 S.Ct. 1066 (emphasis added). The procedure at issue in Hudson was inadequate because it was controlled by the union and did not provide for an impartial decisionmaker. Id. at 308, 106 S.Ct. 1066 (describing the "`most conspicuous feature of the procedure is that from start to finish it is entirely controlled by the union'"). The Court further held that a union must provide an "escrow for the amounts reasonably in dispute while such challenges are pending." Id. at 310, 106 S.Ct. 1066.
Drawing on these considerations, Hudson outlined three requirements for a union's collection of an agency fee: (1) "an adequate explanation of the basis for the fee," (2) a "reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker," and (3) "an escrow for the amounts reasonably in dispute while such challenges are pending." Id. at 310, 106 S.Ct. 1066.
C.
Surprisingly, in the case before us the majority characterizes the Hudson "test" as a "balancing test" or "reasonable accommodation test." The majority chooses, moreover, to highlight the Union's interests, stating that Congress has recognized the "important contribution of the union shop to the system of labor relations," and that "[t]he Supreme Court has underscored this Congressional policy by enforcing the right of a union, as the exclusive collective-bargaining representative of its employees, to require nonunion employees to pay a fair share of the union's costs."

The majority puts its finger on the wrong side of the scale. A union has no "right" to the collection of agency fees, and Hudson does not call for merely a "reasonable accommodation" of employees' constitutional rights. From the framework described above, I view the Union's procedures much differently than the majority. I fear that the majority's account of the interests at stake, compounded by its view of the operative legal test, invites confusion. Indeed, it tampers with vitally important First Amendment principles.
1.
I cannot begin from the proposition that we are required to balance the "rights" of the Union against the rights of the employees it represents. While the majority insists that the only way "to faithfully characterize the procedures set out in Hudson" is to "balance" the Union's "right" to collect agency fees against the first amendment rights of non-union employees [Maj. Op. 1120 n. 3], it is the majority that is unfaithful to Hudson and her progeny. The Union's collection of fees from nonmembers is authorized by an act of legislative grace, not by any inherent "right" of the Union to the possession of nonmembers' funds. See Davenport, 551 U.S. at 185, 127 S.Ct. 2372. This should be clear to all. In Davenport, the Court explained that its agency-fee cases "were not balancing constitutional rights in the manner [the union] suggests, for the simple reason that unions have no constitutional entitlement to the fees of nonmember-employees." Id.Along similar lines, 1127*1127 the Second Circuit has held that it is error to approach the agency-fee issue "with a balancing test in which the cost to the union and the practicality of the procedures were to be weighed against the dissenters' First Amendment interests." Andrews v. Educ. Ass'n of Cheshire, 829 F.2d 335, 339-40 (2d Cir.1987).
Davenport considered a Washington state law prohibiting labor unions from using the agency-shop fees of nonmembers for election-related purposes unless the nonmember affirmatively consented. 551 U.S. at 185, 127 S.Ct. 2372. The Court considered whether this restriction on a union's spending of agency fees, as applied to public-sector labor unions, violated the First Amendment. The Court emphatically determined that the restriction did not: "[t]he notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive." Id. at 184, 127 S.Ct. 2372. The union had no right to the funds; instead, "[w]hat matters is that public-sector agency fees are in the union's possession only because Washington and its union-contracting government agencies have compelled their employees to pay those fees." Id.at 187, 127 S.Ct. 2372.
Viewed properly, the collection of agency fees is authorized by legislative policy considerations pertaining to labor relations. Locke, 129 S.Ct. at 803; Abood, 431 U.S. at 222, 97 S.Ct. 1782. There are several justifications for an agency shop, but only one is implicated in this case: to prevent freeriding by nonmembers who benefit from the union's collective bargaining activities. See Davenport, 551 U.S. at 181, 127 S.Ct. 2372(describing the "primary purpose" of agency-shop arrangements as prevention of free-riding by nonmembers); see also Abood, 431 U.S. at 222, 97 S.Ct. 1782; Ellis, 466 U.S. at 447-48, 104 S.Ct. 1883. Political and ideological expenditures fall outside "the reasons advanced by the unions and accepted by Congress why authority to make union-shop agreements was justified." Lehnert, 500 U.S. at 554, 111 S.Ct. 1950, quoting Street, 367 U.S. at 768, 81 S.Ct. 1784.
Thus, the majority is mistaken. The Union's interest in this case is not a "right" to nonmembers' funds. The Union's interest lies in receiving a fair contribution to its collective bargaining expenses. The Union has no legitimate interest, however, in collecting agency fees from nonmembers to fill its political war-chest.

2.
The majority describes Hudson as a "reasonable accommodation test." The majority points to the following statement from Hudson: "[t]he objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Union's ability to require every employee to contribute to the cost of collective-bargaining activities." 475 U.S. at 302, 106 S.Ct. 1066. The majority also states that a union need not take "any and all steps demanded by fee payers." The majority looks to our decision in Grunwald v. San Bernardino City Unified School District,which stated: "[t]he test ... is not whether the union and the [employer] have come up with the system that imposes the least burden on agency fee payers, regardless of cost." 994 F.2d 1370, 1376 n. 7 (9th Cir.1993).
But there is a wide gap between taking "any and all steps demanded by fee payers" — that is, a least-restrictive means test — and what the majority endorses. While Hudsondoes not require a union to adopt procedures that impose the least intrusive burden on fee payers possible, the majority affords the union undue leniency. See, e.g., Andrews,829 F.2d at 339-40. The majority ignores Hudson's 1128*1128 instruction that, because employees' First Amendment interests are implicated by the collection of an agency fee, "the procedure [must] be carefully tailored to minimize the infringement." Hudson, 475 U.S. at 302-03, 106 S.Ct. 1066 (emphasis added). To eliminate any doubt, in the footnote appended to this statement, the Court cites several cases holding that when First Amendment rights are implicated, the government must avoid burdening those rights. Id. at 303, n. 11, 106 S.Ct. 1066, citing Roberts v. United States Jaycees, 468 U.S. 609, 637, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984); Elrod v. Burns, 427 U.S. 347, 363, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Kusper v. Pontikes, 414 U.S. 51, 58-59, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
Hudson emphasized, moreover, that "procedural safeguards often have a special bite in the First Amendment context." 475 U.S. at 302 n. 12, 106 S.Ct. 1066 (internal quotation marks and alteration omitted). In the agency fee context, Hudson described the goal of procedural protections as to "minimize the risk that nonunion employees' contributions might be used for impermissible purposes" even temporarily, id. at 305, 309, 106 S.Ct. 1066, and to "facilitate a nonunion employee's ability to protect his rights," id. at 307 n. 20, 106 S.Ct. 1066. I therefore conclude that the majority's "reasonable accommodation test" is misguided and is inconsistent with case law that we are required to follow.
II.
The Union's procedures in this case should be evaluated in light of the principles set forth in Hudson and the legitimate interests at stake. As the majority has already set forth the facts of this case in some detail, I recite them only where particularly relevant to my views or where additional detail is warranted. I also seek to draw more attention to the well-reasoned decision of the district court.
A.
Pursuant to Hudson, the Union issues a notice to agency fee payers every June. At issue in this case is the Union's June 2005 Hudson notice. That notice set the agency fee to be extracted from nonmember's paychecks at 99.1% of full union membership dues. Nonmembers who objected to paying for nonchargeable expenses would pay a reduced agency fee, set at 56.35% of full union membership dues. The agency fees described in the notice were in effect until the following July,

when a new Hudson notice was to become effective. The June 2005 Hudson notice also provided an objection period of thirty days, during which nonmember fee payers could object to the collection of the full agency fee and elect to pay the reduced agency fee. Some of the plaintiffs in this action objected to the June 2005 Hudson notice, while others did not.
In the Summer of 2005, shortly after the expiration of the period for objection to the June 2005 Hudson notice, the Union's legislative bodies began discussing a temporary dues increase. The proposal was described as an "Emergency Temporary Assessment to Build a Political FightBack Fund." The agenda for a July 30, 2005 Council Meeting described the purpose of the assessment as follows: "[t]he funds from this emergency temporary assessment will be used specifically in the political arenas of California to defend and advance the interests of members of Local 1000...." The agenda continued to describe:
These temporary emergency assessments are made necessary by political attacks on state employees and other public workers launched by Governor Schwarzenegger and his allies which threaten the wages, benefits and working 1129*1129 conditions of Local 1000 members, and undermine the services they provide to the people of California.
The Union contemplated that the "Political Fight-Back Fund" would not be used for the "regular costs of the union ... such as office rent, staff salaries or routine equipment replacement." Instead, the Fund would be used "for a broad range of political expenses."
The Union approved the temporary assessment at the end of August 2005. The Union's yearly Hudson notice had been issued in June 2005, and that notice did not mention the possibility of the later-enacted temporary assessment. After passage of the temporary assessment, the Union sent a letter to members and nonmembers, dated August 31, 2005, informing them that "Local 1000 delegates voted overwhelmingly for a temporary dues increase to create a Political Fight-Back Fund." The letter stated that the funds collected from the dues increase would be used for several political purposes: (1) to defeat two propositions appearing on the November 2005 ballot (Propositions 75 and 76); (2) to "defeat another attack on [the] pension plan" in June 2006; and (3) "[i]n November 2006 ... to elect a governor and legislature who support public employees and the services [they] provide." The letter explained that the $45 per month cap on dues would not apply to the temporary assessment. For sake of clarity, I point out that this letter did not constitute "notice" as contemplated in Hudson. The letter did not provide an explanation for the basis of the additional fees being imposed, and it did not provide nonmembers with an opportunity to object to the additional fees.
After receiving the Union's letter, some nonmembers attempted to object to the temporary assessment. For example, plaintiff Dobrowolski contacted the Union to lodge his objection to the "Political Fight-Back Fund." He was told, in effect, that there was nothing he could do about it; he was not allowed to object. The Union thereafter sent a letter to nonmembers, like plaintiff Dobrowolski, who attempted to object to the increase in fees. That letter, dated October 27, 2005, stated in part:
The Union has received your objection to the dues increase. We understand that you are a political objector and a fee payer in the Union and that you have raised an objection to paying this increase because you believe the money will be directed solely to political activities by the Union. We understand your frustration about paying a little more to the Union when you have not seen a new contract with a pay increase. However, we hope that by explaining the Union's position concerning this dues and fees increase, you will better understand our position.... When we have a campaign that is split between political actions and collective bargaining actions the Union is required by law to annually audit the expenditures for those activities; the Union will fully

comply with this requirement. However, the Supreme Court has stated that this audit must occur at the end of the fiscal year in which the activities take place, because next year's objecting fee-payer rate must be based on that audit. This campaign will entail much workplace organizing divided over two fiscal years. At the end of each year, the Union's expenses for these activities will be audited, and the amount of expense which is not germane to collective bargaining will be used to set the objecting fee-payer rate for the next year. Presently you are an objecting fee-payer who pays the audited rate for this year. Next year, you will be able to exercise your objection again and pay the audited 1130*1130 rate set for that year, based on the Union's expenditures this year. That rate will fully account for any political actions of the nature to which you have objected.
The temporary assessment took effect at the end of September 2005. At that time, the Controller of the State of California, defendant Steve Westly, began deducting the additional fees automatically from all nonmember employees' paychecks. Although the assessment was "temporary," it was certainly not of short duration, lasting from September 2005 until the end of December 2006.
B.
In November 2005, plaintiffs initiated this action in the United States District Court for the Eastern District of California, contending that the temporary assessment violated their First, Fifth and Fourteenth Amendment rights. Plaintiffs alleged, among other things, that the temporary assessment constituted a seizure of their money for nonchargeable political expenses, without constitutionally required procedural safeguards. The district court granted a preliminary injunction to plaintiffs. On cross-motions for summary judgment, the district court entered summary judgment in plaintiffs' favor.
There are several important features of the district court's summary judgment. First, the district court addressed the burden imposed by the temporary special assessment. The Union argued that nonmembers who had objected to the June 2005 Hudson notice were assessed only a 14.09% increase in the deduction from the objector's salary. The district court opined that the figure was "somewhat misleading" because it ignored the fee increase imposed on nonunion employees who had not objected to the Union's June 2005 Hudson notice. The district court indicated that the Union's quantification of the temporary assessment was misleading in other respects as well, and that the actual increase in fair share fee for nonmembers ranged, on average, from 25% to 33%. The district court deemed this "a material change in the amount of funds nonunion employees were required to contribute to Union expenditures." The district court concluded, "the fair share fees paid by both objectors and nonobjectors actually increased by a much greater margin than Defendants would like to suggest."
Second, the district court discussed the characterization of the temporary special assessment. Plaintiffs asserted that the fund was intended solely for political and ideological purposes. The Union characterized the assessment as "an ordinary dues and fees increase" because, in retrospect, some of the expenses funded through the temporary assessment were eventually deemed chargeable to nonmembers. The district court thought the Union's position "def[ied] logic." The Union had described the proposed assessment as a political fund, and specifically stated that the fund was not to be used for regular costs.
Third, taking all of the above together, the district court concluded that the June 2005 notice did not provide potential objectors with sufficient information to gauge the propriety of the Union's fee, in light of the temporary special assessment. The June 2005 Hudson notice could not provide adequate notice as to the temporary assessment because it relied on categories that were not relevant to the temporary assessment. According to the Union's statements, the temporary special

assessment was intended for a specific purpose and would not be used for regular expenses. The district court pointed out that, "after implementing the increase, the Union took the position that nonunion employees 1131*1131 had already been given an opportunity to make an informed decision as to the Assessment by means of the 2005 Hudson notice. The Union now turns a blind eye to the inconsistency inherent in asking non-union employees to compare apples, in the form of the prior year's financials, to oranges, in the form of a new Assessment."
Finally, the district court concluded that the appropriate remedy was a second Hudsonnotice, relying on Wagner v. Professional Engineers in California Government, 354 F.3d 1036, 1041 (9th Cir.2004). This remedy had to be made available to nonmembers regardless of whether they had objected to the June 2005 Hudson notice, because: "[i]n order for any nonunion employees' failure to object to have any legal significance, the 2005 Hudson Notice must have been valid and sufficient to cover the Assessment." The district court held that objectors to the second Hudson notice would be entitled to a refund, with interest, of any withheld amounts.
III.
In this case, the Union failed to protect adequately the First Amendment rights of nonmembers from whom it collected an agency fee. In collecting agency fees from nonmembers, the Union is subject to constraints that are both procedural and substantive in nature. See Grunwald, 994 F.2d at 1373. Procedurally, the Union did not provide nonmembers with sufficient information to gauge the propriety of the agency fee. The Union's June 2005 Hudson notice was insufficient in light of the temporary assessment. Notably, the Union adopted no other procedures to protect nonmembers' First Amendment rights upon imposition of the temporary assessment. Nonmembers were provided no additional notice, opportunity to object, dispute resolution procedure, and so forth. Compounding these procedural failures, there is a substantive problem. The temporary assessment is suspect, because it was instituted shortly after the June general Hudson notice and was explicitly and exclusively intended to fund the Union's political activities. The temporary assessment was a special purpose fund that would not be used for regular Union costs and therefore represented a departure from the Union's typical spending regime.[1] I do not believe the Union sufficiently minimized the risk that nonmembers' funds would be used to subsidize political and ideological activities in light of these circumstances.
A.
I first consider the adequacy of the Union's June 2005 Hudson notice in light of the temporary assessment. The June 2005 Hudson notice provided, in part:
Effective July 1, 2005 through June 30, 2006, the fee will be no more than 99.1% of regular membership dues. Regular monthly membership dues are currently 1.0% of monthly gross salary and are presently capped at a maximum of $45 per month. Dues are subject to change without further notice to fee payers. Effective July 1, 2005 through June 30, 2006 (the "2005-6 Fee Payer Year") [the Union] will charge fee payers who object to expenditures not germane to 1132*1132 collective bargaining a fee of no more than 56.35% of regular membership dues for that salary level.
The notice provided, in addition, for a "Political Action Reduction:" "Fee payers are also entitled to have their fees reduced by the pro rata portion of the fee that goes to the Political Action Fund that [the Union] sets aside for contributions to candidates and initiative campaigns, and other partisan political activities."

To provide a point of comparison, the Union's June 2006 Hudson notice, issued after the temporary assessment had been enacted, provided as follows:
Effective July 1, 2006 through June 30, 2007, the fee will be no more than 99.1% of regular membership dues. Regular monthly membership dues are currently 1.0% of monthly gross salary and are presently capped at a maximum of $45 per month. Additionally, a temporary assessment of ¼ of 1% of monthly gross salary is being collected through December 31, 2006. Dues are subject to change without further notice to fee payers. Effective July 1, 2006 through June 30, 2007 (the "2006-7 Fee Payer Year") [the Union] will charge fee payers who object to expenditures not germane to collective bargaining a fee of no more than 68.8% of regular membership dues for that salary level.
Regarding the "Political Action Fund," the 2006 Hudson notice provided that fee payers were also entitled "to have their fees reduced by the pro rata portion of the fee that goes to the Political Action Fund...."
The Union submits that the Supreme Court has approved the retrospective method by which it calculates the yearly agency fee: a "look-back" procedure, by which the Union sets the agency fee for the upcoming year according to the proportion of chargeable versus nonchargeable expenditures in the prior year. However, the Union's June 2005 Hudson notice was not adequate to provide an explanation of the basis for the agency fee extracted from nonmembers' paychecks for the temporary assessment. To reiterate the obvious, the June 2005 Hudson notice provided no information regarding the temporary assessment, as it was enacted subsequently, in August 2005. The Union would respond that the notice was adequate to cover such future contingencies. How could that be? The temporary special assessment resulted in approximately a 25% increase in fair share fees — a fairly substantial increase. Because the temporary assessment was exempted from the dues cap, higher-earning employees might experience an effective or actual increase that was even greater. Moreover, while the assessment was "temporary," it was in effect for the bulk of the 2005 fee year, from the end of September 2005 until commencement of the next fee year in July 2006.
The district court further held that the fee increase was material, and I agree. The temporary special assessment might therefore have affected a fee payer's decision to object pursuant to the June 2005 Hudson notice. See, e.g., Dashiell v. Montgomery County, 925 F.2d 750, 756 (4th Cir.1991) ("The test of adequacy of the initial explanation to be provided by the union is ... whether the information is sufficient to enable the employee to decide whether to object"). Indeed, because the Union refused to give nonmember employees an opportunity to object when information about the temporary assessment was disclosed, these nonmembers were essentially left in the "dark" about the nature of the agency fee during the time period in which they were required to file objections. See Hudson, 475 U.S. at 303, 106 S.Ct. 1066 (emphasizing that unions cannot leave "nonunion employees in the dark about the source of the figure for the agency fee"). In other words, even though the special 1133*1133 assessment significantly altered the magnitude and intended use of the agency fee, the Union and the majority believe that nonmember employees were required to object before the material information was revealed. Such an approach simply cannot be reconciled with the procedures set forth in Hudson. See id.; cf. Locke v. Karass, 382 F.Supp.2d 181, 190 (D.Me.2005) (explaining that the use of a previous year's financial audit to set the percentage of chargeable fees would violate Hudson, when a union "cherry pick[s]" certain financial data, and fails to disclose other material information, in an effort to increase fees), affirmed by 498 F.3d 49 (2007) and by 555 U.S. 207, 129 S.Ct. 798, 172 L.Ed.2d 552 (2009).
The Union would respond, I venture, by asserting that the temporary assessment did not alter the agency fee as a percentage of total union dues. The June 2005 Hudson notice disclosed that the

agency fee was 99.1% of membership dues, and that the objectors' agency fee was 56.35% of membership dues. The temporary assessment did not affect these percentages. But such an argument rests on the faulty premise that, if nonmembers' fees remain constant as a percentage of members' dues through a given fee year, any absolute increase in fees is protected from scrutiny by the yearly Hudsonnotice, that is, that the proportionate share is what matters, and because this was not altered there can be no constitutional violation.
I am not convinced that the proportionate share is all that matters in evaluating the adequacy of a Hudson notice. From the standpoint of a potential objector, the magnitude of the increase in fees imposed by the temporary assessment could very well be material. This increase, as an absolute amount, could affect a nonmember's decision to object or not to object even if the percentage fee remained static. And these nonmembers are the ones whose First Amendment rights are in jeopardy — not the Union's. Moreover, the temporary assessment was exempted from the cap on dues. Thus, even though the fair share fee remained constant as a basic percentage under the temporary assessment, because the assessment was exempted from the $45 per month cap on dues, some employees would in fact experience a proportionately greater share in monthly fee deductions. This is inconsistent with a static-percentage justification for the Union's failure to provide additional notice regarding the temporary assessment.
Furthermore, by exempting the temporary assessment from the cap, the Union acted contrary to the June 2005 Hudson notice. The June 2005 Hudson notice, stated: "currently 1.0% of monthly gross salary and are presently capped at a maximum of $45 per month." Exceptions from the cap, or the elimination of it, was not contemplated in the June 2005 Hudson notice. The Union's June 2005 Hudson notice also stated: "[d]ues are subject to change without further notice to fee payers." I cannot put much weight in this sweeping reservation of assumed authority; in any event, the notice did not disclose that the cap could be eliminated. For these additional reasons, I conclude that the temporary assessment might be a material factor in a nonmembers' decision to object.
I conclude that the Union's June 2005 notice did not fulfill its obligations under Hudson.The purpose of a Hudson notice is to enable informed consent or objection. See Cummings v. Connell, 316 F.3d 886, 895 (9th Cir.2003), cert. denied, 539 U.S. 927, 123 S.Ct. 2577, 156 L.Ed.2d 604 (2003) (holding that the Hudson notice was designed to provide nonmembers with information necessary to evaluate whether to object to a union's calculation of chargeable expenses); Hohe v. Casey, 956 F.2d 399, 410 (3d Cir.1992) ("the issue is whether 1134*1134 the notice provided nonmembers with... sufficient information to determine whether they were only being compelled to contribute to chargeable activities"). The Union's June 2005 Hudson notice was inadequate to provide fee payers with a basis on which to adjudge the propriety of the Union's agency fee, and to decide whether or not to object.
Because the Union's June 2005 Hudson notice was inadequate, an employee's failure to object to it does not constitute an effective waiver, an abandonment of a known right. Lowary v. Lexington Local Bd. of Educ., 903 F.2d 422, 430 (6th Cir. 1990). Until Hudson's requirements are satisfied, employees must be afforded subsequent opportunities to object. See Mitchell v. L.A. Unif. Sch. Dist., 963 F.2d 258, 261-63 (9th Cir.1992).
The June 2005 Hudson notice was not adequate to provide notice as to the temporary assessment for an additional reason, which warrants separate attention. The temporary assessment was a special purpose fund. The Union envisioned the temporary assessment as a political fundraising vehicle, to build a "Political Fight-Back Fund." The Union contemplated that the temporary assessment would provide a distinct source of capital for political activities and that it would not be used for the regular expenses of the union.[2] Recognizing the unique character of the temporary assessment has two implications.

First, the June 2005 Hudson notice could not be adequate to enable nonmembers' informed objection to the agency fee. The June 2005 Hudson notice contemplated ordinary expenditures; the temporary special assessment stood apart from that. As the district court stated, the union asked nonmembers to compare "apples, in the form of the prior year's financials, to oranges, in the form of a new [a]ssessment, an [a]ssessment which was not to be utilized for Union operations but was instead earmarked for discrete political purposes." Even if agency fees remained constant as a percentage of total member dues, nonmembers might well object to paying increased fees for purely political purposes; for example, they might object in light of the departure from the Union's normal spending regime.
1135*1135 Second, as a substantive matter, the Court has repeatedly stressed that a union may extract from nonmembers "only those fees and dues necessary to performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues." Price, 927 F.2d at 90-91 (internal quotation marks omitted). In Lehnert, the Court outlined a framework for evaluating whether an activity was germane to a union's role as exclusive bargaining agent: "chargeable activities must (1) be `germane' to collective-bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding `free riders'; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop." 500 U.S. at 519, 111 S.Ct. 1950.
To protect the distinction between chargeable and non-chargeable activities, a union is required to adopt procedures that minimize the risk that nonmembers will be compelled to subsidize political or ideological activities with which they do not agree.[3] In Hudson,the Court explained, "[t]he Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining." Hudson, 475 U.S. at 305, 106 S.Ct. 1066; Abood, 431 U.S. at 244, 97 S.Ct. 1782 (concurring opinion).
The temporary assessment was contemplated as a political fundraising vehicle; it therefore cannot be justified by the interest in preventing nonmembers from free-riding on the Union's collective bargaining efforts. The temporary assessment clearly burdened the speech of nonmembers. But the Union undertook no efforts, in connection with the imposition of the temporary assessment, to minimize the impact on nonmembers' First Amendment rights. Taking these considerations together, I conclude that, in connection with the imposition and collection of the temporary assessment, the Union did not fulfill its obligation to be mindful of nonmembers' First Amendment rights.
The Union and the majority seek to evade the fact that the temporary assessment was enacted to fund political activities by arguing that the fund was ultimately used for some expenses that were chargeable to nonmembers.[4] I agree with the district court's assessment of the Union's 1136*1136 post hoc rationalization: "[f]ollowing the union's logic it should be required only to show that some small fraction of this fund was used for chargeable purposes in order to justify subverting its Hudson responsibilities." The district court further reasoned that, even if the temporary assessment was not intended solely for political purposes, it was indeed intended predominantly for political purposes. As such, the district court continued, "it is clear that the Union's intent was to depart drastically from its typical spending regime and to focus [the temporary special assessment funds] on activities that were political or ideological in nature."
In sum, the Union's procedures were not adequate under the circumstances. The June 2005 Hudson notice was inadequate to provide nonmembers with sufficient information from which to evaluate the propriety of the Union's agency fee. After enacting the temporary special assessment, the Union made no effort whatsoever to minimize the infringement of nonmembers' rights. The Union did not provide notice regarding the temporary assessment; the Union also did not

provide nonmembers with an opportunity to object to the temporary assessment. The Union did not provide a procedure for resolving disputes and did not place disputed amounts in escrow. Indeed, when nonmembers attempted to object to the temporary assessment, they were refused a forum for their dispute and were never provided with the opportunity to obtain the decision of a neutral hearing officer.
IV.
This brings me to the crux of the Union's argument: that Hudson approved 1137*1137calculating an agency fee as the proportion of chargeable to nonchargeable expenses in the prior fiscal year. The Union asserts that the prior-year method is virtually required here, as it is a large public sector union and must calculate its agency fee on the basis of audited financial reports. Because of the audit requirement, moreover, the Union asserts that it could not prospectively apportion the temporary assessment between chargeable and nonchargeable expenses.
The majority agrees that the Union complied with its obligations. The majority recites that "absolute" precision cannot be expected or required in the calculation of an agency fee, and that the Union cannot be "faulted" for calculating its agency fee on the basis of the prior fiscal year's expenditures. Further, the majority states that the Union could not deviate from the prior-year method of calculating the agency fee with respect to the special assessment. The majority explains that the prior-year method makes lag inherent; in any given year, an objector might be "underpaying or overpaying," but "the inevitable effect of the Hudson method is that these over- and undercharges even out over time."
This strikes me as a strange argument when dealing with a First Amendment challenge. First, the Hudson notice procedure is not per se adequate to protect the rights of nonmembers in all situations. Instead, where, as here, there is a substantial deviation from the normal Hudson process, adaptation is required. Second, the prior-year calculation method does not establish the adequacy of the June 2005 Hudson notice nor does it demonstrate that the Union's procedures were adequate when viewed as a whole.
A.
We should not measure the Union's conduct by the discrete Hudson procedures alone. Hudson establishes a floor. See Keller v. State Bar of Cal., 496 U.S. 1, 17, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). In Davenport, the Court stressed, "we have described Hudson as `outlin[ing] a minimum set of procedures by which a [publicsector] union in an agency-shop relationship could meet its requirement under Abood.'" 551 U.S. at 185, 127 S.Ct. 2372.
Here, the temporary assessment was not like the Union's ordinary dues and not like the facts presented in Hudson. Several features of the special assessment distinguish this case. The temporary assessment was imposed mid-year and not in the normal course of the Hudson process. The temporary assessment imposed a material increase in agency fees over those contemplated in the Hudson notice, and was exempt from the dues cap (which was inconsistent with the Hudson notice). Hudson did not consider a fee increase outside of a normal periodic notice process. Likewise, Hudson did not contemplate a special-purpose assessment, as here. Even assuming the Union did here what was done in Hudson, it could not be sufficient to satisfy its duties in light of the unique circumstances of this case.

I cannot agree with the proposition that the Union's June 2005 Hudson notice satisfied the Union's obligations to nonmembers until issuance of the next yearly Hudson notice. The Union's mid-year conduct cannot be insulated from scrutiny. Rather, there must be some limitation on a union's imposition of fee increases between Hudson annual notices.
B.
The Union contends that it complied with the procedures set forth in Hudson, because the Court approved the calculation of an agency fee based on the proportion of the prior year's chargeable to nonchargeable expenditures. Indeed, in a footnote, the Court stated that a union "cannot be faulted for calculating its fee on 1138*1138 the basis of its expenses during the preceding year." Hudson, 475 U.S. at 307 n. 18, 106 S.Ct. 1066. The Union represents, furthermore, that its hands were tied with regard to the temporary assessment, because it is required to base its agency fee calculation on audited financial statements. See Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 812-13 (9th Cir. 1997), cert. denied, 524 U.S. 904, 118 S.Ct. 2060, 141 L.Ed.2d 138 (1998); Prescott v. County of El Dorado, 177 F.3d 1102, 1106-09 (9th Cir.1999), vacated and remanded on other grounds, 528 U.S. 1111, 120 S.Ct. 929, 145 L.Ed.2d 807,reinstated, 204 F.3d 984 (9th Cir.2000).
The prior-year calculation method used here does not satisfy all of the Union's obligations, however. The Union's allocation of expenses as chargeable or nonchargeable presents a distinct issue in the adequacy of its Hudson notice. See, e.g., Seidemann v. Bowen, 499 F.3d 119, 127 (2d Cir.2007) (there is a "clear distinction between the adequacy of a union's notice... and the propriety of a union's chargeability determinations"); Hudson v. Chicago Teachers Union, 922 F.2d 1306, 1309, 1314 (7th Cir.1991) (pointing out that a party had confused adequacy of the notice with the accuracy of the fee itself). Thus, even if the Union "cannot be faulted" for relying on prior-year expenditures in calculating the agency fee, it is not relieved from its other Hudsonobligations. The Union must still provide adequate notice to enable an informed decision, an opportunity to lodge objections, a prompt hearing on objections by a neutral decisionmaker, and escrow of any amounts in dispute. Even if we look only to compliance with Hudson, therefore, the Union still falls short of the mark.
I recognize that the Union, in relying on prior-year expenditures as the basis for its agency fee, is subject to an audit requirement. In my view, application of the audit requirement relates to the appropriate remedy in this case, a question we do not reach. A district court, with a proper record, could evaluate the audit requirement in light of the temporary assessment. Indeed, the purpose of an audit is to verify that a union actually spent the amount of money it claims; the audit is not intended to verify the union's allocation as a "legal, not an accounting, decision regarding the appropriateness of the allocation of expenses to the chargeable and non-chargeable categories." Andrews, 829 F.2d at 340; accord Gwirtz v. Ohio Educ. Ass'n, 887 F.2d 678, 682 n. 3 (6th Cir.1989); Ping v. Nat'l Educ. Ass'n, 870 F.2d 1369, 1374 (7th Cir.1989). In any event, the audit requirement does not relate to the other Hudson protections implicated by this case, and is ultimately of limited help to the Union. Even a temporary violation of the First Amendment is a significant violation.
V.
The majority construes the issue in this appeal as "whether a union is required ... to send a second notice when adopting a temporary, mid-term fee increase." By framing narrowly the issue in this case, the majority shifts attention to the remedy adopted by the district court. But the district court's remedy is only one consideration in this case — one we do not even reach — and should not be set up as a strawman for attack.

In this case, the Union's provision of an annual Hudson notice was insufficient to enable nonmembers to protect their First Amendment rights upon imposition of the temporary assessment. The Union, furthermore, made no effort to minimize the infringement of nonmember's First Amendment rights despite substantially increasing the fees extracted from their paychecks. I believe that the majority's opinion 1139*1139 does not carry out the principles of Hudson. I therefore dissent.
[1] As noted, the gap between 99.1% and 100% represents the value of member restricted benefits.
[2] The district court and dissent both conflate political expenses and non-chargeable expenses when condemning the assessment as "purely political" and a drastic departure from usual Union spending. Yet, this is not supported by the record. The later audit revealed the assessment included both chargeable and non-chargeable expenses, and the chargeable percentage for the 2006 Hudson notice, which included the spending from the assessment, was actually larger than that from the 2005 notice.
In addition, not all political expenses are automatically non-chargeable. Rather, if germane to collective bargaining, they can be chargeable just like any other expense. See, e.g., Lehnert, 500 U.S. at 520, 111 S.Ct. 1950; Foster v. Mahdesian, 268 F.3d 689, 692 n. 6 (9th Cir.2001); Nat'l Treasury Employees Union v. Chertoff,452 F.3d 839, 853, 859-60 (D.C.Cir.2006) (regulation allowing employer to unilaterally abrogate collective bargaining agreements fundamentally diminishes a union's bargaining position and nullifies the right to collective bargaining). Here, Proposition 76 would have effectively permitted the Governor to abrogate the Union's collective bargaining agreements under certain circumstances, undermining the Union's ability to perform its representation duty of negotiating effective collective bargaining agreements.
[3] The dissent takes issue with the characterization of Hudson requirements as a balancing test, focusing instead on language requiring unions to minimize impingement on nonmembers' rights and emphasizing the Union has no "right" to agency fees to be balanced by such a test. The dissent insists a balancing test is inappropriate, yet, there is no other way to faithfully characterize the procedure set out in Hudson. Hudsonacknowledges that competing interests are at play, and describes a particular set of constitutionally acceptable procedures for attempting resolve with conflict with fairness to both sides. That is a balancing test.
In addition, we have consistently recognized that unions have a legitimate interest and "settled" ability to charge agency fees. See, e.g., Cummings, 316 F.3d at 889. We do not intimate this rises to the level of a constitutional "right," but that does not mean the union does not have any rights at all in such a situation. Hudson, 475 U.S. at 302, 106 S.Ct. 1066 (affirming union's right to "require nonunion employees, as a condition of employment" to pay fair share fees).
[4] The district court and dissent argue the 2005 Hudson notice is inadequate partly because the prior year method does not speak to the "political" nature of the assessment or the propriety of the Union's chargeability determinations. Yet, we have held there is a fundamental difference between "chargeability" challenges and "procedural" Hudson notice challenges. Wagner, 354 F.3d at 1046-47. Plaintiffs explicitly concede theirs is only a procedural notice challenge, not a challenge to the Union's actual spending of the fees. Since, according to Plaintiffs, chargeability is immaterial to their challenge, their chief argument (and that of the dissent) premised upon the alleged non-chargeability of the increase (its purely political nature), must fail.
[1] The majority avers that the special assessment does not represent a substantial departure from the Union's ordinary spending. Subsequent audits, however, revealed that a very substantial portion of the Union's assessment, 72.6% in 2005 and 81.2% in 2006, was used for non-chargeable purposes. In contrast, 31.2% of the Union's total expenses was determined to be non-chargeable in 2005, and 39.6% was deemed non-chargeable in 2006. The special assessment, therefore, cannot be described as being consistent with the Union's usual spending — especially when the Union explicitly stated that the assessment was necessary for political purposes.
[2] The majority acknowledges that the Union's August 2005 letter to members and agency fee payers specifically stated that the fee increase would be used for political activities. In fact, that letter makes no mention whatsoever of any nonpolitical reason for the increase. Nevertheless, based on the October 2005 letter, the majority reasons that the Union "intended to split the increase `between political actions and collective bargaining actions.'" Maj. Op. at 1119. The October letter, however, does not state that the fee increase would be split between political and collective bargaining activities. Instead, the letter indicates that the Union would be undertaking a "year-long campaign" that would be "split" between both political and non-political functions. Nothing in the letter states that the "campaign" would be funded exclusively by the assessment. In fact, the Union's letter then identified a 2004 "Call the Governor" program, which apparently was funded by the Union's general fund from the previous year, as an example of a non-political "campaign" activity. Thus, when the August and October letters are read together, it appears the Union intended to use the fee increase to fund political aspects of the campaign, while it intended to fund non-political activities with general member and agency fees.

Similarly, the majority misapprehends the record when it suggests that the fee assessment contained no spending limitations. Maj. Op. at 1118-19. When the Union decided to increase fees, its budget committee indicated that the increase would "not be used for regular costs of the [U]nion." The agenda for the counsel meeting, wherein the Union resolved to increase fees, further states that "[t]he funds from this emergency temporary assessment will be used specifically in the political arenas of California." These appear to be spending limitations.
[3] The majority incorrectly concludes that Plaintiffs' appeal "must fail" because chargeability of the assessment is "immaterial" to their procedural Hudson challenge. Maj. Op. at 1122 n. 4. While it is true that the Plaintiffs in this case do not raise a direct challenge to the Union's chargeability determinations, this does not mean that the political nature of the Union's special assessment is irrelevant. Indeed, the Hudson procedures were adopted to provide nonunion employees with a fair opportunity to object to a union's use of agency fees for political, ideological, and otherwise non-chargeable activities. See 475 U.S. at 306, 106 S.Ct. 1066 ("Basic considerations of fairness, as well as concern for the First Amendment rights at stake, ... dictate that the potential objectors be given sufficient information to gauge the propriety of the union's fee"). Here, the Union's decision to raise fees to fund political activities is relevant in determining whether the Union provided sufficient information for nonunion employees to "gauge" whether or not to object.
The majority's reliance on Wagner, 354 F.3d at 1046-47, is mispled. While Wagner observed that a procedural Hudson challenge raises different questions than a challenge to a union's chargeability determinations, Wagnerdoes not stand for the proposition that the potential chargeability of a union's mid-year fee increase cannot be considered in determining whether a union has satisfied the procedural requirements set forth in Hudson. See id.; Hudson, 475 U.S. at 306, 106 S.Ct. 1066.
[4] The Union's ideological challenge to Proposition 76 cannot be categorized, as the majority attempts, as an expense chargeable to objecting agency-fee payers. According to the majority, expenses related to the Union's political challenge to this ballot measure might be considered chargeable because Proposition 76 "would have effectively permitted the Governor to abrogate the Union's collective bargaining agreements under certain circumstances." Maj. Op. at 1119 n.2. A review of Proposition 76, however, reveals that any connection between the Union's challenge was too attenuated to its collective bargaining agreement to be considered a chargeable expense. The purpose of the ballot measure was to limit the annual amount of total state spending to the prior year's spending plus a reasonable amount of growth. See Sec'y of the St. of Cal., Official Voter Information Guide: Special Statewide Election 60 (2005). It also would have set aside budget surpluses for future use. Id. To achieve these initiatives, Proposition 76 allowed the governor to reduce spending under certain circumstances. For instance, if passed, the proposition would have given the Governor limited "authority to reduce appropriations" for future state contracts, collective bargaining agreements, and entitlement programs. Id. Thus, properly understood Proposition 76 was a ballot measure related to the allocation of tax revenue for funding government activities, which included the amount of financial support available to fund public employment. See id.
To be sure, there are some limited circumstances where a union's political activities can be deemed chargeable. According to the Supreme Court, lobbying or other political activities are chargeable when they directly relate to "ratification of negotiated agreements by the proper ... legislative body" or "to acquiring appropriations for approved collective-bargaining agreements." Lehnert, 500 U.S. at 520, 111 S.Ct. 1950. Where, however, as in the instant case, the "challenged ... activities relate ... to financial support of ... public employees generally, the connection to the union's function as bargaining representative is too attenuated to justify compelled support by objecting employees." Id. Accordingly, contrary to the majority's contention, the district court and I do not "conflate" political expenses with non-chargeable expenses. Maj. Op. at 1119 n. 2. We simply recognize that the Union's intended uses for the assessment, all of which pertained to core political activities such as the Union's challenge to Proposition 76, cannot be construed as legally chargeable. Additionally, it is peculiar that the majority even makes the assertion that the Union's political expenses would be chargeable if, as the majority avers, "chargeability is immaterial" to the instant case. Maj. Op. at 1122 n. 4.

 
 132 S.Ct. 2277 (2012)
Dianne KNOX, et al., Petitioners v.
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1000.
No. 10-1121.
Supreme Court of United States.
Argued January 10, 2012. Decided June 21, 2012.
2284*2284 William J. Young, Springfield, VA, for Petitioners.
Jeremiah Collins, for Respondent.
Neal Kumar Katyal, Dominic F. Perella, Hogan Lovells US LLP, Washington, DC, W. James Young, Esq., Counsel of Record, William L. Messenger, Esq., Milton L. Chappell, Esq., c/o National Right to Work Legal Defense Foundation, Inc., Springfield, VA, for Petitioners.
Jeffrey B. Demain, Counsel of Record, Scott A. Kronland, P. Casey Pitts, Altshuler Berzon LLP, San Francisco, CA, for Respondent Service Employees International Union, Local 1000.
Justice ALITO delivered the opinion of the Court.
In this case, we decide whether the First Amendment allows a public-sector union to require objecting nonmembers to pay a special fee for the purpose of financing the union's political and ideological activities.
I
A
Under California law, public-sector employees in a bargaining unit may decide by majority vote to create an "agency shop" arrangement under which all the employees are represented by a union selected by the majority. Cal. Govt.Code Ann. § 3502.5(a) (West 2010). While employees in the unit are not required to join the union, they must nevertheless pay the union an annual fee to cover the cost of union services related to collective bargaining (so-called chargeable expenses). See Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 524, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991); Machinists v. Street,367 U.S. 740, 760, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961).
Our prior cases have recognized that such arrangements represent an "impingement" on the First Amendment rights of nonmembers. Teachers v. Hudson, 475 U.S. 292, 307, n. 20, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). See also Davenport v. Washington Ed. Assn., 551 U.S. 177, 181, 127 S.Ct.

2372, 168 L.Ed.2d 71 (2007) ("[A]gency-shop arrangements in the public sector raise First Amendment concerns because they force individuals to contribute money to unions as a condition of government employment"); Street, supra, at 749, 81 S.Ct. 1784 (union shop presents First Amendment "questions of the utmost gravity"). Thus, in Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), we held that a public-sector union, while permitted to bill nonmembers for chargeable expenses, may not require nonmembers to fund its political and ideological projects. And in Hudson, we identified procedural requirements that a union must meet in order to collect fees from nonmembers without violating their rights. 475 U.S., at 302-311, 106 S.Ct. 1066. The First Amendment, we held, does not permit a public-sector union 2285*2285 to adopt procedures that have the effect of requiring objecting nonmembers to lend the union money to be used for political, ideological, and other purposes not germane to collective bargaining. Id., at 305, 106 S.Ct. 1066. In the interest of administrative convenience, however, we concluded that a union "cannot be faulted" for calculating the fee that nonmembers must pay "on the basis of its expenses during the preceding year." Id., at 307, n. 18, 106 S.Ct. 1066.
Hudson concerned a union's regular annual fees. The present case, by contrast, concerns the First Amendment requirements applicable to a special assessment or dues increase that is levied to meet expenses that were not disclosed when the amount of the regular assessment was set.
B
In June 2005, respondent, the Service Employees International Union, Local 1000 (SEIU), sent out its regular Hudson notice informing employees what the agency fee would be for the year ahead. The notice set monthly dues at 1% of an employee's gross monthly salary but capped monthly dues at $45. Based on the most recently audited year, the SEIU estimated that 56.35% of its total expenditures in the coming year would be dedicated to chargeable collective-bargaining activities. Thus, if a nonunion employee objected within 30 days to payment of the full amount of union dues, the objecting employee was required to pay only 56.35% of total dues. The SEIU's notice also included a feature that was not present in Hudson: The notice stated that the agency fee was subject to increase at any time without further notice.
During this time, the citizens of the State of California were engaged in a wide-ranging political debate regarding state budget deficits, and in particular the budget consequences of growing compensation for public employees backed by powerful public-sector unions. On June 13, 2005, Governor Arnold Schwarzenegger called for a special election to be held in November 2005, where voters would consider various ballot propositions aimed at state-level structural reforms. Two of the most controversial issues on the ballot were Propositions 75 and 76. Proposition 75 would have required unions to obtain employees' affirmative consent before charging them fees to be used for political purposes. Proposition 76 would have limited state spending and would have given the Governor the ability under some circumstances to reduce state appropriations for public-employee compensation. The SEIU joined a coalition of public-sector unions in vigorously opposing these measures. Calling itself the "Alliance for a Better California," the group would eventually raise "more than $10 million, with almost all of it coming from public employee unions, including $2.75 million from state worker unions, $4.7 million from the California Teachers Association, and $700,000 from school workers unions."[1]
On July 30, shortly after the end of the 30-day objection period for the June Hudsonnotice, the SEIU proposed a temporary 25% increase in employee fees, which it billed as an "Emergency Temporary Assessment to Build a Political Fight-Back Fund." App. 25. The proposal stated that the money was needed to achieve the union's political objectives, both in the special November 2005 election and in the November 2006 election. Id., at 26. According 2286*2286 to the proposal, money in the FightBack Fund would be used "for a broad range of political expenses, including television and radio

advertising, direct mail, voter registration, voter education, and get out the vote activities in our work sites and in our communities across California." Ibid. The proposal specifically stated that "[t]he Fund will not be used for regular costs of the union—such as office rent, staff salaries or routine equipment replacement, etc." Ibid. It noted that "all other public worker unions are in the process of raising the extraordinary funds needed to defeat the Governor." Id., at 27. And it concluded: "Each of us must do our part to turn back these initiatives which would allow the Governor to destroy our wages and benefits and even our jobs, and threaten the well-being of all Californians." Ibid. On August 27, the SEIU's General Council voted to implement the proposal.
On August 31, the SEIU sent out a letter addressed to "Local 1000 Members and Fair Share Fee Payers," announcing that, for a limited period, their fees would be raised to 1.25% of gross monthly salary and the $45-per-month cap on regular dues would not apply. Id., at 31. The letter explained that the union would use the fund to "defeat Proposition 76 and Proposition 75 on November 8," and to "defeat another attack on [its] pension plan" in June 2006. Ibid. The letter also informed employees that, in the following year, the money would help "to elect a governor and a legislature who support public employees and the services [they] provide." Ibid.
After receiving this letter, one of the plaintiffs in this case called the SEIU's offices to complain that the union was levying the special assessment for political purposes without giving employees a fair opportunity to object. An SEIU area manager responded that "even if [the employee] objected to the payment of the full agency fee, there was nothing he could do about the September increase for the Assessment." Knox v. Westly,No. 2:05-cv-02198, 2008 WL 850128, *3 (E.D.Cal., Mar. 28, 2008). "She also stated that `we are in the fight of our lives,' that the Assessment was needed, and that there was nothing that could be done to stop the Union's expenditure of that Assessment for political purposes." Ibid. As a consolation, however, those employees who had filed timely objections after the regular June Hudson notice were required to pay only 56.35% of the temporary increase.
Petitioners filed this class-action suit on behalf of 28,000 nonunion employees who were forced to contribute money to the Political Fight-Back Fund. Some of the class members had filed timely objections after receiving the regular Hudson notice in June, and others had not. Those who had objected argued that it was wrong to require them to pay 56.35% of the temporary assessment, which had been billed as intended for use in making political expenditures that they found objectionable. Those who had not objected after receiving the June Hudson notice contended that they should have received a new opportunity to object when the SEIU levied the special assessment for its Political Fight-Back Fund.
The District Court granted summary judgment for the petitioners, finding that the union "fully intended to use the 12 million additional dollars it anticipated to raise for political purposes." 2008 WL 850128, *7. "Even if every cent of the assessment was not intended to be used for entirely political purposes," the court stated, "it is clear that the Union's intent was to depart drastically from its typical spending regime and to focus on activities that were political or ideological in nature." Id., at *8. In light of this fact, the 2287*2287 court held that it would be inappropriate for the union to rely on previous annual expenditures to estimate that 56.35% of the new fee would go toward chargeable expenses. The court ordered the SEIU to send out a new notice giving all class members 45 days to object and to provide those who objected with a full refund of their contributions to the Political Fight-Back Fund. Id., at *12.
A divided panel of the Ninth Circuit reversed. Knox v. California State Employees Assn., Local 1000, 628 F.3d 1115 (2010). According to the panel majority, Hudson prescribed the use of a balancing test. 628 F.3d, at 1119-1120. The majority therefore inquired whether the procedure that the SEIU employed reasonably accommodated the interests of the union, the employer, and nonmember employees. Id., at 1120-1123. Judge Wallace dissented, arguing that the majority had

misinterpreted Hudson and sanctioned the abridgment of the First Amendment rights of nonmembers. 628 F.3d, at 1123-1139.
We granted certiorari. 564 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2011).
II
The SEIU argues that we should dismiss this case as moot. In opposing the petition for certiorari, the SEIU defended the decision below on the merits. After certiorari was granted, however, the union sent out a notice offering a full refund to all class members, and the union then promptly moved for dismissal of the case on the ground of mootness. Such postcertiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye. See City News & Novelty, Inc. v. Waukesha, 531 U.S. 278, 283-284, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001). The voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed. See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). And here, since the union continues to defend the legality of the Political FightBack fee, it is not clear why the union would necessarily refrain from collecting similar fees in the future.
The union argues that concerns about voluntary cessation are inapplicable in this case because petitioners do not seek any prospective relief. See Motion to Dismiss as Moot 11-12. But even if that is so, the union's mootness argument fails because there is still a live controversy as to the adequacy of the SEIU's refund notice. A case becomes moot only when it is impossible for a court to grant "`"any effectual relief whatever" to the prevailing party.'" Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992), in turn quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). "[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Ellis v. Railway Clerks, 466 U.S. 435, 442, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984).
The District Court ordered the SEIU to send out a "proper" notice giving employees an adequate opportunity to receive a full refund. 2008 WL 850128, *12. Petitioners argue that the notice that the SEIU sent was improper because it includes a host of "conditions, caveats, and confusions as unnecessary complications aimed at reducing the number of class members who claim a refund." Brief for Petitioners in Opposition to Motion to Dismiss 19. In particular, petitioners allege that the union has refused to accept refund 2288*2288 requests by fax or e-mail and has made refunds conditional upon the provision of an original signature and a Social Security number. Id., at 18-19. As this dispute illustrates, the nature of the notice may affect how many employees who object to the union's special assessment will be able to get their money back. The union is not entitled to dictate unilaterally the manner in which it advertises the availability of the refund.
For this reason, we conclude that a live controversy remains, and we proceed to the merits.
III
A
Our cases have often noted the close connection between our Nation's commitment to selfgovernment and the rights protected by the First Amendment. See, e.g., Brown v. Hartlage, 456 U.S.

45, 52, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) ("At the core of the First Amendment are certain basic conceptions about the manner in which political discussion in a representative democracy should proceed"); Buckley v. Valeo, 424 U.S. 1, 93, n. 127, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam) ("[T]he central purpose of the Speech and Press Clauses was to assure a society in which `uninhibited, robust, and wide-open' public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish"); Cox v. Louisiana,379 U.S. 536, 552, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) ("Maintenance of the opportunity for free political discussion is a basic tenet of our constitutional democracy"); Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring); Patterson v. Colorado ex rel. Attorney General of Colo., 205 U.S. 454, 465, 27 S.Ct. 556, 51 L.Ed. 879 (1907) (Harlan, J., dissenting).
The First Amendment creates "an open marketplace" in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference. New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 208, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008). See also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); Mills v. Alabama, 384 U.S. 214, 218-219, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves. See R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Brandenburg v. Ohio, 395 U.S. 444, 447-448, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Wooley v. Maynard, 430 U.S. 705, 713-715, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 797, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (The First Amendment protects "the decision of both what to say and what not to say" (emphasis deleted)). And the ability of like-minded individuals to associate for the purpose of expressing commonly held views may not be curtailed. See Roberts v. United States Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) ("Freedom of association . . . plainly presupposes a freedom not to associate"); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460461, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).
Closely related to compelled speech and compelled association is compelled funding of the speech of other private speakers or groups. See Abood, 431 U.S., at 222-223, 97 S.Ct. 1782. In United States v. United Foods, Inc., 533 U.S. 405, 121 S.Ct. 2334, 2289*2289150 L.Ed.2d 438 (2001), we considered the constitutionality of a state scheme that compelled such funding. The subject of the speech at issue—promoting the sale of mushrooms—was not one that is likely to stir the passions of many, but the mundane commercial nature of that speech only highlights the importance of our analysis and our holding.
The federal Mushroom Promotion, Research, and Consumer Information Act required that fresh mushroom handlers pay assessments used primarily to fund advertisements promoting mushroom sales. A large producer objected to subsidizing these generic ads, and even though we applied the less demanding standard used in prior cases to judge laws affecting commercial speech, we held that the challenged scheme violated the First Amendment. We made it clear that compulsory subsidies for private speech are subject to exacting First Amendment scrutiny and cannot be sustained unless two criteria are met. First, there must be a comprehensive regulatory scheme involving a "mandated association" among those who are required to pay the subsidy. Id., at 414, 121 S.Ct. 2334. Such situations are exceedingly rare because, as we have stated elsewhere, mandatory associations are permissible only when they serve a "compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms." Roberts, supra, at 623, 104 S.Ct. 3244. Second, even in the rare case where a mandatory association can be justified, compulsory fees can be levied only insofar as they are a "necessary incident" of the "larger regulatory purpose which justified the required association." United Foods, supra, at 414, 121 S.Ct. 2334.

B
When a State establishes an "agency shop" that exacts compulsory union fees as a condition of public employment, "[t]he dissenting employee is forced to support financially an organization with whose principles and demands he may disagree." Ellis,466 U.S., at 455, 104 S.Ct. 1883. Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, see Tr. of Oral Arg. 48-49, the compulsory fees constitute a form of compelled speech and association that imposes a "significant impingement on First Amendment rights." Ellis, supra, at 455, 104 S.Ct. 1883. Our cases to date have tolerated this "impingement," and we do not revisit today whether the Court's former cases have given adequate recognition to the critical First Amendment rights at stake.
"The primary purpose" of permitting unions to collect fees from nonmembers, we have said, is "to prevent nonmembers from free-riding on the union's efforts, sharing the employment benefits obtained by the union's collective bargaining without sharing the costs incurred." Davenport, 551 U.S., at 181, 127 S.Ct. 2372. Such free-rider arguments, however, are generally insufficient to overcome First Amendment objections. Consider the following examples:
"If a community association engages in a clean-up campaign or opposes encroachments by industrial development, no one suggests that all residents or property owners who benefit be required to contribute. If a parent-teacher association raises money for the school library, assessments are not levied on all parents. If an association of university professors has as a major function bringing pressure on universities to observe standards of tenure and academic freedom, most professors would consider it an outrage to be required to join. If a 2290*2290 medical association lobbies against regulation of fees, not all doctors who share in the benefits share in the costs."[2]
Acceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly—one that we have found to be justified by the interest in furthering "labor peace." Hudson, 475 U.S., at 303, 106 S.Ct. 1066. But it is an anomaly nevertheless.
Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues—as opposed to exempting them from making such payments unless they opt in—represents a remarkable boon for unions. Courts "do not presume acquiescence in the loss of fundamental rights." College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 682, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (internal quotation marks omitted). Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union's political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment? Shouldn't the default rule comport with the probable preferences of most nonmembers? And isn't it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues? An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. But a "[u]nion should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining." Hudson, supra, at 305, 106 S.Ct. 1066 (internal quotation marks omitted).
Although the difference between opt-out and opt-in schemes is important, our prior cases have given surprisingly little attention to this distinction. Indeed, acceptance of the opt-out approach appears to

have come about more as a historical accident than through the careful application of First Amendment principles.
The trail begins with dicta in Street, where we considered whether a federal collective-bargaining statute authorized a union to impose compulsory fees for political activities. 367 U.S., at 774, 81 S.Ct. 1784. The plaintiffs were employees who had affirmatively objected to the way their fees were being used, and so we took that feature of the case for granted. We held that the statute did not authorize the use of the objecting employees' fees for ideological purposes, and we stated in passing that "dissent is not to be presumed—it must affirmatively be made known to the union by the dissenting employee." Ibid. In making that offhand remark, we did not pause to consider the broader constitutional implications of an affirmative opt-out requirement. Nor did we explore the extent of First Amendment protection for employees who might not qualify as active "dissenters" but who would nonetheless prefer to keep their own money rather than subsidizing by default the political agenda of a state-favored union.
In later cases such as Abood and Hudson, we assumed without any focused analysis that the dicta from Street had authorized the opt-out requirement as a constitutional matter. Thus in Hudson we did not take issue with the union's practice of giving employees annual notice and an opportunity to object to expected political 2291*2291expenditures. At the same time, however, we made it clear that the procedures used by a union to collect money from nonmembers must satisfy a high standard.
Contrary to the view of the Ninth Circuit panel majority, we did not call for a balancing of the "right" of the union to collect an agency fee against the First Amendment rights of nonmembers. 628 F.3d, at 1119-1120. As we noted in Davenport, "unions have no constitutional entitlement to the fees of nonmember-employees." 551 U.S., at 185, 127 S.Ct. 2372. A union's "collection of fees from nonmembers is authorized by an act of legislative grace," 628 F.3d, at 1126 (Wallace, J., dissenting)—one that we have termed "unusual" and "extraordinary," Davenport, supra, at 184, 187, 127 S.Ct. 2372. Far from calling for a balancing of rights or interests, Hudson made it clear that any procedure for exacting fees from unwilling contributors must be "carefully tailored to minimize the infringement" of free speech rights. 475 U.S., at 303, 106 S.Ct. 1066. And to underscore the meaning of this careful tailoring, we followed that statement with a citation to cases holding that measures burdening the freedom of speech or association must serve a "compelling interest" and must not be significantly broader than necessary to serve that interest.[3]
IV
By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate. The SEIU, however, asks us to go farther. It asks us to approve a procedure under which (a) a special assessment billed for use in electoral campaigns was assessed without providing a new opportunity for nonmembers to decide whether they wished to contribute to this effort and (b) nonmembers who previously opted out were nevertheless required to pay more than half of the special assessment even though the union had said that the purpose of the fund was to mount a political campaign and that it would not be used for ordinary union expenses. This aggressive use of power by the SEIU to collect fees from nonmembers is indefensible.
A
First, we see no justification for the union's failure to provide a fresh Hudson notice. Hudson rests on the principle that nonmembers should not be required to fund a union's political and ideological

projects unless they choose to do so after having "a fair opportunity" to assess the impact of paying for nonchargeable union activities. 475 U.S., at 303, 106 S.Ct. 1066. Giving employees only one opportunity per year to make this choice is tolerable if employees are able at the time in question to make an informed choice. But 2292*2292 a nonmember cannot make an informed choice about a special assessment or dues increase that is unknown when the annual notice is sent. When a union levies a special assessment or raises dues as a result of unexpected developments, the factors influencing a nonmember's choice may change. In particular, a nonmember may take special exception to the uses for which the additional funds are sought.[4]
The present case provides a striking example. The special assessment in this case was billed for use in a broad electoral campaign designed to defeat two important and controversial ballot initiatives and to elect sympathetic candidates in the 2006 gubernatorial and legislative elections. There were undoubtedly nonmembers who, for one reason or another, chose not to opt out or neglected to do so when the standard Hudson notice was sent but who took strong exception to the SEIU's political objectives and did not want to subsidize those efforts. These nonmembers might have favored one or both of the ballot initiatives; they might have wished to support the reelection of the incumbent Governor; or they might not have wanted to delegate to the union the authority to decide which candidates in the 2006 elections would receive a share of their money.
The effect on nonmembers was particularly striking with respect to the union's campaign against Proposition 75 because that initiative would have bolstered nonmember rights. If Proposition 75 had passed, nonmembers would have been exempt from paying for the SEIU's extensive political projects unless they affirmatively consented. Thus, the effect of the SEIU's procedure was to force many nonmembers to subsidize a political effort designed to restrict their own rights.
As Hudson held, procedures for collecting fees from nonmembers must be carefully tailored to minimize impingement on First Amendment rights, and the procedure used in this case cannot possibly be considered to have met that standard. After the dues increase was adopted, the SEIU wrote to all employees in the relevant bargaining units to inform them of this development. It would have been a relatively simple matter for the union to cast this letter in the form of a new Hudson notice, so that nonmembers could decide whether they wanted to pay for the union's electoral project.
The SEIU argues that we should not be troubled by its failure to provide a new notice because nonmembers who objected to the special assessment but were nonetheless required to pay it would have been given the chance to recover the funds in question by opting out when the next annual notice was sent. If the special assessment was used entirely or in part for nonchargeable purposes, they suggest, the percentage of the union's annual expenditures for chargeable purposes would decrease, and therefore the amount of the dues payable by objecting nonmembers the following year would also decrease. This decrease, however, would not fully recompense nonmembers who did not opt out after receiving the regular notice but would have opted out if they had been permitted to do so when the special assessment was announced.[5] And in any event, even a full refund would not undo the violation of First Amendment rights. As we have recognized, the First Amendment 2293*2293 does not permit a union to extract a loan from unwilling nonmembers even if the money is later paid back in full. See Hudson, supra, at 305, 106 S.Ct. 1066; Ellis, 466 U.S., at 444, 104 S.Ct. 1883. Here, for nonmembers who disagreed with the SEIU's electoral objectives, a refund provided after the union's objectives had already been achieved would be cold comfort.[6]
To respect the limits of the First Amendment, the union should have sent out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out. Our cases have tolerated a substantial impingement on First Amendment rights by allowing unions to impose an optout requirement at all. Even if this burden can be justified during the collection of regular dues on an

annual basis, there is no way to justify the additional burden of imposing yet another opt-out requirement to collect special fees whenever the union desires.
B
1
The SEIU's treatment of nonmembers who opted out when the initial Hudson notice was sent also ran afoul of the First Amendment. The SEIU required these employees to pay 56.35% of the special assessment, just as they had been required to pay 56.35% of the regular annual dues. But the union proclaimed that the special assessment would be used to support an electoral campaign and would not be used for ordinary union expenses. Accordingly, there is no reason to suppose that 56.35% of the new assessment was used for properly chargeable expenses. On the contrary, if the union is to be taken at its word, virtually all of the money was slated for nonchargeable uses.
The procedure accepted in Hudson is designed for use when a union sends out its regular annual dues notices. The procedure is predicated on the assumption that a union's allocation of funds for chargeable and nonchargeable purposes is not likely to vary greatly from one year to the next.[7] No such assumption is reasonable, however, when a union levies a special assessment or raises dues as a result of events that were not anticipated or disclosed at the time when a yearly Hudson notice was sent. Accordingly, use of figures based on an audit of the union's operations 2294*2294 during an entire previous year makes no sense.
Nor would it be feasible to devise a new breakdown of chargeable and nonchargeable expenses for the special assessment. Determining that breakdown is problematic enough when it is done on a regular annual basis because auditors typically do not make a legal determination as to whether particular expenditures are chargeable. Instead, the auditors take the union's characterization for granted and perform the simple accounting function of "ensur[ing] that the expenditures which the union claims it made for certain expenses were actually made for those expenses." Andrews v. Education Assn. of Cheshire, 829 F.2d 335, 340 (C.A.2 1987). Thus, if a union takes a very broad view of what is chargeable—if, for example, it believes that supporting sympathetic political candidates is chargeable and bases its classification on that view—the auditors will classify these political expenditures as chargeable. Objecting employees may then contest the union's chargeability determinations, but the onus is on the employees to come up with the resources to mount the legal challenge in a timely fashion.[8] See, e.g., Lehnert, 500 U.S., at 513, 111 S.Ct. 1950; Jibson v. Michigan Ed. Assn., 30 F.3d 723, 730 (C.A.6 1994). This is already a significant burden for employees to bear simply to avoid having their money taken to subsidize speech with which they disagree, and the burden would become insupportable if unions could impose a new assessment at any time, with a new chargeability determination to be challenged.
2
The SEIU argues that objecting nonmembers who were required to pay 56.35% of the special assessment, far from subsidizing the union's political campaign, actually received a windfall. According to the union's statistics, the actual percentage of regular dues and fees spent for chargeable purposes in 2005 turned out to be quite a bit higher (66.26%), and therefore, even if all of the money obtained through the special assessment is classified as nonchargeable, the union's total expenditures for 2005 were at least 66.26% chargeable. See Brief for Respondent 5, n. 6. This argument is unpersuasive for several reasons.

First, the SEIU's understanding of the breadth of chargeable expenses is so expansive that it is hard to place much reliance on its statistics. In its brief, the SEIU argues broadly that all funds spent on "lobbying . . . the electorate" are chargeable. See id., at 51. But "lobbying. . . the electorate" is nothing but another term for supporting political causes and candidates, and we have never held that the First Amendment permits a union to compel nonmembers to support such political activities. On the contrary, as long ago as Street, we noted the important difference between a union's authority to engage in collective bargaining and related activities on behalf of nonmember employees in a bargaining unit and the union's use of nonmembers' money "to support candidates for public office" or "to support political causes which [they] oppos[e]." 367 U.S., at 768, 81 S.Ct. 1784.
The sweep of the SEIU's argument is highlighted by its discussion of the use of fees paid by objecting nonmembers to defeat Proposition 76. According to the SEIU, these expenditures were "germane" to the implementation of its contracts because, 2295*2295 if Proposition 76 had passed, it would have "effectively permitted the Governor to abrogate the Union's collective bargaining agreements under certain circumstances, undermining the Union's ability to perform its representation duty of negotiating effective collective bargaining agreements." Brief for Respondent 49-50 (internal quotation marks omitted).
If we were to accept this broad definition of germaneness, it would effectively eviscerate the limitation on the use of compulsory fees to support unions' controversial political activities. Publicemployee salaries, pensions, and other benefits constitute a substantial percentage of the budgets of many States and their subdivisions. As a result, a broad array of ballot questions and campaigns for public office may be said to have an effect on present and future contracts between public-sector workers and their employers. If the concept of "germaneness" were as broad as the SEIU advocates, public-sector employees who do not endorse the unions' goals would be essentially unprotected against being compelled to subsidize political and ideological activities to which they object.
Second, even if the SEIU's statistics are accurate, it does not follow that it was proper for the union to charge objecting nonmembers 56.35%—or any other particular percentage—of the special assessment. Unless it is possible to determine in advance with some degree of accuracy the percentage of union funds that will be used during an upcoming year for chargeable purposes—and the SEIU argues that this is not possible—there is at least a risk that, at the end of the year, unconsenting nonmembers will have paid either too much or too little. Which side should bear this risk?
The answer is obvious: the side whose constitutional rights are not at stake. "Given the existence of acceptable alternatives, [a] union cannot be allowed to commit dissenters' funds to improper uses even temporarily." Ellis, 466 U.S., at 444, 104 S.Ct. 1883. Thus, if unconsenting nonmembers pay too much, their First Amendment rights are infringed. On the other hand, if unconsenting nonmembers pay less than their proportionate share, no constitutional right of the union is violated because the union has no constitutional right to receive any payment from these employees. See Davenport, 551 U.S., at 185, 127 S.Ct. 2372. The union has simply lost for a few months the "extraordinary" benefit of being empowered to compel nonmembers to pay for services that they may not want and in any event have not agreed to fund.
As we have noted, by allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed, our cases have substantially impinged upon the First Amendment rights of nonmembers. In the new situation presented here, we see no justification for any further impingement. The general rule—individuals should not be compelled to subsidize private groups or private speech—should prevail.

Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. See, e.g., Citizens United v. Federal Election Comm'n, 558 U.S. ___, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). But employees who choose not to join a union have the same rights. The First Amendment creates a forum in which all may seek, without hindrance or aid from the State, to move public opinion and achieve their political goals. "First Amendment values [would be] at serious risk if the government [could] compel a particular citizen, or 2296*2296 a discrete group of citizens, to pay special subsidies for speech on the side that [the government] favors." United Foods, 533 U.S., at 411, 121 S.Ct. 2334. Therefore, when a publicsector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.[9]
* * *
The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice SOTOMAYOR, with whom Justice GINSBURG joins, concurring in the judgment.
When a public-sector union imposes a special assessment intended to fund solely political lobbying efforts, the First Amendment requires that the union provide nonmembers an opportunity to opt out of the contribution of funds. I therefore concur in the Court's judgment.
I concur only in the judgment, however, because I cannot agree with the majority's decision to address unnecessarily significant constitutional issues well outside the scope of the questions presented and briefing. By doing so, the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the Court's proper role in our system of separated powers.
I
The Political Fight-Back Fund was to be used by Service Employees International Union, Local 1000 (SEIU), "specifically in the political arenas of California" to defeat perceived antiunion initiatives and to elect a sympathetic Governor and legislature. App. 25; see also id., at 31. 2297*2297 As the majority explains, such political efforts are not "germane" to the union's function as a bargaining representative, and accordingly are not chargeable to objecting nonmembers. See Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 519, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991); see also Locke v. Karass, 555 U.S. 207, 211, 129 S.Ct. 798, 172 L.Ed.2d 552 (2009) ("[N]onchargeable union activities [include] political, public relations, or lobbying activities"). While the union is free to pursue its ideological goals in the political arena, it may not subsidize its efforts with objecting nonmembers' funds, lest the objector be used as "`an instrument for fostering public adherence to an ideological point of view he finds unacceptable.'" Lehnert, 500 U.S., at 522, 111 S.Ct. 1950 (plurality opinion) (quoting Wooley v. Maynard, 430 U.S. 705, 715, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977)).
Accordingly, when a union levies a special assessment or dues increase to fund political activities, the union may not collect funds from nonmembers who earlier had objected to the payment of nonchargeable expenses, and may not collect funds from other nonmembers without providing a new Hudson notice and opportunity to opt out. See Teachers v. Hudson, 475 U.S. 292, 106 S.Ct.

1066, 89 L.Ed.2d 232 (1986). Because SEIU failed to follow these procedures, it did not satisfy its constitutional obligations. That holding should end this case; it is all petitioners asked this Court to decide.[1]
II
The majority agrees that SEIU's actions were at odds with the First Amendment. Yet it proceeds, quite unnecessarily, to reach significant constitutional issues not contained in the questions presented, briefed, or argued. Petitioners did not question the validity of our precedents, which consistently have recognized that an opt-out system of fee collection comports with the Constitution. See Davenport v. Washington Ed. Assn., 551 U.S. 177, 181, 185, 127 S.Ct. 2372, 168 L.Ed.2d 71 (2007); Hudson, 475 U.S., at 306, n. 16, 106 S.Ct. 1066; Abood v. Detroit Bd. of Ed., 431 U.S. 209, 238, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977); see also ante, at 2290-2291. They did not argue that the Constitution requires an opt-in system of fee collection in the context of special assessments or dues increases or, indeed, in any context. Not surprisingly, respondents did not address such a prospect.
Under this Court's Rule 14.1(a), "[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court." "[W]e disregard [that rule] `only in the most exceptional cases,' where reasons of urgency or economy suggest the need to address the unpresented question in the case under consideration." Yee v. Escondido,503 U.S. 519, 535, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) (quoting Stone v. Powell,428 U.S. 465, 481, n. 15, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)). The majority does not claim any such exceptional circumstance here. Yet it reaches out to hold that "when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any 2298*2298 funds from nonmembers without their affirmative consent." Ante, at 2296 (emphasis added); see also ante, at 2293 ("[T]he union should have sent out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out"). The majority thus decides, for the very first time, that the First Amendment does require an opt-in system in some circumstances: the levying of a special assessment or dues increase. The majority announces its novel rule without any analysis of potential countervailing arguments and without any reflection on the reliance interests our old rules have engendered.
The majority's choice to reach an issue not presented by the parties, briefed, or argued, disregards our rules. See Yee, 503 U.S., at 535, 112 S.Ct. 1522. And it ignores a fundamental premise of our adversarial system: "`that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.'" NASA v. Nelson, 562 U.S. ___, ___, n. 10, 131 S.Ct. 746, 757, n. 10, 178 L.Ed.2d 667 (2011) (opinion for the Court by ALITO, J.) (quoting Carducci v. Regan, 714 F.2d 171, 177 (C.A.D.C.1983) (opinion for the court by SCALIA, J.)); see also Jefferson v. Upton, 560 U.S. ___, ___ (SCALIA, J., joined by THOMAS, J., dissenting) (slip op., at 8) (The majority's "refusal to abide by standard rules of appellate practice is unfair to the . . . Circuit," which did not pass on this question, "and especially to the respondent here, who suffers a loss in this Court without ever having an opportunity to address the merits of the. . . question the Court decides"). The imperative of judicial restraint is at its zenith here, with respect to an issue of such constitutional magnitude, for "[i]f there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality. . . unless such adjudication is unavoidable." Clinton v. Jones, 520 U.S. 681, 690, n. 11, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (internal quotation marks omitted).[2]
To make matters worse, the majority's answer to its unasked constitutional question is not even clear. After today, must a union undertaking a special assessment or dues increase obtain affirmative consent to collect "any funds" or solely to collect 2299*2299 funds

for nonchargeable expenses? May a nonmember opt not to contribute to a special assessment, even if the assessment is levied to fund uncontestably chargeable activities? Does the majority's new rule allow for any distinction between nonmembers who had earlier objected to the payment of nonchargeable expenses and those who had not? What procedures govern this new world of fee collection?
Moreover, while the majority's novel rule is, on its face, limited to special assessments and dues increases, the majority strongly hints that this line may not long endure. The majority pronounces the Court's explicit holding in Machinists v. Street, 367 U.S. 740, 774, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961)—that "dissent is not to be presumed[,] it must affirmatively be made known to the union by the dissenting employee"—nothing but an "offhand remark," made by Justices who did not "pause to consider the broader constitutional implications of an affirmative opt-out requirement," ante, at 2290. The reader is told that our precedents'"acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles." Ibid. And that "[b]y authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate." Ante, at 2291 (emphasis added); see also ante, at 2295-2296 ("[B]y allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed, our cases have substantially impinged upon the First Amendment rights of nonmembers"); ante, at 2290 ("Once it is recognized . . . that a nonmember cannot be forced to fund a union's political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment? Shouldn't the default rule comport with the probable preferences of most nonmembers?").
To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise. It deprives the parties and potential amici of the opportunity to brief and argue the question. It deprives us of the benefit of argument that the parties, with concrete interests in the question, are surely better positioned than we to set forth. See NASA, 562 U.S., at ___, n. 10, 131 S.Ct., at 757, n. 10 (opinion for the Court by ALITO, J.) ("It is undesirable for us to decide a matter of this importance in a case in which we do not have the benefit of briefing by the parties and in which potential amici had little notice that the matter might be decided"). Not content with our task, prescribed by Article III, of answering constitutional questions, the majority today decides to ask them as well.
Justice BREYER, with whom Justice KAGAN joins, dissenting.
In Teachers v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986), this Court unanimously held that "the Union cannot be faulted for calculating its fee on the basis of its expenses during the preceding year." Id., at 307, n. 18, 106 S.Ct. 1066. That is precisely what the union has done in this case. I see no reason to modify Hudson's holding as here applied. I consequently dissent.
I
In Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977),2300*2300 the Court held that nonunion public employees have a First Amendment right to prevent a union's spending a part of their compulsory fees on contributions to political candidates or on "express[ions of] political views unrelated to [the union's] duties as exclusive bargaining representative." Id., at 234, 97 S.Ct. 1782. A decade later in Hudson, the Court considered the constitutionality of

procedures adopted to implement Abood. In particular, the Court considered the procedures adopted by a teachers union "to draw that necessary line and to respond to nonmembers' objections to the manner in which it was drawn." 475 U.S., at 294, 106 S.Ct. 1066.
The teachers union had calculated the fee it could charge nonmembers during a particular year on the basis of the expenditures the union actually made during the prior year. Those nonmembers who objected to the apportionment, believing their fee too high, could lodge an objection with the union, proceed through arbitration, and receive a rebate if they won. The Court found this procedure constitutionally inadequate. It thought that (1) a rebate "does not avoid the risk that dissenters' funds may be used temporarily for an improper purpose," (2) the union had not provided the nonmembers in advance with "sufficient information to gauge the propriety of the union's fee," and (3) the union did not provide objectors with "a reasonably prompt decision by an impartial decisionmaker." Id., at 305-307, 106 S.Ct. 1066.
The Court then held that the Constitution requires that a union collecting a fee from nonmembers provide "an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending." Id., at 310, 106 S.Ct. 1066.
The Court added that it "recognize[d] that there are practical reasons why `[a]bsolute precision' in the calculation of the charge to nonmembers cannot be `expected or required.'" Id., at 307, n. 18, 106 S.Ct. 1066 (quoting Railway Clerks v. Allen, 373 U.S. 113, 122, 83 S.Ct. 1158, 10 L.Ed.2d 235 (1963)). It said that the union retains the burden of proving that a given expense is chargeable to nonmembers, the "nonmember's `burden'" being simply that of making "his objection known." 475 U.S., at 306, n. 16, 106 S.Ct. 1066. And it added that the union "cannot be faulted for calculating its fee on the basis of its expenses during the preceding year." Id., at 307, n. 18, 106 S.Ct. 1066.
For the last 25 years unions and employers across the Nation have relied upon this Court's statements in Hudson in developing administratively workable systems that (1) allow unions to pay the costs of fulfilling their representational obligations to both members and nonmembers alike, while (2) simultaneously protecting the nonmembers' constitutional right not to support "`ideological causes not germane to [the union's] duties as collective-bargaining agent.'" Id., at 294, 106 S.Ct. 1066 (quoting Ellis v. Railway Clerks, 466 U.S. 435, 447, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984)). See also Keller v. State Bar of Cal., 496 U.S. 1, 17, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990) (explaining that Hudson "outlined a minimum set of procedures by which a union in an agency-shop relationship could meet its requirement under Abood"). The Court, in my view, should not depart, or create an exception, from Hudson's framework here.
II
Because the administrative details of the fee collection process are critical, I shall 2301*2301begin by explaining how I understand that process to work. The union here followed a basic administrative system that ensures that the fee charged to objecting nonmembers matches their pro rata share of the union's chargeable expenditures, but it achieves that match only over a period of several years. At the end of 2004, independent auditors determined the amount of chargeable (e.g., collectivebargaining related) expenditures and the amount of nonchargeable (e.g., non-germane political) expenditures that the union actually made during 2004. The union then used the resulting proportion (which was about 56% chargeable, 44% nonchargeable) as the basis for apportioning the next year's dues. Thus in June 2005, the union sent all represented employees a Hudsonnotice setting forth that (roughly) 56 to 44 figure. App. 96-106. It provided time for nonmembers to object or to challenge the figure or underlying data. Id., at 98-104. And it then applied the resulting figure to

determine the percentage of the total fee that objecting nonmembers would have to pay during the next fee-year, which ran from July 2005 to June 2006. Id., at 102. At the end of 2005, auditors again examined the union's actual expenditures made during 2005. And the union then used those newly audited figures to determine the chargeable percentage for the fee-year 2006-2007. Id., at 158. Since political expenditures during calendar year 2005 turned out to be lower than in 2004, the new chargeable share amounted to about 69% of the total fee bill. Ibid.
Simplifying further to illustrate, I shall describe the system as (1) using audited accounts for Year One to determine the proportion of the fee that objectors must pay during Year Two, and (2) using audited accounts for Year Two to determine the proportion of the fee that objectors must pay during Year Three. If Year One's chargeable share (as applied to Year Two) turns out to be too high, Year Two's audited accounts will reflect that fact, and the payable share for Year Three will be reduced accordingly.
This system does not put typical objectors to any disadvantage. If, say, in Year One total expenses were $1 million, collective-bargaining expenses amounted to $600,000, and political expenses amounted to $400,000, then the union cannot charge objecting nonmembers more than 60% of normal dues in Year Two. If in Year Two collective-bargaining expenses turned out to be a lesser share of total expenses, say 30%, then the union cannot charge objecting nonmembers more than 30% of the total fee in Year Three. Normally, what the objecting nonmembers lose on the swings they will gain on the roundabouts.
This kind of basic administrative system is imperfect. The nature of a union's expenditures, including nonchargeable political expenditures, varies from year to year, for political needs differ at different stages of political cycles. Thus, last year's percentages will often fail to match this year's expenditures patterns. And the possibility that an objecting nonmember's funds will temporarily help the union pay for a nonchargeable political expenditure (say, in Year Two) is always present— though in this case that did not happen. See infra, at 2302-2303.
Nonetheless this kind of system enjoys an offsetting administrative virtue. It bases fees upon audited accounts, thereby avoiding the difficulties and disagreements that would surround an effort to determine the relevant proportions by trying to measure union expenditures as they occur or by trying to make predictions about the nature of future expenditures. It consequently gives workers reliable information. It gives workers advance notice of next year's payable charge. It gives nonmembers 2302*2302 a "reasonably prompt" opportunity to object. Hudson, 475 U.S., at 310, 106 S.Ct. 1066. And, where the chargeable share of next year's expenses (Year Two) turns out to be lower than last year's (Year One), it provides offsetting compensation in the form of a lower payable share for the following year (Year Three).
In any event, these features are characteristic of an administrative system that "calculat[es]" shares of a union's fee "on the basis of its expenses during the preceding year." Id., at 307, n. 18, 106 S.Ct. 1066. Hudson stated specifically that the "[u]nion cannot be faulted for calculating its fee" on that basis. Ibid. And no party here has challenged the constitutional validity of that basic administrative system. See Tr. of Oral Arg. 13.
III
If the union's basic administrative system does not violate the Constitution, then how could its special assessment have done so? In my view, it did not violate the Constitution, and I shall explain my basis for thinking so by considering separately (1) those nonmembers who objected initially to the 2005 Hudson notice, and (2) those nonmembers who did not initially object.

A
The special assessment as administered here has worked no constitutional harm upon those nonunion employees who raised a general objection at the beginning of the year. The union has honored their objections by subtracting from their special payments the same 44% that it subtracts from each of their ordinary monthly payments. App. 309. And we know that the special assessment here did not even work temporary constitutional harm. That is because audited figures showed that the union's total nonchargeable (e.g.,political) expenses for that year ended up as a lower percentage of total expenses than the previous year. Hence the objecting nonmembers ended up being charged too little, not too much, even with the special assessment thrown into the mix.
Let me put the point more specifically. The union's June 2005 Hudson notice said that the union would charge objecting nonmembers roughly 56% of the dues paid by union members. See App. 102. That 56% figure represented the chargeable portion of expenditures according to the audited figures from 2004. Thus, if the fee charged to a union member pursuant to the 2005 notice was $400, the fee charged to an objecting nonmember was $224. The union similarly prorated the special assessment charging objecting nonmembers 56% of the assessment it imposed upon members. Thus, if the special assessment amounted to $50 for a member, it amounted to $28 for an objecting nonmember. And total dues in this example would have amounted to $450 for a member and $252 for a nonmember.
In the event, the union's chargeable expenses for 2005—including the funds raised pursuant to the special assessment—amounted to more than 56% of its total expenditures. The auditor's reports show that the union's total expenditures in 2005 amounted to $40,045,409. Id., at 166. Chargeable expenses amounted to $27,552,746, which works out to 69% of the total budget. Ibid. Thus, a substantially larger portion of the union's 2005 spending was chargeable (69%) than it had been in 2004(56%). Objecting nonmembers therefore paid 56% of normal fees, even though the chargeable share that year was 69%. That is to say, they paid less than what the Constitution considers to be their fair share. See Abood, 431 U.S., at 236-237, 97 S.Ct. 1782.
Even were the underlying facts different, I can find no constitutional basis for 2303*2303charging an objecting nonmember less than the 56% that the preceding year's audit showed was appropriate. In general, any effort to send a new notice and then apply special percentages to a special midyear assessment fee runs into administrative difficulties that, as explained above, are avoided with a retrospective system. See supra,at 2301. And, of course, requiring the use of some special proportion based on predicted expenditures would contradict Hudson's determination that prior year, not present year, expenditures can form the basis for the determination of that proportion. See Hudson, supra, at 307, n. 18, 106 S.Ct. 1066.
In the particular example before us these general problems are camouflaged by the fact that the union itself said that the assessment was to be used for political purposes. Hence it is tempting to say that 100% of the assessment is not chargeable. But future cases are most unlikely to be so clear; disputes will arise over union predictions (say, that only 20% of the special assessment will be used for political purposes); and the Court will then perhaps understand the wisdom of Hudson's holding. In any event, we have made clear in other cases that money is fungible. Retail Clerks v. Schermerhorn,373 U.S. 746, 753, 83 S.Ct. 1461, 10 L.Ed.2d 678 (1963). Whether a particular expenditure was funded by regular dues or the special assessment is "of bookkeeping significance only rather than a matter of real substance." Ibid. And, the Court's focus on the announced purposes of the special assessment, rather than yearly expenditures taken as a whole, is beside the point.

The Court's response to these problems, particularly the administrative calculation problems, is apparently to depart yet further from the Court's earlier holdings. It seems to say that an objector can withhold 100%, not simply of a special assessment made for political purposes, but of any special assessment whatsoever, including an assessment made solely for the purpose of paying for extra chargeable costs, such as extended contract negotiations, pension plan experts, or newly assessed contributions to replenish a national union's collective-bargaining assistance funds. See ante, at 2295-2296. Although this rule is comparatively simple to administer, it cannot be reconciled with the Court's previous constitutional holdings. Abood, along with every related case the Court has ever decided, makes clear that the Constitution allows a union to assess nonmembers a pro rata share of fees insofar as they are used to pay for these kinds of collective-bargaining expenses. See 431 U.S., at 234-236, 97 S.Ct. 1782; see also Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 524, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991); Machinists v. Street, 367 U.S. 740, 760, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); Ellis, 466 U.S., at 447, 104 S.Ct. 1883; Davenport v. Washington Ed. Assn., 551 U.S. 177, 181, 127 S.Ct. 2372, 168 L.Ed.2d 71 (2007); Locke v. Karass, 555 U.S. 207, 210, 129 S.Ct. 798, 172 L.Ed.2d 552 (2009). How could the majority now hold to the contrary?
If there are good reasons for requiring departure from the basic Hudson-approved administrative system, they are not the reasons the Court provides. It suggests that the basic Hudson administrative system gives the union the freedom to misclassify, arguing, for example, that the union has adopted an overly broad definition of chargeability. See ante, at 22942295. The 2005 proportion, however, rested upon audited 2004 accounts. While petitioners argue in this Court that the union misclassified parts of the special assessment (which was not imposed until 2005), no brief filed in this case (and certainly no court below) has challenged the accuracy of the 2004 figures or the resulting chargeable/nonchargeable 2304*2304 allocation. Indeed, the 2004 accounts were audited before the special assessment at the center of this case was even imposed. Compare App. 108 (reflecting that the audit of the 2004 budget was completed by April 25, 2005) with id., at ___ (reflecting approval of the special assessment on July 30, 2005).
More specifically, the Court suggests that the Constitution prohibits the union's classification of money spent "`lobbying. . . the electorate'" as a chargeable expense. See ante, at 2294. But California state law explicitly permits the union to classify some lobbying expenses as chargeable. See Cal. Govt.Code Ann. § 3515.8 (West 2010) (a nonmember's fair share includes "the costs of support of lobbying activities designed to foster policy goals and collective negotiations and contract administration"); see also Lillebo v. Davis, 222 Cal.App.3d 1421, 1442, 272 Cal.Rptr. 638, 651 (1990) (construing § 3515.8 narrowly, but explaining that "[w]e cannot fathom how a union's lobbying the Legislature for improvement of the conditions of employment of the members of its bargaining unit . . . could not be considered to be part of its role as representative . . ."). No one has attacked the constitutionality of California's law; no brief argues the question; and this Court does not normally find state laws unconstitutional without, at least, giving those who favor the law an opportunity to argue the matter.
The Court further complains that the basic administrative system requires an objecting nonmember to "come up with the resources to mount" a "legal challenge" to the union's allocation "in a timely fashion." Ante, at 2294. That concern too is misplaced. The union has offered to pay for neutral arbitration of such disputes before the American Arbitration Association. App. 103-104. And, again, insofar as the Court casts doubt on the constitutional validity of the basic system, the Court does so without the benefit of argument.
Finally, the Court argues that (Step 1) Hudson is "predicated on the assumption that a union's allocation of funds for chargeable and nonchargeable purposes is not likely to vary greatly from one year to the next," ante, at 2293; that (Step 2) this assumption does not apply to midyear assessments; hence (Step 3) what appears binding precedent (namely Hudson) does not bind the Court in its interpretation of the Constitution as applied to those assessments. Ibid.

I must jump this logical ship, however, at Step 1. I cannot find in Hudson the "assumption" of uniform expenditures that the Court says underlies it. The assumption does not appear there explicitly. And it is hard to believe any such assumption could implicitly lurk within a case involving a union's political expenditures. Those expenditures inevitably vary from political season to season. They inevitably depend upon the number and kind of union-related matters currently visible on the political agenda. Cf., e.g., App. 102, 158, 223 (union's chargeability proportion varies significantly over three years, from 56.35% in 2004, to 68.8% in 2005, to 60.3% in 2006). And it is hard to believe that the Members of this Court, when deciding Abood, were not fully aware of these obvious facts.
B
A stronger case can be made for allowing nonmember employees who did not object at the beginning of the dues year to object (for the first time) to a special assessment. That is because, unlike the nonmember who objected initially, the union will not permit that initially nonobjecting nonmember to withhold anything from the special assessment fee. Nonetheless, there are powerful reasons not to allow the nonmember who did not object initially to 2305*2305 the annual fee to object now for the first time to the midyear special assessment.
For one thing, insofar as a new objection permits the new objector to withhold only the portion of the fee that will pay for nonchargeable expenses (as the logic of the concurring Justices would suggest), the administrative problems that I earlier discussed apply. See supra, at 2302. That is to say, unions, arbitrators, and courts will have to determine, on the basis of a prediction, how much of the special assessment the new objector can withhold. I concede that many administrative problems could be overcome were the new objector allowed to withhold only the same 44% of the fee that the union here permitted initial objectors to withhold (a figure based on 2004 audited accounts). But no Member of the Court takes that approach.
For another thing, as I have previously pointed out, the Court would permit nonmembers who did not object at the beginning of the year (like those who did then object) to object to (and to pay none of) every special assessment, including those made to raise money to pay additional collective-bargaining expenses. This approach may avoid the uncertainty and resulting disputes inherent in an effort to limit withholding to the nonchargeable portion of the fee. But the price of avoiding those disputes is to reduce the financial contribution the union will receive even when a special assessment pays only for unexpected but perfectly legitimate collective-bargaining expenses. See supra,at 2303-2305.
Moreover, to provide a new opportunity to object requires providing for explanations, potential challenges, the development of separate accounts, and additional administrative procedures. That means providing extra time and extra money. By definition, however, special assessments are special; time may matter; and unlike the annual dues payment, the union is unlikely to be able to provide what is here a 6-month delay (between the close of the 2004 audited year and the beginning of the next mid-2005 dues year) that can be used to examine accounts and process objections. In a word, a new opportunity to object means time, effort, and funds set aside to deal with a new layer of administrative procedure.
I recognize that allowing objections only once a year is only one possible way to administer a feecharging system. In principle, one might allow nonmembers to pose new objections to their dues payments biannually, or quarterly, or even once a month, as actual expenses do, or do not, correspond to initial union predictions. But for constitutional purposes the critical fact is that annual objection is at least one reasonably practical way to permit the principled objector to avoid paying for

politics with which he disagrees. See Hudson, 475 U.S., at 307, n. 18, 106 S.Ct. 1066. And that is so whether ordinary or special assessments are at stake.
Further, the nonmember who did not object initially is not likely to be a nonmember who strongly opposes the union's politics. That many unions take political positions and that they spend money seeking to advance those positions is not exactly a secret. All those whom this union represents know from history that it spends money each year for nonchargeable purposes. And any nonmember who has significant negative views about such matters is likely to have objected in advance. Those who did not object initially (but do so later) likely include many whose objection rests, not upon constitutionally protected political grounds, but simply upon a desire not to pay a higher fee. And those who withhold fees for that reason are not entitled to constitutional protection in doing so. Here, the nonobjector cannot even 2306*2306 claim that an increase in the total fee (by the amount of the special assessment) took him by surprise, for in its initial Hudson notice the union said that "[d]ues are subject to change without further notice to fee payers." App. 98.
Finally, if the union will not let a nonmember object to a special assessment, that nonmember has an easy remedy. He or she can simply object the first time around. After all, the possibility of a special assessment is known in advance; the possibility that some, or all of it, will help the union make political expenditures is known in advance; the fact that the union will spend a significant amount of ordinary dues upon political matters is known in advance. To obtain protection all a nonmember who believes he might object to some future political expenditure has to do is to object in advance. His or her fees will decline from the beginning. And, if the nonmember forgets to object, there is always next year—when the chargeable amount of the fee will be based on this year's actual expenditures.
Given these considerations, I do not believe the First Amendment requires giving a second objection opportunity to those nonmembers who did not object the first time.
IV
The Court also holds that, "when a public-sector union imposes a special assessment or dues increase," it "may not exact any funds from nonmembers without their affirmative consent." Ante, at 2296. In other words, the Court mandates an "opt-in" system in respect to the payment of special assessments.
Justice SOTOMAYOR's concurring opinion explains why the Court is wrong to impose this requirement. See ante, at 2297-2299 (opinion concurring in judgment). It runs directly contrary to precedent. No party asked that we do so. The matter has not been fully argued in this Court or in the courts below. I agree with her about this matter.
The decision is particularly unfortunate given the fact that each reason the Court offers in support of its "opt-in" conclusion seems in logic to apply, not just to special assessments, but to ordinary yearly fee charges as well. At least, its opinion can be so read. And that fact virtually guarantees that the opinion will play a central role in an ongoing, intense political debate.
The debate is generally about whether, the extent to which, and the circumstances under which a union that represents nonmembers in collective bargaining can require those nonmembers to help pay for the union's (constitutionally chargeable) collective-bargaining expenses. Twenty-three States have enacted "right to work" laws, which, in effect, prevent unions from requiring nonmembers to pay any of those costs. See Dept. of Labor, Wage and Hour Division, State Right-to-Work Laws (Jan.2009), online at http://www.dol.gov/ whd/state/righttowork.htm (as visited June 18, 2012, and available in Clerk of Court's case file). Other States have rejected the "right to work" approach and

permit unions to require contributions from nonmembers, while protecting those nonmembers' right to opt out of supporting the union's political activities. E.g., Cal. Govt. Code Ann. §§ 3502.5(a), 3515.8. Still others have enacted compromise laws that assume a nonmember does not wish to pay the nonchargeable portion of the fee unless he or she affirmatively indicates a desire to do so. See Wash. Rev.Code § 42.17A.500 (2010) (providing that a union cannot use a nonmember's agency fee for political purposes "unless affirmatively authorized by the individual"). The debate about public unions' collective-bargaining rights is currently intense.
2307*2307 The question of how a nonmember indicates a desire not to pay constitutes an important part of this debate. Must the union assume that the nonmember does not intend to pay unless he affirmatively indicates his desire to pay, by "opting in"? Or, may the union assume that the nonmember is willing to pay unless the nonmember indicates a desire not to pay, by "opting out"? Where, as here, nonchargeable political expenses are at issue, there may be a significant number of represented nonmembers who do not feel strongly enough about the union's politics to indicate a choice either way. That being so, an "opt-in" requirement can reduce union revenues significantly, a matter of considerable importance to the union, while the additional protection it provides primarily helps only those who are politically near neutral. See generally Sunstein & Thaler, Libertarian Paternalism is not an Oxymoron, 70 U. Chi. L.Rev. 1159, 1161 (2003) (explaining that default rules play an important role when individuals do not have "well-defined preferences"). Consequently, the Court, which held recently that the Constitution permits a State to impose an opt-in requirement, see Davenport, 551 U.S., at 185, 127 S.Ct. 2372, has never said that it mandates such a requirement. There is no good reason for the Court suddenly to enter the debate, much less now to decide that the Constitution resolves it.
Of course, principles of stare decisis are not absolute. But the Court cannot be right when it departs from those principles without benefit of argument in a matter of such importance.
For these reasons, with respect, I dissent.
[1] Marinucci & Wildermuth, Schwarzenegger Adds Prop. 75 to His Agenda, San Francisco Chronicle, Sept. 18, 2005, p. A17.
[2] Summers, Book Review, Sheldon Leader, Freedom of Association: A Study in Labor Law and Political Theory, 16 Comparative Labor L.J. 262, 268 (1995).
[3] The specific citation was as follows:
"See Roberts v. United States Jaycees, [468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)] (Infringements on freedom of association `may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms'); Elrod v. Burns, 427 U.S. 347, 363 [96 S.Ct. 2673, 49 L.Ed.2d 547] (1976)(government means must be `least restrictive of freedom of belief and association'); Kusper v. Pontikes, 414 U.S. 51, 58-59 [94 S.Ct. 303, 38 L.Ed.2d 260] (1973) (`[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty'); NAACP v. Button, 371 U.S. 415, 438 [83 S.Ct. 328, 9 L.Ed.2d 405] (1963) (`Precision of regulation must be the touchstone' in the First Amendment context)." Hudson, 475 U.S., at 303, n. 11, 106 S.Ct. 1066.
[4] The dissent suggests that the union gave fair notice because it announced at the beginning of the year that "`[d]ues are subject to change without further notice to fee payers.'" Post, at 2306 (opinion of BREYER, J.). But a union cannot define the scope of its own notice obligations simply by promulgating a clause giving itself the power to increase fees at any time for any purpose without further notice.
[5] These nonmembers, after paying the full amount of the special assessment, would be required during the subsequent year to pay at least as much as those nonmembers who did opt out when they received the initial Hudson notice.
[6] Justice SOTOMAYOR contends that a new Hudson notice should be required only when a special assessment is imposed for political purposes. Post, at 2297 (opinion concurring in judgment). But as even the dissent

acknowledges, post, at 2302, such a rule would be unworkable. First, our cases have recognized that a union's money is fungible, so even if the new fee were spent entirely for nonpolitical activities, it would free up other funds to be spent for political purposes. See Retail Clerks v. Schermerhorn, 373 U.S. 746, 753, 83 S.Ct. 1461, 10 L.Ed.2d 678 (1963) (noting that particular fee earmarks are "of bookkeeping significance only rather than a matter of real substance"). And second, unless we can rely on unions to advertise the true purpose behind every special fee, it is not clear how a court could make a timely determination of whether each new fee is political in nature. It would be practically impossible to require the parties to litigate the purpose of every fee merely to determine whether notice is required.
[7] The SEIU contends that "[s]ignificant fluctuations in the chargeable and nonchargeable proportions of a union's spending are inevitable," Brief for Respondent 13, and the dissent appears to agree, post, at 2304. But if the Hudson Court had proceeded on this assumption it is doubtful that it would have found it acceptable for a union to rely solely on the breakdown in the most recent year rather than computing the average breakdown over a longer period.
[8] The dissent is comforted by the fact that the union "has offered to pay for neutral arbitration of such disputes before the American Arbitration Association," post, at 2304, but the painful burden of initiating and participating in such disputes cannot be so easily relieved.
[9] Contrary to Justice SOTOMAYOR's suggestion, our holding does not venture beyond the scope of the questions on which we granted review or the scope of the parties' dispute. The second question on which we granted review broadly asks us to determine the circumstances under which a State may deduct from the pay of nonunion employees money that is used by a union for general electioneering. See Pet. for Cert. (i) ("May a State, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?"). Our holding—that this may be done only when the employee affirmatively consents—falls within that question.
Our holding also addresses the primary remaining dispute between the parties, namely, the particular procedures that must be followed on remand in order to provide adequate assurance that members of the class are not compelled to subsidize nonchargeable activities to which they object. See supra, at 2287-2288. Petitioners argue strenuously that these procedures must be narrowly tailored to minimize intrusion on their free-speech rights. See Brief for Petitioners 11-17. We see no sensible way to address this dispute without confronting the question whether, in the particular context present here, an optout regime suffices.
Justice SOTOMAYOR would apparently have us proceed on the assumption that an opt-out regime is permitted. She would then have us decide what sort of opt-out procedures would be sufficient if such a regime were allowed at all. But that is a question that simply cannot be answered. It would be like asking what sort of procedural requirements would be required if the government set out to do something else that the First Amendment flatly prohibits—for example, requiring prepublication approval of newspapers.
There is also no merit in Justice SOTOMAYOR's and Justice BREYER's comments about prior precedent. This case concerns the procedures that must be followed when a public-sector union announces a special assessment or mid-year dues increase. No prior decision of this Court has addressed that question, and Hudsonsays not one word on the subject.
[1] See Pet. for Cert. (i) (questions presented); Brief for Petitioners (i) (same); id., at 39 ("The Court should hold that . . . when a union imposes a forced-fee increase primarily or solely for political purposes between notices, it may not collect the increase from nonmembers who have already objected, and it must not collect the increase from other nonmembers until it has ascertained their wishes by providing them with a new notice about the increase's purpose and an opportunity to opt out"); see also App. 18-19 (complaint).
[2] The majority contends that its holding "does not venture beyond the scope of the questions on which we granted review," pointing to the second question presented. Ante, at 2296, n. 9. The majority is mistaken. That question concerns the chargeability of political and lobbying activities under Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 522, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991), not the procedures by which a union may collect fees. See Pet. for Cert. (i); id., at 20-27 (describing scope of second question presented); id., at 23 ("There is a serious split, and confusion, among the circuits on the chargeability of union political and lobbying activities"). Indeed, it is only petitioners' first question presented that deals with fee-collection procedures. And in that question, petitioners ask this Court to hold that SEIU may not collect its special assessment without providing a Hudsonnotice that offers "an opportunity to object to" the deduction of fees for the assessment. Id., at (i) (emphasis added).
The phrase "opt in" appears not once in petitioners' briefing. The majority protests that it cannot but hold that an opt-in regime is required, seeing as the opt-out regime the petitioners advocate is, in the majority's view, unconstitutional. But if the Court was dissatisfied with the scope of the questions presented here it should not have granted certiorari in this case. Or having granted it, the Court should have asked for supplemental briefing on the question whether an opt-in regime is

constitutionally required. What it should not have done—cannot dounder our rules—is decide that question without having provided the parties and potential amici an opportunity to weigh in with their own considered views.

 
 Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 1 of 21
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:05−cv−02198−MCE−CKD

Knox et al v. Westly et al Assigned to: Chief Judge Morrison C. England, Jr Referred to: Magistrate Judge Carolyn K. Delaney Case in other court: USCA−9th Circuit, 08−16645 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/01/2005 Date Terminated: 01/23/2014 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Dianne Knox

represented by W. James Young , PHV National Right to Work Legal Defense Foundation Inc 8001 Braddock Road Suite 600 Springfield, VA 22160 703−321−8510 Fax: 703−321−9319 Email: wjy@nrtw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Steven R. Burlingham Gary Till, Burlingham & Lynch 5330 Madison Avenue Suite F Sacramento, CA 95841 916−332−8122 Fax: 916−332−8153 Email: steveb@gtblaw.com ATTORNEY TO BE NOTICED

Plaintiff William L. Blaylock

represented by W. James Young , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Steven R. Burlingham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Robert A. Conover

represented by W. James Young , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Steven R. Burlingham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Edward L. Dobrowolski, Jr.

represented by W. James Young , PHV (See above for address) LEAD ATTORNEY

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 2 of 21

PRO HAC VICE ATTORNEY TO BE NOTICED

Steven R. Burlingham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Karyn Gil

represented by W. James Young , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Steven R. Burlingham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Thomas Jacob Hass

represented by W. James Young , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Steven R. Burlingham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Patrick Johnson

represented by W. James Young , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Steven R. Burlingham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jon Jumper

represented by W. James Young , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Steven R. Burlingham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
R. Paul Ricker TERMINATED: 03/09/2006

represented by W. James Young , PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Steven R. Burlingham (See above for address) ATTORNEY TO BE NOTICED

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 3 of 21

V. Defendant Steve Westly Controller, State of California
Defendant California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC
Defendant State Controller John Chiang

represented by Douglas J. Woods Cal. Department of Justice, Office of the Attorney General PO Box 944255 Sacramento, CA 94244−2550 (916) 324−4663 Fax: (916) 324−5567 Email: douglas.woods@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey B. Demain Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421−7151 x307 Fax: (415) 362−8064 Email: jdemain@altshulerberzon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peder J. Thoreen Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: pthoreen@altshulerberzon.com ATTORNEY TO BE NOTICED
represented by Douglas J. Woods (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/01/2005 11/01/2005 11/01/2005
11/01/2005 11/01/2005

# Docket Text
1 VERIFIED CLASS ACTION COMPLAINT against all defendants, filed by Plaintiffs. (Attachments: # 1 Civil Cover Sheet)(Krueger, M) (Entered: 11/01/2005)
RECEIPT number 205 9452 for $250.00 for Civil Filing Fee from National Right to Work. (Krueger, M) (Entered: 11/01/2005)
2 SUMMONS ISSUED as to *Steve Westly, California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC* with answer to complaint due within *20* days. Attorney *Steven R. Burlingham* *Gary, Till and Burlingham* *5330 Madison Avenue, Suite F* *Sacramento, CA 95841*. (Krueger, M) (Entered: 11/01/2005)
3 CIVIL NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Forms # 2 VDRP Forms) (Krueger, M) (Entered: 11/01/2005)
SERVICE BY MAIL: 2 Summons, and 3 Civil New Case Documents for MCE served on Steven R. Burlingham. (Krueger, M) (Entered: 11/01/2005)

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 4 of 21

11/01/2005 11/01/2005 11/02/2005 11/02/2005 11/02/2005
11/02/2005
11/03/2005 11/03/2005 11/03/2005 11/03/2005 11/03/2005 11/03/2005 11/03/2005 11/03/2005 11/03/2005

4 PRO HAC VICE APPLICATION and PROPOSED ORDER by Plaintiffs for attorney W. James Young to appear Pro Hac Vice for Plaintiffs. (Krueger, M) (Entered: 11/01/2005)
RECEIPT number 205 9453 for $180.00 for Pro Hac Vice for Attorney W. James Young from National Right to Work. (Krueger, M) (Entered: 11/01/2005)
5 PRO HAC VICE ORDER signed by Judge Morrison C. England Jr. on 11/02/05: Added attorney W. James Young for Patrick Johnson; Jon Jumper; R. Paul Ricker; Dianne Knox; William L. Blaylock; Robert A. Conover; Edward L. Dobrowolski, Jr; Karyn Gil and Thomas Jacob Hass. (Warren, P) (Entered: 11/02/2005)
SERVICE BY MAIL: 5 Pro Hac Vice Order served on Steven R Burlingham and W. James Young (Warren, P) (Entered: 11/02/2005)
6 Ex Parte MOTION for TEMPORARY RESTRAINING ORDER and/or Preliminary Injunction by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, R. Paul Ricker, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr. (Attachments: # 1 Declaration # 2 Exhibit A # 3 Memorandum #(4) Proposed Order granting TRO #(5) Proposed Order granting Preliminary Injunction)(Burlingham, Steven) Modified on 11/3/2005 (Girgis, C). (Entered: 11/02/2005)
11 MINUTES for proceedings held before Judge Morrison C. England Jr.: IN COURT HEARING held on 11/2/2005. Plantiffs gave opening argument. Defendants request for continunace of TRO Hearing. Plaintiffs gave rebuttal. Defendants responded. For the reasons given, the TRO is granted. Preliminary Injunction set for Friday, November 4, 2005 at 10:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr.. Oppositions due not later than 2 p.m. on Thursday, November 3, 2005. Replies due not later than 4:30 p.m. on Thursday, November 3, 2005.Plaintiffs Counsel James Young present. Defendants Counsel Jonathan Weissglass and Jeffrey Demain (appearing by telephone) present. Court Reporter: Diane Shepard. (Souvannarath, A) (Entered: 11/03/2005)
7 ORDER granting 6 Motion for Temporary Restraining Order. Signed by Judge Morrison C. England, Jr. on 11/3/2005.(Deutsch, S) (Entered: 11/03/2005)
SERVICE BY MAIL: 7 Order on Motion for Temporary Restraining Order served on W. James Young. (Deutsch, S) (Entered: 11/03/2005)
8 DECLARATION of Jeffrey B. Demain in OPPOSITION to 6 Ex Parte MOTION for TEMPORARY RESTRAINING ORDER and/or Preliminary Injunction. (Demain, Jeffrey) Modified on 11/7/2005 (Krueger, M). (Entered: 11/03/2005)
9 DECLARATION of Cathy Hackett in OPPOSITION to 6 Ex Parte MOTION for TEMPORARY RESTRAINING ORDER and/or Preliminary Injunction.(Attachments: # 1 Exhibit A)(Demain, Jeffrey) Modified on 11/7/2005 (Krueger, M). (Entered: 11/03/2005)
10 DECLARATION of Lee King in OPPOSITION to 6 Ex Parte MOTION for TEMPORARY RESTRAINING ORDER and/or Preliminary Injunction. (Demain, Jeffrey) Modified on 11/7/2005 (Krueger, M). (Entered: 11/03/2005)
12 MEMORANDUM/RESPONSE in OPPOSITION to Motion for Preliminary Injunction. (Attachments: # 1 Exhibit)(Demain, Jeffrey) Modified on 11/7/2005 (Krueger, M). (Entered: 11/03/2005)
13 CERTIFICATE of SERVICE by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC re 8 , 9 , 10 , 12 Memorandum/Response in Opposition to Motion (Demain, Jeffrey) (Entered: 11/03/2005)
14 MEMORANDUM/RESPONSE in OPPOSITION to Motion for Preliminary Injunction. (Woods, Douglas) (Entered: 11/03/2005)
15 REPLY to Defendants' Oppositions to Motion for TRO and/or Preliminary Injunction by Plaintiffs. (Burlingham, Steven) Modified on 11/7/2005 (Krueger, M). (Entered: 11/03/2005)

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 5 of 21

11/03/2005 11/03/2005 11/04/2005 11/04/2005 11/04/2005 11/04/2005
11/08/2005 11/08/2005 11/09/2005 11/09/2005 11/15/2005 11/15/2005

16 CORRECTED CERTIFICATE of SERVICE of 15 Reply to Defendants' Oppositions by Plaintiffs. (Burlingham, Steven) Modified on 11/7/2005 (Krueger, M). (Entered: 11/03/2005)
17 MOTION for CLASS CERTIFICATION by Plaintiffs. Motion Hearing set for 12/5/2005 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr. (Attachments: # 1 Memorandum of Points and Authorities # 2 Declaration of W. James Young)(Burlingham, Steven) Modified on 11/7/2005 (Krueger, M). (Entered: 11/03/2005)
18 DECLARATION of Robert A. Conover in Support of 6 Ex Parte MOTION for TEMPORARY RESTRAINING ORDER and/or Preliminary Injunction. (Burlingham, Steven) (Entered: 11/04/2005)
19 CERTIFICATE of SERVICE by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, R. Paul Ricker, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr re 18 Conover Declaration (Burlingham, Steven) (Entered: 11/04/2005)
RECEIPT number 201 10939 of $525,000.00 placed in court− supervised escrow account by defendant CSEA, pursuant to Court's Order 7 filed 11/3/05. (Marciel, M) (Entered: 11/04/2005)
20 MINUTES for proceedings held before Judge Morrison C. England Jr.: IN COURT HEARING held on 11/4/2005 regarding Preliminary Injunction and 6 MOTION for TEMPORARY RESTRAINING ORDER. The court addresses counsel regarding member dues. Court also addresses letters dated 06−30−05 and 08−31−05 and the Hudson notice. Arguments presented by both parties. Mr. Demain, counsel for the Union dfts, requests the court to enter an order returning the $525,000 back to the Union should the preliminary injunction not issue. The Union dfts also request that the current motion to certify class scheduled for hearing on 12/5/05 be continued to a future date to allow time for discovery prior to the hearing. Counsel for dft Steve Westly, Mr. Woods, explains to the Court how the system at the Controller's Office works with regards to the special assessment and withholding. For the reasons given by the Court, the preliminary injunction is denied. Plaintiff's counsel, Mr. Young, requests that the injunction be ordered as to the named Plaintiffs in this action. The Union will return money to the invdividual fee members. Court further orders that the money in the amount of $525,000 be released forthwith. Parties shall discuss the hearing date on the motion to certify class and advise the courtroom deputy of same. Court order will follow. Plaintiffs Counsel W. James Young present. Defendants Counsel Stephen P Berzon and Jeffrey Demain for Union defendants. Douglas Woods for defendant Steve Westly. Court Reporter: Diane Shepard. (Souvannarath, A) Modified on 11/7/2005 (Krueger, M). (Entered: 11/04/2005)
21 MEMORANDUM AND ORDER signed by Judge Morrison C. England Jr. on 11/4/05 ORDERING the funds in the amount of $525,000.00 which were depositedby SEIU, Local 1000, into the account of the US District Court pursuant to a TRO, entered by this Court on 11/3/05, are to be returned to SEIU forthwith. (cc: Court's Financial Department). (Krueger, M) (Entered: 11/08/2005)
SERVICE BY MAIL: 21 Order served on W. James Young. (Krueger, M) (Entered: 11/08/2005)
22 TRANSCRIPT of Motion for TRO Hearing held on 11/2/05 before Judge Morrison C. England, Jr. Court Reporter: Diane J. Shepard. (Krueger, M) Modified to add image on 7/16/2009 (Waggoner, D). (Entered: 11/09/2005)
23 ORDER signed by Judge Morrison C. England Jr. on 11/8/05 ORDERNG Plaintiffs Motion for Preliminary Injunction 6 DENIED. (Krueger, M) (Entered: 11/09/2005)
24 STIPULATION for Extension of Time until 12/21/05 to Answer Complaint by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 11/16/2005 (Krueger, M). (Entered: 11/15/2005)
25 CERTIFICATE of SERVICE by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC re 24 Stipulation (Demain, Jeffrey) (Entered: 11/15/2005)

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 6 of 21

11/16/2005 11/18/2005 12/21/2005 12/21/2005 01/03/2006 01/05/2006 01/12/2006
01/17/2006 01/23/2006
01/23/2006 01/24/2006 01/26/2006 02/17/2006 02/17/2006

26 CERTIFICATE of SERVICE by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, R. Paul Ricker, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr re 3 Civil New Case Documents for MCE (Young, W.) (Entered: 11/16/2005)
27 SUMMONS RETURNED EXECUTED by Plaintiffs, Steve Westly served on 11/2/2005, answer due 11/22/2005; California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC served on 11/2/2005, answer due 11/22/2005. (Young, W.) Modified on 11/21/2005 (Krueger, M). (Entered: 11/18/2005)
28 ANSWER to COMPLAINT by CA State Employees Assoc, Local 1000, Service Employees Int'l Union, AFL−CIO−CLC (Demain, Jeffrey. Modified on 12/21/2005 (Kastilahn, A). (Entered: 12/21/2005)
29 ANSWER to COMPLAINT by Steve Westly.(Woods, Douglas) Modified on 12/22/2005 (Krueger, M). (Entered: 12/21/2005)
30 JOINT STATUS REPORT by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, R. Paul Ricker, California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr. (Young, W.) (Entered: 01/03/2006)
31 SUPPLEMENTAL STATUS REPORT by Steve Westly. (Woods, Douglas) (Entered: 01/05/2006)
32 PRETRIAL (STATUS) SCHEDULING ORDER signed by Judge Morrison C. England Jr. on 1/11/06: Designation of Expert Witnesses due by 5/14/2007. Discovery due by 3/12/2007. Dispositive Motions shall be due by 8/13/2007. Final Pretrial Conference set for 10/29/2007 at 01:30 PM, and the parties shall file a Joint Pretrial Statement by 10/15/2007. Court Trial set for 12/12/2007 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr. (Krueger, M) (Entered: 01/12/2006)
33 LIMITED OBJECTION to the 32 Pretrial (Status) Scheduling Order by Defendant California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 1/18/2006 (Krueger, M). (Entered: 01/17/2006)
34 AMENDED PRETRIAL (STATUS) SCHEDULING ORDER signed by Judge Morrison C. England Jr. on 1/20/06: Designation of Expert Witnesses due by 5/14/2007. Discovery due by 3/12/2007. Dispositive Motions shall be heard by 8/13/2007. Final Pretrial Conference set for 10/29/2007 at 01:30 PM, with a Joint Pretrial Statement due by 10/15/2007. Court Trial set for 12/12/2007 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr. (Krueger, M) (Entered: 01/23/2006)
35 NOTICE of HEARING by all plaintiffs re 17 MOTION to CERTIFY CLASS and Appoint Class Counsel. Motion Hearing Set for 3/20/06 at 9:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England, Jr. (Young, W.) Modified on 1/25/2006 (Krueger, M). (Entered: 01/23/2006)
36 REQUEST for Continuance of Hearing on Plaintiffs' Motion for Class Certification by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Attachments: # 1 Declaration # 2 Proposed Order)(Demain, Jeffrey) (Entered: 01/24/2006)
37 ORDER signed by Judge Morrison C. England Jr. on 1/25/06 ORDERING that the hearing date of 3/20/06 currently set for Plaintiffs' Motion for Class Certification 17 is hereby VACATED. Pltfs may re−notice their Motion for Class Certification after the Court resolves the Union's Motion to Dismiss. (Krueger, M) (Entered: 01/26/2006)
38 MOTION to DISMISS and for Partial Summary Judgment by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. Motion Hearing set for 3/20/2007 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr.. (Thoreen, Peder) (Entered: 02/17/2006)
39 MEMORANDUM/RESPONSE in SUPPORT re 38 MOTION to DISMISS and for Partial Summary Judgment. (Thoreen, Peder) (Entered: 02/17/2006)

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 7 of 21

02/17/2006
02/17/2006 02/21/2006 03/06/2006 03/09/2006
03/31/2006 04/12/2006 04/13/2006 04/13/2006 04/13/2006 04/13/2006 04/13/2006 04/20/2006 05/19/2006 05/24/2006 05/26/2006

40 STATEMENT of Undisputed Facts in Support of SEIU Local 1000's Motion to Dismiss and for Partial Summary Judgment by Defendant California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC re 38 MOTION to DISMISS and for Partial Summary Judgment. (Thoreen, Peder) (Entered: 02/17/2006)
41 DECLARATION of Jeffrey B. Demain in SUPPORT OF re 38 MOTION to DISMISS and for Partial Summary Judgment. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Thoreen, Peder) (Entered: 02/17/2006)
42 NOTICE OF LODGING DOCUMENT IN PAPER: Deposition Transcript of December 12, 2005 Deposition of R. Paul Ricker pursuant to Local Rule 5−133(j) by Defendant. (Thoreen, Peder) (Document Routed to the Fileroom). Modified on 2/21/2006 (Krueger, M). (Entered: 02/21/2006)
43 STIPULATION AND PROPOSED ORDER of voluntary dismissal of pltf R. Paul Ricker and for withdrawal of pending motions by R. Paul Ricker (Young, W.) Modified on 3/6/2006 (Reader, L). (Entered: 03/06/2006)
44 STIPULATION and ORDER 43 signed by Judge Morrison C. England Jr. on 3/8/06 GRANTING Voluntary Dismissal of Pltf R. Paul Ricker pursuant to FRCP 41(a)(1). Pltfs' Motion to Certify Class 17 , and Defendants Motion to Dismiss and for Partial Summary Judgment 38 are hereby WITHDRAWN.(Krueger, M) (Entered: 03/09/2006)
45 RENEWED MOTION to CERTIFY CLASS and Class Counsel by Plaintiffs. Motion Hearing set for 5/1/2006 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr. (Attachments: # 1 Memorandum # 2 Declaration of W. James Young)(Young, W.) Modified on 4/3/2006 (Krueger, M). (Entered: 03/31/2006)
46 NOTICE by all plaintiffs re 45 PLAINTIFF(S) MOTION to CERTIFY CLASS and Class Counsel Revised Notice of Motion (Young, W.) (Entered: 04/12/2006)
47 REQUEST for Continuance of Hearing on Plaintiffs' Motion for Class Certification by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Thoreen, Peder) (Entered: 04/13/2006)
48 DECLARATION of Jeffrey B. Demain in Support of 47 Request for Continuance of Hearing. (Thoreen, Peder) Modified on 4/14/2006 (Donati, J). (Entered: 04/13/2006)
49 PROPOSED ORDER for 47 Request for Continuance of Hearing. (Thoreen, Peder) Modified on 4/14/2006 (Donati, J). (Entered: 04/13/2006)
50 MOTION for Partial JUDGMENT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. Motion Hearing set for 6/5/2006 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr.. (Thoreen, Peder) Modified on 4/14/2006 (Donati, J). (Entered: 04/13/2006)
51 MEMORANDUM of POINTS and AUTHORITIES in Support of 50 Motion for Partial Judgment by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Thoreen, Peder) Modified on 4/14/2006 (Donati, J). (Entered: 04/13/2006)
52 MEMORADUM AND ORDER signed by Judge Morrison C. England Jr. on 4/20/06 ORDERING Defendant's Motion for Continuance is GRANTED. Plaintiffs' Motion for Class Certification 45 is CONTINUED to 8/7/2006 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr. (Krueger, M) (Entered: 04/20/2006)
53 MEMORANDUM/RESPONSE in Opposition to 50 Motion for Partial Judgment by Plaintiffs. (Young, W.) Modified on 5/22/2006 (Donati, J). (Entered: 05/19/2006)
54 STATEMENT of NON−OPPOSITION to MOTION for PARTIAL JUDGMENT on the Pleadings. (Woods, Douglas) Modified on 5/25/2006 (Krueger, M). (Entered: 05/24/2006)
55 REPLY in SUPPORT of 50 PARTIAL JUDGMENT on the Pleadings by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Thoreen, Peder) Modified on 5/30/2006 (Krueger, M). (Entered: 05/26/2006)

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 8 of 21

06/02/2006
07/05/2006 07/05/2006 07/11/2006
08/16/2006 09/15/2006
09/22/2006
09/29/2006
09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006 09/29/2006

56 MINUTE ORDER: (TEXT ONLY ENTRY) The Defendants' 50 Motion for for Partial Judgment, scheduled for hearing on 6/5/06, is submitted without oral argument pursuant to Local Rule 78−230(h). If the court determines that oral argument is needed, it will be scheduled at a later date.Approved by Judge Morrison C. England Jr. on 6/2/06. (Souvannarath, A) (Entered: 06/02/2006)
57 UNOPPOSED REQUEST for a continuance of hearing on pltfs' motion for class certification by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 7/6/2006 (Yin, K). (Entered: 07/05/2006)
58 PROPOSED ORDER continuing pltfs' motion for class certification by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 7/6/2006 (Yin, K). (Entered: 07/05/2006)
59 ORDER signed by Judge Morrison C. England Jr. on 7/11/06 ORDERING that Plaintiffs' Motion for Class Certification 45 is taken off calendar. The Court hereby VACATES the 8/7/06 hearing date set for Plaintiffs' Motion for Class Certification. Plaintiffs may re−notice their Motion for Class Certification after the Court issues an order adjudicating the Union's Rule 12(c) Motion.(Krueger, M) (Entered: 07/11/2006)
60 ORDER signed by Judge Morrison C. England Jr. on 8/15/06 ORDERING Defendant CSEA's Motion for Partial Judgment on the Pleadings 50 is GRANTED with respect to Plaintiff Conover. (Krueger, M) (Entered: 08/16/2006)
61 SECOND AMENDED RENEWED MOTION to CERTIFY CLASS by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox, William L. Blaylock, Edward L. Dobrowolski, Jr. Motion Hearing set for 10/16/2006 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr.. (Young, W.) Modified on 9/18/2006 (Donati, J). (Entered: 09/15/2006)
62 CORRECTED SECOND AMENDED MOTION to CERTIFY CLASS re 61 Second Amended Motion to Certify Class by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, R. Paul Ricker, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr. Motion Hearing set for 10/16/2006 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr. (Young, W.) Modified on 9/25/2006 (Reader, L). Modified on 10/3/2006 (Krueger, M). (Entered: 09/22/2006)
63 MOTION for SUMMARY JUDGMENT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. Motion Hearing set for 10/30/2006 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr. (Thoreen, Peder) Modified on 10/3/2006 (Krueger, M). (Entered: 09/29/2006)
64 MEMORANDUM/RESPONSE in SUPPORT re 63 MOTION for SUMMARY JUDGMENT. (Thoreen, Peder) (Entered: 09/29/2006)
65 STATEMENT of Undisputed Facts by Defendant California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC re 63 MOTION for SUMMARY JUDGMENT. (Thoreen, Peder) (Entered: 09/29/2006)
66 DECLARATION of Lee King in SUPPORT of 63 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C)(Thoreen, Peder) Modified on 10/3/2006 (Krueger, M). (Entered: 09/29/2006)
67 DECLARATION of Richard M. Graham in SUPPORT of 63 MOTION for SUMMARY JUDGMENT. (Thoreen, Peder) Modified on 10/3/2006 (Krueger, M). (Entered: 09/29/2006)
68 MEMORANDUM in OPPOSITION to 62 CORRECTED SECOND AMENDED MOTION to CERTIFY CLASS by CA State Employees Association. (Thoreen, Peder) Modified on 10/3/2006 (Krueger, M). (Entered: 09/29/2006)
69 DECLARATION of Jade San Juan in SUPPORT of 68 OPPOSITION to Corrected Second Amended Motion to Certify Class. (Thoreen, Peder) Modified on 10/3/2006 (Krueger, M). (Entered: 09/29/2006)

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 9 of 21

09/29/2006 09/29/2006 10/02/2006 10/06/2006 10/06/2006 10/06/2006 10/06/2006 10/06/2006 10/10/2006 10/12/2006
10/16/2006
11/01/2006

70 DECLARATION of Jeffrey B. Demain in SUPPORT of 68 OPPOSITION to Corrected Second Amended Motion to Certify Class. (Attachments: # 1 Exhibit A # 2 Exhibit B)(Thoreen, Peder) Modified on 10/3/2006 (Krueger, M). (Entered: 09/29/2006)
71 NOTICE OF LODGING DOCUMENT IN PAPER re April 7, 2006 Deposition of Robert A. Conover by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC: Deposition Transcript Lodged with court pursuant to Local Rule 5−133(j). (Thoreen, Peder) (Received and Routed to file room) Modified on 10/2/2006 (Yin, K). (Entered: 09/29/2006)
72 STATEMENT of No Position on Plaintiff's Motion for Class Certification by Defendant Steve Westly. (Woods, Douglas) (Entered: 10/02/2006)
73 REPLY to RESPONSE to 62 Second Amended Motion to Certify Class. (Attachments: # 1 Appendix A)(Young, W.) Modified on 10/10/2006 (Donati, J). (Entered: 10/06/2006)
74 REQUEST to CONTINUE Hearing on 63 Motion for Summary Judgment by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr. (Attachments: # 1 Proposed Order)(Young, W.) Modified on 10/10/2006 (Donati, J). Modified on 10/11/2006 (Krueger, M). (Entered: 10/06/2006)
75 RESPONSE to 74 Motion to Continue Hearing and REQUEST to Continue Hearing on 62 Second Amended Motion to Certify Class. (Thoreen, Peder) Modified on 10/10/2006 (Donati, J). (Entered: 10/06/2006)
76 DECLARATION of Peder J. Thoreen in Support of 75 Response to Plaintiff's Request for a Continuance, and Separate Request for a Continuance. (Thoreen, Peder) Modified on 10/10/2006 (Donati, J). Modified on 10/11/2006 (Krueger, M). (Entered: 10/06/2006)
77 PROPOSED ORDER re: 74 Request to Continue Hearing and 75 Separate Request to Continue Hearing by Defendant. (Thoreen, Peder) Modified on 10/10/2006 (Donati, J). Modified on 10/11/2006 (Krueger, M). (Entered: 10/06/2006)
78 REPLY to RESPONSE to 74 Request to Continue by Plaintiffs. (Attachments: # 1 Proposed Order)(Young, W.) Modified on 10/10/2006 (Donati, J). Modified on 10/11/2006 (Krueger, M). (Entered: 10/10/2006)
79 ORDER signed by Judge Morrison C. England Jr. on 10/12/06 ORDERING the Hearing on Defendant's MOTION for SUMMARY JUDGMENT 63 is CONTINUED to 12/11/2006 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr. Further, the Court Orders that Plaintiffs' MOTION for CLASS CERTIFICATION 62 shall remain on calendar for 10/16/06. All dates previously set forth in the PTSOregarding filing, briefing and discovery deadlines are to remain unchanged. The Court affirms those dates at this time. (Krueger, M) (Entered: 10/12/2006)
80 MINUTES for proceedings held before Judge Morrison C. England Jr.: MOTION HEARING held on 10/16/2006 re 62 CORRECTED SECOND AMENDED MOTION to CERTIFY CLASS filed by Plaintiffs Patrick Johnson, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Jon Jumper, R. Paul Ricker. Arguments presented. Plaintiffs' counsel requests that the court amend the complaint to take out any reference to punitive damages. No objections by Defendants. Pltf's request is granted. Motion is taken under submission. Court order will follows. At the parties' request, the Court orders that the reply brief to the Dft's motion for summary judgment 63 is due on 11/17/06. Plaintiffs Counsel W. James Young present. Defendants Counsel Jeffrey Demain and Peder Thoreen for Union Dfts. Douglas Woods for Dft Controller Steve Westly. present. Court Reporter: Diane Shepard. (Souvannarath, A) (Entered: 10/16/2006)
81 ORDER signed by Judge Morrison C. England Jr. on 10/31/06 ORDERING Plaintiff's Motion for Class Certification 62 is GRANTED. The Court finds that the named Plfs are adequate representatives of the class of individuals who paycompulsory fees to CSEA who are not members and who have, at one time or another, specifically objected to the use of their agency fees for politics or other non−bargaining activities. The Court further finds that Pltf Conover is an adequate representative of the class of

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 10 of 21

11/15/2006 11/16/2006 11/30/2006 12/04/2006 12/04/2006 12/04/2006 12/04/2006 12/07/2006 12/11/2006
01/04/2007 02/12/2007 04/30/2007 05/07/2007 05/14/2007 05/15/2007

individuals who pay compulsoryfees to CSEA who are not members and who have not at any time objected to the use of their agency fees for politics or other non−bargaining activities.(Krueger, M) (Entered: 11/01/2006)
82 STIPULATION and PROPOSED ORDER Proposed Stipulated Protective Order re Salary Information by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) (Entered: 11/15/2006)
83 OPPOSITION to 63 Motion for Summary Judgment (Attachments: # 1 Declaration # 2 Statement)(Young, W.) Modified on 11/16/2006 (Marciel, M). Modified on 11/17/2006 (Donati, J). (Entered: 11/16/2006)
84 STIPULATION and PROTECTIVE ORDER 82 re Salary Information signed by Magistrate Judge Kimberly J. Mueller on 11/30/06. (refer to document image for details)(Marciel, M) (Entered: 11/30/2006)
85 REPLY BRIEF in SUPPORT of 63 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Appendix 1 # 2 Appendix 2)(Thoreen, Peder) Modified on 12/5/2006 (Krueger, M). (Entered: 12/04/2006)
86 DECLARATION of Lee King in SUPPORT of 85 Reply Brief. (Thoreen, Peder) Modified on 12/5/2006 (Krueger, M). (Entered: 12/04/2006)
87 DECLARATION of Jeffrey B. Demain in SUPPORT of 85 Reply Brief. (Demain, Jeffrey) Modified on 12/5/2006 (Krueger, M). (Entered: 12/04/2006)
88 AMENDED REPLY BRIEF in Support of 63 Motion for Summary Judgment by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Attachments: # 1 Appendix 1 # 2 Appendix 2)(Thoreen, Peder) Modified on 12/5/2006 (Krueger, M). (Entered: 12/04/2006)
89 TRANSCRIPT of Plaintiffs' Motion to Certify Class Action held on 10/16/06 before Judge Morrison C. England, Jr. Court Reporter: Diane Shepard. (Krueger, M) Modified to add image on 7/16/2009 (Waggoner, D). (Entered: 12/08/2006)
90 MINUTES for proceedings held before Judge Morrison C. England Jr.: MOTION HEARING held on 12/11/2006 re 63 Motion for Summary Judgment filed by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. Arguments presented. Motion is taken under submission. Court order to follow. Plaintiffs Counsel W. James Young present. Defendants Counsel Jeffrey B. Demain present. Court Reporter: Diane Shepard. (Souvannarath, A) (Entered: 12/11/2006)
91 NOTICE of Change of Firm Name by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 1/5/2007 (Krueger, M). (Entered: 01/04/2007)
92 MEMORANDUM and ORDER signed by Judge Morrison C. England Jr. on 2/12/07 ORDERING that CSEA's 63 Motion for Summary Judgment is DENIED. (Yin, K) (Entered: 02/12/2007)
93 STIPULATION and PROPOSED ORDER to Permit Summary Judgment Motions to be Heard on 8/17/07. (Demain, Jeffrey) Modified on 5/1/2007 (Krueger, M). (Entered: 04/30/2007)
94 STIPULATION and ORDER signed by Judge Morrison C. England Jr. on 5/4/07 CONTINUING Summary Judgment Motions pursuant to the stipulation between the parties. Dispositive Motion due by 8/17/2007.(Yin, K) (Entered: 05/07/2007)
95 DESIGNATION/DISCLOSURE of EXPERT WITNESS by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Thoreen, Peder) (Entered: 05/14/2007)
96 AMENDED DISCLOSURE of Expert Witness 95 by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Thoreen, Peder) Modified on 5/16/2007 (Duong, D). (Entered: 05/15/2007)

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 11 of 21

05/22/2007
07/13/2007
07/13/2007 07/13/2007 07/13/2007 07/17/2007 07/17/2007 07/17/2007 07/17/2007 07/17/2007 07/17/2007 07/31/2007 07/31/2007 07/31/2007

97 MINUTE ORDER: Due to unavailability of the Court's calendar and on the Court's own motion, the 10/29/2007 Final Pretrial Conference is advanced to 10/19/2007 at 9:00 a.m. in Courtroom 3 before the Honorable Morrison C. England, Jr. The Joint Final Pretrial Statement is to be filed not later than 10/5/2007. The 12/12/2007 Bench Trial is advanced to 12/10/2007 at 9:00 a.m. in Courtroom 3 before the Honorable Morrison C. England, Jr.Signed by Judge Morrison C. England Jr. on 5/22/2007. (Deutsch, S) (Entered: 05/22/2007)
98 [DISREGARD − AMENDED 103 MOTION FILED] MOTION for SUMMARY JUDGMENT by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr. Motion Hearing set for 8/13/2007 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr.. (Young, W.) Modified on 7/18/2007 (Marciel, M). (Entered: 07/13/2007)
99 MEMORANDUM of Points and Authorities in SUPPORT of 98 MOTION for SUMMARY JUDGMENT. (Young, W.) Modified on 7/16/2007 (Marciel, M). (Entered: 07/13/2007)
100 STATEMENT of Undisputed Material Facts in support of 98 Motion for Summary Judgment by plaintiffs Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr.. (Young, W.) Modified on 7/16/2007 (Marciel, M). (Entered: 07/13/2007)
101 DECLARATION of W. James Young in support of 98 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A & B)(Young, W.) Modified on 7/16/2007 (Marciel, M). (Entered: 07/13/2007)
102 AMENDED 98 MOTION for SUMMARY JUDGMENT by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr. Motion Hearing set for 8/17/2007 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr.. (Young, W.) Modified on 7/18/2007 (Marciel, M). (Entered: 07/17/2007)
103 MOTION for SUMMARY JUDGMENT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. Motion Hearing set for 8/17/2007 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr.. (Thoreen, Peder) Modified on 8/10/2007 (Marciel, M). (Entered: 07/17/2007)
104 MEMORANDUM of Points and Authorities in SUPPORT of 103 MOTION for SUMMARY JUDGMENT. (Demain, Jeffrey) Modified on 7/18/2007 (Marciel, M). (Entered: 07/17/2007)
105 STATEMENT of Undisputed Facts in support of 103 Motion for Summary Judgment by defendants California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 7/18/2007 (Marciel, M). (Entered: 07/17/2007)
106 DECLARATION of Jade San Juan in SUPPORT OF 103 MOTION for SUMMARY JUDGMENT. (Demain, Jeffrey) Modified on 7/18/2007 (Marciel, M). (Entered: 07/17/2007)
107 DECLARATION of Lee King in SUPPORT OF 103 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C) (Demain, Jeffrey) Modified on 7/18/2007 (Marciel, M). (Entered: 07/17/2007)
108 MEMORANDUM/RESPONSE in OPPOSITION re 102 AMENDED MOTION for SUMMARY JUDGMENT (Attachments: # 1 Appendix A)(Demain, Jeffrey) Modified on 8/2/2007 (Reader, L). (Entered: 07/31/2007)
109 DECLARATION of Jeffrey B. Demain in SUPPORT of OPPOSITION re 102 AMENDED MOTION for SUMMARY JUDGMENT (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Demain, Jeffrey) Modified on 8/2/2007 (Reader, L). (Entered: 07/31/2007)
110 DECLARATION of Anne Giese in SUPPORT of OPPOSITION re 102 AMENDED MOTION for SUMMARY JUDGMENT (Demain, Jeffrey) Modified on 8/2/2007

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 12 of 21

07/31/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007
08/03/2007 08/07/2007 08/09/2007
08/09/2007
08/09/2007 08/10/2007 08/10/2007 08/10/2007

(Reader, L). (Entered: 07/31/2007)
111 DECLARATION of Kenneth R. Holmer in SUPPORT of OPPOSITION re 102 AMENDED MOTION for SUMMARY JUDGMENT (Attachments: # 1 Exhibit A)(Demain, Jeffrey) Modified on 8/2/2007 (Reader, L). (Entered: 07/31/2007)
112 DECLARATION of Lee King in SUPPORT of OPPOSITION re 102 AMENDED MOTION for SUMMARY JUDGMENT (Demain, Jeffrey) Modified on 8/2/2007 (Reader, L). (Entered: 07/31/2007)
113 REQUEST for JUDICIAL NOTICE by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC in re 102 Motion for Summary Judgment,. (Demain, Jeffrey) (Entered: 07/31/2007)
114 DECLARATION of Peder J. Thoreen in SUPPORT OF. 113 SEIU Local 1000's Request for Judicial Notice in Opposition to Plaintiffs' Motion for Summary Judgment and/or Summary Adjudication (Attachments: # 1 Exhibit A)(Thoreen, Peder) (Entered: 07/31/2007)
115 REPLY/RESPONSE to Plaintiffs' Statement of Undisputed Material Facts in Support of Their Motion for Summary Judgment and/or Summary Adjudication by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC re 100 Statement − R,. (Thoreen, Peder) (Entered: 07/31/2007)
116 MEMORANDUM/RESPONSE in OPPOSITION re 103 MOTION for SUMMARY JUDGMENT. (Young, W.) (Entered: 07/31/2007)
117 STATEMENT of Genuine Issues In Support of Opposition to Motion for Partial Summary Judgment by Plaintiffs Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr re 103 MOTION for SUMMARY JUDGMENT. (Young, W.) (Entered: 07/31/2007)
118 OPPOSITION to Plaintiff's Motion for Summary Judgment by State Controller John Chiang. Attorney Woods, Douglas J. added. (Woods, Douglas) Modified on 8/6/2007 (Manzer, C). (Entered: 08/03/2007)
119 REPLY to RESPONSE to MOTION re 98 MOTION for SUMMARY JUDGMENT. (Young, W.) (Entered: 08/07/2007)
120 NOTICE of Lodging Transcript of March 7, 2007 Deposition of Leeland King by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 8/10/2007 (Marciel, M). (TRANSCRIPT LODGED AND ROUTED TO FILE ROOM) Modified on 8/10/2007 (Kastilahn, A). (Entered: 08/09/2007)
121 REQUEST to lodge Transcript of Michael Harvey Baratz under seal by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 8/10/2007 (Marciel, M). (SEALED TRANSCRIPT LODGED AND ROUTED TO VALUT) Modified on 8/10/2007 (Kastilahn, A). (Entered: 08/09/2007)
122 PROPOSED ORDER granting SEIU Local 1000's 121 Request to lodge transcript under seal. (Demain, Jeffrey) Modified on 8/10/2007 (Marciel, M). (Entered: 08/09/2007)
123 REPLY in SUPPORT of 103 MOTION for Partial Summary Judgment. (Demain, Jeffrey) Modified on 8/10/2007 (Marciel, M). (Entered: 08/10/2007)
124 DECLARATION of Jeffrey B. Demain in SUPPORT OF 103 MOTION for Summary Judgment. (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C # 4 Exhibit D # 5 Exhibit E) (Demain, Jeffrey) Modified on 8/10/2007 (Marciel, M). (Entered: 08/10/2007)
125 MOTION to STRIKE Portions of Plaintiffs' Opposition to Motion for Partial Summary Judgment by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC.Motion Hearing set for 8/17/2007 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr.. (Demain, Jeffrey) Modified on 8/14/2007 (Kastilahn, A). (Entered: 08/10/2007)

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 13 of 21

08/10/2007 08/10/2007 08/10/2007 08/10/2007 08/10/2007 08/13/2007 08/16/2007
09/07/2007 09/19/2007
10/11/2007 10/16/2007
11/08/2007

126 MEMORANDUM of Points and Authorities in SUPPORT of 125 MOTION to STRIKE Portion of 116 Pltfs' Opposition to Motion for Partial Summary Judgment. . (Demain, Jeffrey) Modified on 8/14/2007 (Kastilahn, A). (Entered: 08/10/2007)
127 MOTION to SHORTEN TIME for Hearing Motion to Strike SEIU Local 1000's Application for an Order Shortening Time by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC.Motion Hearing set for 8/17/2007 at 09:00 AM in Courtroom 3 (MCE) before Judge Morrison C. England Jr.. (Demain, Jeffrey) (Entered: 08/10/2007)
128 DECLARATION of Jeffrey B. Demain in SUPPORT OF re 127 MOTION to SHORTEN TIME for Hearing Motion to Strike SEIU Local 1000's Application for an Order Shortening Time. (Demain, Jeffrey) (Entered: 08/10/2007)
129 PROPOSED ORDER [Proposed] Order Shortening Time re 127 MOTION to SHORTEN TIME for Hearing Motion to Strike SEIU Local 1000's Application for an Order Shortening Time by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) (Entered: 08/10/2007)
130 MINUTE ORDER (Text Only): The Court reviewed Defendant's Motion to Strike 125 and Motion to Shorten Time 127 and deems both motions moot. The Court construes Defendant's Motion to Strike 127 as an additional reply to Plaintiff's Opposition 123 to Defendant's Motion for Summary Judgment 103 and will consider it for the 8/17/2007 hearing. Signed by Judge Morrison C. England Jr. on 8/10/2007. (Deutsch, S) (Entered: 08/10/2007)
131 ORDER signed by Judge Morrison C. England Jr. on 8/10/07 ORDERING that the 3/7/07 deposition of Mr. Baratz shall be LODGED UNDER SEAL.(Kastilahn, A) (Entered: 08/13/2007)
132 MINUTE ORDER (Text Only): On the Court's own motion and pursuant to Local Rule 78−230(h), the Plaintiffs' Motion for Summary Judgment 102 and the Defendant's Motion for Summary Judgment 103 , scheduled for hearing on 8/17/2007, are submitted without oral argument. The hearing date of 8/17/2007 is vacated. If the Court determines that oral argument is needed, it will be scheduled at a later date.Signed by Judge Morrison C. England Jr. on 8/16/2007. (Deutsch, S) (Entered: 08/16/2007)
133 JOINT STIPULATION and PROPOSED ORDER to continue 34 Pretrial Dates by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 9/10/2007 (Marciel, M). (Entered: 09/07/2007)
134 MINUTE ORDER (Text Only): Pursuant to the parties' Request to Continue Pretrial Dates Pending Resolution of Cross−Motions for Summary Judgment 133 , the Court hereby continues the 10/19/2007 Final Pretrial Conference to 11/9/2007 at 9:00 a.m. in Courtroom 3 before Judge Morrison C. England, Jr. The Joint Final Pretrial Statement due date is also continued to 10/26/2007. The 12/10/2007 Bench Trial is confirmed. Signed by Judge Morrison C. England Jr. on 9/19/2007. (Deutsch, S) (Entered: 09/19/2007)
135 SECOND JOINT STIPULATED REQUEST of all parties to continue Trial dates pending resolution of Cross−Motions for Summary Judgment by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr. (Young, W.) Modified on 10/12/2007 (Marciel, M). (Entered: 10/11/2007)
136 MINUTE ORDER (Text Only): The Court reviewed the parties' Second Joint Request to Continue Trial Date 135 and hereby makes the following orders: The 11/9/2007 Final Pretrial Conference is continued to 12/14/2007 at 9:00 a.m. in Courtroom 3 before Judge Morrison C. England, Jr. The Joint Final Pretrial Statement is due not later than 11/30/2007. The 12/10/2007 Bench Trial is continued to 1/14/2008 at 9:00 a.m. in Courtroom 3 before Judge Morrison C. England, Jr. Signed by Judge Morrison C. England Jr. on 10/16/2007. (Deutsch, S) (Entered: 10/16/2007)
137 MOTION to CONTINUE "Third Joint Stipulated Request of All Parties to Continue Trial Dates Pending Resolution of Cross−Motions for Summary Judgement;

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 14 of 21

11/09/2007 03/28/2008
03/28/2008 04/07/2008
04/10/2008 04/16/2008 04/17/2008
04/23/2008 04/23/2008 05/22/2008 05/27/2008

[Proposed] Order" by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) (Entered: 11/08/2007)
138 STIPULATION and ORDER signed by Judge Morrison C. England Jr. on 11/9/07 GRANTING 137 Motion to Continue. The previously−scheduled dates of 11/30/07, for the submission of the Joint Pretrial Statement, and 12/14/07, for the Final Pretrial Conference, are VACATED. The 1/14/08 Bench Trial is VACATED. (Engbretson, K.) (Entered: 11/09/2007)
139 MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr on 3/27/08 ORDERING that pltfs' motion for summary judgment is GRANTED. Dfts are ordered to issue, within 60 days following the date of this order, a proper Hudson notice as to the 2005 Assessment, offering nonmembers a 45 day period in which to object. Dfts' motion for summary adjudication as to the nonobjector class is DENIED and dfts' motion asking the court to limit the relevant time period to Sept 2005 − June 2006 (inclusive) is GRANTED. The Clerk is directed to enter judgment in favor of pltfs and close the file. CASE CLOSED.(Kastilahn, A) (Entered: 03/28/2008)
140 JUDGMENT entered pursuant to Order entered on *3/28/08* and signed by Judge Morrison C. England, Jr on 3/27/08. (Kastilahn, A) (Entered: 03/28/2008)
141 MOTION for PARTIAL RECONSIDERATION re 139 Memorandum, Opinion & Order and 140 Judgment by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr. Motion Hearing set for 5/30/2008 at 09:00 AM in Courtroom 7 (MCE) before Judge Morrison C. England Jr. (Attachments: # 1 Proposed Order Granting Motion, # 2 Proposed Amended Judgment)(Young, W.) Modified on 4/9/2008 (Engbretson, K.). (Entered: 04/07/2008)
142 STATEMENT of NON−OPPOSITION to MOTION re 141 MOTION for RECONSIDERATION. (Demain, Jeffrey) (Entered: 04/10/2008)
143 STIPULATION and PROPOSED ORDER for Stay of Appeal by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 4/17/2008 (Marciel, M). (Entered: 04/16/2008)
144 STIPULATION AND ORDER signed by Judge Morrison C. England, Jr on 4/17/2008. terminating ORDERING 143 The remedy ordered in this Court's 139 Memorandum and Order, incorporated into its Judgment in a Civil Case of the same date Docket No. 140 , is hereby STAYED pending exhaustion or abandonment of all appellate remedies. If the Court subsequently orders any additional remedy in response to Pltfs' pending post−judgment motions Docket No. 141 , such additional remedy shall also be stayed pending exhaustion or abandonment of all appellate remedies. If any such additional remedy includes money damages, Dft Service Employees Int'l Union Local 1000 shall apply to this Court for approval of security to stay that damage award pending appeal. (Reader, L) (Entered: 04/17/2008)
145 STATEMENT of NON−OPPOSITION to MOTION. for Partial Judgment on the Pleadings (Woods, Douglas) (Entered: 04/23/2008)
146 STATEMENT of NON−OPPOSITION to 141 MOTION for Partial Reconsideration and/or Relief from Judgment, and to Stay Briefing and Consideration of an Award of Attorneys' Fees and Costs (Woods, Douglas) Modified on 4/24/2008 (Kaminski, H). (Entered: 04/23/2008)
147 JOINT REQUEST to Appear Telephonically re 141 MOTION for RECONSIDERATION by Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr.(Attachments: # 1 Proposed Order (Young, W.) Modified on 5/23/2008 (Kaminski, H). (Entered: 05/22/2008)
148 ORDER − The Joint Request for Telephonic Appearance for the 5/30/2008 Motions Hearing 147 is GRANTED. Signed by Judge Morrison C. England, Jr. on 5/27/2008. (Deutsch, S) (Entered: 05/27/2008)

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 15 of 21

05/29/2008
06/17/2008
06/23/2008 06/23/2008 06/23/2008
06/27/2008 07/14/2008 07/14/2008 07/15/2008
07/24/2008 08/12/2008 08/13/2008 08/26/2008 09/11/2008

149 MINUTE ORDER (Text Only): On the Court's own motion and pursuant to Local Rule 78−230(h), the Plaintiffs' Motion for Partial Reconsideration 141 , scheduled for hearing on 5/30/2008, is submitted without oral argument. The hearing date of 5/30/2008 is vacated. If the Court determines that oral argument is needed, it will be scheduled at a later date.Signed by Judge Morrison C. England, Jr. on 5/29/2008. (Deutsch, S) (Entered: 05/29/2008)
150 ORDER signed by Judge Morrison C. England, Jr. on 6/16/08. Briefing and consideration of plaintiffs' Petition for Attorneys' Fees and Costs pursuant to 42 USC 1988 is STAYED pending outcome of any and all Appeals in this matter. The Court shall issue an Amended Judgment awarding nominal damages to plaintiffs and each member of the classes. (Marciel, M) Modified on 8/12/2008 (Marciel, M). (Entered: 06/17/2008)
151 APPLICATION to Approve Cash Deposit in Lieu of Supersedeas Bond and to Stay Judgment Pending Appeal by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Attachments: # 1 Exhibit A)(Demain, Jeffrey) Modified on 6/24/2008 (Kaminski, H). (Entered: 06/23/2008)
152 PROPOSED ORDER re 151 APPLICATION to Approve Cash Deposit in Lieu of Supersedeas Bond . (Demain, Jeffrey) Modified on 6/24/2008 (Kaminski, H). (Entered: 06/23/2008)
153 AMENDED APPLICATION re 151 APPLICATION for Approve Cash Deposit in Lieu of Supersedeas Bond and to Stay Judgment Pending Appeal by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Attachments: # 1 Exhibit A)(Demain, Jeffrey) Modified on 6/24/2008 (Kaminski, H). (Entered: 06/23/2008)
154 ORDER signed by Judge Morrison C. England, Jr on 06/27/08 ORDERING that the cash deposit, instrument and affidavit filed with this Court is approved and this Court's judgment shall remain stayed pending final exhaustion or abandonment of all appellate remedies. (cc:Financial)(Manzer, C) (Entered: 06/27/2008)
155 NOTICE of APPEAL by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) (Entered: 07/14/2008)
RECEIPT number #CAE200008688 $455.00 Appeal Fee fbo Services Employees Intl Union, Local 1000 by Jeffrey B. Demain on 7/14/2008. (Reader, L) (Entered: 07/14/2008)
157 APPEAL PROCESSED to Ninth Circuit re 155 Notice of Appeal − ATY filed by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. Filed dates for Notice of Appeal *7/14/2008*, Complaint *11/1/2005* and Appealed Order / Judgment *3/28/2008*. Court Reporter: *Diane Shepard*. *Fee Status: Paid on 7/14/2008 in the amount of $455.00* ** (Attachments: # 1 Appeal Notice) (Kaminski, H) (Entered: 07/15/2008)
158 USCA CASE NUMBER 08−16645 for 155 Notice of Appeal − ATY filed by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Plummer, M) (Entered: 07/24/2008)
159 AMENDED JUDGMENT entered pursuant to 150 Order filed on *6/17/08*. (Marciel, M) (Entered: 08/12/2008)
160 TRANSCRIPT DESIGNATION FORM by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC requesting transcripts for the dates of 11/4/05, 10/16/06 and 12/11/06. (Demain, Jeffrey) Modified on 8/20/2008 (Carlos, K). (Entered: 08/13/2008)
161 AMENDED NOTICE of APPEAL by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 8/29/2008 (Kaminski, H).(SENT TO USCA) (Entered: 08/26/2008)
162 TRANSCRIPT of Proceedings, Motion for Summary Judgment, held on 12−11−06, before Judge Morrison C. England, Jr, filed by Court Reporter Diane Shepard, Phone number 916−554−7460 E−mail diane.shepard@gmail.com. Transcript may be viewed

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 16 of 21

10/24/2008 08/31/2009 12/10/2010 01/04/2011 01/04/2011
01/04/2011 01/04/2011 01/04/2011 01/04/2011 01/04/2011 01/04/2011 01/06/2011 01/26/2011 02/03/2011

at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 10/2/2008. Redacted Transcript Deadline set for 10/14/2008. Release of Transcript Restriction set for 12/10/2008. (Shepard, D) (Entered: 09/11/2008)
163 CERTIFICATE of RECORD transmitted to Ninth Circuit re 161 Notice of Appeal − ATY filed by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC for USCA Case Number *08−16645* Hearing Dates of *11/4/2005**10/16/2006**12/11/2006* (Reader, L) (Entered: 10/24/2008)
164 TRANSMITTED RECORD on APPEAL to USCA # *08−16645* re 161 Notice of Appeal, 155 Notice of Appeal. * Volumes of Expandable Folders: 1.* *Electronic Documents: 1 to 163.* (Mena−Sanchez, L) (Entered: 08/31/2009)
165 USCA OPINION as to 161 Notice of Appeal filed: decision of the district court is REVERSED and REMANDED. (Owen, K) (Entered: 12/10/2010)
166 MANDATE of USCA re 165 Opinion. (Benson, A.) (Entered: 01/04/2011)
167 MOTION to AMEND The COURT'S ORDERS and JUDGMENT on Remand by Service Employees International Union, Local 1000's, 150 Order, 140 Judgment, 159 Judgment, 139 Memorandum. Motion Hearing is SET for 2/10/2011 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England Jr. (Demain, Jeffrey) Modified on 1/5/2011 (Mena−Sanchez, L). (Entered: 01/04/2011)
168 MEMORANDUM of Points and Authorities by Defendant Service Employees International Union, Local 1000's in SUPPORT of 167 MOTION to AMEND the JUDGMENT. (Demain, Jeffrey) Modified on 1/5/2011 (Mena−Sanchez, L). (Entered: 01/04/2011)
169 [PROPOSED] ORDER re 167 MOTION to AMEND the JUDGMENT. (Demain, Jeffrey) Modified on 1/5/2011 (Mena−Sanchez, L). (Entered: 01/04/2011)
170 MOTION for DISBURSEMENT of FUNDS by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. Motion Hearing set for 2/10/2011 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England Jr.. (Demain, Jeffrey) (Entered: 01/04/2011)
171 MEMORANDUM of Points and Authorities by California Service Employees International Union, Local 1000 in SUPPORT of 170 MOTION for DISBURSEMENT of Registy Funds. (Demain, Jeffrey) Modified on 1/5/2011 (Mena−Sanchez, L). (Entered: 01/04/2011)
172 DECLARATION of Jeffrey B. Demain in SUPPORT OF 170 MOTION for DISBURSEMENT of FUNDS. (Demain, Jeffrey) (Entered: 01/04/2011)
173 [PROPOSED] ORDER (Cash Deposit in Lieu of Supersedeas Bond to Stay Judgment Pending Appeal) re 170 MOTION for DISBURSEMENT of FUNDS by Local 1000, Service Employees International Union. (Demain, Jeffrey) Modified on 1/5/2011 (Mena−Sanchez, L). (Entered: 01/04/2011)
174 ORDER by Chief Judge Anthony W. Ishii: Due to the elevation of Magistrate Judge Kimberly J. Mueller to the position of District Judge, this action is temporarily assigned to *Magistrate Judge John F. Moulds*. (Waggoner, D) (Entered: 01/06/2011)
175 RESPONSE by William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr, Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox, to 167 MOTION to AMEND the COURT'S ORDERS and JUDGMENT on Remand. (Young, W.) Modified on 1/26/2011 (Reader, L). (Entered: 01/26/2011)
176 CONSOLIDATED MEMORANDUM in SUPPORT of 167 MOTION to AMEND the COURT'S ORDERS and JUDGMENT on Remand, 170 MOTION for DISBURSEMENT of FUNDS. (Demain, Jeffrey) Modified on 2/4/2011 (Mena−Sanchez, L). (Entered: 02/03/2011)

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 17 of 21

02/08/2011
02/15/2011
02/21/2011 03/14/2011 08/02/2011 11/18/2011 12/19/2011 07/27/2012 08/16/2012
10/15/2012
10/17/2012 11/14/2012 11/21/2012

177 MINUTE ORDER (Text Only) issued by CRD S. Deutsch for District Judge, Morrison C. England, Jr.: On the Court's own motion and pursuant to Local Rule 230(g), the Defendant's Motion to Amend the Court's Orders and Judgments on Remand 167 and the Defendant's Motion for Disbursement of Funds 170 , scheduled for hearing on 2/10/2011, are submitted without oral argument. The hearing date of 2/10/2011 is vacated. If the Court determines that oral argument is needed, it will be scheduled at a later date.(Deutsch, S) (Entered: 02/08/2011)
178 ORDER signed by Judge Morrison C. England, Jr. on 2/14/2011 ORDERING that in accordance with the opinion and mandate of the USCA for the Ninth Circuit, this Court will take the following action: (1) deny Pltfs' Motion for Summary Judgment; (2) reverse the denial of Dft's partial Motion for Summary Judgment; (3) grant Dft's Motion for Summary Judgment in full; and (4) reverse the award of nominal damages to Pltfs. Pursuant to Dft's 170 Motion, the Court intends, within (21) days, to disburse any funds Dft Service Employees International Union, Local 1000 previously paid into the Court's registry as security for damages. Unless objections are received within 14 days the Court will take action without further notice to the parties. (Zignago, K.) (Entered: 02/15/2011)
179 BILL of COSTS SUBMITTED by defendants. (Demain, Jeffrey) Modified on 2/24/2011 (Marciel, M). (Entered: 02/21/2011)
180 COSTS TAXED in amount of $ $3,706.86 against Plaintiffs. (Matson, R) (Entered: 03/18/2011)
181 ORDER by Chief Judge Anthony W. Ishii: Due to the recent appointment of Magistrate Judge Carolyn K Delaney to the bench of the Eastern District, this action is REASSIGNED from Magistrate Judge John F. Moulds for all further proceedings. (Davis, D) (Entered: 08/02/2011)
182 TRANSMITTED RECORD to US Supreme Court # *−* * Volumes of Expandable Folders: 1.* *Electronic Documents: 1 to 181.* (Zignago, K.) (Entered: 11/18/2011)
ACKNOWLEDGEMENT OF RECEIPT of 182 record from U.S. Supreme Court. (Benson, A.) (Entered: 12/21/2011)
RECORD RETURNED from U.S. Supreme Court. Volumes of Expandable Folders: 1. (Michel, G) (Entered: 07/27/2012)
183 ORDER of USCA as to 161 Notice of Appeal filed by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC: Pursuant to the opinion of the U.S. Supreme Court dated 6/21/12, the district court opinion is VACATED, and the case is REMANDED to the district court for further proceedings consistent with the Supreme Court's opinion. (Meuleman, A) (Entered: 08/20/2012)
184 MOTION TO ENTER Amended Judgment on Remand by William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox. Motion Hearing set for 11/15/12 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England, Jr. (Attachments: # 1 Memorandum of Points and Authorities)(Young, W.) Modified on 11/27/2012 (Reader, L). (Entered: 10/15/2012)
185 STIPULATED AMENDED NOTICE OF MOTION HEARING re 184 Motion to Amend the Judgment by All Plaintiffs. Hearing RESET for 11/29/12 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England, Jr. (Young, W.) Modified on 10/18/2012 (Benson, A.). (Entered: 10/17/2012)
186 RESPONSE by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC to 184 Motion to Amend the Judgment. (Demain, Jeffrey) (Entered: 11/14/2012)
187 REPLY by William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox to 184 Motion to Enter Amended Judgment on Remand. (Young, W.) Modified on 11/27/2012 (Reader, L). (Entered: 11/21/2012)

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 18 of 21

11/27/2012
11/27/2012 12/05/2012
12/13/2012 01/02/2013 01/04/2013 01/04/2013
01/07/2013 01/08/2013 01/10/2013 01/15/2013
01/15/2013

188 MINUTE ORDER (Text Only) issued by courtroom deputy for Chief District Judge, Morrison C. England, Jr.: On the Court's own motion and pursuant to Local Rule 230(g), the Plaintiffs' Motion to Amend the Judgment 184 , scheduled for hearing on 11/29/2012, is submitted without oral argument. The hearing date of 11/29/2012 is vacated. If the Court determines that oral argument is needed, it will be scheduled at a later date.(Deutsch, S) (Entered: 11/27/2012)
189 RESPONSE by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC to 187 Reply to Response to Motion,. (Demain, Jeffrey) (Entered: 11/27/2012)
190 ORDER signed by Chief Judge Morrison C. England, Jr on 12/4/12 re: 184 Motion to Amend the Judgment. Judgment is ENTERED for Plaintiffs; Defendant SEIU shall refund to Plaintiffs all monies exacted for the "Emergency Temporary Assessment to Build a Political Fight−Back Fund," for the entirety of the period during which the assessment was exacted, plus interest. Plaintiffs are awarded nominal damages in the amount of $1.00. Defendant SEIU shall refund Plaintiffs and pay nominal damages within 120 days from the date this judgment is entered. Defendant SEIU shall make reports every 30 days for the Court providing specifics outlined in this order; Defendant SEIU shall include with each refund sent to each Plaintiff a letter explaining the purpose of the refund, over the signature of Plaintiffs' counsel, in a form mutually agreeable to the parties. (Meuleman, A) (Entered: 12/05/2012)
191 BILL of COSTS SUBMITTED by William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox. (Young, W.) Modified on 12/14/2012 (Michel, G). (Entered: 12/13/2012)
192 Plaintiffs' MOTION for ATTORNEY FEES and Expenses Pursuant to 42 U.S.C. 1988. Motion Hearing SET for 2/7/2013 at 02:00 PM in Courtroom 7 (MCE) before Chief Judge Morrison C. England Jr. (Attachments: # 1 Exhibit A Declaration of W. James Young, # 2 Exhibit B−H, # 3 Exhibit I, # 4 Exhibit J, # 5 Exhibit K)(Young, W.) Modified on 1/4/2013 (Mena−Sanchez, L). (Entered: 01/02/2013)
193 STATUS REPORT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) (Entered: 01/04/2013)
194 MINUTE ORDER (Text Only) issued by courtroom deputy for Chief District Judge, Morrison C. England, Jr.: The Court received an e−mail communication from Jeffrey B. Demain, Defense counsel, asking for guidance about how to comply with the Court's December 5, 2012 Order (ECF No. 190). Defendants should comply with the reporting requirements in the Court's Order by electronically filing a PDF version of the excel spreadsheet tracking the Union's refund. (Deutsch, S) (Entered: 01/04/2013)
195 STIPULATED NOTICE to RESCHEDULE HEARING on 192 Motion for Attorney Fees: Motion Hearing set for 3/21/2013 at 02:00 PM in Courtroom 7 (MCE) before Chief Judge Morrison C. England Jr.. (Young, W.) Modified on 1/9/2013 (Zignago, K.). (Entered: 01/07/2013)
196 STATUS REPORT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) (Entered: 01/08/2013)
197 COSTS TAXED in amount of $2562.81 against Defendants. (Zignago, K.) (Entered: 01/11/2013)
198 MOTION for clarification of 190 Order Awarding Prejudgment Interest by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. Motion Hearing SET for 3/7/2013 at 02:00 PM in Courtroom 7 (MCE) before Chief Judge Morrison C. England, Jr. (Attachments: # 1 Memorandum of Points and Authorities) (Demain, Jeffrey) Modified on 1/16/2013 (Michel, G). (Entered: 01/15/2013)
199 EX PARTE APPLICATION to SHORTEN TIME on 198 Motion for Clarification of Order Awarding Prejudgment Interest by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Attachments: # 1 Declaration, # 2 Exhibits A−D, # 3 Proposed Order) (Demain, Jeffrey) Modified

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 19 of 21

01/15/2013 01/23/2013
01/25/2013 01/31/2013 02/04/2013 02/05/2013
02/28/2013 02/28/2013 02/28/2013 03/06/2013 03/14/2013
03/19/2013

on 1/16/2013 (Michel, G). (Entered: 01/15/2013)
200 STATEMENT of NON−OPPOSITION to 199 Motion to Shorten Time on Motion for Clarification of Order Awarding Prejudgment Interest by William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr, Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox. (Young, W.) Modified on 1/16/2013 (Michel, G). (Entered: 01/15/2013)
201 ORDER signed by Chief Judge Morrison C. England, Jr on 1/22/13 GRANTING Ex Parte Application to sherten time 199 on Motion for Clarification of Order awarding prejudgment interest 198 . Plaintiff's opposition to the Motion for Clarification is due on 1/25/2013. Local 1000's Reply is due 1/31/2013. A telephonic hearing on Motion for Clarification is SET for 2/7/2013 at 02:00 PM in Courtroom 7 (MCE) before Chief Judge Morrison C. England Jr. IT IS FURTHER ORDERED that the 120−day period within which Local 1000 must pay refunds to Plaintiffs and class members pursuant to the Court's Order of 12/5/12 190 , is tolled from 1/15/13 until the date of the Court's resolution of the Motion for Clarification.(Mena−Sanchez, L) (Entered: 01/23/2013)
202 PLAINTIFFS' RESPONSE to 198 MOTION Clarification of Order Awarding Prejudgment Interest re 190 Order on Motion to Amend the Judgment. (Attachments: # 1 Appendix A & B)(Young, W.) Modified on 1/28/2013 (Becknal, R). (Entered: 01/25/2013)
203 REPLY by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC re 198 MOTION Clarification of Order Awarding Prejudgment Interest re 190 Order on Motion to Amend the Judgment,,,. (Demain, Jeffrey) (Entered: 01/31/2013)
204 STATUS REPORT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) (Entered: 02/04/2013)
205 MINUTE ORDER (Text Only) issued by courtroom deputy for Chief District Judge, Morrison C. England, Jr.: On the Court's own motion and pursuant to Local Rule 230(g), the Defendant's Motion for Clarification of Order Awarding Prejudment Interest 198 , scheduled for hearing on 2/7/2013, is submitted without oral argument. The hearing date of 2/7/2013 is vacated. If the Court determines that oral argument is needed, it will be scheduled at a later date.(Deutsch, S) (Entered: 02/05/2013)
206 OPPOSITION to 192 Motion for Attorney Fees and Expenses Pursuant to 42 U.S.C. 1988 by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) Modified on 3/1/2013 (Michel, G). (Entered: 02/28/2013)
207 DECLARATION of Jeffrey B. Demain in support of 206 Opposition to 192 Motion for Attorney Fees and Expenses Pursuant to 42 U.S.C. 1988. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H) (Demain, Jeffrey) Modified on 3/1/2013 (Michel, G). (Entered: 02/28/2013)
208 JOINDER to 206 Opposition to 192 Motion for Attorney fees and Expenses Pursuant to 42 U.S.C. 1988 by John Chiang. (Woods, Douglas) Modified docket text on 2/28/2013 (Waggoner, D). Modified on 3/1/2013 (Michel, G). (Entered: 02/28/2013)
209 STATUS REPORT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) (Entered: 03/06/2013)
210 REPLY by William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr, Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox to RESPONSE to 192 Motion for Attorney's Fees. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit D −−− Attachment, # 6 Appendix 1, # 7 Appendix 2)(Young, W.) Modified on 3/19/2013 (Zignago, K.). (Entered: 03/14/2013)
211 MINUTE ORDER (Text Only) issued by courtroom deputy for Chief District Judge, Morrison C. England, Jr.: On the Court's own motion and pursuant to Local Rule 230(g), the Motion for Attorney Fees (ECF No. 192), scheduled for hearing on

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 20 of 21

03/19/2013 04/05/2013 05/06/2013 06/05/2013 06/05/2013
07/05/2013 08/05/2013 09/04/2013 10/03/2013 01/23/2014 02/03/2014 02/06/2014
03/06/2014 03/11/2014

3/21/2013, is submitted without oral argument. The hearing date of 3/21/2013 is vacated. If the Court determines that oral argument is needed, it will be scheduled at a later date.(Deutsch, S) (Entered: 03/19/2013)
212 NOTICE of partial withdrawal of request for expenses by William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr, Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox re 210 Reply. (Young, W.) Modified on 3/20/2013 (Zignago, K.). (Entered: 03/19/2013)
213 STATUS REPORT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) (Entered: 04/05/2013)
214 FIFTH REPORT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. re 190 Order(Demain, Jeffrey) Modified on 5/10/2013 (Reader, L). (Entered: 05/06/2013)
215 SIXTH STATUS REPORT by Service Employees International Union, Local 1000 re compliance with 190 Court Order. (Demain, Jeffrey) Modified on 6/6/2013 (Marciel, M) (Entered: 06/05/2013)
216 MEMORANDUM and ORDER signed by Chief Judge Morrison C. England, Jr on 6/5/13 ORDERING that Plaintiffs' Motion for Attorney's Fees 192 is GRANTED; Plaintiffs are awarded attorney's fees in the amount of $1,021,176.00; Plaintiffs are awarded expenses in the amount of $15,412.93; Defendant SEIU's Motion for Clarification 198 is GRANTED; The rate of prejudgment interest to be applied is the monthly average Treasury bill rate in effect at the time that each nonchargeable deduction was made. (Becknal, R) (Entered: 06/05/2013)
217 STATUS REPORT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Demain, Jeffrey) (Entered: 07/05/2013)
218 STATUS REPORT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Demain, Jeffrey) Modified on 8/6/2013 (Michel, G). (Entered: 08/05/2013)
219 STATUS REPORT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Demain, Jeffrey) (Entered: 09/04/2013)
220 STATUS REPORT by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. (Attachments: # 1 Exhibit 1 − Mailing Receipt, # 2 Exhibit 2 − Refunds Report)(Demain, Jeffrey) (Entered: 10/03/2013)
221 MINUTE ORDER (Text Only) issued by CRD A. Shaddox−Waldrop for Chief Judge Morrison C. England, Jr on 01/23/2014: Pursuant to the Order 190 , entering judgment for plaintiffs, the case is CLOSED. (Shaddox−Waldrop, A) (Entered: 01/23/2014)
222 NOTICE of RELATED CASE 2:14−cv−319 by William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr, Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox. (Young, W.) (Entered: 02/03/2014)
223 SUPPLEMENTAL MOTION for ATTORNEY FEES by William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr, Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox. Motion Hearing set for 3/20/2014 at 02:00 PM in Courtroom 7 (MCE) before Chief Judge Morrison C. England Jr.. (Attachments: # 1 Exhibit A −−− Declaration of W. James Young, with attachment)(Young, W.) Modified on 2/10/2014 (Zignago, K.). (Entered: 02/06/2014)
224 OPPOSITION by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC to 223 SUPPLEMENTAL MOTION for ATTORNEY FEES . (Demain, Jeffrey) (Entered: 03/06/2014)
225 ORDER signed by Chief Judge Morrison C. England, Jr on 3/7/14 ORDERING the court has received the Notice of Related Cases concerning the above captioned cases filed 2/3/14. The Court has determined, however, that it is inappropriate to relate or

Case: 2:05-cv-2198 As of: 10/26/2017 09:44 PM PDT 21 of 21

03/13/2014 03/17/2014
04/16/2014 08/07/2014

reassign the cases, and therefore declines to do so. This order is issued for informational purposes only, and shall have no effect on the status of the cases, including any previous Related (or Non−Related) Case Order of this Court. (Becknal, R) (Entered: 03/11/2014)
226 REPLY by William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr, Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper, Dianne Knox re 224 Opposition to Motion. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Young, W.) (Entered: 03/13/2014)
227 MINUTE ORDER (Text Only) issued by courtroom deputy for Chief District Judge, Morrison C. England, Jr.: On the Court's own motion and pursuant to Local Rule 230(g), the Plaintiff's Motion for Attorney Fees (ECF No. 223) scheduled for hearing on 3/20/2014 is submitted without oral argument. The hearing date of 3/20/2014 is vacated. If the court determines that oral argument is needed, it will be scheduled at a later date.(Deutsch, S) (Entered: 03/17/2014)
228 MEMORANDUM AND ORDER signed by Chief Judge Morrison C. England, Jr. on 4/16/2014 DENYING 223 Supplemental Motion for Attorney's Fees. (Michel, G) (Entered: 04/16/2014)
229 ORDER of USCA as to 161 Notice of Appeal filed by California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC; Attorney's fees in the amount of $102,757.50 and expenses of $1,740.69, for a total of $104,498.19, are awarded in favor of appellees and against appellant California State Employees Association, Local 1000, Service Employees International Union, AFL−CIO−CLC. This order amends the court's mandate. (Zignago, K.) (Entered: 08/07/2014)

 
 .'
~

1 W. JAMES YOUNG, Esq.

c/o National Right to Work Legal

2

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

3 Springfield. Virginia 22160

(703) 321-8510

4

STEVEN R. BURLINGHAM, Esq.

5 CaEfornia Bar No. 88544

Gary, Till & Burlingham

6 5330 Madison Avenue, Suite F

Sacramento, Califomia 95841

7 (916) 332-8122

Facsimile - (916) 332-8153

8

ATTORNEYS FOR PLAINTIFFS AND

9 THE CLASS THEY SEEK To REPRESENT

10

UNITED STATES DJSTRICT COURT

11

FOR THE EASTERN DISTRICT Of CAUFORNTA

12

13
DIANNE KNOX; WILLIAM L. BLAYLOCK~ ROBERT 14 A. CONOVER; EDWARD L. DOBROWOLSKl, JR.;
KARYN GIL; THOMAS JACOB HASS~ PATRICK
15 JOHNSON; JON JUMPER; AND R. PAUL RICKER, ON
BEHALF OF THEMSELVES AND THE CLASS THEY
16 SEEK To REPRESENT,

17

Plaintiffs,

18 v.

19 STEVE WESTLY, Controller, State of California;
AND CALIfORNIA STATE EMPLOYEES
20 ASSOCIATION, LOCAL 1000, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO-CLC,
21 Dcfendants.
22

2:05 CV • 2 1 9 8 MCE lUI
CASE No.
CLASS ACTION
P....AINTIFFS' VERIFIED CLASS
ACTION COM.PIAINT

23

24

COMPLAINT

25

1. This is a civil rights, class action seeking inllllediate injunctive and declaratory relief,

26 and nomina1 and compensatory damages and/or restitution, to redress and prevent the deprivation,

27 through action by Defendants acting under color of state law, of Plaintiff public employees' rights,

28 privileges and immunities under the First and Fourteenth Amendments to the United States

PLAINTU'J'S' VIi:Rlf'lRD CLASS ACTION COMPLAINT - Knox v. We.rtly

PACt!: -l

@

1 Constitution.

2

2. Specifically, this civil rights action seeks to prevent CSEA from increasing the amount

3 of money taken from the wages ofpuhlic employees as dues or compulsory fees and using the

4 temporary assessment as an involuntary loan to defeat various California political propositions on the 8

5 November 2005 bal1ot~ and to take other political or ideological actions which are contrary to the

6 beliefs and positions ofthe public employees. These deductions have been and will continue to be

7 conducted in a marmer which violates Plaintiffs' First and Fourteenth Amendment rights as set forth in

8 the United States Supreme Court's decisions establishing the procedures and safeguards, and limiting

9 the circulUstances, under which thc temporary assessment in dues and fees may constitutionally be

10 collected from public employees. These safeguards include notice to all potential objectors ofthe

11 purpose(s) for which the temporary assessment is to be used and spent, and an appropriately justified

12 advance reduction or advance rebate in the amount of the temporary assessment used wholly for ballot

13 propositions, political activities and other nonbargaining activities.

14

3. Once the employees' money is spent contrary to their wishes to affect: (1) the outcome

15 of the ballot propositions; (2) the Governor's programs; and (3) political or ideological matters, and for

16 other nonbargaining activities, the employees' First Amendment rights are irretrievably lost.

17 Accordingly, immediate injunctive relief is necessary to maintain the status quo and prevent the

18 irreparable jnjury and loss of the First Amendment rights ofthe employees and the class or classes they

19 seek to represent.

20

21

JURlSOICTION AND VENUE

22

4. This action arises under the Constitution and laws of the United States~ particularly the

23 First, Fifth, and Fourteenth Amendments to the United States Constitution. The jurisdiction ofthis

24 Court, therefore, is invoked under 28 U.S.c. § 1331.

25

5. This is also an action under the Federal Civil Rights Act of 1871, 42 U.S.C. § 1983, to

26 redress the deprivation, under color of state law~ of rights, priVileges and immunities secured to

27 Plaintiffs and class members by the Constitution of the United States~ particularly the First. Fifth, and 28 Fourteenth Amendments thereto. The jurisdiction ofthis Court, therefore, is invoked under 28 U.S.C.

PLAfNTIHS' VElOFIED CT.ASS ACTION COMJ'I.AlMT - K~j)X v. H't$ll,.

PAGE-Z

a

J § 1343(a)(3) & (4); pursuant to which this Court may grant: a) damages or restitution for the violation

2 of Plaintiffs; First and Fourteenth Amendment rights in the amount of the temporary assessment

3 unconstitutionally collected and used, plus interest; b) injunctive relief against the future collection or

4 spending ofthe temporary assessment; c) nominal damages for the violation of Plaintiffs' federally

5 protected rights; and d) reasonable attorneys' fees, pursuant to 42 U.S.c. § 1988.

6

6. This is also a case of actual controversy where Plaintiffs are seeking a declaration of

7 their rights under the Constitution of the United States. Under 28 U.S.c. §§ 2201 and 2202, this Court

8 may declare the rights of Plaintiffs and grant further necessary and proper reliefhased thereon,

9 including preliminary and pennanent injunctive relief, pursuant to Rule 65, FED.R.eN.p.

10

7. Venue: Pursuant to 28 lJ.S.c. § 1391(b) and § t 392, venue is proper in this Court

11 because Defendants either reside and/or have offices and conduct their business in the judicial district

12 of the United States District Court for the Eastern District of California.
13

14

PARTJF~,s

15

8. Plaintiffs Diarme Knox) William L. Blaylock, Robert A. Conover, Edward L.

16 Dobrowolski, Jr.) Karyn Gil, Thomas Jacob Hass, Patrick Johnson. Jon Jumper, and R. Paul Ricker

17 are) and were at all times mentioned herein, individuals employed by various instrumentalities of the

18 State ofCalifomia. As such) they arc "state employees') within the meaning ofthe Ralph C. Dills Act,

19 CAL. GOYT. CODE, § 3513(c), Plaintiffs are cmpJoyed in a bargaining unit designated as "Bargaining

20 Unit 1," which is one bargaining unit of State employees among several represented, exclusively for

2] purposes ofcoIlective bargaining with their employer, by Defendant California State Employees

22 Association, Local 1000, Service Employees International Union, AFL-CIO, CLC (hereinafter

23 "CSEA" or "the union").

24

a. Plaintiffs Knox, Blaylock; Dobrowolski, Gil, Hass, Johnson, and Jumper, are

25

not members of CSEA and have not, at any time material hereto, been members of CSEA

26

and/or its affiliates, and nevertheless have heen and are subject to the automatic seizure of

27

agency fees, including the temporary assessment;

28

h. Until on or after 1 October 2005, Plaintiff Conover was a member ofCSEA

PLAINTIFFS' VERIFJ.£D CLASS ACTION COMPLAINT - KrffJX~. Wt"srlJ'

PAGE-3

1

and/or its affiliates, and full union dues were deducted monthly from his wages; and

2

c. Plaintiff Ricker is, and has been at all times material hereto, a member of CSEA

3

and/or its affiliates, and full union dues have been and continue to be deducted monthly from

4

his wages.

5

9. Defendant Steven Westly (hereinafter "Westly") is the Controller ofthe State of

6 California. As such, he is charged wjth the responsibility of issuing wages to employees ofthe State

7 and/or its Departments, including Plaintitfs, and processing all deductions therefore, including for

8 union dues and so-called ~~fair share') fees pursuant to "agency shop" agreements. He is sued in his

9 official capacity.

.1 0

10. Defendant California State Employees Association, Local 1DOD, Service Employees

11 International Union, AFL-CTO, CLC e~CSEA" or "the union") is an "employee organization" as

12 defined in the Ra]ph C. Dills Act, CAL GOVT. CODE, § 3513(a), and has been recognized as the

13 exclusive representative under said law for collective bargaining purposes of all State employees in

14 Bargaining Units 1,3,4, 11, ]4, 15, 17,20, and 2]. On infonnation and belief, Defendant CSEA is a

15 nonprofit corporation fonned and existing under the laws ofthe State of California. CSEA is

16 headquartered in the Eastern District of California, and conducts its business and operations

17 throughout the State of California, and also within the Eastern District of California.

18

19

CLASS ACTION ALLEGATIONS

20

11. Plaintiffs' action is a class action brought by Plaintiffs on their own behalf and on

2.1 behalf of others similarly sjtuated, pursuant to Rule 23(b)(I)(A) and (b)(2) and, alternatively. Rule

22 23(b)(3), FED.R.eIV.p. The class that Plaintiffs seek to represent consists of all former, current, and

23 future State of California employees employed in Bargaining Units 1) 3,4, 11, 14, 15, 17,20, and 21

24 who are, have been. or will be represented exclusively for purposes of collective bargaining by CSEA,

25 in three subclasses:

26

a. All individuals who pay compulsory fees to CSEA who are not members and

27

who have, at one time or another, specifically objected to the use of their union fees for politics

28

or other nonbargainjng activities;

PLAINTIFFS' V~RlFIW CLASS ACTION COMPLAINT - Kllox y_ W~&tly

PAC£·4

1

h. All individuals who pay compulsory fees to CSEA who are not members and

2

who have ncver specifically objected to the use oftheir union fees for politics or other

3

nonbargaining act.ivities; and

4

c. All individuals who pay dues to CSEA as members.

5

12. The number ofpersons in this class exceeds one hundred thousand. Upon information

6 and belief) the number of persons in each subclass is believed to number in the thousands, and may be

7 in the tens of thousands. These persons are therefore so numerous that joinder of all members of the

8 class and each subclass obviously is impractical.

9

13. There are questions of law and fact common to all members of the class, to-wit,

10 whether Defendants may constitutionally and lawfully seize the t.emporary assessment from the wages

11 of the state employees which are to be used wholly for ballot propositions, political activities and other

12 nonbargaining activities without providing all of the procedural safeguards required by the First and

13 Fourteenth Amendments to the United States Constitution to be given al1 potential objectors.

14

14. Plaintiffs' claims are typical of other members of the class and each subcJass, who are

15 subject to the same deprivations ofthejr rights by CSEA's conection and spending of the temporary

16 assessment, without providing the necessary constitutional safeguards and rights, as hereinafter

17 alleged.

18

15. Plainti ffs can adequately reprcsent the interests of other members of the class and each

19 subclass. Plaintiffs have no interests antagonistic to other members of the class and subc1asses related

20 to the subject mattcr ofthis lawsuit, since all members of the class and each subclass are "potential

21 objectors" as that term was used by the United States Supreme Court in Hudson, 475 U.S. at 306, and

22 are entitled to notice and the procedures and safeguards required by the Constitution.

23

16. Plaintiffs' attorneys are experienced in representing litigants before this Court.

24 Plaintiffs) counsel is provided pro bono publico by a national charitable legal aid organization, and

25 their lead counsel is experienced in representing nonunion employees in litigation, including class

26 actions, involving issues identical or similar to those raised in this action~ and in fact, has litigated the

27 most recent leading cases addressing these issues in this Circuit. Plaintiffs' attorneys are well qualified

28 to be appointed class counsel by the Court.

I'I.AINTlt'fS' VERltTED CLASS ACTION COMPLAINT - KlIOX 11- WeJtly

PAGE-S

1

17. Because the unions' duty not to invade the First Amendment rights ofthe public

2 employees applies equal1y to al1 in the class and each subclass, the prosecution of separate actions by

3 individual class member public employees would create a risk of inconsistent or varying adjudications

4 which would establish incompatible standards of conduct for Defendants.

5

18. Defendants have acted and threaten to continue to act on grounds generally applicable

6 to all members of the class and each subclass, thereby making appropriate final declaratory, injunctive

7 and other relief with regard to the class; and each subclass as a whole.

S

19. The questions oflaw and fact common to the members of the class and each subclass

9 predominate over questions affecting only individual employees, in that the important and controJling

10 questions oflaw and fact are common to all State employees in the class and subclasses, i.e., whether

11 Defendants have complied with the constitutional requirements for collecting from the employees the

12 temporary assessment eannarked wholly for ballot propositions, political activities and other

13 nonbargaining activities.

14

20. A class action is superior to other available methods for the fair and efficient

15 adjudication ofthe controversy, inasmuch as the individual class member emp.loyees arc deprived of

16 the same rights by Defendants' actions and threatened actions. The limited amount of money involved

17 in the case of each employee's claim would make it burdensome for the class, or each subclass, of

18 employees to maintain separate actions.

19

20

FACTS

21

21. Acting in concert under color of state law - to-wit; the Ralph C. Dills Act, CAL

22 GoVT. CODE § 3512, et seq. - the State of Califomia has recognized Defendant CSEA as the

23 exclusive bargaining agent for the Plaintiffs and other State employees in bargaining units designated

24 as Bargaining Units 1 (Professional, Administrative, Financial, and Staff Services bargaining unit), 3

25 (Education and Library bargaining unit), 4 (Office and Allied workers bargaining unit), 11

26 (Engineering and Scientific Technician bargaining unit), 14 (Printing Trades bargaining unit), 15

27 (Allied Services bargaining unit), 17 (Registered Nurses bargaining unit), 20 (Medical and Social

28 Services Specialists bargaining unit), and 21 (Education, Library, and Maritime bargaining unit).

-"IIOX PLAINTIFFS' Vr.RIFIED CJ~ASS ACfJON COMI'I~AINT

v. Wtstly

l"AGE- 6

t CSEA and the State of California have entered into a series of Memoranda of Understanding

2 ("MOUs}') controlling the terms and conditions of employment for Plaintiffs and the class and

3 subclasses of State employees Plaintiffs seek to represent.

4

22. Pursuant to the Ralph C. Dills Act. CAL. GoVT. CODE § 3512, the State and CSEA have

5 entered into MOUs governing these bargaining units. including a provision requiring that all State

6 employees in Bargaining Units 1,3,4, 11. 14, 15, 17,20. and 21 join CSEA as fonnal union members;

7 or have deducted from their wages agency fees, as a condition of continued public employment.

S

23. On or about 30 July 2005, the Local 1000 (CSEA) Council proposed an "Emergency

9 Temporary Assessment to Build a Politic.a! Fight-Back Fund" for "use[]d ior a broad range of political

10 expenses, including television and radio advert.ising, direct mail, voter registration, voter education,

11 and get out the votc activities in our work sites and in our communities across California," specifically

12 stating that "The Fund will not be used for regular costs of the union -- such as office rent, staff

13 salaries or routine equipment replacement, etc." A true and correct copy of the motion to pass this

14 temporary assessment, taken from CSEA's website (http://www.seiul000.orglaugust_fight_back_fund.

15 cfrn) is attached hereto and incorporated herein as Exhibit A.

16

24. On or about 27 August 2005, CSEA General Council delegates voted to impose a

17 "temporary dues increase (1/4th of 1 percent of salaryY' or assessment, effective 1 September 2005, to

18 create what CSEA chard.cterizes as "a Political Fight Back Fund to be used for advertising, mail, voter

19 registration and education) and get-out-the-vote activities...." CSEA Unity, September 2005, page 1 (a

20 true and correct copy of said letter is attached hereto and incorporated herein as Exhibit B).

21

25. CSEA's temporary assessment, which actually ranges from 25% to 36% depending on

22 the job classification and monthly salary, began with the 30 September 2005. paycheCk issued to State

23 employees, and is targeted primarily. if not wholly. at the defeat of certain ballot propositions in a

24 special election to be held on 8 November 2005) fighting, inter alia. the Governor's electoral and

25 political financing policies, and to support other political and nonbargaining actions. SpecificalJy, the

26 temporary assessment will "be used specifical1y in the political arenas of California to defend and

27 advance the interests of members of Local 1000 and the important public services they provide," and

28 will be "used for a broad range of political expenses, including television and radio advertising, direct

PLAJNTIFFS' V]CRlFlED CI"ASS ACTION COMPT.AlNT - Knox v. Wtsily

PAGE· 7

1 mail, voter regjstration, voter education, and get out the vote activities in '" work sites and in ...

2 communities across Ca1ifolTIja.'~ CSEA has represented specifically that ··The Fund will not be used

3 for regular costs of the union - such as office rent, staff salaries or routine equipment replacement,

4 etc.," and that this temporary assessment will generate approximately $12 million for CSEA)s political

5 activities. Exhibit A.

6

26. CSEA's temporary assessment began with the 30 September 2005 paychecks issued to

7 State employees. The nonnal $45.00 per month dues cap does not apply to this temporary assessment,

8 and monthly dues now range from $29.78 for a janitor to $6].25 for an education consultant. Union

9 dues in the amount of$66.77 was deducted from Plaintiff Conover's September paycheck.

10

27. CSEA opposes Propositions 75 & 76. The Alliance for a Better California, a coalition

11 of the State's public employee labor unions, of which CSEA is a member which it actively supports,

12 also opposes Propositions 74, 77, & 78} and supports Propositions 79 & 80. CSEA has contributed to

13 the Alliance and other pohtica1 committees opposing Propositions 75 & 76.

14

28. Plaintiffs support some or all of the propositions CSEA opposes, oppose some or all of

15 the propositions CSEA supports, and/or do not believe that their dues or forced fees should be used on

16 any ballot proposition and other political and nonbargaining activities.

17

29. Plaintiffs have a First Amendment light to prevent the temporary assessment from

18 being used for or against ballot propositions and other political and nonbargaining activities which

19 conflict with their own personal preferences.

20

30. Plaintiffs also have a First Amendment right to adequate procedures which will, inter

21 alia, give the employees adequate advance notice of the political and other nonbargaining uses to

22 which the temporary assessment is targeted. Such notice would allow them to make an informed

23 decision on whether their union dues and/or agency fees are (or will be) used for political and other

24 nonbargaining activities which conflict with their own personal preferences so that they can prevent

25 the use of their moneys for ballot propositions and other political and nonbargaining activities that they

26 oppose. See Teachers Local No.1 v. Hudson, 475 U.S. 292,306-10 (1986).

27

31. During the month of June 2005, CSEA sent a notice ("'CSEA's 2005 Notice") to most

28 or all of its nonmember employees. CSEA did not send any such notice to its members. This notice

PAGR.8

1 preceded the vote for a temporary assessment by approximately two-to-three months, contained no

2 notice that a political dues and fees increase would be included in the 2005-06 dues and fees; and

3 stated that "Dues are subject to change without further notice to fee payers.,; A true and correct copy

4 of said notice is attached hereto and incorporated herein as Exhibit C.

5

32. CSEA's 2005 Notice set the agency fee to be seized from 1 July 2005, through 30 June

6 2006 (,'2005-06 fiscal year"), at 99.1 % of dues. CSEA's 2005 Notice also infonned nonmembers that

7 a reduced agency fee of 56.35% ofCSEA's annual dues, or 0.5635% of pay. would be charged to

8 nonmembers who objected to paying the full agency fee and requested a rebate pursuant to the

9 procedures and deadlines outlined in CSEA's 2005 Notice. The 56.35% is based on CSEA's actual

10 expenditures for the year ending 31 December 2004, in which CSEA calculated chargeable

11 expenditures to be 56.35% of its total expenditures.

12

33. On or about 31 August 2005, CSEA sent another letter, addressed to "Local 1000

13 Members and Fair Share Fee Payers." As it affected union members, inter alia, said letter announced

14 the dues increase, and stated that HThe $45 per month cap on our regular dues of 1% of gross pay will

15 continue in effect, but will not apply to this additional .0025 temporary increase." As it affected

16 nonmember objectors, inter alia, said letter announced that "Fair Share fees will rise by .002478 of

17 gross monthly salary.,. A true and correct copy ofsaid letter is attached hereto and incorporated herein

18 as Exhibit D.

19

34. Since 1 September 2005, the agency fee deducted from the wages of all norunember

20 objectors by Westly and transmjtted to CSEA for its spending has been increased by 0.2478% of

21 salary, a 24.78% - 35.75% or more increase ofmonthly fees paid. Thus, the actual reduced agency fee

22 charged objecting nonmembers in 2005-06 includes 99.12% of the 25% temporary assessment, which

23 increase has been imposed solely for nonchargeable political and ideological purposes; resulting in a

24 forced loan from them that will be spent on the ballot propositions and other political and

25 nonbargaining activities to which they object.

26

35. Since I September 2005, the agency fee deducted from the wages of nonmembers

27 falling to object by Westly and transmitted to CSEA for its spending has been increased by 0.2478% of

28 salary, a 24.78% - 35.78% increase of monthly fees paid.

1

36. Since 1 September 2005, the dues pajd by union members and collected by CSEA for

2 its spending has been increased by 0.25% of salary, a 25%-36.10% or morc increase of monthly dues

3 paid.

4

37. Moreover, CSEA's pre-l September 2005, spending on the ballot propositions and

5 other political and nonbargaining activities facilitated by the temporary assessment wiH not be

6 included jn setting the new reduced agency fee percentage until 2006, more than six months after the

7 initial seizures; and the 1 September through 8 November 2005, spending on the ballot propositions

8 and other political and nonbargaining activities facilitated by the fee increase will not be included in

9 setting the new reduced agency fec percentage unti12007, eighteen months later.

10

38. CSEA's usual agency fee procedure allows CSEA to force nonmembers to loan it the

11 increased fee amount to spend and usc on the ballot propositions and other political and nonbargaining

12 activities, which CSEA will not begin to "repay" for six months and not fully "repay" until ejghteen

13 months after the first seizures. In addition, CSEA's repayment ofthe forced loan is contingent upon

14 the nonmember remaining employed by the State in a bargaining unit represented by CSEA, and

15 objection in both of the subsequent years.

16

39. In early September 2005, after receivjng Exhibit D hereto, PlruntiffDobrowolski called

17 CSEA;s Sacramento office, and was told to call its Riverside office. He did so, and left a message for

18 Jodi Smith, area manager, asking that she call him back Smith returned his call and stated that, even

19 if Dobrowolski Objected to the payment of the full agency fees, via a letter in June, there was nothing

20 he could do about the September increase for the temporary assessment. She also stated that "we arc

21 in the fight of our hves," and that the temporary assessment was needed, and that there was nothing

22 that could be done to stop CSBA's expenditure of the temporary assessment for political purposes.

23

40. As a result ofthe timing ofCSEA's increase in their dues and fees, the minimum

24 procedures required by the First and Fourteenth Amendments to the United States Constitution. as

2S explained in Hudson, have not been provided to the employees and the class they seek to represent, all

26 of whom are potential objectors to CSEA's use ofthe increase in the dues and fees primarily, ifnot

27 wholly, for ballot propositions, political and other nonbargaining purposes.

28

41. Specifically, CSEA has not provided Plaintiffs Knox, BJaylock, Dobrowolski, Gil,

PLAINTlF'.F'S' VElUFIED CI.ASS ACTION COMPI.AfNT - Kllr;x v. Westly

J'AGE-IO

1 Hass. Johnson, Jumper, and other nonmember State employees with an opportlUlity to object to the use

2 of the fee increase on the ballot propositions, politics and other nonbargaining activities; and an

3 immediate refund or reduction of the increased fee amount. Absent such immediate procedural

4 protections, the nonmember State employees are forced to Joan the increase in their fees to CSEA for

5 its use and spending on the ballot propositions. politics and other nonbargaining activities which they

6 oppose and which they cannot constitutionally be required to subsidize.

7

42. CSEA has not provided Plaintiffs Conover and Ricker and the other member State

8 employees, who are potential objectors, with: (l) an opportunity to resign and, as nonmembers, raise

9 an objection to the use of the dues/fee increase on the ballot propositions, polHics and other

10 nonbargaining activities; and (2) an immediate refund or reduction of the increased dues/fee amount.

11 Without such immediate procedural protections, the member State employees arc forced to loan the

12 increase in their dues to the CSEA for its use and spending on the ballot propositions, politics and

13 other nonbargaining activities which the members oppose and which they cannot constitutionally be

14 required to subsidize. 15

16

FIRS.., CLAIM FOR RELIEF: COM(}TITUTIONALLY ADEQUATE PROCEDURES

17

43. The forgoing paragraphs are re-alleged.

18

44. The First and Fourteenth Amendments to the United States Constitution require that

19 the procedures for the collection of compulsory union dues and fees be carefuJly tailored to limit the

20 infringement on the public employees' fundamental First Amendment rights to freedom of speech,

21 association, petition, belief and thought by facilitating the public employees' ability, as potential

22 objectors, to protect those rights, including the right not to have their moneys used and spent on ballot

23 propositions, political and other nonbargainjng activities to which they object and the right not to have

24 their objection met by a forced loan, followed by a rebate months, ifnot years, later.

25

45. Under color of state law. Defendants have collected and continue to collect an increase

26 in compulsory dues and fees which CSEA has targeted, and wjJ1 use and spend primarily on the

27 upcoming ballot propositions election and for politics and other nonbargaining activities without first

28 providing the carefully tailored procedures required by the First and Fourteenth Amendments to the

PL4.1NTIFFS' VERIFIED CLASS ACTION COMPLAINT - K"QX v- Wnlly

PAGE-ll

1 United States Constitution. This deprives the public employees of their constitutional right to due

2 process and proper procedures.

3

4

SECOND CLAIM FOR RELIElf: FREE SPEECH

5

46. Paragraphs 1 through 42 are realleged.

6

47. Under color of state law, Defendants collect and continue to collect an increase in

7 compulsory dues and fees from the public employees which CSEA has targeted, and will use and

8 spend primarily on the upcoming ballot propositions election and for other political and nonbargaining

9 activities contrary to the public employecs~ political preferences.

10

48. Without being provided with an immediate rebate of or reduction in the increase in dues

11 and fees being used and spent on ballot propositions and other political and nonbargaining activities,

12 the objecting publie employees are being forced to loan the unions their money and are otherwise

13 deprived of their right to free speech, free association and political autonomy under the First

14 Amendment to the United States Constitution.

15

16

PRAYER FOR RELIEF

17

49. Unless immediately restrained by this Court, Defendants' seizure ofthc increase in dues

18 and fees from the named Plaintiffs' and class members' wages has directly caused, and will continue to

19 cause, Plaintiffs and the class members they seek to represent to suffer the irreparable injury that is

20 inherent in the violation of First Amendment rights and for which there is no adequate remedy at law

21 and has deprived and will continue to deprive them of portions of their wages without due process of 22 law.

23

WHEREFORE, the Plaintiffs request the following relief from this Court:

24

A. Temporary Restraining Order and/or Preliminary Injunction: Immediately issue.

25 pending a hearing on Plaintiffs' prayer for permanent relief, a temporary restraining order and/or a

26 preliminary injunction restraining Defendant CSEA, its officers~ agents, assistants, successors,

27 employees, attorneys, and all persons acting in concert or cooperating with it or at its direction or

28 under its control, from accepting any payroll deductions or direct payment of the increase in union

PLAINTIlo'liS' V:£RIFIED cuss ACTION COMPLAINT - KMX)'. W(!~tly

1 dues and fees from the wages of any named Plaintiff and any of the class members they represent, from

2 disbursing any of the increase in union dues and fees still in its possession and/or control! and

3 requiring sajd Defendant to restore the status quo by placing any increase in dues and fees it has

4 received or will receive into the registry ofthe Court or a Court-supervised escrow account, until

5 further order of the Court.

6

B. Class Certification: Enter an order, as soon as practical, certifying this case as a class

7 action consisting of the class of all individuals who pay compulsory dues or fees to Defendant CSEA, 8 as outlined in the three subclasses identified in ~ 13. supra~ and appointing Plaintiffs' counsel as class

9 counsel.

10

C.

Declaratory Judgment: Enter a declaratory judgment. pursuant to 28 U.S.C. § 2201,

11 declaring:

12

1) that the named Plaintiffs and class members have a constitutional right to an

13

advance •'Hudson" notice of the temoprary assessment and increase in the dues and fees to be

14

used in the upcoming ballot proposition special election and for other politics;

15

2) that the named Plaintiffs and class members have a constitutional right to

16

receive advance notice of how they can object to their temporary assement being used in the

17

upcoming ballot proposition special election and for other politics; and

18

3) that the objectors have a constitutional right to prevent the unions from using

19

and spending the temporary assessment in the upcoming ballot proposition election and for

20

other politics and from being forced to provide the unions with a loan for political purposes.

21

D. Permanent Injunction: Enter a pennanent injunction which restrains Defendants,

22 their officers, agents, assistants, successors, employees, attorneys, and all persons acting in concert or

23 cooperating with them or at their direction or under their control, to place in escrow all ofthe money

24 which they have col1ected or received and will collect or receive from the Plaintiffs and class members
25 as a result of the temporary assessment. which CSEA has targeted wholly for ballot propositions,

26 polihcal activities and other nonbargaining activities, into the registry ofthe Court or a Court-

27 supervised escrow account, until such time as the Court is satisfied that Defendants have provided all

28 the necessary pre-collection safeguards and procedures mandated by the Constitution

PLAIN'I1FFS' VERIFIED CLASS ACTION COMPLAINT - J{"tJX)O. Wl!~tly

PAGE-13

•

1

E. Damages: Award each named Plaintiff and class member compensatory damages or

2 restitution from CSEA in the amount of the increase in the dues or fees collected and not previously

3 returned, with statutory interest, that has been spent on, or targeted for, ballot propositions, political

4 activities and other nonbargaining activities to which the Plaintiff and class member objects; and

5 nominal damages from the appropriate Defendant for its violations of the Plaintiffs' and class

6 members' rights under the First and Fourteenth Amendments to the United States Constitution.

7

F. Costs and Attorneys Fees: Pursuant to the Civil Rights Attorneys' Fees Award Act of

8 1976,42 1.J .S.c. § 1988, award the Plaintiffs their costs, including reasonable attomeys' tees, incurred

9 in the litigation of this case.

10

G. Other: Grant the Plaintiffs such other and further legal or equitable relief as the Court

11 may deemjusl and proper.

12 DATED:_I_ November 2005

13

.14

15

'TEVEN R. BURLINGHAM, Es

California Bar No. 88544

16

Gary, Till & Burlingham

5330 Madison Avenue, Suite F

17

Sacramento, California 95841

(916) 332-8122

18

Facsimile ~ (916) 332-8153

19

20

w. JAMRS YOUNG, Esq.

c/o National Right to Work Legal

21

Defense Foundation~ Inc.

8001 Braddock Road, Suite 600

22

Springfield, Virginia 22160

(703) 321-8510
23

A1TORNEYS FOR PLAINTIFFS AND

24

THE CLASS THEY SEEK To REPRESENT

25

26

N:\WPICalitbmia Ca!;Cs\Kn()t,CAlComplaint. rev).wpd

27

Monday,ll Octob-:r 2005. 16:57:50 PM

28

PLAINTIFFS' VERIFiED CLASS i\CTlON COMPLAlNT -Knm~. Wes!i;y

i'AGE-14

Agenda Item:

July 30, 2005

SUBJECT:

Emergency Temporary Assessment to Build a Political Fight-Back Fund

SUBMITTED BY: Local 1000 Special Defense Budget Committee

RECOMMENDED ACTION:

That the Local 1000 Council approve an emergency temporary assessment to increase the regular

membership dues in an amount equal to .0025 (two and one-half tenths of one percent) of gross wages and an

emergency temporary increase in the regular membership dues paid by permanent intermittent employees from $8

per month to $15 per month, with such increases remaining in effect during the pay periods between September 1,

2005 and December 31, 2006. The cutTent dues structure of 1% of earnings to a maximum of $45 per month will

continue in effect, but will not apply to this additional .0025 temponuy increase.

These temporary emergency assessments are made necessary by political attacks on state employees and

other public workers launched by Governor Schwarzenegger and his allies which threaten the wages, benefits and

working conditions of Local 1000 members~ and undermine the services they provide to the people of California.

The funds from this emergency temporary assessment will be used specifically in the political aren.as of

California to defend and advance the interests of members of Local 1000 and the important public services they

provide.

BACKGROUND: The Political Fight-Back Fund will be used for a broad range of political expenses, including television
and radio advertising, direct mail, voter registration, voter education, and get out the vote activities in our work sites and in our connnunities across California. The Fund will not be used for regular costs of the union ~- such as office rent, staff salaries or routine equipment replacement, etc.
Governor Schwarzenegger's effort to pass Proposition 76, the Power Grab lnitiative, and Proposition 75, the Silence Our Voice Initiative must be defeated in the November 8 Special Election. While our immediate focus
is on these two propositions, we must also defeafthe initiative to destroy our retirement system which the Governor
has promised to put on the ballot in June 2006. We must also have the resources to fight for the interests of Local lOOO members in the November 2006 election.
Proposition 76 gives the Governor exclusive power to declare a Iffisca1 emergency." With that power he can break any contract we negotiate, layoff state workers and make drastic cuts to schools, health care and other public services.
Proposition 75 would effectively silence our political voices while doing nothing to limit the influence of corporate special interests who dump millions ofdollars into the political and legislative process.
With public employee unions removed from the political arena. the Governor's special interest allies would launch another initiative to destroy our pensions in June 2006, and then, in November 2006, elect a governor and legislature committed to their anti-worker policies.
The Governor will raise over $100 million from special1nterest allies to support his campaigns. He is already spending $2.5 million per week on television alone - on ads which attack state workers. We must match this war chest in order to beat him.
Local 1000 did not seek this conflict, nor do we have the resources to fight and win it without passage of this motion. AU of our allies are in the same position. That's why the Teachers, Firefighters, Correctional Officers and others have passed motions similar to this, and why·all other public worker unions are in the process of raising the extraordinary funds needed to defeat the Governor. Each of us must do our part to tum back these initiatives which would allow the Governor to destroy our wages and benefits and even our jobs, and threaten the well-being of all Californians. ESTIMATED COST: This motion would generate approximately $12 million. FUNDING SOURCE:

DIVISION ACTION:

•..; PLAINTIFF/S
I EXHIBIT A

\:'11

....

c
I
A
California State Employees ";"~'''''''

September 2005

Two New Payroll
Deductions for Local 1000 Members
Start in October
Local 1000 staff is gearing up for lots of phone calls when two new pay~ roll deductions for Local 1000 members and fajr-share fee payers take effect next month.
First. Local 1000 delegates voted late last month for a temporary dues increase (114m of I percent of salary), effective October 1, to create a Political Fight Back Fund to b~ used for advertising, mail, voter registration and education, and get-out-the-yme activities.
Second, deductions for the new Sta.te Disability Insurance (SDI) program included in the Local 1000 contract will also begin next month.
For further information, go to lhc Local 1000 Web sjte: www.seiulOOO.org or (,:ontact Loc,d 1000 President Jim Hard at jhard@seiulOOO.org.
The Missing Link
Several Local 1000 members have contacted us to ask why the link to CSEA's home page: www.calcsea.org has been taken off of the Local 1000 Web site. They are upset because they no longer have direct acceSS to information that's important to them as CSEA members.
Only Local 1000's leadership can answer that question. They made the decision to drop the link to CSEA's home page. You can ask Local 1000 President Jim Hard at jhard@seiulOOO.urg or his chief of staff, Michael Baratz, at mbaratz@seiulOOO.org .

Do as I Say,
NotaslDo
Local tooo is quite correct in fight·
ing back against the blatant atlempts by the SChwarlenegger Administration to prevent them ftom communicating with its members. The problem has been especially egregious at Cal trans, (see story p. 2). Officials there have blocked access and aulhori7-ed the arrest of Local lOOO representatives and their supporters for asserting their legal and contractual right to talk to their members in the workplace and provide them with infonnation about bargaining and other important i.ssues.
MYTH vs. FACT ABOUT PUBLIC EMPLOYEES

Local 1000 also has complained about Caltrans officials removing union literature from break rooms and bulletin boards. Unfortunately, CSEA has the same problem at our own headquarters, just across the street Someone is Lhrow· ing away copies of Unity and CSEA fliers on Prop. 75 that are placed in our lobhy for our mcmhers to read.
Could it be that someone from Cal~ trans is coming across the street and throwing away our fiiers? Or is it a hypocrite from inside our own building? I guess we'll never know.

Don't Forget to Vote in the CalPERS Election!

KURATO SHIMADA

Votllor
. Candidate
#3 on the ballut

MVTH= California has too many public workers.
FACT; Adjusted for population, CalifornIa has among the lowest numbers of state employees in the nation - and most work In education and public safety. In 2003, California ranked 47th among the 50 states in the number of state employees per 10,000 people. During the same year, California ranked 42nd among the 50 states In the combined number of state and local government workers per 10,000 residents.

rI CHARLES

VotlfDr
. :. Candidate

VALDES ....., . .;: #5 on the ballot

You should already have received : your ballot for the CalPERS Board
of Administration election. Your ballot must be returned by October 3. CSEA has endorsed Charles Valdes, candidate #5 for position A, and Ku-
rata Shimada, candidate #3 for posi~ tion B. (see story p. 2)

, PLAINTIFF'S EXHIBIT B

-.

CalPERS Pension Fund Achieves
12.7 Percent Return
The California Public Employees' Retircment System earned 12.7 percent on its investments in the last fiscal year, surpassing earnings projections of 7.75

vestment gains more slowly than it did in the past, spreading.gains alJd losses over 15 years instead of three years.
CalPERS investnlcnts jn real estate, private equity a.nd international stocks were the main perfonnancc drivers during the year.

years, watching the CalPBRS fund grow from $23 billion when he was first elect. ed to its current value of $189 billion. He is a past president of CSEA.
"Our retirement security is under attack," says Valdes. "Defined contribution (DC) would provide less for retirement and cost more. The average return on

percent for the second straight year. The earnings also outpaced the S&P

Retired Division

500 for the same fiscal period, which Urges Votes for Valdes

DC accounts is 7 percent. compared to 12 percent for defined benefit (DB) plans that CalFERS members have. I ha.ve 'the

and Shimada for ended June 30. The system's portfo-
lio market value now stands at a record

$189.9 hillion.

CalPERS Board

knowledge and experience to light at· tempts to destroy our pension system."
Shimada. who is the fanner presi-

"Strong investment perfonnance,

The Retired Division urges all mem- dent of the California School Employees

combined with its new employer rate- bers to support Charles Valdes and Kurato ASSOciation, has more than 15 years of

smoothing policy are factors that wilt re- Shimada for re-election to the CalPERS experience in key positions on the Cal-

sult in more stable and potentially lower Board of Administration. Both men have PERS Board.

employer contribution rates in the future also been endorsed by the CSEA Board

"Others would have to learn the is·

for the state of California and public of Directors.

sues. I already know them," said Shimada,

agencies," said a CalPERS press release.

Valdes has been a CalPERS Board who is also the chair of the Benefits and

The system's neW "smoothing" poli- member for 21 years. He has chaired the Program Committee and who previously

cy requires CalPERS to acknowledge in. CalPERS Investment Committee for J3 chaired the. Health Benefits Committee.

"I am working hard to fight anempts to

eliminate the current defined benefit pen-

They Can't Shut Us Out!

sion system," he said_, "We must ensure that OUI investments are stable, our sys~

Hundreds of Local 1000 memhers, officers and slaff participated in early morning rallies at Caitrans headquarten> in Sacramento to challenge the department's refusal to allow us to hand out union material in the lobby, as permitted by the union contract, the Dills Act, and a number of court decisions. At least 10 parti ci pan ts were arrested

Ms. Bass said_ Following one of the rallies mem-
bers of the Carpenters, Electricians. Laborers and other construction unions refused to cross the Local J000 informalional picket line and went home. shutting down Caltrans' building remodeling job for the: day. ''These guys gave up a day's pay for us, and We will

tern well managed, and our retirement and health benefits arc protccted."
Members should have received their ballot and candidate statements in the mail by now. Those who have not received their ballots by Sept. 23 should contact the CalPERS Board Elections Office at (916) 795- 3952 or (800) 7942297.

and scores more signed up to risk ar~ always rememher their solidarity," said

rest if necessary.

Local 1000 President Jim Hard_

"The governor is trying to silence

ACSS-sponsored Bill

our voice here at CaHrans and at other agencies,just like he is trying to silence our voice at the ballot box," Local 1000

Goes to Governor for Signature

Vice President and Secrelary-Treasurer Cathy Hackett told the crowd at one of the rallies.
Assembly Majority Whip Karen Bass (D-LA) and Assemblyman Mark Lena (D-SF) joined Local 1000 at a Caltrans ratly; they also were denied admission to the building despite showing their legislative passes. "I was glad to stand and bear witness alongside SEID and I will continue W suppon the efforts of union member:) to exercise their First Amendment right,"

"
Assembly Majority Whip Karen BaJ'S (DLA) and Assemblyman Mark Leno (DSF) try to enter the Caltrans headquarters in Sacramellto.

ACSS-sponsored Assembly Bill 747. authored by Assemblyman Sam Blakeslee (R~San Luis Obispo). passed through both houses of the Legislature and waS forwarded to Gov. Schwarzenegger Sept. 1. This bill will allow excluded employees, for catastrophic leav,c purposes, to receive leave credits (vacation. CTO, holiday or annual leave) from rank-and-file employees.
continued on p. 3

Unlty-2

ACSS- continuedfrom p. 2
As the law is currently written, ex-
cluded employees are pennitted LO trans-
fer annual leave, vacation, compensat-
ing time off and holiday leave credits to an excluded employee or rank and file worker who ha!:i exhausted all his or her
paid time off when a catastrophic illness or injury occurs to the recipient employee or a member of his Dr her family. But

the law does not allow the excluded em-

ployee to receive these leave crcd~t.. from

a rank and tile worker.

"This bill corrects what has been a

legal discriminatory restriction that ad-

versely affects state managers, supervi-

sors and confidential employees," says.

ACSS President Tim Behrens.

The governor has until Oct 9 to sign

- or veto this bill.
I.

Jill

CSEA Legislative Action Update

Here's it listing of the status of legislation sponsored by CSEA or its affiliates:
• AB 124 - Fully implementing state equal employment programs (Local 1000). Passed by the Legislature and sent to the governor.
• AB 529 - Procedural rights for CSU employees with disabilities (CSUEU). Awaiting final Senate action.
• AB 561 - Prison education (Local 1000). Passed by the Legislature
and sent to the governor. • AB 708 - Whistleblower protection for CSU employees (CSUEU).
Passed by the Legislature and scnt to the governor.
~ AB 747 ~ Allows excluded employees to receive catastrophic leave credits from rank-and·file employees (ACSS). Passed by the legislature and sent to the governor.
• AB 1184 - Prohibits mandatory overtime for state nurSes (Local 1000). Passed by the Legislature and sent to the governor.
• AB 1186 - Salary ranges for excluded employees (ACSS). Awaiting final Senate action.
• AB t 655 - Waiver of college fees and tuition for survivors of de· ceased law enforcement officers and firefighters (Local 1000). Awaiting final Senate action.

The following bills have been carried over to the 2006leglslativ8 session:
• AB 786 - CSU employee identity theft (CSUEU). • AB 844 - Increased postretirement death benefits (ACSS). • AB 1019 - Enhanced bereavement leave for exduded employees
(ACSS). • AB 1026 ~ Fairer, motC strea.mlined tax collections (Local 1000). • AB 1369 - Memoranda of understanding for state bargaining units
(Local 1000). • S8 154 - Health care benefits for out-of-slate employees and retirees
(Retired Division). • SB 336 - "Safety" category for Public Employees' Retirement Sys-
tem (ACSS). • SB 669 - Memoranda of understanding for state bargaining units
(Local 1000). • SB 109] - Retirees' vision care benefits (Retired Division).

II

• •

•

7

III

.,', :,.>·':I .:, ", .\~ i
CSU:ElJJ:NEVVS ...

',' "

TheJoit6wkgis~cerptedfrom"~n ad .

.whkh'r~n;lhii~r)ijth i~ihestuden(,

'. ~e:w.rpaper,<dtCriJiib:rniq State. Un i-

:v~f:sitY."S'in.:'f.cdn4i~qo·:\:.· ':,',",:,"

.

>.::<.~,,:.,: ;;.": :.'~",.,:,~ :",,' :<:::~:>;',:'''': <:'.:~:',\I.>,:::' ','

Welcom·,!,backl·

•

.' ,'. \

~, \:. :, : ,I :'~" ,~\ \ •

\

· ': •. 'DoY()1l1il<~tI1,~i6()ks~f t~ecam~ · 'pusgroUIlds~,thefiowefi;~thewct1- .
a: •keptlf11yIl~;:;#d~esi·~h~nstop.and
'.' sayhellt'~t6 UNION.worked .•...••...•.
·.·'Tti~'ioiks'\vJi6ke@the:caro~~s; .looking' g()9da~,' jn:Safg~niIlgllriit . '

·5", Calif.::StateUrtiveV$ity'BmpbJyeeS .•.''.
Uniori"SOO 2579: These'.' ··CsM~:·
',' ,,', :.... .~ .::" ,.. "-.I: ,,', '.:' , " :,' ,~':.' .,''' ",. '. . .. :' ", .
·;sa.nieUnit.·5f91ks .~cy?le: ourpap~r

and')6{ia cans and keepourschoQl',
in'd:\vofken'lironmenf':cleanaTid '.

·heautifuL .'. '.' ... ..'. ": ••' .' .•'". .. . '.'
...••'•.·.·..sFstlisath~ION campus. There
~tqei~Qtllni~n~on~ampus divided>
·j~tollbwgiihringunjt~ (lllJs)~fjob
nit 'categori~s;CSUEU r~prcis~pts fOllr of
thellBUs:'.O 2 (hea1ili:c.arework~ .•. eis;,nuises,·labt~cfuii6.ci~, rescarch~,
•ebi·and'~~di6al . n~c~nftecluricians)..·:
·Vllif~::,(BP~lions' ~.o/fers:. ~~stodi~.,
~ns,laboreii;. atld ..grounds . worke.~),' '.
Uriit ;:7'(di~c(Il and adnlinjsirative ~9r~#~:;¥~tarY~t.iUf;offi7e assistants;:· ... .'. studenLservices •. cmlnter.workers;.
.paYroll•. speoi~li~ls, ':m8jr,proce~sots, ...
telep~9~e:;9~~t6rsand1hlaiwi~l;aid .:.,
'. iin~1~~fs);)~d/OIiit9 •,<t~dmical. sup~ •.'.

port\wQrkers':oftiCii, jrianagers; . lab, '. C(lIriP~t~,stage;M~~¢arch tech- ..'
niqi~~;.p~NIcaffairs' spechilists;md .'
;gr!lphiC!arti$~);<:' : ...' .' .'. '.' . ' .•. '•. :,> ·:Thd~~·~k:;il;feWamo~g Ihemany .'
·.staifW~Os6~¢y~ll,~ve~day. To.get. s. ~~ythii1g4oriC'.riti, th1 call1P\lS~ •. y.ou ..
.come 'into>,cbtltlctwith,a .•UNION
~9rker:.~erev~yoUg~on. ~a~pus: .
,UNIqN~orkers seryeymi ~wh~ther • DUfln Jl'dP(or behind.the'i;c6rie&~ We .. 'suppoll:arydtl1ak~pci~8ible yoW: edu- .
catiollaIgt)al~~ :WlleDyougrad~ate,

getOrgilJlizedandma,kejla'iJNION .

job.: ..·····>:

.... , ......

.

· ...
",'

,"I:

"
CSEA MEETING SCHEDULE - Revised

September

17

Region VII Mock General Council

Hometown Buffet \0 a.m. - 2 p.m.

2670 El Camino Real, Santa Clara

19

Chapter 2, 15 & 165 Mock General Council

Sicrra Senior Center, Sacramento 10 a.m.

22

Region IX GC Preview

Nielsen's Rcstauranl, Tulare

24

Region Xl Mock General Council

Sizzler, 15252 Rosecrans Ave, 2 p.m.

La Mirada

24

Region XITT Mock General Council

Marie Callender's 10 a.m.

5980 Avenjda Encinas, Carlsbad

24

"'Region 12:30-3:30 p.m.

Hutton Center, 660 Colton Ave.

Colton

October

1

Region VIII Meeting

The Spaghetti Factory l2 Noon - 4 p.m.

2702 W, March Lane) Stockton

4

Rosh Hashanah

5

CSEA Board of Directors Executive Ses~ion (C)

6

3m CSEA Board of Dircctors Meeting (0)

Hilton Anaheim

(714) 750-4321 (9/06/05)>foIII

7

SETU Local 1000 Division Council (0)

Hi.lton Anaheim (9/6/05)**

7

CSEA Committee Meetings

8-10

CSEA 63,,1 General Council (0)

Hilton Anaheim

(714) 750-4321 (9106105)"''''*

10

Columbus Day Holiday

13

Yom Kippur

November

8 Il
24-25

CSUEU Council Meeting (0) Manhattan Beach Marriott (3lO) 546·7511 (l0/5/0S)U
Election Day Veterans' Day Holiday Thanksgiving Holiday

• "Oeneral Council TI:servalioliS cal~ he mad~ by

December 25 Christmas Day

February

24 25-26

ACSS Soard of Directors
Hilwn Costa Mesa (714) 540-7000 (211/06)** Rctired Division, Inc. Execulive Session Retired Division, Inc. President's Forum Retired Division, Inc. Board of Directors Meeting Hilton Sacramonto Arden West (916) 922·4700 (211/06)"''''

May

19 20-21

Retired Division, Inc. Executive Session
Retired Division, Inc. President's Forum Retired Division, Inc. Board of Directors Meeting Hilton Ontario Airport (909) 980-0400 (4/t9/06)**

October-

13 14·15

Retired Division, Inc. Executive Session Retired Division, Inc. President's FOlum Retired Division, Inc. Board of Directors Meeting
Hilton Costa Mesa (714) 540·7000 (9113/06)U

Contact Marie Steuber at (916) 326-4245 or Illslpubc:r@calcsea.org lo submit infonnation for lhe calendar.
(0) indicates open meeting; (C) indicates closed meeting "'Indkates new event. *"'Indicate$ the cut-off date for hotel resorvulions at CSEA's negotiated rate. Aftcr the date shown, CSEA's room rate will nO longer be available, and the hotel may be sold out,
9/9/05
reservation form only - call-in resetvall0ns will not be accepted.

Unity" 4

... .
SEIU
Strongltr Together

Notice to Fair Share Fee Payers
Dear Fair Share Fee Payer:
I'm writing to encourage you to become a member of our union, SEIU LOCAL 1000. I am surprised at how often I am told by workers that they believe they are union members because there is a deduction taken from their payroll check, when in fact, they are paying a fee for services. Our records indicate that you are not a union member and that you are paying a service fee. We would like to strongly urge you to become a member of the union at this time.
As a member, you'll enjoy the benefits of membership that are not available to you as a fair share fee payer. You'll have the right to participate fully in the Internal activities of the union, which include the ability to vote in ele~tions pertinent to your District Labor Council (such as officers and stewards) or the Local (local officers, dues, etc.) You will also be eligible to utilize the benefits offered by Service Employees International Union Local 1000 and CSEA.
Benefits include the SEIU Union Plus Mortgage and Real Estate Program, Unsecured Loan Program, legal services for personal matters, the SEIU MasterCard with no annual fee and a competitive rate, and several types of insur~ ance plans. CSEA's member benefits include a wide range of insurance products, financial and legal services, discount entertainment tickets and travel services. There are many additional discounts and services provided to our members. However, the most significant benefit of a strong membership is strength at the bargaining table when we negotiate your contract. You should be aware that the union security clause contained in your contract was negotiated and ratified by your Goworkers who are members so that everyone who benefits from the collective bargaining process shares in its cost. The support of its members is what helps the Union provide you with better wages, benefits and working conditions.
If you want to become a member of Local 1ODD, just fill out the enclosed membership application and send it back to us. We will process you're application and send you information on your District Labor Council, the Local, and the services and benefits to which you are entitled
If you do not wish to join the union, however, California law permits collective bargaining agreements between the State of California and the SEIU Local 1000 that authorize the State Controller to deduct a fair share fee from the salary or wages of all SEIU LOCAL 1000 nonmembers of the bargaining units for which SEIU LOCAL 1000 is the exclusive representative. The fees are remitted to SEIU LOCAL 1000 on a monthly basis and are to be used to support SEIU Local 1000's work on behalf of fee payers and fellow employees with regard to their employment relations with the state. This notice and report are applicable for fair share fees collected by SEIU LOCAL 1000 for the period July 1,2005 through June 30,2006.

In Solidarity
iw;~
Jim Hard . President Local 1000

PLAINTIFF1S
I EXHIBIT C

:'HbOD&
STRgNGLLP
.c ._.i.~~_, ~._Io ~U,."-~ .. ·~. , .. .... .,."- .. ~ ..

1ndepeDdent Audit(lrs' Report

c""""......... .md

THE BOARD OF DIRECTORS lJNLON OF CAIJFORNIA SfATE WORKERS
SEl.l'. LOC.o\L L000 Sa.crame~lo, Catifurnc..

.B.u.F.i11e1S .-1.:n"iron: t. i-;- Si~;:;;- ~"::'-X-i

We baY<: .mdrted. Itm acrnmpal1)"IDg Stak:mCtlt (If Ope[Bticg hpen.ses by Activity and tne

AUocatioo Beno...."· Cilargcable, Noo-CbargeBble, and. Membec..ooly &nefils E~"""se (lhe

51!(~~' ~~;1~~·

Fi=ial S~8letneIlt) for the (JN1ON OF C,\LIFOR-"lTA STATE WORKERS S.IlJ,r,

l..O("_-'.r.L 100t (Ille Lola!) for !he ~ ended De"emba 31, 20DII_ Thisstaleweru is lbe ""P""sib,lity of lbe LJcal.'. ~nt Our respo;lll5JbiUIy i. In express an opi~ioo "" t11,.

r~: Fr-.Ji'-=-'i-~~~·

.latem<mt based o~ our ~lJdjt,

CA 9-ii{_ij

We ooodu.c1ro CIII" audit in aocordanoo "ill> ~uditiog 9:ondaJds goeneraUy ..~erl in Ih< t!nild

Stales .,f Arn.eoica. Tho", =danls reqllil"e 1hat we plan anti pttfonn tile mdit 10 00tain reasooable asSlJJ1lJ1Oe abol31. .....11e~~er the financiaL slateme:Dl:> are free of rruuerial mi.<IaI<=l,

.-! ,: .... :l(l.L~~.~

AIl ~u.ilit 1nd00es exomini~g, m1. a tes.( basis, e>ideooc SU]l!lorticg the iI!IlIMUll!< aiJ.d disclosures in

lbe financial omrem=t An audit a.lst> iBcfudes as5eS.Smg the accoumi.:Jg priDcipl.. used and s.ign.ifocant estimall's made by ~emen" ~ well "" eval..mn]! IBo = U filmlCial sta1rnJen!

••0.t:":-~ .~A;'-~ :;.-;--:(:

I

presentation.. We bo1'e,... !hat our aoo.;l provide:> a rea.sonallle basis fur ow- opinion,

'The loW e;orpens•• refLoctc,:J m1t1e fin3l1ciaL Stalement are based o~ the OjXI~tiDg .~pense;!I uflbe
Local foe lbe year ooded Decerlter J 1, 1004, "'1th reg:mL m!he aocn<mti"g policies bw;ed i~ N.,..e
1. The al.Iocatitm of IlJlO'l""l:ing ~... berv.-een d""pb1e., ooo-ebargcabLe BOd m.embeo"-<lOly
l:enefi.lJ; cxperue is based un lbe de.flnition.s and sigu,t'ic:ani fac[<lfS Bfld asslllTlptiDn. described ill
NoJre J. The accompanying st:01:emoJ1t w;l5 prepared f<ll" u.e: p"'JI<l" (If deternJinID.g ilioo ft.;,. slw~
cost <>f-""Vlces reI1derallty IIJe Local for =1'10:'= who are rep.resermd hoy, oot IltJ'I: members of, the LOGa!. The 8.COOIDJHII1ying -"ot~=t i. not i031m<led lu be a mmplete ~ of 1b£
LocaL'. finHllCill.l sIaIell><mlS.

III OW" ~pini.oo, lb. Finaociao1 S1B.Iern.erll presents faIrly, iu &J mawial I~SJ"'cll, !Ix opetatiog
me "r expenses of !he Local fur }-eaT eOO¢:l DecemIJer 3 L, 2004 and 1fl~ alLocaliml operati~g
expenses beno....B clJ.ar~1>le, oon-dtaz~1:>le 000 rnember-<rnly benefit> ~~P"""- oot the basis (tf the deiimti""" :md s.ip;nilicant fucton and assuroptiOO!i ~cn""l::oed iD Note 3, 00 1bo bas.. .,f
=_ 3COO<Jl11ing 31> di=ml in N(Ke 1.
This npoct is m1.etlded soLeLy fill l!Je iDfoonatiOB tmd <= of the LDCaL arul ill; agooncy fee aDd .. IKJI iIltended. 10 be and sboold 001 be used by ""yone <>Ih<:t!ban 1h£;je specified parties.
~>i''' ~ UJ"
ApriL 25, 1005

.~'...;.~. PII:.'r'-l.~L::-) A.rt:.,l::,;::}-".;;h

1
~~;

. .~;. ~.

-
~..

~ . .~

"

I:ml}D of California State Workers' S. E.I.lJ. Local 1000
Statement (If Op~"'iog :t::~~~s.es B)" Adh'i!~' amd lb.e _o\lI.!Jcation of E~~",,"i Bctw~n Chal'"iwlt!', Nn-Cbar&e.able., and [l.lembu-O:oly BemeHt! E~~!e

Y....- EMed =~bu J). 2W4

... ctirit)· COOc
[00
lLlIo'l1~
12'0 121 lili123
11-1.'12; [U,'111
123
12~ B~
l:5L 132 ]3]
13~
140 14' 141
L43
L~
i~
n~ 1E~ I~G
100 21@ 2LL 11(1..226

Actb.'it'l.-
Coolr><l P'rcposals, NO:I;'Dl!a.tioos.oo RHit'it..lllioo
-c...-:.ntr.rt ~-drnin!:iI:ritIiw1, Ertf.....n:enICTI[ and Gne-.-.u.:.: AdjmImt:Irt
~Iati<m Bef.:n-<, ("OY;tmm<lltat BtlElf<ls or ,~ies: Disciplinary mMteNi 0.>ntIacting OuL SPB, Olhe::- matte"", cumploiw ami appeal. PElI:fI: U..rair hloo:r pracLX<.
PERf!: CI<her m.1t<f<
m = PERSn:.ar1OJ<
s.tm 1i.:ensin~ 00ard _ of<OJJtrol rnotten
Unempln~ment lAA.'Wnde.. C<:nnp
llllI= Di~imimtilJO rnEl1te1:~
U.S. Dept. ofL1bm: FLSA Otbe<stat< "S",,}'m booro rnart.er.5
LiLipilioo: CrLintractrnB om 1i:1igatiun Dis...-riminiRiOZI I~igaoon Otbo< lioCJlIioo 00 ~ of L"""IrepreseulJi::d mlP10yees or 1lie Local whid::t jn..."Ol ... ~ Yr-age5-, houn, bonefit>, ..mt.:ing cooditinn.s (lr (Ithcr" ctnpllJ"!-"eC dgbIJ Fair Share- Fee litiga'~(rfI 8nd 8fbiusr;clrl Ocner litigation ~hid:J does. r:ot c:p.'Oh-e !he .... ge<, oour>, boto>fiJ:s, .....ooan~ ~i",," '" 00>", empl~"" rights ~f locol-r<pr<S<l>llt'<l "",pIoroos
Coonf="""" oo.ou"';nn or ba<kgroond.
reJding c"""""'-'ng ""I!.<', 00ur3, emple·yeo rights. re~t1OOn.a1 ilill<. etc. Orc,aruz.in:g in new units. Mombrnhip R.etl1litment rnlnical Educ.><ioo Commumtl' :S<rvi<.e.'Ch.m.b~ .~ctrviri", 00:lH:r Activny (Job ~ Othe:r Aeriyity (Nee-Job ReIDM)
PoI:ilicaL AcJ:i.i.Iy and CSEA-MA.C

Tntll E~

Cb=bLe E:>.JH?'es

Noc.-
~bL<
E"P""es

Mmlber-
Onl~·
Bmcllt> ~

9~92R
8, LLQ, 74~

3 %&,92R 3),0,74S

7ro,7~8
L36,716
L ~9,740 "Y~,:5W
2,%0 B,561
~2SJ
757 865 156,(2'.1 ')5:5 M52

!8oIl,74R
B~,7LG
119.~4D 7:5.~1);I
2,%0 13,;6;
$
1'51'::[19

n9
757 US
7 55
6..~S2

It

,.2'03
LW4

7.,2{13 LM~

Ij 1,J4~ L9,IJLI

[~l,34]
19,OLL

97,8H

97,1!5<1

467,308 1.L:l>J
1~3,,92
#'I,m 4:fi.125
~3,~S
21l.C9J

~~.301: 6J_~S

1,1&11
l~J_7'9~
444.&29
46,12~
2fr_091

e

The .u:cnmp:HJying OOlB ilJ'e' an in~~J pm ofthfs ~~t

;.. ..-.~~.

'.;. ...

""0<." ~0

--~~.

Vnioo of California State Workers S.EJ.U. Lo.call000
Statement (If Operntin~ EApeoses By ActiTity ~nd the AII~~s.1ion Dr
Expenses BdwflClI Chargeable, :'II·~o-Cha.-geable., alld M~er-Onl}' Benefib l!.:!:PfllSe

Year BtdedDecr=bn J[. 2004

Acti.l~1:Y
Cod< 245·248
2M!
13l "p'"',~ 133 234 236
14!l
2~2
241 244
25ij
25~
252 253 254 255 256,2j] 15ti
2~
261 162 163

Acti ..m"
ActMJi.e,<
C~jcati0!J8:
BargJoin:ing umt and corpOOlte publicati ....
Newsl",e, leadershij> lette:ro, aDd 01ll<r
COIOl11U1llqu8
Public ami metl:ia relaticru Other public.tioos (Jab R.eIol<:Il} Otha:" publicatl"'" «'on-rob ReMedl
W~b<lte
r~~;'lali.e:
tnlrodoced, S1lJlP<Id<tl and ~
leglsh,~D1l
ihdg<Lary legi<la1i<:m Smen.mg md _ching legimJion Lf:gi;Lath...-: aahitit:5- :U:~: tjed ro
p&r1icu1ar LogislaiJtJo
Meetio;g> and Go.-..mn..: GoocraJ Coonci1 1'Ioa..,j orui. "fjic.e< meeLings and activities Carpt:.me iIIU! BUC meeti~gs and acthdtie:5 Cornmir:t.ee meetings . gttJ<JaJ subje<t matter DLC'1'.egi<m mmi"1l'- ~i,," istratJoo mll!leadernhip lIlIinillg. Inl<:rn.aI <ti:3potes and elocli<m prateru SE[U """ c~l",<l.bc.- affilio1e ",..lings and activi1i."
Oo:hor IIH>01iJlgs 0< .eN_me.
~or<Ii~ll Loc.L 8"''''''BllCO
SIlIff and Loco] AdmiBi~ A ctiyi1ies: Gene,aL odminismIi{)]] AcDOUllling/Fi<Wlci"E 11lOIlagement Fair Share fee odrniniotr:llioo Otlt.er administrarive expl!:n5~'
<Jffic~ and "'I";pmem sen·i<6
Member--OW~ Btoefits:

1",.1 Expo:n=\
~,139$H

~bJe E>;~e.

:N-on-
O",se.bk Ex~ . . . . .
L,139,Ml

:.Iom"",-
Only Benefit.< ~

9~,~70
48,9(.5 (;.1,20J 133,L23
~14 79,186

59,673
2~.J l6
:r:r..::::40
79)01
4!,j~8

39,~8
l~.65D
24.9fiL 53,422
8L4 3L,858

HlO,801 (.U89)
4l.7~9
L23,841
1~,288 4U,!~3
1,6<14,936
L5,994
B4-!l,~92
l1}.83D
1~,453.2;7 ~?,?39

tOO,g(l':' (l,9S9)

4L,169 123,842

HI6.,23S 426,L63 J,604.986
15,9~
sns,B2
EO,83~
3,S08,51}S E7j139

~,MO

S ~2,8 L8

L2,9-44,152

LO,nS

1,OS3.a70 l,2ED,S~J
76,1~7
"l,942,315

893533 I ,~5tj,415
16)S1
l,6(l1,4 [0

l~9,H7
224,088
J3~.9iB

3,249 3,S42
5)':27

The """cm:.pan}in8 uote. ore >.n ~~tegmllf3rl ~fthis lt01.menl
3

Union of California State:Workers. S.E.I.U. weal l(IQll
Statement of Operating E~pi!lls.es By Acth'ity Illld the Aliocafion of Expell"RS Betw~" Clt-.u-gcab!.e.. ['IIQn-Cllar~:lb1e, and M~mber-On1y Benefits Expegse

Y= Ended.D"no"bff .l}, ;M.t

Activi~
~
270
171.1281

Acti,it\'
M<mtbe:r d.a1f:J!oe.>e.fi1s Men6e:r-<ml)' ~3I1C~ berlefirs
Tal8la~""P"""""

Ro<<mdl",lian ~r TDIBIIlI)ml'" IG .<r.aditd Fi....ciol St.II.k"'OIlI E~jHIl'"
.u-.. T.toL 1:~(><l1'" .
h l ' = ind'ldod abo-"e. but roott<cl agains': f~·ellJ.le in audi1ed. finw;,:::iaL s~: Cbopte< odmin"l!ation C'lloprer fetrf,;,i", (ne< "fgrant!<) Duo. deducl1o~ ~ro:....mg f.e
fiooocial sl:3.te:m.en1 re ...-emJE:, rn:ll~ against <:qJe1l"'" alxwe:
SEIU In,.,.".l1ooal t~bol<::l Otbe:t in.come R<"'=u.e credi1ed 10 Local 100tl in !he eenfilJ suPP'lrt billing Mer r-eo;]ndlrng i!J:m£
Prim ~~or ~ ""Pita m:u::l]!<lid. Iluring 2004
AoJditftl FIIl.~cillL ~ ...to-ment I.:!;(>ORO"

T~tal
h""n"",

Chargeabl. ~

21 U N
L1J rZi_

S 3',8.12,.693 S 2!,B9,67L

lOO.OO'l:O

5~jj%

Nm-
Ch~k cx~
211..210 J 7~"776
$ L6,533;022
43.65%

MemIJerOnly
B.u.e:tru; ~
217,210 ] i~T~6
S 311,5H1
Q.se

s J7,~n,@3
(734,l92) 10,Wl
(Ill .9RS)
4,061,864 33,314
(~,794·~
(6,331,673 1 t 34,72.4,033

e

11Je at.:OiJltlpal~~·iDg oote; ilI"e an inregr:aL pm1 oftbis ;!it:l~err:.em.
4

Union of California State Workers S.E.I.U. L6CallOOO
Note! to Statement of Operating E1]I~nses by Adh'ity and tbe Al.lo~1l1i.on {If Expenses: between Chugeab1e., Non·ChlUlltab1e and Member-tbly Benefits Expense
Year Ended December 31, 2004

Note 1 • Sllmll1.8ry of Sigruficaut Acwl1llthig l'oIlcles:

a. Nature and PUIpClSe {)fthe Local

The prupose oflhe Union ofCalifomia Slate Workers S.EJ.U. Local 1000 (the Local) is to repre;s~t employus ami retired employees of the Stale of California in die fullowing m:rtters; salary, benefits and W<Jrking conditions, assistanoe in filing and pursuing
employee grieva.nces, legal represcrltation on both an individual and class basis, technical assistance in mm~ of job clBssificlltion, and tegislat:i~·~ advocacy in support i)f
programs. beneticial to staEe employees and retu-ees.

The· L<xaJ. represents. State of Cldifornia Bargaining Units i, J. 4, II, 14, 15, 17, 20 and 21.

b. Affiliation

00 Janoory 23, 20()4, tire Loc:.u.l entere:l into an affiliation agreement with the Service

o..c. Employees Intemational Union, AFL-CIO,

The Locill has been designated as

wUnion of Catifornia Slate WMkers Local 1000, SEID, t\FL-CIO," The Local pays per

capita taxes to SEIU Ioternallonal

The Local lS also affiLiated with Ihe California state Employees Association (the
AssOCiatiOll)' The Loeml reimbur5e~ !be Assoo.::iation for its allOClltoo share:· of Centrll1
Support cosls.

<':. &!sis of Presentation

The accompanying 5t3.tement was prepared for thc p1lIpOSC of detemrining the fu~r share cost of services ~ndered by the Local fur employees repres.ented by, but not members of, lite Local The accompanying statement is l10t intended to be a compiete presentation of Ihe Local's financial position, changes in its net aSSlCt!i, or its cash flows in occordaru:.e wi!b accmmting principles genernlly accepb:d in The Uuited S!lrtes.

d. Basis 9fAccounting

The books of account a~d the financlal statements crt!he Local reflect !be aocruai basis of
rn ~ccoonting ~ccordance with lICrounling principles generally accepted in the United
States. The S£l1mlllts included in the acmrnpanying statement are adjusted to a modified yccrual basis :IS ~ho.",n on page 4. The e:qn!I1Se!I detailed herem are from general operating net asset::; .and do not include expenses from separate segregated n~t as~.

Union of California State Woi-k,ers S.E.LU. Local 1000·
NiJt~ tlJ St~tement of Operatillg Expenses by Aclhjly arid th~ AliocatioD of Exp~nses betw«n Cbarg~ble, NOli-Chargeable Md Member-Only Renetil:s Expense
YC<l:r Ended December 3],2004
e. Prupert..,. and Equi[}lnent
DeprecLiltion expense is computed lJ!)ing the str~Lgh[-l!nc mcilioo over the ~stimated
useful l[f~ ofthe asset!! rangi ng mill three to fifteen )·e~P.i,
[. Fedcml and State mcome Taxes
e The Local is organized pUf'SlJant to the General \"oll·Pwfit L~~'. l)f the Sbk Gf CaiifDm.ia
and is exempt frum Stare and Federal in.::omc laxes ']Jl<:kr I.R.C. 51) t(CH,5) and C~lifi)mja
Revenue and TaXllhiln Code Section 23701 A.
g. Estimates
The preparatioll of financj~l ~tatl"TIlent5 in contormity v.ith g~n'~n:1lLy accepted lI.CCQuntill~ principles requires management to make estimates and ~~SUJTll)uons L':.at affect certain reported amounts and disd=~. Accordingly, actuaj remk~" cmud J[ffcr from tho~ estimatcs.
h. Badmround - Non-\.fember Fees
In 1986, the Ullited States Suprem~ Court issued a deC!5ioQ regarding certaia pmccdl.lres tb~~ must be follow~d by a locat Uru01l thai is co lIecti ng fai r ~har{; fees from :1.1J<1members under a CCllle<::tive bargaining agreement .....ich a put;li~ employer. In Ch.kago Teachers Union 'is. Hudson, the lflliled States Supreme Court reaffLt1lled ilie COQstilutiooality of such fair share fee agn::emen!s, origi!la!iy upheld jn Abood .,5. Derroit Board of EtlllCooon. JII an()ther earlier use. EUis 'i.'S. Rail\>,'1IY Ckrks. the L'nited S~aE~s Supreme Court had held that certain union e;.;pem!Ltures wuld be charged t(l fair shan: f~ payer.>, but th8t certain Cltbcrs could not be ctlilIged.
J~ 19'88, the UniLed S!aJes Supreme Court mued a dedsion h.~lkling that Ull ioo~ co\'ereu' Iffider thc National Wbnr Rclation:s Act (1';"LRA) may not ~ha;ge non-member.s fees for oonrepresematiollill activities when the llou-memben; are covered by cone, bargajning agreements and object !o such f~es for <1{)mepresentatt[tlla~ acttvitE{;~. c:fe.cision, known as ComrnunicatioTIs Wrn-ken; i)f America vs. Beck. applies to e standard Ulltoo ~hop, where the board illld ({Juris haw lon,g held iliat an)' hargalJ1iJlg u~ it employee may ap! to b~ classified as a "financial con: ~tatu8 empl()y~~" if be/she does oot wish to joill the union..

.'. ". ..•. .•. . ' 'N~teo;fu Statt~~ilt {lfOperatIl!i E~peDSdb}'Acthity illid Ih~
l..Uocation IlfEJ.PeJl.Ses betw0e:llC1uirgeable, N!lI1-Charg~~ble and Member~.O.nIyBeDefi~E:ipCDse narEiLdiil Deee.mbedl;2004
Note 1 - Definitions: Th1s statement sets forth ib~ Lucal's l1{;ti,cities and the expenditures aswciated with each acci,,([y. The numbcr...ng Clf each activity i~ trom a eoding sySlem used by the Local to keep track of tbe time and expenses ass~iaLed witb each activity. Follm...ing each acti'>'ity is a brief description of the nature of that acti,,~ty ~nd the type Clf expendi!mes included. These ~cri"tties are grouped into three ca!egGrie~ fCtf !his report: a} thosc activities deteITIJ.ined by the Local to be fullr chargeable fGr aJi fee payers, b) those acthtities determined by the Local to be el\t'rely non-chargeable LlI oojec[ing fee payers, c) tnose activities determined hy the Local to be partly chargeable and panly llon-chargeable tCl fee payers. a Chargeable Ex.p.euses lOa Contract Proposals, N~gotiario!ls and RQf~ficmiOfl This ~ctivity cncm]]pas~ the development presentltion and ratification br emp loyecs of coutract proposals. Such ~ctivitr include:<: formulation of bargaining goals. primities and pwposals, tog,ether ",ith re!~ted r~seM.'1t <md drafting of suppmung arguments; BlU'gainin:g Unit C(mocii and other meetings dcvoted 1(> ..Jiscussion of contract proposals, ncgotiations O( ratifLea.tLoll; the pro~e5S of recei"'ing input from bargaining unit employee~ through surwys, t';'od,'s itc me~tings or oth~r m~a[]S regarding matters to be negotiated. including worbite committee rlevelopmrnt and meetings ill support of b~rgaining; eoucatiOIl, research ;md [JaWing rel~ted tQ conlnla proposals, llegotlatiOt13, {IT ratification., including training and orientation of Bargailling U oit Council members; lleg<ltiatio!l of contmcts; participation in any impasse procedures related to contract negotiations (i.e., tact fin..Jing, mediatioo Gf Ill'bi!Jation); mtificatiQn by the bargaining units; preparati{]n lI.Ild distribution IJf material such as flyers, draft coouacts, reports and oilier publicity work {bClth wilhin and outside the Local. including ]J'IlbJic 31ld mcdia relations} regarding !he status of C{mtr:act proposals, negotiations and ratification; distributilJlI of leafle1s; demon.;1ratiolls and job actiOlls related to contract proposa!s,
n~go[iarion.s and ratification; and litigatiClll arising out of acti,~ties in SuprClrt of me
Local's positiCln 00 CGntruct proposal:., negCltiatiOn5 CIT rat1ftcatiCllL
7

1JOil 14 Contract A<iminjstmtum. Enforcement and Gr~wmce A<ljustmtmt
Activities that relate to adminLs1nltiOl] and enforcement of the comra.ct once negCltiared include all aspects of handling grievaoces or arbitratiollS under the oontract, including preparation, participation and fClllDw-up, internal Loc:al arbitration appeals, and any I\j)peals or uihl!'f proceeding (jncluding court litigatioll) in,>'[}h'ing enforcement of the contract; all aspects of tlle job steward program.. including sreward training supen.-isi01l, activities and meetings: pro~idil\g informatioo to employees through work:.ite meetings., mailers or omcrwise about their rights under the contract, the grie>o,moe arbit.r.· process, and prohlems or qtlC8tiOllS about coutract adrrllnistmtiOlJ issues; han employees' qucstiClns and (:(Jrnplainls on contract rights, grievances lI.Ild other coo admiIristrl1tion is~ues; meetings, phone calls l1!ld oorrespondenre with representatives of the State employer to discuss the interpretation of the rontract generaUy CIT tCl discuss partii.:u1ar grievances or problems under the CClllra<.:t; BUC and othenneetings ocvo!ed to discussion of problems relating to aillnirus!rntioo Clr Implementation of !he contract; and education, research and training related to grievance hlll1Jling and other aspects Clf contract administration.
120 Di:>ciplilUiry Mal/~
Representation (If employees in disciplinary matters arising in the wurse of !heir employmenL
11]/14(J CarrtractiJlg OutiComracting Our Litigation
Action by LDcal representatives 10 prevent the State of California from eliminating or reducing stale jobs in Lucal-represented unil5 by entering into C()1Jlracts with private employers for ser.~ceS a'>'~llable through state g(}Yemmcllt employees.
122/123 SPB.- Other Matters, Complaillts and Appeals
Representation of employ= before the State PersClnnel Board 0lJ such matter"cx.amimltion appeals., cl.assificatioo dispmes, appeals regardirlg YClided appClin1meIlt9,.
otb~ merit-reilited appca~s.
1141125 PERB: [''nfai~ Laoor PractkR.s
The pur=it and defense of unfuir laWr practice charges before the Public Employment Relations Boord (PIRB) that'arise ITClm alleged violation of ruch =tt= as defincd in s1atute.
1261127 PERB: Other Matters
Representation before PERB on such matt= as petitiOQ~ regarding the oompositiCln of lIJlIU;, unit moo.ification or severnnc~ propDsals, electiClll dl.alletJges and injunctive relief.
8

Umon ofCalifornia Slate 'Workers S.E.I.U. Locall000

.

N (l(es til Statement IIf Operating E~penllE~ by Ac1h'ily a.nd th~

ADoeatiou of E":tpeoses betweeJl Cbargeabh; Non-Cba.rgnbJ~ 1100 Member-Only Benefits Expens.e

YUT EDded Dl!Celllber 31, 2004

128 PERS Matter.!'
Repres.eotaLiclll before the Public Empl{]yee'l Retirement Syslem Teg8rding health md welfare plans of state eropL{]yee9 and on matter.> reLated tCl the funding of current and future retirement benefi[f,.
1321141 Discrimination MaueYS.-'Discriminalion Lirigation
Representation ofemployees charging work-related discrimina.tirnl.
142 Other Litigation en Beimif of Local-R£presrmWi Employees or the Local JtJrich lllvoboes Wages, HolD'S, Bmrefirs, Working CmuJilwns or 01frey Empl&yee Rights
This activity includes litigation on DlllU.ers ~uch as 1b.e preventioll Clf transfers of funds from Ihe Public Employees Retin:ment System tCl Ihe State of Cahfornia general lJ!lerating aCCClunt, This litigation als.o im'olves represen!arion of ffiJi.iduR[ unit members before rouro; of cillIlJ'l'1ent jurisdiction in defense of their wages, hours and wClrking conditions. in instances where infClITIlal or admillistrati\'e remedies are unavailable or have been exhausted,
143 Fair Sitare Fee Lff/galion and Arbitra/um
Th.is activity includes litigation regarding challenges to the Local's right to collect fees,
and annual arbitrati{llls regllTding the Bmount of the fees th~ Local cbarges w fee PIlYer.s
",000 haye filed objections 10 pa~il1g for any actEvities not germane to collective bargaining.
15() COfljenm:es, Discussio1Ts VI" BackgrowrdRe.adir/g OJncenUllg Wages, Hours, Employee Rights, Re:prestm!a1icna1 Sfdllli. etc,
'Ibis act{vit)' includes all readings. meeti~gs, C<lnferences, or othe.. activities not ro.'eroo by anolher acti.·1ty whicb provide b.ackgrotmd information or education as IlJIPOsed tu reseaITh on Ilr development of specific pmp09aJs related til WBge:5. htxIr.s, benefits, working conditions, employee riglm., indwlry deve!opmeIJb; in pub~ic sector employment or IBoor relations. representationaL skills., or other matters pertinent to improving the working li~'es of LocaJ-rqJresented employees. This activity a~so iocludes general professiooal reading by staff, and die purchase and maintenance of publications used in such representation, such as the research and Illw Ijbraries.
11(} Other Acthity (Job Related)
. llis i~ a misceHaneous category that is used only in cbe rare ca.<c ""hen none of the other mor~ descriptive cat~gClrics apply to an activity involving wages, boors. benefit>, working CClDditicms, employee n'gnts OT other matler.s pertinent to imprcp{ing the wortiog Jives of Local-represented employees.

L1nion of California State Wqrkers S.E.I.U. Local HJOO
~!ltes to Statement Elf Operating EJ.penses by Acthity nd tb~ AIl{lCIl1illn Gf E-":tpenses between Chargellhlc., ~on-Cbargeable itnd MembeJ'-OnJ~' Benefit!! E1]I~lIse
Year Ended December 31, 2004

240 lmroduced. SnppoI1ed aruJ Opposed LegislaJion

Research. analysis, writing., meetings. t"estimouy Dr other legislative advocacy regarding legislation introduce(l. supported or opptJ3Cd by the lA:lcal which relates til the "'lages, h(ltlr~. benefits, w()rking ~onditi.,ms, bru-gaining rights Dr utber empL{lyee rights of aU Ilr S{)me groups of L{]cal-reprcsellted emp!oyccs, Ex8mplcs include iegisiation ClD contracting out, ~tatutor)' rights of I.o~~I-repre;;e[l Led employ<xs. empLl»'ee heallh and safe4y ma11=, and revi·siolTh tQ the bargaining process under HEERA

Re~earch analysi~ reA 242 8ndge/ary LegL</~tio6 . ",riting. meetiJJgs, testimony or Clther legislative ad,'ocacy budgetOO), legislation. OLber ~egisla.iye el,-peooiturt':S are in a.ctL-'ities 240, 243 ~nd 244.

25Q GenemJ Council

Every ti,o )'e-an, delegates from !he .I\ssociatiDI1's a.ffiliates (including the L()CJ!Lj, plus ex-officio rlelcgatcs, meet a~ a General CounCil 10 elect stateWIde officers for the next
two years, adopt budgets and eoosider rewlutions regarding the Association's governance, goals, objectivcs and procedur~s.

251 Boai'd (Jl'ld Office~ Meetings and Acti~i(ie5

All aspects Clf PfCparation for, participation in and foLLow-u[I to Association Board of DirectClTS and officer eLectiCtTlS, meetings and (lther aciivities no. <'"Onoerned ""jib a singLe subject matteT ro.·ered by ano~her acti"i1)·.

252 C01p{)r~te (1)1d BUe Meerings ~nd Aail-fries

All aspa:t:s ()fpreparati()n for. participation in and follow~up to C.orporate and Bara-.,aining

Unit Council elections, meetings a~d (ltter activitles nDt ooncemed with a s.i ngLe subject

matter oo.·ered, hy another act]vtty. 253 Commiflee Meetitlgs . General Subject M.a/ter

e

All aspects of preparatio~ fOT, participatioo in llnd follow-up 10 meetings of standing or ad hoc cumrnittees oithe Board ClfDirectors Dr Dfthe Ll)CIlL that im'Cllve a general ~ubject matter not covered by another aCEi'il!y and lire enllcerned wllh wages.., hours, benefits, working oonditinllS oc othe; employee rights of Local-represented employees,

155 In1emal Dispures and Etectjon Pro/ens

Re~lution of internal disputes, griev8Ili:eS and eLectiCln prol.e~ts. lnduillng cost~ of the n~aring Officers Panel,

9

~ ~ -- ......... . :~..::..-~~-.::.:-~.~--;.;.-:.:::~.::::--:.:::.-:!.:-::.:-:..:-;;;: .;.;.-:..:.~~ .:.;".---.,;...-....;.....;;;.--:...;;; ...... ~ ...... _.'-'- -"-

.. ,;.; :..:=.:....;.;.:;:.;. ....;.:-..;.; ...;..; ;:;;,.. .:.;., ,;,:.- ... ..;; :;,;,:~~.""'-~ ....

10

Union of California State Workers S.E.I.U. I~ocallOOO
Not~s tl) Stateme1lt Df Operating Ellpenses by AdMty lind the AlliIclltion (If 'E:xpegses bem"eeD Cbargeable, Non-Chargeable and Member-Onl}· Benefits E-:l:pemc
Year El!.deti December 31. 2004
258 Other Meetings or Aetr.'Wes Regarding £ocal GOl'enJance
Meetings or aclivitks related to Local governance that are III)t co\~red by other activities.. This indudes preparntion for and participation in the follow-up to meetings of oummittees such as Bylaws, Policies and Prooedures, and OperatimLS; legal advice or oilier work reguding tile Local's WlpOIllIe statU.'l, bylaws and other go,"efllilJlce matte·rs; and meclings of Local-represented employees ~"'ith Local board members. office[:<; or other Loc~1 offteials thllt lire not on a specific subject wverl:ld by ~nQlher activity.
262 Fair Shore Fee Adminjstmtivn
b, Non-Chargea.ble Expenses
129 Srate Licensing Boord ,\Jatters
130 Boord ojCrmuool Matters
131 UnemplO}'m<'nt insuronce!Workers Compensatirm
J 34/135/136 Oilier Fedem' or SwteAgency or Board Mailers Ad"'ice, consultation and inquiry of agencies on employrnent-IdMed mll!t.e~ not coverl:ld in other activities.
144 Olher Litigation Which Does l,,·ot Im'Oh.-e the Wages, Horus, Benefits, Worhng CanOittons or Other Emp/Q)'ee Rights ofwcaJ-RqJresented Emplayees
Litigation not ~hargeable to fee p~~'ers,
170 Organi;ing New Units
/8Q Membership Recroirmem
All acti...ities to obtain new mernb~rs in bargaining unilli or di,'isiollS that are cllrrentlj' represented by Ihe Local, m.cluding the <:<)5t (If meetings held principally for that purpose as well 8Ji the costs of rccruittoent rooleI'ia I.
190 Political Education
CosIll related to education ofmembers on po1itical JDatter]; not cltargeable to fee payers_
200 Commrmiry Sen-icdOwrittJole Activities
Contriootioos OT acti,'itles {i.e., benefit evenls or Local..g~iJ,:Sored ',lllunteer octiv~ty} on btilialf of conummity or clJaritabie wgaillzations.

Union of California State Workers . S.E.LU. Local 1000
~otes to Stalem~nt ilf Op~rnting t<:xp~nse:!i by Acti~'ity lind the Alloeation ofE1.penses betw~n Chllrgeable, ~(ln-Ch:lTge8blf :md Member-Only Benefit~ E:xpen:se
Year Ended December 31, 10114
211 GUrer Activity (Non-Job Relafed)
This is a miscellaneous category uscd only when !lOlle of the other more rlescripti.'e categ{lries apply tll an activi~' whicb affecEs the li.·es (If Local-represellted employees more as general citizens tban as employees, bxause it did !lot in.'olve tlIeir wages. hours, benefits, .....orking conditiom, emplo)'ee rights Of other matters pertinent !O improving
to_ their work li,,·e~. Examples c>f these a-ctivities are partj~jpation in .strike activity by other
ullioll8 Dot directly inVO!>'ing Local-represented employees, and participati(}]) as a Llcal represe.ntative iTl meetings or conferences ()f organizations l;,a~1llg no relaliooship w~ges, hours, benefits., working couditi()llS, de.'elopment in public sector employmer,W labor rclatioru;, representati{lnal ski! Is Qr otber matters ~rtinent t{l Ihe wori;:ing li...es of Local-represented employee];,
220-226,245-148 Poritim[ ActiYit)' and the CSEA-M1C A Clh'itres
Tbi8 CategOI~" Qf expendinm:: reflects the Local's pamclpatilln in political actlvLty, induding m:magement afthe Pohtica1 Action fund, a sep~r.ite fund not included in the general fund acwunt. This Fund is fmanced by a p<lrtlon of dues :md fees set by I:b.e
LCJoca.J:s Boom of Directors, Members and fee payers ""hQ infomt the local in wTiting tb.al they do not wish to milke such contributions to the Fund arc not required to 00 so.
Uses of tbis Fund include cunb'ibutions to se~ected political candklates f(lr California
state office and to su~port or oP01se bal!ot me<l:illreS and jnitiatives, Orner politic~1
activity of the wcal incl11J:ks the. cuordination of vo lunteer "'ork on bellalf of any pIlJiticaL organization or carufidate ti;)r pol~ticul office as ""'ell as res.earch. allalysis, ",'Tiring, rnecling5., financial c{)ntributiuDs and ather advocacy regarding ballot inihatives St!pp{lrted or opposed by the Local.
Sit1ce fee payers wbo ohject to a pmtioH of their feo:s being u=J for the Political Action Fund would have bad !heir fees rcdu.ced b)' that arnQunt, the amrnJnt collected and tra.nsferroo to the Fund (S652, 123) is nut includ-OO in the percentage calclllat"ions in tlIis
report, 'The remainder (t l.L 39,841}., which reflects poJ]itical expenditures apart t:rom,A,
amount tran~ferred to the Political Actic-D Fund, is exclL<dcd from the fees of obj~ fee payers and is included in the percentage calculations in !.his report,
234 Oth2r Publications {Nof1-Job Relatedj
243 Screening and Watching Legislation
Initial screening and analysi~ of legislation ttl determine wllether the Local will lake a position 011 it, and contLnu~d IDonitQrillg of legislation nil which the Local bas takrn a "watch" POSitLOIL

11

12

Unio 0 of California State Workers S.E.I.C. Loc.allOOO
Notes to Statement of Operating E:¥.penses by Aclh'ity and tbe AlI00eation ofE-:tpeuses between Chargeable, NOII·Chargeabl~ and Mem~T-Only Eendits ExpeIlSt
Year Ended Deeember 31, !!l04
244 LegislaHw: .'lcrhltie.~ NOI Twd to Particular Legislaljon
Legis!ative meetings Gr contacts not CGncerned with particular legislatiou. but undertakeu fm !be pwpose of enhancing the Local's general effl!\-"ti,'enes5 in !be L~gislature_ Any meetings im'vh'iJJg poittlcal action activi!les or !!UppOrl of panicular legLslarors are illcluded in acti"'itie5 nfl-220 JI.Ild 245-24S. 270 Memher Demfr Bem~fi[S
Ai! costs of providing, prom(lting and administering lhe Local's member death benefilS program.
2711282 Member-Only Insurance B<,-,wfiiS
TIle Local provides numerous (lpportumtles fClr members to partJclpate in insunmre programs. The GUSL of plan adminLs(f&tion .~ reimbursed by jrlSli.ITIl11ce came:rs.
c. Partially Ch&geable/N(lll-Chargeabk (AlJoL:ation methodology NClte 3a1
23() Bargai"ing t/,dt Publicati(>ns
nJ News/irte, 1£Qr:k-'~hip Lette~s and Orh~r C-ommllp?U]wi.<
This acti"ity wcllldcs all costs assocllited with leadership ietters and lII1y other repm1S Clr
ClJmrnuntque~ of a gencraL nature concerning a vmety Dr subject maUers which are
directed at Lot.:al-rcpreser:ted emf>lor~ Dr leadership. 232/236 Public and Medfa Re,'atJ'o"s, Jl.'ebsite This activity includes all wsts "f the L('~.a.rs media r",l.ati= and f"Ubllc n:larioTIs activities (induding ~uch matteD' as the (Iistribution Clf lea[let5, website. maintenance, demonstrations, speeches, advertisernenlS and press releases directed toward mem~ of £he generaL public) (In matt= not devoted to comract propl>Sal~ negotiatlons, ratifieatiCln, or CSEA-IvL.6,C or oLher political adi,·jlics.
23J Olha Pu&!icafio"s (Job Relater})
This actlv It)'" incJudes the produCLi(lJ] Df publicati(lllS (i.e., repom. brochures or handoooks - .....he1her em a ~ingJe suhj ecl L}T JJJultiple subj ects.l mat c{]ncem the wages, holJIS., bend!lS, working conditions or other cm~loyee right.~ of Loca!-represent~d empLo)'ee~ hut do not rdate lO a sillgle subject ma!1C, co"ered by CIne of the oilier
actrvitie~.
13

Union of California StateWorken S.E.I.U. Loca~ 1000
Notes til Stlltement Clf OperlltWg £xp~n!\.eS b}' Aetivity IIQd the Allocatiml. of Expenses ~tweEll Chargeable, N"n-Chllrgeable and "1ember-Only Benefits EJpens~
Year Ended ~mbfr 31. 200(

254 DLCiRegjon Meetjngs, AdrniniMm/lOlf Gild Leadaship Trairrjng

me The Local has District Laoor Couru;il~ {DLC.~) througb(lut ~1ate that receive a pmtion

Clfilie Local's dues revenue for funding of slate employee represenlatio" at the local leveL Typical activjtie~ of the DLCs include newsletters to infQffil empLoyees of Local

Gccisions at oommittee and Board meetings, preparation Clf prCIPOOalS for bargaining,

PfqmratiOD for the ratifLcati(ln dcc!~ion, creatkm of job ~tey,.-ard committees ~nd SCK--ial.

gatherings. ThtS activity indudes the cClSt {If all DLe and regiun meetings., Ihe

administration of DLCs {including monthly dues .all{]cations) and the regi(lns., IIml

training ofDLC and regional "mcers. 256/257 SEIU and Other Labor Affiliate .I,.feetings andAClh~lks

e

The Loc~1 participates in meetin~ and activities of its international affiliate, the Servioe Employees International L'niCln (S ElL), 3Jld other regional lab(l! Clfganizatimls affiliated widi the SEill (e.g.• the SEn; State Council), with which the Local is also affiliated.
This acti,,·rty includes the eost of affili.atiCln fees, which are used on a ,'Briery {]f lICt3vities
including rese~rcb and staff 3Ssistiillce to local affiliates such as the bocal an bargaming, oontract enforcement, field representation, organizing, and 1I111{ln governance. 'The SHU aLso use5 these f~ fCIT numerous other activittes and expenditures such as it~ iiffihation fees to the AFL-CIO, pCllitit.:lLl activities, organLzing, publieatio[];5 and adrninL~trati,,·e ex-penses.

260 General Administrali£m

Includes statT meetings, discussion lind starr memoranda of a general nature, including 5taff pcrsormeL m:mers, staff trnining (to fue extent not on a single subject covered by anoth~r ~ivity), and LYPLcal administrative matters such as opening mail
=, J6i AccarmtinglFinanciili MimogemerrJ
Administration of lhe LOC.al'8 financial aff8i~, indudbng budgeting, coot aJJalysj~, planning and C(]ntrol, computer S}"stems development accounLing, payroll, keeping and dan proces~ing.

263 Other AdministrDiive Expenses/Office and Equipment Sen'U:es

Odler admiuiSlJative matters uot c(lveroo in activitics 260-262, including expenses related to the pro,,-i~ion of office space, office supplies, cOl'p(lrare insurance, the switchboa.rd, in~ bouse mail del ive[)' and messengers; lcg~1 representatilln (including litigation) reg~rding the Loc.a1's leases, C(lmracts and oilier obligations wilh respect to tbinl parties; dealLTIgS ....ith the. State Employees Building CurporariOQ; !he purchase, assignment and maintenance ofyebjeles and Cltill:requipmem, and any other office or cquipment matters.

14

Union of California State Workers S.E.J.U. Local 1000
NGUs to Stateme:m.t of Opfn.1Ug E:lIpeoses by Arthit}' and tie AHou.tion nf Expenses between CbargeabJf, NOD-Cliargeabie and Metll.ber-Only BfnffJts El]len~e
Year Ended lk!>cember 31,lfJ04

Note 3 -

Significant Fact~n and A!iIlDmptions Und in the AIIocal:IDn of Dired lind Indirfd Dhisionid Eli~ fgr the Cmnputation {If Cbll.ll:n.ble and Non-Chargeable
Expenditnres:

!L Allocation - Specific Acti,,~ty Caodcs

230, 23J, 132, 233, 136 PubltcatjofU/, Leiten, Communiques, & PubJic RelmiOllS

Bas.ed upon a re~ew of !he content of publicatioi\S produced wilhin tnese I!Icti~ity codes, an allowance of 4(l.13% of the Weal's costs are IKIfHhargeable to reflect the pomllD of the ]1IIblicaooliJ> pertaining to activities that would nN be chargeable to Ilbjectin,g fee payen.

254 DLClRegirm Meeting.~, Adminisrrorirm &: Leadership Training

The fitlanciaJ infonnatiOD of the Loc:al's DlCs bas been audited by an exlemal Certified Publi<:: N:countant. All expendiwres allocated to lbese DLCs have been classified as charge3JJ1e and oon-clmrgeable based [JoI1 these a.u.dits, The expenditures of any DLCs that were not auditoo were dass.ified as non....::b.acge.able to Il~octmg fee payen.

b. Allocation - Specific AcrivEtv COOes

1561257 SEIU and Other Labor Affiliate Meetings ami Acth'itks

A portion of the Local's affiliation expenditures is considered to be non-chargeable to reflect the portions of the SErr; Intermrtional's expenditures an-d expe.ndirures paid to o!her affiliated group:s that may be ~omidered [0 be mro-cbargeable to objecliRg fee payers. Based upon an anal}'sis prepared 0)' the 5EIU and auditm by a Certified PuNic Ac{;OO]]tant, it was Cl)ncluded that 75.390/~ of the SElL' Intematiolll!I'~ ex~tur~s were 1l00t clwgeable to o~ecting f~e payers. The LIlcal bas apf)lied the same 75.39% to its SElU Intematicmlll expenditures.

Union of CaHfornia State "Iorkers S.E,I.U. Local 1000
...ote~ to Statement of Opoerating Expense.: by Acth·ity ami rue A1localion ofE:tpemes between Chargeabl~, l\{}iI.-Ch~rgel!.bJe lind Member-Onl~' Benents EJ[pell§~
Year Ended lJt.o«mber 3}, 2004

Oilier affiliated grctup expenditures are not audited by 8 Certified Public Ik<::~UDtmt and
are lherefore con~jdered non-chargeable to obj ecLing fee pa;.=.

Expenditures
SEW Intemarional Othe~ affiliated groups

T[}taL Expenses
$ 14,256,42U 2,196,837

Chargeable
Ex~ses
S 3,5(18,505

l\c<nChargeabLe
Exp=e~
$ 1O,747,L}[5 2,196,837

~·lember-
Only Benefits
le EXpeilSe5
1;

~ 16,453,257 $ 3,508.505 S 11.944,752 S 10,778

26(), 261., 263 Geneml Adm/nicstmtion, Accmmling aM Admini~·IF"ative Expeme
General admill~stralion, a.:;coul1ting and adminislIati,,·e expemes are primari Ly alLoca!.ed oo..~oo on die ratio of the combined total of dL3.;geab Ie, non-chargeable aml memb~__._..my benefits .expemcs for all other activit}, code~ which reqllire 8dminisITative attentillll.

e

15

16

TOAL &: GRIFFITH, LLC
CERTIfiED I'UBUC ACCOUNTANTS
200 HARRY S. TRUMA."l PARKWA.Y, STE. UO ANNAPOI..ts, MARYLAND II Wi
Voice: (410)224-0343, i'~miJo: {4i~1 Zl4-(l04l

looependem AUilitor' 5 RmII'I

'The Executiv-e Board <Jr"1he Sen'ic;J: Employ=! Intematklnal Union, A.fL..CIO, CLC.

We nave audiled the IICWtIlp;mying coos(llidaled statement <Jf expenses and allocation betwem chargeable expenses and oon-<:hargeable expenses al!emali~e basis <Jf allocation of !he Servioe Employees IM:rnatlonal Union, AFL-CIO, CLC - United States DivisiooJ (!he International Ull~) for the year ended Deo:rober 31, 2003.
This oonsCllidaied staIim:Icnl is !he teSpo!ISibility mtbe hrt1mlllti.ODJLl Union's lI\IIJIagemam.. 0111" respoosa"billl)' is w
exp= an opiniOll on dris c.ot15.Qlidated statement based on our audiL We did not BUditthe total expenses re/krted in Co~umn A Df the eoosolida.Lcd f!lllll'o<:ial statements. Total e"XP=5e5 were audited b)' DlbBfauditors whose report bas bem funili;hed In 1l5, and our Clpinioo, insofar lIS it relat~ to the amounts in Column A, is based S(llel)l 00 th~
~poIt ofthe otherauditon..

We tooducred (f\If audit in accordance with auditinB standards genenlly ilCcepted ill the Unite-d S1ates{lfi\merica 'Those Slamiard.9 requin: !hat we plan and perform !he IlUdil to OOCarn reasonable I15Sunnoe about wbe1her the consoHdated statements are free (Ifmme.rial misstaleml!!nt. An audit includes IlXlIIDining, OR 11 te$! basis, evi~ce S'I.Ip~Lng Ihe arno~nIS and disclosures in tID: SlaternenL An anditalS{) includes assessing !he ao:;oounOng principles lJ5ecl and significant =stiOlIHe5 made by !tie !nlXlmaAional Voio·n's marmgcment, as well lIS CVlIluating tlle overall p~seruatioil ofthe eonsolidated slatement. We belie'o'e that crur audit provides a reasonable basis for OW opiruClTl,

The t<J1a1 e~pcnscs refl~ctW in Column A of the: consolidate-d staJetn.em :agree to th~ ~ in th~ lWdited cotlSOlidated financial st!Iemen.l ofthe lntematio~al Ullioo fur the year ended Deo!mber 31,2003 . as modified to rtIffiOye from expenses !fie per capna lax rebates paid ICI local M[ons (In; 10,204,666, palitical ~= paid from vo!urJl:llIy contributions of :$2,349",224 aJ1d ~ assIlCiated WLtlI !he Eastern and Wc.st.ern Conferences arnrnmilng to .$J26,l!75, which were paid from:funtls transferred upoo !he dissolu!ion of the Eastern Conference affili~tC. The allocation (If ~pcr1S'e:5 between chargeable (Co'umn B) and t\Qn<ha.rgeabie (C(llmnn C) ~ based on the ciefli"lni{)[" and signifLcant fa.c:1O!5 and Il5Swnptlons desJ::ribcd in N(ltes 2 and 3,

In oW" opinion, the COI1S(llidat.ed statem.e~t rel\:rred to above present fairly, in all material respccIS, !he t<JfIS{)!id;tt~
e:q:oenses of tb~ Service Empwyees Il1tmllltiooal. Union, AFL-CIO, ac - Uni!ed Slates Divisioo ftIf the year
end~ December J1, 2003. modified as discussed ill the pn:ceding. paragraph·and lhe allt'oC3.led ~onsolJdaled
expenses between chargeable lIJJd ~ble experues, on 1.be basis {lfthe deflllitions and ~ignificant f9cton
and assumptions described in Notes 2 and J.

Thi$l"e"p<Jrt i:; intended solely foc the i.nfonnatio~ and usc Dfrn~ Sen'ice Employees [nlel"t1ational Unioo, AFL-CIO, CLC and its agency fee payers aoo is OOl tntcnrll:>d \0 be and should not"l:e used by aayooe o4Iter IItan those spedfied parties.

t : J Qo:tober

29,

~
20001

~ /fl~~;

~r-

17
r~'~~C""

SERVice EMPLOYEES INTEAW.TlONALIJNlON, AFL-ClO, ~C Ut-llTED STATES DMS!Ott
CONSOLlOATEO STATEMENT OF EXPENSC AND AllOCATION BETWEEN CHARGEAl3LE
EXPENSES AND NON-CHA.RGEABLE EXPEloJ SES AtTERNATIVE BASIS OF ALLOCATION
'r'eA.R END"EO OEC<:MBER 3t. 2003

Cd<Jmn A To1o1
Ex/>e<I...",

GENERAl FUND PeHoOn..e1 CO$l$
OrJP8l1Jzlng ClrgMi2ing .",~gn !IIJIlPQrt ?o1iOC,.., _0f"00leJlI, and <;arm..-.ily 1..Qon comllWnlcl!lllor1s Ll!adef SIJ1lPCfl Admlnislr81ive and IinllAClal I.el\Ilces Prof9ssiana1 Jees ..,d e:q>el1.SO<S Admillislretv~ ""P"n..,s COI1t11blltlOOS Pa)m'!fll$ ID 10t::tIIlI SutJsO:lI"",
Par capilB 1m noba1es Rolmbulsemorns
p...,et sulltlidle.
Co~ces ""d mea~ Com",,",nio2l1ia\.s O<1d media 5peocillll projecls AIfltoaIIcn fe~ M1d _ssmerrls Dqa, ~r~JuJUe.
Bulhlin\l._"" Member lo1epll00e c.aJ1. and vlslbMy
StOIa. CoIJJidI ,..,lIJrn
T~" General Fund

5 25,070,.290 10,97ll,aSS '2,45:l,7e~ 5,CIW,529 6,714.E124 4,457,i7IJ M69,!l44
9.634.~64
2.' 11,1112
6,S13,B12 10,21)1.666
se5,172 1,493,105 3,BB4,!1919
eB7,241 (5,t8:5}
1~004,911
12.2,633 3,193,105
799,688 7TE1.114
H4,487,OOO

STRIKE AND DEFENSE FUHOS POLmCAL EDUCATIOl<I ANO ACTION FUNDS CCIW.oiTTEE ON P"OUTlCAL EO\JCATIOO UNITY FUND COHVENT1ON fUND LEGAL DEFeNSE FUND CONFERENCE FUND EXPENSES

6.4'35.572 7,794,055 2,349,224 4].,.400,141
t55,4611 29,945 m,B75

Total e"P"ns.e~ befo~ mO~n

~74,g7U78

LESS
POI' c","!~ 1m: rebolle pa.,.mento tc locals
PoIii:;.o: "'1'~n...~ paid &om oroluro1l!ly o::ooItj;]uDons Cmlfe.....,.. "F~d eopenses

(1C1,204,l;I;f;) {2."J49,2:24)
Q2II,B7~

Tolal ~pel>SeS, .... modll'iod

S 162,0111,.611

.!2!l'

Colwoo B
Ctlllf\leabls ~

CaIuno"l C N""-Ch"'"DH~
E:.penS8s

t
B,6Ja,t46
2.476,316
~.954,967
30351,7Bo1l 4,a19,767 1,6lIEI,e5e
tll,.204,Ei6(; 9B5,m 649,751 424,948 (5,1B5)
1,420,92'0
7]6,1'4 43,5I»,S«I
6,4J.5.,S72
155A608 J2G~75 5D,424.1!6J

$ 25,0711,290 2,132.720
2,4S3,7e~
2.,ij06,213 759,1157
1,106,1a2 3,B49,277 8,025.206 2,111.1a2
1l,61:J,IH2
1,411J,ICS J.a14,947
442.z.g3
11l,004,9t 1 122,J>JJ
2,372,245 799.B&!1
71l.!l8O,142
7,7'94,055 2,3490224 4:3,400,147
2'if,945
124,~3,513

(1 0,204,S66} 92s.e7~
S 39.3W..322
li!!%

{2,34'i1,224} S 1:ZZ,2'34~
IU..B%

Wol""
3~ ~a
laeJa
J..a
3. 3b Jc 3d
3~ 3~ J~
lr 3g lt1 JI 3J Jk 31 3m 3n
30 3p Jp
~q
3te~r
3.

18

SERVICE EMPLOYEES INTERNAnONAL UNlON, AfL.CIO, CLC UNITED STATES DMSION
NQTE.S TO CONSOLIDA TEO STATEMENT OF EXPENSES AND ALlOCAnON BETWEEN CHARGEABLE EXPENSES AND NON-CHARGEABLE EXPENSES • ALlERNAl1VE BASIS OF ALLOCATION DECEMBER 3\,2003

NOTE I - SUMMARY OF SIGNIFiCANT ACCOUNTmQ: POUCIES

Method ofAecmmting - The fLI1SllCial sl!!.tmtent has hem ptq:IaTCd on !he accrual basts of~ in aocoxrlance wilh genem!Ey ac:oepted ac.rounIi'::'!l principles.

Basis OfPresentatiOll • The a<XOOIpanying C()nrolidated stmement ofexpens~s and mllocation between dtsrgeablc cxpemc:s and llOIKhargcable expenses was ~d fortbe pLlI)K.'l5e ofdele!miningthe fair shan: cost of~ices m1dued by the Serncc Employees lnIemaIiooal Union, ALF-CIO - United StaIm Diviskm {the Internalional Union) for cmployE:eS rqm:scntcd Dy, but not members of.1helntemaJional
Union and its affilillted Io<:aI unions. This statement is no( illtended til be 3 omnplcte pr=nIati.ol1 oflhe Jntemlltional Union's frn.ancial positio n, or changes in its net IISSdS Imd its cash flows in lKrol"daru::e with gmeraUy ac~ed 3.CIXlll!lUng principles. Under 1lle altema.live; basi$ ilf allocatioo, whictl bas been required by certain jurisdictiom, OlglIllWng expcn= II!'e to be Q;)nsldered to be oon-dwge:able.

FinarJcial Statement Presentation and Principles DfConsDlidation - The International Union records il:! transactiom in varioll!l funds. each a S£lf-baI:mcing group of lIICDOunb. Ead1 fund reflect!l only tbDoSl: transactions IIppIic:a.ble to its designated functional area. The followmg fund de:signations ~ ~blisbcd tJ.y Ihc Inlcmational Unioo's COOSIltution or determined by management:

GdJeral fund - Recon:!:s all activity ~m a.coounted for in the other funds and inciu.c!m ilie general
operations of the International Union • U.S. Division and ~ operations of 13 13 L Street, N. W~ me.
(1313 L Sired}, a nDt-for-prolit OD[]XlflitiOn formed 10 bot. Il title holding ~orpmtioo for the
1n!ernaIio.nal Union's beadqullItm; building. The GoocnIJ Fund iru::!udcs!he consolidate;! accoont.s of lJ lJ L Street.. An significant i.ntertOO1p~y account balances have been eliminated in collSQliIlatLon.

8m"ke and Defense Funds - Establisbed to financially wist kJal Ullioos and members i.n~olved in strins. In ac~tmbnc.e wilh thc lntcinaIiooa.! Ullion's ODarutufion, local ElIlions may withdra.... lheirper
capila paymcnlS frnm!hl!. SIrikc: and Defense Local Fund IIfI:cr one year oflllBking perQlpita payments.

PoHtical Education and Action Funds (PEA)· Reootds all activities for polLtical eduo.:a6oa and political

aCtion d1sb~ed from pcr capila 1lIx a1100ations.

.

Commi~ i:m Political Education - RCC()]"(\$ all acti~ for political conlribuJioos d1sb~~ from net ISseb: recel¥e!l witll ilooor Lmposed restriWons.

unity FIInd • The Unity Fund is Ii segregated fund f~~ from local U1'1ioo per capita paymlmts tllIII. is used 10 till3Jlce Ah-eakthrougb@ campaigns. OI:lil«linated bargaining. and adler activiti~ designed to increase density in seru'~ (ore industries. The UnIty FWlli is di'o'icled arnoog !he Building Smk.c:.
Heillth Care, and Public Senoices Dlvis[ons; and .8. dis=tLoruIJY fund.

19

..
SERVICE EMPLOYEES INTERNATIONAL UNlON, AI'L-C[O, CLC UNITED STATES DIVISION
NOTES TO CONSOUDATID STATEMENT Of EXPENSES AND ALLOCAnON BETWEEN CHARGEABLE EXPENSES AND NON-CHARGEABLE EXPENSES ALTERNATIVE BASIS OF ALLOCAnON
. ])ECEMBER 31, 2003

NOTE I - SUMMARY OF SlGNn1CANT ACCOUNTING POUCIES - CONTINUED

ComoentiM Funi'! - RecCllds at! ItCtivities for !he ooovcnlion of fue 1nternational Union whicll mtrets every four y=n. .

s p 6 Other Funds - Ests.blislu~:d to aooowit for assels whit::h have been intc:m.ally ~gregated for

PUflXlSe:s as determined by !he Executive Boaro.

. ..

Depreciation and Amortizatioo • DeprecLation and amortization of property, equipment, and jtll~vcrnents are oom~ over the estimated lives of !he respective asse1s using 1Ite :straight-line
method.

To: SIlrtUs .1be jnternatiooal Union is exempt from fed era( income taxes, except on net income, ifany, from unrelal~ business activities, Wlder Sectioc 501(~X5) oflhe. Internal Revenue Code. UB L S1reet is exempt from income tax, except on net income, if Im)', from unrclaJed bu:sLnes:s aaivities, under
Section SO 1{c)(2} of Ihc Inkmal Revenue Code.

NOTE 2 • DEFINITIONS
The followiog definillons ilfdmrgeable and IlOn-cha:rgea.bLe ex~= are based on elo:jsting law and Ihe
or JlrtermuLooal Union's int~tion ~Urt cases..
a. Clw'guble Expe= - Chargeable expenses an: those incurred Dr Ihe In~mational Uoion 1hal
reflect !he ~hm: of !he ~osts of opemions of the International Union which are consillereil necessarily IlOd IHsooably ioolIiCd for !he purpose ofassisting local unions and ooWJcils i1l1he perl"orm~ of their duties as a representative oflhe employees ill dealing with !be employer 011 labor management issues. including the cDSt!l of: negQlialillg and administering !he coi~ bargIlll1i~8 conlract; senl ing gril:\'lIJl~e.s I'IIlCl disputes by mutual agreement, or ill arbilnttion"A or oilierwisc; acti'Yities and undertakings nD11IU!lIy IIllrl re:asonably ~rnplGyed to impleme'lWl' dulles oflhc local uruon or Ct:JUnCilas representative ofthe ernplO}"l'CS in !he bargaintng 1IIlit; lind the rnaintenllJlce ofdie IntenWiooal Union's. local UIlocms' &rid councils' exi:!!teru:e.. The following are cumptes of expenditures ctss:sified as cllargeable: preparation for alld DegDliations of ~Ilective bargliLl1ing agreetllerus:; ccmtract adminislmlion including ilwe.stigating and pro::.essing grievances; meetings, conferences, administrative, arti1:!'Bl and court proceedings and pertincnl
Lnvestigation and resean::n in ~on with work-relare:I subjects and issLJeS; handling worl:;-
related prob[ems (If Clnflloyees; aruI providing lega~ ecooomic. :mel tedmLcaI ixpertise OIl behalf ofemployees in alE wo;{c·reialed matt=.

,. 20

SERVICE EMPLOYEES [NTERNAnONAL UNION, AFL-CIO, CLC UNITED STAres DIVISION
NOTES TO CONSOUDA.TED STATEMENT OF EXPENSES AND ALLOCATlON BET\VEEN CHARGEABLE EXPENSES AND NON-CHARGEABLE EXPENSES ~ ALTER."lATIVE BASlS OF ALLOCATION DECEMBER 3l, 2003
NOTE :l - DEFINITIONS - CONTINUED
D. Noo-OJargeab-le Expenses - No[}-Ch~le expense9 an:: !hose exper.ses illC1.lrTed by the mternatiOTllli Unil:m fQr !he benefit aQd IHlvanccmeol of re~ed employees and their UQion whlcll are oot considered represernational a.cffiojt11!S for non-member:;:. Noo-clwg.eabL~ activities indude thO<Se services tlllll are Klroklgical or poLiti~al in nature; 1hose ~hatare exclusi".ely f{)rilie bl::ru:fil offull unioo member:s; and 1hme that ocherwl$e are not considered g=n:ane to the collective
bargaining proce;5S.
Activities thaJ. are dassifLed as noo-dwgeab!e include !he following: organizing; le~i:slatiYe and gov<:mment aclivities outside the lirnitJ::d context ofCODIract ratificatiOJ'l D'I" impLem.entatiClll~ public relBti{)ns and other effortS directed towllI'd:s nmctimw activities 1halll.l'e not coQS'idcred gcnnane 10 represenling non-members ill the collective bargaioing process; ptJ!iti.:al activity expernes whid! inclode support at the Federal, state, CIT local Level; union publications to fue extent they repwt 00 oon-admioistrative or noo-r~r=ntationa[ ilcti".itie:s; donaLions; affiliation fees paid lei a lalxHorganization; IlJld 1he rest of benefits !hat are lXIl.ll".ailabLe [(I rum-members.
NOTE 3 - SIGNIFICANT FACTORS AND ASSUMPTIONS USED IN THE ALLOCAnON OF CONSOLIDATED EXPENSES BEnVEEN CHARGEAB LE. AND NON-CHARGEABLE
a. Pusonnef- Cosls - The IntemationaE Union has assigned all personnel to eiEher program. ~r support, or ooministrailve and financiaL services departm~nlli. Program departments implement !he programs of Ute Intemaliooal U~ion and provide s.ervioe:s to affijiates IIl1d local unioos. Adminisltative and financial ~ervices depa.r1ments include the following depar1m:nts: A=nting, Human Res.ouroes, Ioforrnalion and Techoology, Meetings aDd Conven.IHIn, Member SelYiccs, and fmllllCoe and General Administration. Leader su~ort includes [be Executi'll! Dl:partmenl, \he Executive Boar.:!, and !he Firemen Jmd Oil~rs Th::partroenl PI!J'1IOOIleL costs include s:alari~s ami w~ fringe bocnefilS, payroll llIJces, and reimbursed employee ~xpe=
Personnel casls of!he organizing departments, field OpeIlLtiOllS and =patgIl ~upporI depanrne8ts, politics, government, and oommu~ilY departments, Union oomrnWlkBtKms departments, leader support departmems anrllhe admjnislrative and fmanocial services depmtmerJls have been allocated
bosed on determiRatio51S made by the wrioll5 department heads 3S to the percemage oftime his 0'/"
her deparlment spemjs 00 chargeable and rnm-chllllleabLe activities. The personnel oom ofoff'ta: and cLerical pe['S{)Ollei are al!OC<Ilec between chargeable and non~le in \he same peroen1age as !heir supervisol"l-

SERVICE EMPLOYEES IN1ER.NATIONAL UNION, AFL-CfO, etC

UNITFD STATES DIViSION

NOTES TO CONSOUDATED STATEMENT OF EXPENSES AND

,+

ALLOCA TION BETWEEN CHARGEABLE EXPENSES

AND NON-CHARGEABLE EXPENSES -

ALTERNAl1VE BASIS OF ALlOCATION

DECEMBER J 1,2(0)

NOTE J - SIGNifiCANT FACTORS AND ASSUMmONS USED IN 11iE AliDCAnON OF CONSOUDA.TED EXPENSES BETWEEN CHARGEABLE AND NON-CHARGEABLE CONTINUED
b. . Professional Fees and Expenses - All professiIJrud fees and expenses fur outside LegaL roW1.SCim: oollSidcred 10 be: charge:abbe 01" oon-ehargeable ba5ed on the servK:es perfunnOO. A=untillg a.OO auditing fees and cxpens.o::s are ronsidered 10 be fully chargeable. Other profe:sslonaL fee:s IUlIi expenses are coruidemd to be ch.argellb!e or noo-chargeabte based QJl tire SoeTyke performed by the oonsullant Chargeable actiYiIies indude expense:; for training. speala:n, and =1:3Jdi lI1.iIIteTs.
Professional fees fur ccmsulting services in connectron with organizing campaigns. po.l.'
activities 8lId Eegisillti.ve lIcti".mes are considered to be fully non-clmgeable.
c. Adrninistratiy.e Expenses - Administrntive expenses illClud.e items such as =t allD utiliLics, office supplies and expe=s, inves1ment charges, ~uipmenl rental and main!Em8Ilce, oomplltel"expenses, other taxes, dcpredation and iIlllortization, pnoling, postage, reJephOlle, 9ubscripllGns., mS1Il'1I:m::e, and bad debt expoense. 1bese expenses arc allocated to clJargcabLe III1.d oon-charge:;lble expenses based on the same rat[o as persooneL costs.
o:i ConlributiOfls - CmrtributimlS for charitable, ci".ic. and IBboo--related put'p(l$eS are Dot directLy related to Ihe furu:tion of represenlatioo and are considered t{l be full~ non-ch.argeable.
e. Payments tCl Locals - Payments to locals whiclnepresent ~bsidies for organiziL1g lITe oonsideted 10 be fully nOll·dtargcBble. PByments lO (ocals whkh represent reimbursements for operaIlng expenses De considered to be fuU~ chargeabLe.. The total expoense:s as reponed in !he audited consolidated fLnancial Sla!emenl ha~ been rnOOified to remove from e~penses the pel upita tax rebates paid to Local unio[1S.
f. POlLticB( Subsidies - Pol itical subsidics ~ considered to be fully non-cbargcab~
g. COllfen::~ and Meetings - Expenses for cOflf~rences Imd meetings are BHOC3ted between
) t chargeable expenses and oon-chargeabLe expenses billSed on !he plll'ptlse ofand lDpics disa=d. at
(he meetings... Itml.:S of a p<lEiticat, lo:giS[BHve, OJ' organizing naIUT1:! are consi&m=d 1(1 dwgellb.Je. Ellucational training programs aM ~nferenoes for local, Stale, irnd nationaL which are to enhance sklUa in collectNe bil£gaining. grievance bandliQ& Jmd ~ admini are «JOSidaed to be fully ch.argcable since they pertain to miltters which are gef11IB.IIe to ooHective bargaining. E.xecutiYe Boord rneeL~ngs and meettngs wruch pertain 10 Ihe gQV1:mance of !he International Union such as foImulaling and oommunica1ing wUon internal policy m:c comidered to be fully clJargeable.,

21

22

L--~---~--

SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CiO, CLC UNITED SlATES DIV[SION
NOTES TO CONSOLIDATED STATEMENT OF EXPINSES AND ALlOCAnON BETWEEN CHARGEABLE EXPENSES AND NON-CHARGEABLE EXPENSES ALlERNATIVE BASIS OF ALLOCAnON DECEMBER] i, 2003
NOTE 3 • SIGNmCANT FACTORS AND ASSUMPTIONS USED IN THE ALLOCATION OF CONSOUDATED EXPENSES BETWEEN CHARGEABLE AND NON--CHARGEABLE: • CONTINUED
11. Communications and Media - Direct printing and publishil'lg expenses of the publkalkms aR;
me allocated based on !he specifLC content Of articles in ~ublH:a!rnns such as the interrwio~al
UrnOll'~ magazine, SEIU ActjOlJ. wbicl1 is dism'buled tOe all members and agt:[lC)' fee payers andlbe
newsleber, Bold Action Fax.. Expenses allocable to articles colISidered to re political or ideological
in nature are coosidemd oon-clJar;geable. Ex!K== allocable In repornng {]n legislalive lIJ1d lobbying acti",ilies, liligation actWltie:s, jllegal strike: activities. organizing and articles relalin~ to enbllDcerncnl of the reputaboo of the International Ullion as a v.bole are cOI\:SLdered to be nOll· dw'gcable. ~ olmtent ofarticles deemed chargeable are directly related to issues 00 collective bargaining and coDtn.c.t arlmini:stratioo. These IITlicles include topics wch as rolleclive bargalnlog con!ract5 negotiated by 10cah dtroughout Ih:: coontJy. The expenses relaling 10 !he mainlmancc: of the International Unions webs.ite have been allocated bllSed 00 an DSSeSSIm:nt of tbe wntent included OD the website Ihmughout!he year.
i. Special Projects· Spet.ial projects are considered to be chargeable 01' mm.·chargeable ~ed QIl an anarysi! of!he nature ofilie special project O:lTlduclJ:d.
j. AflHiation Fees and Assessmenl5 - Pu capita laXes ~nd assessments paid ttl me AFlrCIO and
affiliated I3hoT ~za!ioos are oonsidered to be ro![y noo-clIargeable.
k. Dead\ GratUities - Death gratuities are beoeilis paid 10 a deceased member's family and ~ ronsi1lered to be fully oon-c:hargcablc.
t. Bilildrng fupenses - This CBregoTJ" repre;:.ents expenses incurred by IJ I] L Street for !he opemIkln and marntenance of !he Jru:emationat Union's headquarter.; building, sllcll as utilities, real emne taxes, insurm::e, repairs and maintenanc~ al)d mher related eJqlCilSCS. 'These expenses are allocated to chargeable and llon-<:::lJargQble expenses based Dn the same ratio as pe150ruJel costs.
Cans In. MemtJ,:,- Telephooe and Visibijily' The$e expenses are toJrosidered to be fully oon-cl1arge:!bre.
IL Regional Co~feTenoes and Joint Cwncil Meetings • The Intemaliooal UllioQ returns a portioo ofper capita !aXeS received from tlte tocal unions to !he International Untoo's co-uncHs for regional cooferences ~n-d joint council rm:e!ings. These governance meetings are ronsid.ere.d to be fully chargl:abk
0. S!rru: lI11.d Defense FWld.$· Expenses oflhe Sln1;e :md defense fuods iroclude tioancial assistance to local unions involved in legitimate s1rike.s in addition to providiQg financial iSsisraoce for educati.onal programs ineludmg newspaper advertisements, leafle1s, himdbills, and o1het media· based m.es:sages ronceming contract ratification. E~penses also inclUde local union wi1hdrn.waI.s of IheiJ" pet' capffit lax pil}'=nls. All expenses {]f tbe strike and defense funds are cmllSidernd to b:: fully ch3l'geable.
23

SERVICE EMPLOYEES INTERNATIONAL UNION, AH.-CIO, etC UNITED STA'ffiS DlVIS10N
NOTES TO CONSOlID......TED STATEMENT OF EXPENSE.S AND ALlOCAnON BETWEEN CHARGEABLE EXPENSES AND NON..cHARGEABLE EXPENSES ALTERNATIVE BASIS OF AU,QCAliON
DECEMBER 3 t, 2i)03
NOTE 3· SIGNIFICANT FACTORS AND ASSUMPTIONS USED IN TIlE ALlOCATION OF CONSOUDATED EXPENSES BETWEEN CHARGEABLE AND NON-CHARGEABLE CONTINUED p: Political &lucatioo and AcOOIl Funds - Ex~nses LncUl't'ed by !he CoIJll'!rittee on Potitic:aJ EdUt:afioit' and the f'Qlttirnl EdUC3lion IlJXI Action FI.IIIds refate entirely to political and legislative activities are C(]nsidere:l to be fully noo-chargeable. The toIaI e1ql'i!RSeS a£ reported in !he audil consolidaled financ(al stalement have .been modlfLell to n:mm-e from expcRSe:5 !he: ptJlitii:3.l expenses paid from vo]untar:y coo1n1>utiQruI. q. Unity Fund • Ex~RSeS of !he UI1[ty Fund iodude fmandlll assistance to local unLOns [m.o{]1ved tn Abreakthrough ~ campaigns to incre3Se union membcr'srup. These ~cs are {]['glInizing in function and IIf1l cOIl.!Iidered to be fuHy nOiKhargeable. r. COllventian Fund· ExPI;;lls.eS for !he lnternaJjooat Un~n'~ convention are OIltlSidered ro be fIIlly chargeable.
m.: s.. Legal Defense f~nd • Expenses incurred by LegaLDefense Fund arc coosldcred 1.0 b:: fully oon·
chargeable. t Eastern Conference Fund . ~es incurred within Ihi:!: fund are paid from funds transferred
upoo the Ilissohllioo of the E.as'b::m Conference and are accordingly terntJved frooJ the lela! e1ql'i!lI:Ses.
e
24

, ~~U LOCAL 1000 080 Street
SacramentoI CA 95814
M~EpMpBUECR~S',n"UOPM
EMc\.OSEO

T"'H''O.HM."A,S*~HJAU:AO;~5-DIGIT 95828

8S2A1C6RDAAMNEBNUTRY PAR9K58C2T

11,111.1.111111

141

,olleA11 I II U

I11111

I8I-,,61,1,161121111111111

II

I

I[

I

I

I

PRESORTED FuISRSPTOcSLTAAGSEs MPAAIDll
SACRAMENTO CA
PERMIT NO. 499

·LOCAL roOD, CSEA
>
SEIU
Stronger Together
JIM HARD
Pr~.lident
(PiTHY HACKETT
'yjce President
ana S~(/eta'Y-Treasurer
Nlf\RC BAUTISTA
\!lee Presidmt 1i)1 Orgctnillng/RepresentatJOn
RON LANOINGH.Nv1
Vice President for Bargaining
SERVICE EMPLOYEES INTERNfl.TIONAL UNION
(SEA I 108 0 Street
SC,1u<lmento. CA 95814 (916) 444-8134
(916) 326-4215 Ifaxl
\I\I"\.WV.seiu I 000. org
~

August 31, 2005

Dear LocalIDOO Members and Fair Share Fee Payers,

On Saturday, August 27, Local 1000 delegates voted overwhelmingly for a temporary
dues increase to create a Political Fight Back Fund. Over 320 delegates publicly endorsed the establishment of the fund prior to the vote. The fund will pay for advertising; mail; voter registration, voter education, and get out the vote activities to beat the Govemor's anti-public employee agenda.

We will use this fund to defeat Proposition 76 and Proposition 75 on November 8. In June 2006, weflJ have to defeat anuther allack on our pension plan. In November 2006, we need to elect a governor and a legislaLUre who support public employees and the services we provide.

The action by the delegates increases the regular membership dues in an amount equal to .0025 (two and one-half tenths of one percent) of gross wages during the pay periuds between September 1,2005 and December 31,2006. The $45 per month cap on our regular dues of 1% of gross pay will continue in effect, but will not apply to this additional .0025 temporary increase.

The delegates also approved an emergency temporary increase in the dues paid by permanent intermittent empluyees from $8 per month to $15 per month. This increase also will be in effect during the pay periods between September 1,2005 and December
31,2006. Fair Share fees will rise by .002478 of gross monthly salary.

All major public employee unions are taking similar action.

With this temporary dues increase we have the financial resources needed to win this fight for our future. Now each of us must take the next step.

• Make sure your co-workers, families. friends and neighbors are registered and get out to vote.
• Stay informed - go to www.se1uIOOQ.org regularly, read the Union Update every Wednesday, and call the union hotline at 866-356 0160.
• Sign up to volunteer for phone banking, precinct-walking and other activities between now and November 8.
• Apply now for a personal day off on November S, and spend Election Day working on this critical fight.

Working together, we can win l

.-/~4u£

~lM lIARD

--

Presiu~llt

-;;}?fo-~ ~ARC B~UTISTA
Vice Pre~i(!el]l for Organi7.1ng/Representlltiull

RON LANDINGHAM
Vice Prc~jcl~nl for Hargaining

PLAINTIFF'S EXHIBIT
IJ D

. . 18/28/2005 05:35

e 915-2538583

e DEPT OF REHAB

PAGE 01

1

VERIFTCATlON OF COMl"L/I,TNT

2

3

Dianne Kl'lox'\ pursuant to Section 1746 of the Judicial Code, 28 V.S.C. § ] 746, declares as

4 follows:

5

I am named as a Pl.'lintiffin the withi:n suit and am employed by the State of California. I am

6 not a member of Defendant California. State Employees Association1 Local 1000, Service Employees

7 International Union ("CSEA)').

8

1 have read the foregoing Complaint, and state upon my knowledge, inJonnat)on} and belief

9 that the statements and allega.tions contained herein are true and correct.

10

As stated more fully in the Complaint, Defendant Westly has seized increased agency fees from

11 my wages for the benefit of CSEA, and solely for nonchargeable political and ideological purposes,

12 resulting in a forced loan from me that win be spent on the balJot propositions and other political and

13 nonbargaining activities to which I object

14

I declare under pena.lty of perjury that the foregoing is true and correct.

15

Executed on41... October- 2005,

16

17

DIANNE KNOX

18

19

20

21

22

23

24

25

26

27

28

n. '\ i\.INTlHS· Vr.IUJ'I1J:n CLA5S ACTION COMfl.Mi'/T - I(,,,,~ W~.tl,.

I'/l.OE·.I~

VERIFICATION OF COMPLAINT 1

2 Robert A. Conover, pursuant to Section 1746 of the Judicial Code, 28 U.S.C. § 1746~

3 declares as follows:

4
I am Darned as a Plaintiff in the within suit and am employed by the State of California. I

5 am not a member of Defendant California State Employees AssociatiOD~ Local 1000, Service

6 Employees International Union (,'CSEA").

7 J have read the foregoing Complaint, and state upon my knowledge, information, and

8 belief that the statements and allegations contained herein are tme and correct.

9
As stated more fully in the Complaint, I have previously been a member of Defendant

10 CSEA, but resigned from union membenhip shortly after 1 October 2005. I anticipate that

II Defendant Westly will seize increased agency fees from my wages for the benefit of CSEA, and

12
solely for nonchargeable political and ideological purposes, resulting in a forced loan from me

13 that win be spent on the baUot propositions and other political and nonbargaining activities to

14 which I object.

15 I declare under penalty of peljury that the foregoing is true and correct.

16

'21 Executed OD October 2005.

17

18 ROBERT A. CONOVER
19

20

21

12

23

24

25

16

27

28

1

VERIFICATION Oll' COMPLAINT

2

3

Edward L. Dobrowolski, Jr., pursuant to Section 1746 of the Judicial Code, 28 U.S.c. § 1746,

4 declares as follows:

5

I run named as a Plaintiff in the within suit and am employed by the State of California. I am

6 not a member of Defendant California State Employees Association, Local 1000, Service Employees

7 mtemational Union C"CSEA").

8

I have read the foregoing Complaint, and state upon my knowledge, information, and belief

9 that the statements and allegations contained herein are true and corrcct.

10

As stated more fully in the Complaint, Defendant Westly has seized increased agency fees from

11 my wages for the benefit ofCSEA, and solely for nonchargeable political and ideological purposes,

12 resulting in a forced loan from me that will be spent on the ballot propositions and other political and

13 nonbargaining activities to which I object.

14

I declare under penalty of perjury that the foregoing is true and correct.

15

Executed on'2.1 October 2005.

16 17 18

~c--.f~.,Q~
EDwARD L. DoBROWOLSKI, JR.

19

20
21

22

23

24

25

26

27

28

PLA.INTIFFS' VERIFIED CLA.SS ACTTON COM....AlNT - 1("iM' Y. W"$t/y

PA.G~ - 18

-,

-DGS BOPP

916 376 1842 P.02

1

VERIFIC\TXON OF COMPLAINT

2

3

Karyn Gil, pursuant to Section 1746 of the Judicial Code) 28 U.s.c. § 1746j de dares as

4 follows:

5

I am named as a Plaintiff in the within suit and am employed by the State of California- I am

6 not a. member of Defendant California State Employees Association, Local 1000, Setvice Employees

7 International Union (,'CSEA").

8

I have read the foregoing Complaint, and state upon my knowledge. inform~!tion, and belief

9 that the statements and allegations contained herein are true and correct.

10

As stated more fully in the Complaint, Defendant Westly has seized increased agency fees from

11 my wages for the benefit ofCSEA, and solely for nonchargeable political and ideological purpos¢s,
12 resulting in a forced loan from me that will be spent on the ballot propositions and other political and

13 t')onbal"gaining activities to which I object.

14

I declare under penalty of perjury that the foregoing is true and correct.

15

Executed o~October 2005.

16

17

RYN GIL

18

19 20 21

22

23

24

25

26

27

28

TOTAL P.02

_._-_ - - - - - - -

.........- .._... -

1

VERIFICA nON OF COMP.tAINT

2 I

3 i

Patrick JohnsOll.! pursuant to Section 1746 of the judicial. Code} 28 U.S.c. § 1746, declares as

1
4 I follows:

5

I am named as a Plaintiff in the within suit and am employed by the State of California.. .I am

6 ! not a member ofDefendant California State Employees Association, Local 1000, Service Employees

7 i International Union C'CSEA").

I

'.

8 i

'I have read the foregoing Complaint, and st.ate upon my knowl.cdgc, information, and belief

I9 that the statements and aHegatio.ns contained herein arc true and correct.

10

As stated more fully in the Complaint, Defendant Westly has seized increased agency fees from

11 my wages for the benefit ofCSEA., and solely for nonchargeable poJitical and ideological purposes,

12 ! resulting in a f(weed loan from me that will be spent on the ballot propositions tmd other political and

!

13 ,nonbargaining activities to which I object.

1 I
14

I declare under penalty of perjury that the foregoing :is true and correct.

15 I h\1
16 I

Executed ol1?:l~ October 2005,

17

.18

19

20

21

22

23

24

25

26

27

28
, i

(;()M"l.."H~l-· W~st(v !I I'LAINTIHS' VERU'IF:n Cl.,ASS "'CHON

K.nQ:( v.

1

VEKJIIICATJON 0, COMPI.AINT

2

3

R. Paul Ricker, pursuant to Section 1746 of the Judicial Code, 28 U.S.C. § 1746, declares as

4 follows:

5

I am narned as a Plaintiff in the within suit and am employed by the State ofCalifornia. I am

6 not a member of Defendant California State Employees Association, Local 1000, Service Employees

7 International Union (''CSEAj.

8

I have read the foregoing Complaint, and state upon my knowledge, informationj and belief

9 that the statements and aJtegaliOO8 contained herelnatelTUC and correct.

10

As stated more fully in the Complaint~ CSEA has collected full union dues~ including a recent

11 25% increase, from my wages, solely for nonchargeable political and ideological pmposcs, resulting in

12 a forced loan from me that will be spent on the ballot propositions and other political and

13 nonhnrgaining activities to which I object.

14
15

---- 1decJare under penalty of perjury that the foregoing is true and correct.

Executed on,£2& October 2005.

:--.-=-=---=~--.--===-."".'--------~-

16

17

18

19

20

11

22

23

24

25

26

27

28

PAGII -14

 
 1 STEPHEN P. BERZON (SBN 46540) JEFFREY B. DEMAIN (SBN 126715)
2 JONATHAN WEISSGLASS (SBN 185008) PEDER J. THOREEN (SBN 217081)
3 Altshuler, Berzon, Nussbaum, Rubin & Demain
4 177 Post Street, Suite 300 San Francisco, California 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 sberzon@altshulerberzon.com jdemain@altshulerberzon.com
7 jweissglass@altshulerberzon.com pthoreen@altshulerberzon.com
8 Attorneys for Defendant
9 Service Employees International Union, Local 1000
10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE EASTERN DISTRICT OF CALIFORNIA

13

DIANNE KNOX; WILLIAM L. BLAYLOCK; )

14 RODERT A. CONOVER; EDWARD L.

)

DOBROWOLSKI, JR.; KARYN GIL;

)

15 THOMAS JACOB HASS; PATRICK

)

JOHNSON; JON mMPER; AND R. PAUL )

16 RICKER, ON BEHALF OF THEMSELYES )

AND THE CLASS THEY SEEK TO

)

. 17 REPRESENT,

)

)

18

Plaintiffs,

)

)

19

v.

)

)

20 STEVE WESTLY, Controller, State of

)

California; AND CALIFORNIA STATE

)

21 EMPLOYEES ASSOCIATION, LOCAL 1000, )

SERVICE EMPLOYEES INTERNATIONAL )

22 UNION, AFL-CIO-CLC,

)

)

23

Defendants.

)

24 ------------------------------)

No. 2:05-CV-2198 MCE (KJM)
OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Date: November 4, 2005 Time: 10:00 a.m. Ctrm: Courtroom 3, 15th Floor
(Hon. Morrison C. England Jr.)

25

26

27

28

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Knox, et al. v. Westly, et aI., Case No. 2:05-CV-2198 MCE (KIM)

1

TABLE OF CONTENTS

2 INTRODUCTION AND BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1

3 .ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2

4

1.

Plaintiffs Have Failed To Show A Likelihood Of Success On The Merits . . .. 2

5

A. Constitutional And Statutory Background. . . . . . . . . . . . . . . . . . . . . .. 2

6

B. The Union Has Complied With Its Hudson Notice Responsibilities. .. 4

7

C. There Is No Basis On Which To Issue A Mid-Year Hudson No~ice ... 8

8

II. The Balance Of Hardships Weighs Against A Preliminary Injunction. . . . .. 13

9

A. Plaintiffs Have Failed To Show Irreparable Harm ............... 13

10

B. The Balance Of Hardships Tips Sharply In The Union's Favor. . . .. 14

11

III. Any Injunction Should Be Strictly Limited . . . . . . . . . . . . . . . . . . . . . . . . . .. 16

12

A. Any Injunction Should Be Limited To An Escrow Account

And Effective Only Until There Is Notice. . . . . . . . . . . . . . . . . . . . .. 16

13

B. Class-Wide Relief Is Improper Prior To Class Certification. . . . . . .. 17

14

C. Any Class-Wide Relief Should Be Limited

15

To Objecting Nonmembers ................................. 18

16

D. Plaintiffs Should Be Required To Post A Substantial Bond ........ 18

17

E. Any Injunction Should Be Stayed Pending Appeal . . . . . . . . . . . . . .. 18

18 CONCLUSION............................................ . . . . . . . . . . . . . . .. 19

19

20

21

22

23

24

25

26

27

28

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Knox, et at. v. West/y, et at., Case No. 2:05-CV-2198 MCE (KJM)

1

TABLE OF AUTHORITIES

2

·FEDERAL CASES

3 Abood v. Detroit Board ofEducation,

431 U.S. 209 (1977) ............................................. 2,4,8,9,10

4

Andrews v. Education Association ofCheshire,

5

829 F.2d 335 (2d Cir. 1987) ................................................ 7

6 Austin v. Michigan Chamber ofCommerce,

494 U.S. 652 (1990) ..................................................... 15

7

Bresgal v. Brock,

8

843 F.2d 1163 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18

9 California Pro-Life Council, Inc. v. Getman,

328 F.3d 1088 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11

10

Champion v. State ofCalifornia,

11

738 F.2d 1082 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9

12 Chicago Teachers Union, Local No.1 v. Hudson,

475 U.S. 292 (1986) .................................................. passim

13

Easyriders Freedom PI G.H T. v. Hannigan,

14

92 F.3d 1486 (9th Cir. 1996) ............................................... 18

15 Fell v. Independent Association ofContinental Pilots,

26 F. Supp. 2d 1272 (D. Colo. 1998) ......................................... 5

16

Gardner v. State Bar ofNevada,

17

284 F.3d 1040 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12

18 Grunwald v. San Bernardino City Unified School District,

994 F.2d 1370 (9th Cir. 1993) ............................................ 7, 13

19

Harik v. California Teachers Association,

20

326 F.3d 1042 (9th Cir. 2003) ............................................... 7

21 Immigrant Assistance Project v. INS,

306 F.3d 842 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17

22

International Association ofMachinists v. Street,

23

367 U.S. 740 (1961) ................................................. 2,4, 14

24 Jacobsen v. United States Postal Service,

993 F.2d 649 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10

25

Kidwell v. Transportation Communications International Union,

26

946 F.2d 283 (4th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14

27 Laramie v. County ofSanta Clara, 784 F. Supp. 1492 (N.D. Cal. 1992) ........................................ 5,6
28

OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

11

1 Lehnert v. Ferris Faculty Association,

500 U.S. 507 (1991) ............................................... 10, 11, 12

2

Lydo Enterprises, Inc. v. City ofLas Vegas,

3

745 F.2d 1211 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13

4 Mitchell v. Los Angeles Unified Sch. District,

963 F.2d 258 (9th Cir. 1992) ........................................... 2,4, 14

5

National Center for Immigrants Rights, Inc. v. INS,

6

743 F.2d 1365 (9th Cir. 1984) .............................................. 17

7 Overstreet v. United Brotherhood ofCarpenters,

409 F.3d 1199 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15

8

Paige v. California,

9

102 F.3d 1035 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18

10 Prescott v. County ofEl Dorado,

915 F. Supp. 1080 (E.D. Cal. 1996) .......................................... 5

11

Robinson v. Pa. State Corrections Officers Association,

12

363 F. Supp. 2d 751 (M.D. Pa. 2005) ......................................... 5

13 Wagner v. Profl Engineers in Cal. Government,

354 F.3d 1036 (9th Cir. 2004) ................................... 2,3,4, 7, 14, 16

14

Zepeda v. United States I.NS.,

15

753 F.2d 719 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17, 18

16

STATE CASES

17 Lillebo v. Davis, 222 Cal. App. 3d 1421 (1990) ............................................... 9
18 FEDERAL RULES
19 Federal Rule of Civil Procedure 65(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
20 STATE STATUTES
21 Cal. Gov. Code §3513(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
22 Cal. Gov. Code §3515.7(a), (b), (e) .............................................. 3 Cal. Gov. Code §3517 ........................................................ 9
23 Cal.Gov.Code§3517.6 ....................................................... 9 Cal. Gov. Code §3515.8 ..................................................... 3,9
24 MISCELLANEOUS
25 Cal. Public Sector Labor Relations §31.31[I][c] (Kirsten L. Zerger et al. eds., 2005) ..... 5,6
26 Proposition 76, Section 4 (amendment to Article IV, Section 10, of the
27 California Constitution, enacting new Sections 10(g)(2) and (3)) ............ ;........ 11

28

OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

iii

1

INTRODUCTION AND BACKGROUND

2

Plaintiffs include nonmembers of Defendant Service Employees International Union,

3' Local 1000 (the "Union"), who, under a time-tested procedure that has been approved by the

4 Supreme Court and Ninth Circuit for public employees and was enacted by the California

5 Legislature specifically, are entitled to pay a reduced fee below the amount of dues paid by

6 members of the Union, simply by objecting once a year. The nonmembers seek a preliminary

7 injunction upsetting this carefully balanced system, repudiating Supreme Court and Ninth

8 Circuit law, and preventing the Union from collecting a temporary fee increase because

9 nonmembers have not been afforded an unprecedented mid-year notice and a new opportunity

10 to object.

11

Plaintiffs' law firm filed a lawsuit seeking, among other relief, this same remedy against

12 the California Faculty Association in Liegmann v. California Teachers Association, C 05-

13 03828 (JW) (N.D. Cal.). By Order of October 7,2005, the Honorable James Ware rejected the

14 application for a Temporary Restraining Order in that case. That Order and carefully reasoned

15 decision, which is attached to this brief as Exhibit A, rejects the very arguments Plaintiffs make

16 in this case. In particular, with respect to harm to nonmembers of a union who object to a

17 temporary increase in their fees, Judge Ware found that "the First Amendment also applies to

18 unions and non-objecting members and nonmembers" and there was therefore not a sufficient

19 showing on the balance of harms. Liegmann Order at 4. Likewise, with respect to the

20 likelihood of success on the merits, Judge Ware found that a notice "following the increase in

21 fees ... is not constitutionally required." Id. at 5.

22

Having been unsuccessful in one federal court, Plaintiffs' law firm now seeks to obtain

23 a contrary result in a different court. Plaintiffs do not dispute that they received notice of the

24 temporary fee increase two months ago. See Complaint, Exh. D; PIs' Br. at 5:14-15, 6:12-13.

25 Plaintiffs, however, did not serve their injunction papers until approximately 3:40 p.m. on

26 November 2,2005. Declaration of Jeffrey Demain, ~2. This delay alone would be ground for

27 declining to provide relief. The Court held a hearing less than an hour later at which it entered

28 a Temporary Restraining Order and ordered the Union to file opposition papers with respect to

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et aI., Case No. 2:05-CV-2198 MCE (KJM)

1

a preliminary injunction by 2:00 p.m. on November 3, 2005, with a hearing to follow at 10:00

2 a.m. on November 4,2005. This deadline ofless than 24 hours to file the opposition including

3 any declarations - which was entered despite the issuance of a TRO - does not allow the Union

4 adequate time to respond, in particular by gathering declarations with respect to the balance of

5 harms. Nevertheless, the Union demonstrates below that the preliminary injunction should be

6 denied or drastically limited in scope.

7

ARGUMENT

8 I. Plaintiffs Have Failed To Show A Likelihood Of Success On The Merits

9

A. Constitutional And Statutory Background

10

There is no question that unions may constitutionally charge fair share fee payers for

11 their pro rata share of the costs incurred in obtaining the benefits of union representation.

12 Aboodv. Detroit Ed. ofEduc., 431 U.S. 209, 221-23 (1977). Further, unions may

13 constitutionally charge fee payers the full equivalent of union dues, unless a fee payer objects to

14 paying for certain types of expenditures that the law does not permit the union to charge over

15 such an objection (so-called "non-chargeable" expenditures). And both the Supreme Court and

16 the Ninth Circuit have clearly held that objection to paying the equivalent of union dues may

17 not be presumed from the mere fact of the fee payer's non-membership in a union; rather, a fee

18 payer must affirmatively object in order to be entitled to receive a reduction in the fair share fee.

19 See, e.g., Int'l Ass 'n ofMachinists v. Street, 367 U.S. 740, 774 (1961); Wagner v. Profl

20 Engineers in Cal. Gov't, 354 F.3d 1036, 1039 (9th Cir. 2004); Mitchell v. Los Angeles Unified

21 Sch. Dist., 963 F.2d 258, 260-63 (9th Cir. 1992).

22

Because a fee payer has an affirmative duty to object to paying the equivalent of full

23 union dues, the Ninth Circuit has held that even so-called "non-chargeable" expenditures can

24 constitutionally be charged to fee payers who do not object. Wagner, 354 F.3d at 1039. For

25 that reason, the term "non-chargeable" is misleading to the extent that it implies that fee payers

26 cannot be charged for such expenditures - they can, if they do not object. Id. Thus, "non-

27 chargeable" means only that fee payers cannot be charged for such expenditures over their

28 objection. To facilitate fee payers' choice regarding whether to object, public employee unions

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INmNCTION

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

2

1 must provide them with a notice, which classifies the unions' expenditures as chargeable or

2 non-chargeable. Id. That notice has come to be called a Hudson notice after the seminal case

3 of Chicago Teachers Union, Local No.1 v. Hudson, 475 U.S. 292 (1986).

4

That is precisely the scheme that the California Legislature has adopted. Under the

5 Dills Act, the California state employee collective bargaining statute, a union is permitted to

6 charge its fee payers for their pro rata share of union expenditures, but it must provide them

7 with an annual written statement of its expenditures and permit them to object to paying for

8 certain types of expenditures that are unrelated to the union's representational functions. See

9 Cal. Gov. Code §§3513(k), 3515.7(a), (b), (e), 3515.8.

l O I n June 2005, the Union issued its annual Hudson notice, which complied with these

11 constitutional and statutory requirements. See Declaration of Cathy Hackett, Ex. A. The notice

12 informed fee payers that fees may be used for political purposes. See id. It also informed· fee

13 payers of their "right to object to the use of any portion of your fees for what you believe are

14 activities not germane to the collective bargaining functions of SEIU Local 1000, i.e., partisan

15 political or ideological causes only incidentally related to the terms and conditions of

16 employment or the provision of benefits available only to members." Id. The notice also

17 notified fee payers of their right to challenge the Union's calculation of the amount of the fair

18 share fee, and to obtain a reasonably prompt resolution of that challenge from an impartial

19 third-party decisionmaker. Id. The notice further stated that the full fair share fee of all

20 challengers would be placed into an interest-bearing escrow account pending resolution of the

21 challenge. Id. The notice also provides that all fee payers that object to nonchargeable

22 expenditures will be charged "a fee of no more than 56.35% of regular membership dues for

23 that salary level." Id. This is just as true for the temporary fee increase as for regular fees.

24 Declaration of Lee King, ~3. If fee payers do not object, their fee will be no more than 99.1 %

25 of regular membership dues, again for both fees. Id. Moreover, the notice informs fee payers

26 that the dues upon which their fee is calculated "are subject to change without further notice to

27 fee payers." Declaration of Cathy Hackett, Ex. A.

28

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et at., Case No. 2:05-CV-2198 MCE (KJM)

3

1

Thus, fee payers who received this notice in June of this year were aware of, among

2 other things, (l)their right to object, (2) the percentages to be used in calculating their fees,

3 whether they object or not, and (3) that membership dues - and thus their fees - may be

4 increased without further notice. Under settled Supreme Court and Ninth Circuit law, those fee

5 payers who failed to object consented to the use of their fees for non-chargeable political

6 purposes, with full knowledge that the amount of their fee may be increased. See Street, 367

7 U.S. at 774; Wagner, 354 F.3d at 1039; Mitchell, 963 F.2d at 260-63.

8

B. The Union Has Complied With Its Hudson Notice Responsibilities

9

Plaintiffs' request for a preliminary injunction is premised on alleged inadequacies of

10 the Union's procedures for issuing its Hudson notice and affording nonmembers the

11 opportunity to object to non-chargeable expenditures. Specifically, Plaintiffs claim that the

12 Union has violated nonmembers' rights by failing to issue a second Hudson notice prior to the

13 temporary fee increase and allowing agency fee payers to object to the increase prior to its

14 effective date. Instead, the Union adhered to its usual practice, based on Hudson, of calculating

15 the percentage of dues chargeable to fair share fee payers on the basis of the prior year's

16 expenditure and issuing its Hudson notice in June 2005, prior to the fee year that began on July

17 1,2005. Declaration of Cathy Hackett, Ex. A. Under this practice, any increased non-

18 chargeable expenditures reSUlting from the temporary fee increase will be reflected in the

19 calculations of the agency fee amount for the next fee year.

20

This is precisely the procedure contemplated by the Supreme Court in Hudson and it is

21 the procedure public employee unions have followed since that decision in 1986. The Hudson

22 Court recognized the practical realities involved in its efforts to "'devise a way of preventing

23 compulsory subsidization of ideological activity by employees who object thereto without

24 restricting the Union's ability to require every employee to contribute to the cost of collective-

25 bargaining activities. '" Hudson, 475 U.S. at 302 (quoting Abood, 431 U.S. at 237). The Court

26 acknowledged:

27

there are practical reasons why "[a]bsolute precision" in the calculation of the

charge to nonmembers cannot be "expected or required." Thus, for instance, the

28

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et at. v. Westty, et at., Case No. 2:05-CV-2198 MCE (KJM)

4

1

Union cannot be faulted for calculating its fee on the basis ofits expenses

during the preceding year.

2

3 Id. at 307 n.18 (citations omitted; emphasis added). In other words, the Hudson Court

4 expressly approved a procedure that applies to the current year's fee obligation a chargeable

5 percentage derived from the preceding year's ratio of chargeable to nonchargeable

6 expenditures.

7

Since Hudson was decided in 1986, this methodology has been recognized by courts and

8 adhered to by public employee unions. See, e.g., Liegmann Order at 5:16-17 ("The Supreme

9 Court in Hudson expressly found that such a procedure for calculating the reduced fair share fee

lOis permissible for Constitutional purposes."); Robinson v. Pa. State Corr. Officers Ass 'n, 363 F.

11 Supp. 2d 751, 759 (M.D. Pa. 2005) ("[The Hudson notice] should list the prior year's

12 expenditures, reasonably categorized to indicate their use.") (emphasis added); Fell v. Indep.

13 Ass'n ofCont'l Pilots, 26 F. Supp. 2d 1272,1283 (D. Colo. 1998) (noting that use of preceding

14 year's expenditures is part ofHudson's recognition of the "practical side of establishing a

15 constitutionally adequate procedure"); Prescott v. County ofEl Dorado, 915 F. Supp. 1080,

16 1086 n.9 (E.D. Cal. 1996) ("'Thus, for instance, the Union cannot be faulted for calculating its

17 fee on the basis of its expenses during the preceding year."') (quoting Hudson, 475 U.S. at 307

18 n.18); Laramie v. County ofSanta Clara, 784 F. Supp. 1492, 1496 (N.D. Cal. 1992)

19 ("Recognizing the difficulty in requiring exact figures from a union engaging in on-going

20 operations, the [Hudson] Court permitted the union to extrapolate from prior fiscal data as the

21 basis for future charges."); see also Cal. Public Sector Labor Relations §31.31 [1] [c] (Kirsten L.

22 Zerger et al. eds., 2005) ("An agency fee may be calculated based on the prior year's

23 expenditures."). Indeed, Plaintiffs can cite no case from any court holding that it is ever

24 improper (much less, unconstitutional) to calculate the percentage of dues chargeable to fair

25 share fee payers on the basis of the prior year's expenditure. Plaintiffs are thus seeking a

26 dramatic departure from nearly 20 years of case law and established practice.

27

The novel argument Plaintiffs advance here was soundly rejected less than one month

28 ago in Liegmann. The nonmember plaintiffs in Liegmann contested a mid-year fee increase by

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et at. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

5

1 the California Faculty Association, contending that that union "did not provide adequate notice

2 to its nonmembers because the Hudson Notices were issued prior to the fee increase and thus

3 did not mention the increase in fees." Liegmann Order at 5:4-6. Like here, there the

4 "accounting procedure involve[d] calculating the percentage of dues chargeable to fair share fee

5 payers on the basis of the prior year's expenditure data rather than the current year's revenue."

6 Id. at 5: 14-15. Judge Ware correctly recognized that, by asking for additional notice, the

7 plaintiffs sought "a departure from the procedure approved in Hudson." ld. at 6:8 (emphasis

8 added). Judge Ware denied the requested injunctive relief. ld. at 5:7-8, 6:5-6, 8:8. This

9 holding is correct as there is no basis in existing case law or the First Amendment for the

10 requested departure from Hudson.

11

Further, the practice endorsed in Hudson and followed by the Union - calculating

12 chargeable and non-chargeable expenditures on the basis of the prior year's actual expenditures

13 - is the only logical, practical way for unions to provide an accurate Hudson notice to their

14 nonmembers. As the court indicated in Laramie v. County o/Santa Clara, 784 F. Supp. 1492,

15 1496 (N.D. Cal. 1992), for an "ongoing" union there is simply no other way to arrive at a

16 precise chargeable percentage than to derive it from the prior year's complete record of

17 expenditures. The amount a union will spend on political activities will vary from year to year

18 and from month to month, as circumstances warrant. A union simply cannot accurately

19 anticipate its political expenditures and provide advance notice of such expenditures to its

20 agency fee payers.

21

Moreover, the advance:'notice rule proposed by Plaintiffs provides no clear answer to

22 the obvious question of when, exactly, such notices might be required. Would a union be

23 required to issue such a notice in advance of every discrete non-chargeable expenditure it

24 contemplates that was not raised in a prior notice? Such a system would eviscerate the actual-

25 expenditure, backward-looking procedure expressly endorsed in Hudson, and it would impose

26 an incredible administrative burden on unions. These practical difficulties indicate that

27 Plaintiffs' proposed system is utterly unworkable - a conclusion the Supreme Court recognized

28

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et aI., Case No. 2:05-CV-2198 MCE (KJM)

6

1 in 1986 when in Hudson it expressly permitted unions to calculate the percentage of dues

2 chargeable to fair share fee payers on the basis of the prior year's expenditure.

3

In addition, the Ninth Circuit's decision in Harik v. California Teachers Association,

4 326 F.3d 1042, 1048-49 (9th Cir. 2003), makes clear that in a union of the size at issue here the

5 chargeable/non-chargeable expense breakdown must be based on figures audited by an

6 independent auditor. This indicates that the fair share fee is to be determined once a year, based

7 upon the prior year's audited financial statements. An auditor cannot audit expenditures in

8 advance, that is, before they have been made.

9

Finally, even if it were possible and practical for the Union to go beyond the procedures

10 endorsed in Hudson and Wagner and provide a mid-year notice to its agency fee payers

11 regarding the temporary fee increase, the Union is not constitutionally required to take any and

12 all steps demanded by fee payers. As the Ninth Circuit has commented:

13

It is possible, of course, to devise a more complex system that would minimize

further the burden on agency fee payers. . .. [But t]he test, after all, is not

14

whether the union and the school district have come up with the system that

imposes the least burden on agency fee payers, regardless of cost (a test no

15

system could possibly satisfy); rather, we inquire whether the system reasonably

accommodates the legitimate interests ofthe union, the school district and

16

nonmember employees.

17 Grunwald v. San Bernardino City Unified School Dist., 994 F.2d 1370, 1376 n.7 (9th Cir.

18 1993) (emphasis added). The Supreme Court in Hudson already determined that the method

19 employed by the Union reasonably accommodates those interests, and Plaintiffs can cite no

20 authority to the contrary,!' To the contrary: "When the union's plan satisfies the standards

21 established by Hudson, the plan should be upheld even if its opponents can put forth some

22 plausible alternative less restrictive of their right not to be coerced to contribute funds to

23 support political activities that they do not wish to support." Andrews v. Educ. Ass 'n of

24 Cheshire, 829 F.2d 335,340 (2d Cir. 1987).

25

26

27

11 Indeed, Plaintiffs rely primarily on citations to the general guiding principlesfrom

28 which the Hudson Court derived the procedure that the Union has followed. These principles must be read in light of the procedure endorsed in Hudson and followed in numerous cases.

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et aI., Case No. 2:05-CV-2198 MCE (KJM)

7

1

In sum, the Union has complied with the First Amendment's requirements as articulated

2 by the Supreme Court in Hudson and re-affirmed in numerous cases since Hudson.

3

c. There Is No Basis On Which To Issue A Mid-Year Hudson Notice

4

As a separate reason why Plaintiffs are unlikely to succeed on the merits, their argument

5 assumes that all of the expenditures that the temporary fee increase was enacted to fund are

6 non-chargeable to objecting fee payers. But even assuming that the sole purpose of the

7 temporary fee increase was for lobbying against initiative propositions appearing on the

8 November 2005 statewide ballot, particularly Propositions 75 and 76, we show below that

9 Plaintiffs would be incorrect that such expenditures are entirely non-chargeable. To the

10 contrary, the governing law applicable in the public sector permits unions to charge all fee

11 payers for certain "political" lobbying expenditures. And because a portion of the monies

12 collected from the temporary fee increase will be spent on expenditures that are at least

13 potentially chargeable, the Union cannot determine before the money has been spent what

14 proportion of the temporary fee increase will go to support chargeable expenditures versus

15 nonchargeable expenditures. That can only be determined after the money has been spent. For

16 that reason, as well, the normal Hudson rule that the Union is obligated only to issue an agency

17 fee notice annually, with the fee determined on the basis of the Union's expenditures in the

18 most recently-audited prior fiscal year and applied to the fee calculation in the following fiscal

19 year, must apply here.

20

In Abood, the Supreme Court held that unions can constitutionally compel agency fee

21 payers to support collective-bargaining activities, but not "ideological activities unrelated to

22 collective bargaining." 431 U.S. at 236 (emphasis added). The case also recognized that "in

23 the public sector the line [between the two] may be somewhat hazier" than in the private sector,

24 due to the nature of employment relations in the public sector. Id. Unlike the private sector, in

25 the public sector a collective bargaining agreement must not only be negotiated but

26 subsequently approved and implemented by the legislature (including appropriating sufficient

27 funding through the budget process to pay the wages and benefits established in the agreement),

28 and thus some activities that might be considered "political" in nature, such as lobbying, are

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et at. v. Westty, et at., Case No. 2:05-CV-2198 MCE (KJM)

8

1 intrinsic to public sector unions' ability to bargain effectively. As Abood observed, the

2 "process of establishing a written collective bargaining agreement prescribing the terms and

3 conditions of public employment may require not merely concord at the bargaining table, but

4 subsequent approval by other public authorities; related budgetary and appropriations decisions

5 might be seen as an integral part of the bargaining process." Id.

6

Following Abood, the Ninth Circuit upheld the constitutionality of a provision of the

7 state collective bargaining statute that governs state employees (the very kind of employees at

8 issue in the present case), which permits unions to charge all fee payers for lobbying to obtain

9 "advantages in wages, hours and other conditions of employment" (Cal. Gov. Code §3515.8).

10 Champion v. State o/California, 738 F.2d 1082 (9th Cir. 1984). In that case, the plaintiffs

11 argued that that provision violated the First Amendment by permitting state employee unions to

12 charge fee payers for "political" expenditures. In rejecting that argument, the Ninth Circuit

13 stressed the inherent importance oflobbying to the public sector collective bargaining process:

14

.... The determination of whether certain expenditures are proper depends on

the nature of the bargaining process. See Ellis [v. Ry. Clerks, 466 U.S. 435, 104

15

S.Ct. 1883] 1892 [(1984)]; Abood, 431 U.S. at 236 & n. 33,97 S.Ct. at 1800 &

n.23.

16

Section 3515.8 of [the Government Code], which plaintiffs challenge as

17

impermissibly broad, is based on the understanding that collective bargaining in

the public sector requires resort to the legislature on various employment-related

18

questions....

19

Because public employees work for the state, matters which are

ordinarily left to direct negotiation in the private sector are covered by statute.

20

[Numerous examples omitted.] See generally [Gov't Code] § 3517.6 for a list of

statutes affecting public employees. These statutes create a status quo from

21

which the bargaining representatives start negotiations for their particular units.

The importance of legislation affecting public employment, enacted in a forum

22

apart from the meet-and-confer sessions authorized by statute, Cal. Gov't Code

§ 3517, requires that public employee representatives be given broad authority to

23

protect their members' interests before the legislature.

24 Champion, 738 F.2d at 1086.Y

25

Thus, public sector unions are not prohibited by the First Amendment from charging all

26 fee payers for "political" expenditures. Rather, they are only prohibited from charging all fee

27

28

Y The California Court of Appeal has also upheld the right of state employee unions to

charge fee payers for such activities. Lillebo v. Davis, 222 Cal. App. 3d 1421, 1442 (1990).

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westiy, et al., Case No. 2:05-CV-2198 MCE (KJM)

9

1 payers (i.e., including objectors) for "ideological activities unrelated to collective bargaining."

2 Abood, 431 U.S. at 236 (emphasis added).

3

The Supreme Court's subsequent decision in Lehnert v. Ferris Faculty Ass 'n, 500 U.S.

4 507 (1991), did not overrule this pre-existing jurisprudence. First, there was no majority

5 opinion in Lehnert as to "political" expenses. The opinion announcing the judgment of the

6 Court on that issue was that of Justice Blackmun, in which only three other Justices concurred.

7 See Lehnert, 500 U.S. at 519-32 (1991). Under Ninth Circuit law, plurality decisions are not

8 controlling. See, e.g., Jacobsen v. U.S. Postal Serv., 993 F.2d 649, 665 (9th Cir. 1992).

9

But even if Justice Blackmun's opinion had been a majority opinion, at least a portion

10 of the expenditures for which the temporary fee increase was enacted would be deemed

11 chargeable under that opinion. Thus, Justice Blackmun's opinion endorsed the Court's prior

12 comments in Abood regarding the nature of public sector bargaining and the consequences for

13 the chargeability determination. Lehnert, 500 U.S. at 518. Indeed, Justice Blackmun's opinion

14 elaborated on and went beyond Abood's observations regarding public sector bargaining:

15

The Court of Appeals determined that unions constitutionally may

subsidize lobbying and other political activities with dissenters' fees so long as

16

those activities are '''pertinent to the duties of the union as a bargaining

representative.'" 881 F.2d, at 1392, quoting Robinson v. New Jersey, 741 F.2d

17

598,609 (CA3 1984), cert. denied, 469 U.S. 1228 (1985). In reaching this

conclusion, the court relied upon the inherently political nature of salary and

18

other workplace decisions in public employment. "To represent their members

effectively," the court concluded, "public sector unions must necessarily concern

19

themselves not only with negotiations at the bargaining table, but also with

advancing their members' interests in legislative and other 'political' arenas."

20

881 F.2d, at 1392.

21

This observation is clearly correct. Public-sector unions often expend

considerable resources in securing ratification of negotiated agreements by the

22

proper state or local legislative body. See Note, Union Security in the Public

Sector: Defining Political Expenditures Related to Collective Bargaining, 1980

23

Wis. L. Rev. 134, 150-152. Similarly, union efforts to acquire appropriations for

approved collective bargaining agreements often serve as an indispensable

24

prerequisite to their implementation. See Developments in the Law: Public

Employment, 97 Harv. L. Rev. 1611, 1732-1733 (1984). It was in reference to

25

these characteristics of public employment that the Court in Abood discussed the

"somewhat hazier" line between bargaining-related and purely ideological

26

activities in the public sector. 431 U.S., at 236. The dual roles ofgovernment as

employer andpolicymaker in such cases make the analogy between lobbying

27

and collective bargaining in the public sector a close one.

28 Id., 500 U.S. at 519-20 (emphasis added).

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

10

1

In the narrow context of the facts presented by the Lehnert case, however, Justice

2 Blackmun found that the "political" expenditure there at issue - a lobbying campaign designed

3 to increase public funding for public education generally (rather than the teachers union's

4 members' wages specifically) - was not sufficiently related to the collective bargaining

5 functions of the teachers union before the Court to render it chargeable:

6

This, however, is not such a case [of chargeable "political" expenses].

Where, as here, the challenged lobbying activities relate not to the ratification or

7

implementation of a dissenter's collective-bargaining agreement, but to financial

support of the employee's profession or of public employees generally, the

8

connection to the union's function as bargaining representative is too attenuated

to justify compelled support by objecting employees.

9

10 Id. at 520.

11

Here, at least a portion of the anticipated expenditures at issue, are directly and critically

12 related to collective bargaining. Proposition 76, which the Union opposes, will effectively

13 permit the Governor to abrogate collective bargaining agreements with state employees under

14 certain circumstances, by granting the Governor the power unilaterally to reduce previously-

15 appropriated state monies to fund the agreement. See Proposition 76, Section 4 (amendment to

16 Article IV, Section 10, of the California Constitution, enacting new Sections lO(g)(2) and (3)),

17 available at http://www.voterguide.ss.ca.gov/prop76/title_summary.shtml.This relates directly

18 to the implementation of the collective bargaining agreement. To defend the implementation of

19 its collective bargaining agreement, i.e., to prevent the Governor from obtaining the power to

20 abrogate/defund the agreement, the Union, which represents thousands of state employees, is

21 opposing the enactment of Proposition 76 and should constitutionally be permitted to charge fee

22 payers therefor, no less than it would be able to charge fee payers to lobby against a piece of

23 legislation that would abrogate or defund the agreement.1'

24

25

l' There can be no argument that there is a constitutional difference with regard to the

26 chargeability of lobbying the'legislature over a pending piece of legislation and lobbying the

electorate over a pending initiative measure. See California Pro-Life Council, Inc. v. Getman, 27 328 F.3d 1088, 1106 (9th Cir. 2003) ("Voters act as legislators in the ballot-measure context,

28 and interest groups and individuals advocating a measure's defeat or passage act as lobbyists; both groups aim at pressuring the public to pass or defeat legislation.").

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et at. v. Westty, et at., Case No. 2:05-CV-2198 MCE (KJM)

11

1

Indeed, even if lobbying against an initiative to give the Governor the power unilaterally

2 to abrogate/defund public employees' collective bargaining agreements were not chargeable

3 (which it indeed is), the Union may well utilize monies raised through the temporary fee

4 increase to lobby the Governor not to exercise that power, should the initiative pass. Such a use

5 of these fees would constitute a chargeable activity.

6

The fact that Lehnert does not mean that at least some of the uses to which the

7 temporary fee increase will or may be put cannot be considered chargeable is shown by the

8 Ninth Circuit's only relevant post-Lehnert decision, Gardner v. State Bar ofNevada, 284 F.3d

9 1040, 1043 (9th Cir. 2002). In Gardner, the Ninth Circuit applied Lehnert to uphold the

10 chargeability of a public relations campaign by an integrated state bar to improve the public

11 image of lawyers. In so doing, it made clear that the existence of some ideological content to an

12 expenditure is not fatal to chargeability under Lehnert as long as the expenditure is germane to

13 the organization's purpose and is not exclusively ideological:

14

Undoubtedly every effort to persuade public opinion is political in the

broad sense of that term. However, what Keller [v. State Bar, 496 U.S. 1

15

(1990)] found objectionable was not political activity but partisan political

activity as well as ideological campaigns unrelated to the bar's purpose. What

16

the Supreme Court held objectionable in Lehnert was education about the

teaching profession unconnected to the collective bargaining function of the

17

union. Lehnert, 500 U.S. at 528. In contrast, the activity here is highly germane

to the purposes for which the State Bar exists.

18

19 Gardner, 284 F.3d at 1042-43.

20

Here, an effort to persuade public opinion not to enact a constitutional amendment that

21 would give the Governor unilateral power to abrogate/defund a state employee union's

22 collective bargaining agreement is "highly germane to the purposes for which the [union]

23 exists" (Gardner, 284 F.3d at 1043), i.e., to establish and maintain terms and conditions of

24 public employment through collective bargaining. Indeed, it is beyond dispute that a lobbying

25 campaign to persuade the Governor not to exercise such a power, if Proposition 76 is enacted,

26 ,would be chargeable. Gardner thus confirms that at least a portion of the temporary fee

27 increase will or may be devoted to chargeable activities. In short, if a public relations campaign

28 by an integrated state bar to improve the public image of lawyers is chargeable because it is

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v, Westly, et at., Case No. 2:05-CV-2198 MCE (KJM)

12

1 germane to the bar's purpose, a lobbying campaign by a public employee union to defend the

2 implementation of its collective bargaining agreement and prevent that agreement's abrogation

3 or defunding is also chargeable because it is central (not merely germane) to the union's

4 purpose.

5

Because it is premature to determine the proportion of chargeable versus nonchargeable

6 expenses, the Union cannot be required to issue a Hudson notice at this time.

7 II. The Balance Of Hardships Weil:hs Al:ainst A Preliminary Injunction

8

A. Plaintiffs Have Failed To Show Irreparable Harm

9

Plaintiffs' claim of irreparable injury is that their money will be spent on political

10 activities to which they object under the First Amendment. PIs' Br. at 16:2-7. This argument

11 contradicts Supreme Court and other case precedent that contemplate that deductions for

12 nonmembers will be based on the prior year's expenditures. See, e.g., Hudson, 475 U.S. at

13 1076 n.18. Because the percentage of chargeable expenditures will vary from year to year, the

14 system for objection contemplated by the Supreme Court and lower courts necessarily means

15 that in those years when nonchargeable expenditures exceed the amounts in the prior year,

16 nonmembers will be paying for certain nonchargeable expenses - which will then be refunded

17 the next year when the new percentage is calculated. This is not a harm of constitutional

18 magnitude, but simply a result of the practical trade-off the Supreme Court recognized in

19 Hudson: To have a system that balances the rights of objecting employees and a union's right to

20 require employees to pay their fair share. 475 U.S. at 302. In other words, Plaintiffs' purported

21 harm is a necessary feature of the approved system.

22

To the extent Plaintiffs rely on the simple loss of the use of their money, this does not

23 rise to the level ofa First Amendment injury. See Grunwald, 994 F.2d at 1374-75. "Purely

24 monetary injuries are not normally considered irreparable." Lydo Enterprises, Inc. v. City of

25 Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984). Rather, where non-members received

26 inadequate notice from their union such that their First Amendment rights were compromised,

27 "[t]he proper remedy is an order requiring ... proper notice, with a renewed opportunity for

28

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

13

1 nonmembers to object" and a refund for objectors, with interest. Wagner v. Profl Eng'rs in

2 Cal. Gov't, 354 F.3d 1036, 1043 (9th Cir. 2003).

3

B. The Balance Of Hardships Tips Sharply In The Union's Favor

4

Counterbalanced against the lack of harm to Plaintiffs is the irreparable harm to the

5 Union and the large number ofnonmembers who do not object to political expenditures. There

6 can be no question that the vast majority of nonmembers do not object to political expenditures.

7 In the most recent year, of the approximately 28,000 nonmembers, fewer than 4,000 objected to

8 contributing toward any kind of political expenditures. See Declaration of Cathy Hackett, ~4.

9 Thus, more than 24,000 nonmembers did not object to the political use of their fees when, in

10 June, they were informed in the Hudson notice that the Union would use their fees to fund

1t political expenditures unless they objected and were also informed that the fee could increase

12 during the year. Id The failure to object upon receiving this notice means that those

13 nonmembers must be presumed to consent to the political use of their fees. See Int 'I Ass 'n of

14 Machinists v. Street, 367 U.S. 740, 774 (1961); Wagner v. Profl Engineers in Cal. Gov't, 354

15 F.3d 1036, 1039 (9th Cir. 2004); Mitchell v. Los Angeles Unified Sch. Dist., 963 F.2d 258,260-

16 63 (9th Cir. 1992). This is not just common sense, it is also the law. Regardless of whether

17 they wish to be union members, these non-objecting, non-member employees represented by

18 the union wish to be vigorously represented by the Union as to their wages and benefits.

19

As Judge Ware held, both those nonmembers who do not object to political

20 expenditures and unions have First Amendment rights. Liegmann Order at 4: 1-4; see also

21 Kidwell v. Transportation Communications Int'l Union, 946 F.2d 283, 297 (4th Cir. 1991) (fee

22 objection case noting "union's First Amendment right of expressive association"); Int 'I Ass 'n of

23 Machinists v. Street, 367 U.S. at 773 (finding "the majority also has an interest in stating its

24 views without being silenced by the dissenters").

25

Plaintiffs seek to prevent political expenditures by the Union and the large number of

26 nonmembers who consent to supporting those expenditures. Such an injunction strikes at core

27 First Amendment speech. "Certainly, the use of funds to support a political candidate is

28 'speech'; independent campaign expenditures constitute 'political expression "at the core of our

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (lUM)

14

1 electoral process and of the First Amendment freedoms."'" Austin v. Michigan Chamber 0/

2 Commerce, 494 U.S. 652, 657 (1990) (quoting Buckley v. Valeo, 424 U.S. 1,44-45 (1976) (per

3 curiam)). The injunction Plaintiffs seek would prevent the collection and use of funds from

4 nonobjecting members who consent to the Union spending their fees for political purposes that

5 are important to their interests. This would be true not only for the current initiative campaign,

6 but also for future elections. Just as nonmembers may be concerned about the effect of an

7 initiative on the Union, so too may they want to support or oppose certain candidates in the

8 upcoming 2006 primary and general elections based on the positions those candidates take on

9 issues affecting the terms and conditions of employment.

10

It is critically important that the Union be able to collect and spend money from those

11 nonmembers who do not object on such matters, rather than presume they object. See

12 Liegmann Order at 4:6-13. Once the election has passed, the Union and nonmembers who want

13 their fees to be used for political purposes will have lost the chance to affect important policies;

14' the results of the election cannot be undone. This is therefore a substantial and irreparable

15 interference with First Amendment rights. Likewise, the public interest militates against the

16 courts interfering with such rights. It would be particularly unwise to permit such an

17 interference where, as here, the preliminary injunction seeks to upset years of settled Supreme

18 Court and Ninth Circuit law.

19

An injunction that would interfere with the Union's and nonmembers' core First

20 Amendment right to participate in political speech is subject to the most careful scrutiny. As

21 the Ninth Circuit recently put it, "where, as here, there is at least some risk that constitutionally

22 protected speech will be enjoined, only a particularly strong showing" is sufficient for an

23 injunction. Overstreet v. United Brotherhood a/Carpenters, 409 F.3d 1199, 1208 n. 13 (9th

24 Cir. 2005) (citing cases). That showing has not been made here.

25

26

27

28

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

15

III. Any Injunction Should Be Strictly Limited

2

A. Any Injunction Should Be Limited To An Escrow Account And Effective

Only Until There Is Notice

3

4

Plaintiffs' proposed 'preliminary injunction is overreaching. In their proposed order,

5 Plaintiffs seek to prohibit the Union from "collecting" the temporary fee increase. This means

6 that each month, the Union would have to forego the revenue from the fee increase and would

7 never be able to recoup that money even if the Union ultimately prevailed in this lawsuit. To

8 the extent the Court believes the Union should not be able to spend the temporary fee increase

9 while a final decision is made on the merits of the case, the Court should still allow the increase

10 to be collected and placed in an escrow account, at least as to nonmembers who have not

11 objected in response to the June 2005 Hudson notice. Indeed, Plaintiffs themselves argue that

12 the harm is the spending of money on politics. PIs' Br. at 16:2-7. Accordingly, any arguable

13 harm can be completely remedied by placing the money in escrow so that it cannot be spent.

14 Then, at the end of the case, the money can be released either to Plaintiffs or the Union.

15 Providing Plaintiffs a refund is all that they are entitled as final relief under Ninth Circuit case

16 law. See Wagner, 354 F.3d at 1043. There is no reason to give Plaintiffs a greater remedy at

17 the preliminary stage than they could get at final judgment.

18

Additionally, any injunction should immediately expire if the Union provides a new

19 notice regarding the temporary fee increase and an opportunity to object under Hudson. At that

20 point, Plaintiffs' purported rights have been fulfilled. Indeed, Plaintiffs assert that the Union

21 "holds the 'keys' to the enjoined money because the sooner it provides the Hudson notice; the

22 sooner it can claim and use the enjoined money." PIs' Br. at 17:8-9. But their proposed

23 injunction (and the TRO the Court has issued) omits any such provision. Any injunction should

24 expire upon issuance of a new notice.

25

Nor is there ground to escrow amounts previously collected - and perhaps already spent

26 - prior to issuance of injunctive relief. Such an injunction would not maintain the status quo,

27 but require retroactive accounting and action. Plaintiffs have waited two months to bring this

28

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et al., Case No. 2:05-CV-2198 MCE (KJM)

16

1 motion and cannot now be heard to seek retroactive relief that they could have obtained

2 prospectively had they brought the motion in a timely manner.

3

B. Class-Wide Relief Is Improper Prior To Class Certification

4

Plaintiffs have requested a class-wide preliminary injunction, notwithstanding that they

5 have not moved for class certification and the Court has not yet certified a class. A class-wide

6 preliminary injunction is precluded where, as here, no class has been certified. Zepeda v.

7 United States I.NS., 753 F.2d 719, 727-29 & n.1 (9th Cir. 1985).

8

In Zepeda, the Ninth Circuit vacated as overly broad a preliminary injunction

9 prohibiting warrantless searches without exigent circumstances targeted against persons of

10 Hispanic appearance. Id. at 723. The Ninth Circuit noted that the case had been filed as a class

11 action, but that class certification had never been granted (id. at 722), and held that "[w]ithout a

12 properly certified class, a court cannot grant relief on a class-wide basis" (id. at 728 n.1).

13

The Ninth Circuit recognized only one exception - for situations in which class-wide

14 relief was necessary to afford relief to the individual moving parties. Id. As an exampie of this

15 exception, the court discussed a case where individual African-American plaintiffs sought

16 desegregation of public transportation facilities. As the Ninth Circuit explained, an injunction

17 broadly desegregating the facilities was necessary to afford relief to the individual plaintiffs,

18 who did not seek to sit in the "whites-only" section of the buses, but rather to ride in

19 desegregated buses. Id. at 728 n.l. Class-wide relief is unnecessary here to provide relief to the

20 individual Plaintiffs who can be the subject of a narrow injunction.

21

The limitation on the scope of temporary or preliminary injunctive relief discussed in

22 Zepeda is well-established in the Ninth Circuit, as it was announced prior to Zepeda (see

23 National Center for Immigrants Rights, Inc. v. INS, 743 F.2d 1365, 1371 (9th Cir. 1984) ("in

24 the absence of class certification, the preliminary injunction may properly cover only the named

25 plaintiffs")), and has been reiterated in numerous decisions since Zepeda (see, e.g., Immigrant

26

27

28

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et at., Case No. 2:05-CV-2198 MCE (KJM)

17

1 Assistance Project v. INS, 306 F.3d 842,868-69 (9th Cir. 2002); Paige v. California, 102 F.3d

2 1035, 1039 (9th Cir. 1996)).11

3

C. Any Class-Wide Relief Should Be Limited To Objecting Nonmembers

4

Were the Court to order class-wide relief despite the ruling in Zepeda, the relief should

5 be limited to nonmembers who objected to political expenditures at the last opportunity to do so

6 - that is, in response to the June 2005 Hudson notice. Any other ruling would run afoul of the

7 First Amendment rights of nonmembers to allow their fees to be used for political expenditures.

8 See supra Part II.B. Moreover, an objection may not be presumed but must affinnatively be

9 made. See supra Part I.A. For nonmembers who have not previously objected to political

10 expenditures, there is no basis to presume that they would do so now and any injunction

11 covering such nonmembers would be overbroad.

12

D. Plaintiffs Should Be Required To Post A Substantial Bond

13

Federal Rule of Civil Procedure 65(c) states that "[n]o restraining order or preliminary

14 injunction shall issue except upon the giving of security by the applicant." Plaintiffs request a

15 minimal bond (or a waiver of the bond requirement altogether). In support of this request, they

16 allege that "this case involves the threatened taking of a relatively small amount of money from

17 each Nonmember." PIs' Br. at 19:20-21. But the aggregate amounts are what are at issue.

18 Each month, the Union estimates it will receive $250,000 from nonmembers due to the

19 temporary fee increase. Declaration of Lee King, ~4. The loss of these fees will quickly exceed

20 a million dollars. In these circumstances, it would be inappropriate to require a minimal bond.

21 Plaintiffs should be required to post a bond of at least $1 million.

22

E. Any Injunction Should Be Stayed Pending Appeal

23

The Union requests that any injunction be stayed pending appeal to the Ninth Circuit.

24 At the least, an injunction should be stayed for a short period of time - perhaps seven days - to

25

26
11 The rule regarding class-wide relief without class certification is different with regard 27 to a pennanent injunction. See, e.g., Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1988);
28 Easyriders Freedom F.I.G.HT. v. Hannigan, 92 F.3d 1486, 1490, 1501-02 (9th Cir. 1996). Here, however, Plaintiffs seek preliminary, not pennanent, relief.

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et al.,.Case No. 2:05-CV-2198 MCE (KJM)

18

1 permit the Union to bring an emergency motion for a stay in the Ninth Circuit. Given that it is

2 Plaintiffs' two month delay that has resulted in an extraordinarily speedy schedule to the

3 detriment ofthe Union's interests, it is only fair to permit the Union a chance to seek appellate

4 review before any injunction takes effect.

5

CONCLUSION

6

For the reasons set forth above, the Union respectfully requests that the Court deny the

7 request for a preliminary injunction or at the very least limit its scope.

8 DATED: November 3, 2005

Respectfully submitted,

9

STEPHEN P. BERZON

JEFFREY B. DEMAIN

10

JONATHAN WEISSGLASS

PEDER J. THOREEN

11

ALTSHULER, BERZON, NUSSBAUM,

RUBIN & DEMAIN

12

13

14

Attorneys for Defendant

15

Service Employees International Union, Local 1000

16

17

18

19

20

21

22

23

24

25

26

27

28

OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Knox, et al. v. Westly, et aI., Case No. 2:05-CV-2198 MCE (KJM)

19

 
 11/29/2017

08-16645 Docket

General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 08­16645 Nature of Suit: 3442 Jobs Dianne Knox, et al v. California State Employees Ass, et al Appeal From: U.S. District Court for Eastern California, Sacramento Fee Status: Paid

Case Type Information: 1) civil 2) private 3) null

Originating Court Information:

District: 0972­2 : 2:05­CV­02198­MCE­KJM

Court Reporter: Diane J. Shepard, Official Court Reporter

Trial Judge: Morrison C. England, Junior, District Judge

Date Filed: 11/01/2005

Date Order/Judgment:

Date Order/Judgment EOD:

06/17/2008

06/17/2008

Date NOA Filed: 07/14/2008

Prior Cases: None

Current Cases: None

Docketed: 07/22/2008 Termed: 08/16/2012
Date Rec'd COA: 07/17/2008

DIANNE KNOX Plaintiff ­ Appellee,
WILLIAM L. BLAYLOCK Plaintiff ­ Appellee,
ROBERT A. CONOVER Plaintiff ­ Appellee,
EDWARD L. DOBROWOLSKI, Jr. Plaintiff ­ Appellee,
https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom

Steven R. Burlingham, Esquire, Attorney Direct: 916/332­8122 [COR LD NTC Retained] GARY TILL & BURLINGHAM Ste. F 5330 Madison Ave. Sacramento, CA 95841
William James Young, Attorney Direct: 703­321­8510 [COR LD NTC Retained] National Right to Work Legal Defense Foundation, Inc Suite 600 8001 Braddock Road Springfield, VA 22160
Steven R. Burlingham, Esquire, Attorney Direct: 916/332­8122 [COR LD NTC Retained] (see above)
William James Young, Attorney Direct: 703­321­8510 [COR LD NTC Retained] (see above)
Steven R. Burlingham, Esquire, Attorney Direct: 916/332­8122 [COR LD NTC Retained] (see above)
William James Young, Attorney Direct: 703­321­8510 [COR LD NTC Retained] (see above)
Steven R. Burlingham, Esquire, Attorney Direct: 916/332­8122 [COR LD NTC Retained] (see above)
1/8

11/29/2017

08-16645 Docket

William James Young, Attorney Direct: 703­321­8510 [COR LD NTC Retained] (see above)

KARYN GIL Plaintiff ­ Appellee,

Steven R. Burlingham, Esquire, Attorney Direct: 916/332­8122 [COR LD NTC Retained] (see above)

William James Young, Attorney Direct: 703­321­8510 [COR LD NTC Retained] (see above)

THOMAS JACOB HASS Plaintiff ­ Appellee,

Steven R. Burlingham, Esquire, Attorney Direct: 916/332­8122 [COR LD NTC Retained] (see above)

William James Young, Attorney Direct: 703­321­8510 [COR LD NTC Retained] (see above)

PATRICK JOHNSON Plaintiff ­ Appellee,

Steven R. Burlingham, Esquire, Attorney Direct: 916/332­8122 [COR LD NTC Retained] (see above)

William James Young, Attorney Direct: 703­321­8510 [COR LD NTC Retained] (see above)

JON JUMPER, On Behalf of Themselves and the Class They Seek Steven R. Burlingham, Esquire, Attorney

to Represent

Direct: 916/332­8122

Plaintiff ­ Appellee,

[COR LD NTC Retained]

(see above)

William James Young, Attorney Direct: 703­321­8510 [COR LD NTC Retained] (see above)
v.

CALIFORNIA STATE EMPLOYEES ASSOCIATION, LOCAL 1000, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL­CIO­CLC
Defendant ­ Appellant,

Jeffrey B. Demain, Esquire, Attorney Direct: 415­421­7151 [COR LD NTC Retained] Altshuler Berzon LLP Suite 300 177 Post Street San Francisco, CA 94108

Peder J. Thoreen [COR LD NTC Retained] Altshuler Berzon LLP 177 Post Street San Francisco, CA 94108

STEVE WESTLY, Controller, State of California Defendant,

Douglas John Woods, Supervising Deputy Attorney General [Retained] AGCA­Office of the California Attorney General 1300 I Street Suite 125 Sacramento, CA 95814

https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom

2/8

11/29/2017

08-16645 Docket

DIANNE KNOX; WILLIAM L. BLAYLOCK; ROBERT A. CONOVER; EDWARD L. DOBROWOLSKI, Jr.; KARYN GIL; THOMAS JACOB HASS; PATRICK JOHNSON; JON JUMPER, On Behalf of Themselves and the Class They Seek to Represent,

Plaintiffs ­ Appellees,

v.

CALIFORNIA STATE EMPLOYEES ASSOCIATION, LOCAL 1000, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL­CIO­CLC,

Defendant ­ Appellant,

and

STEVE WESTLY, Controller, State of California,

Defendant.

https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom

3/8

11/29/2017

08-16645 Docket

07/22/2008

1

2 pg, 40.86 KB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: Yes. The schedule is set as follows: CADS due by Attorney Jeffrey B. Demain, Attorney and Attorney Peder J.V. Thoreen, Attorney due on 07/14/2008. Designation of RT for Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC due 07/24/2008. Designation of RT for Appellee William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper and Dianne Knox due 08/04/2008. Transcript order for Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­ CLC due 08/13/2008. Transcript due for Court Reporter Diane J. Shepard, Court Reporter on 09/12/2008. Certificate of record due 08/20/2008. Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC opening brief due 10/29/2008. Appellee William L. Blaylock, Appellee Robert A. Conover, Appellee Edward L. Dobrowolski Jr., Appellee Karyn Gil, Appellee Thomas Jacob Hass, Appellee Patrick Johnson, Appellee Jon Jumper and Appellee Dianne Knox answering brief due 11/28/2008. Appellant's optional reply brief is due 14 days after service of the answering brief. (RT) [Entered: 07/22/2008 02:22 PM]

07/25/2008

2

Filed Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC Civil Appeals Docketing Statement. Served on 07/24/2008. (JFF) [Entered: 07/28/2008 08:47 AM]

08/26/2008

3

7 pg, 61.56 KB

Filed order MEDIATION (VLS): This case is under consideration for inclusion in the Mediation Program. Within 14 days of the date of this order, counsel for all parties intending to file briefs in this matter are requested to inform Roxane G. Ashe, Circuit Mediator, in writing, by fax at (415) 355­8566, of their clients’ views on whether...This communication shall not be served on the opposing party and shall not be filed with the court. The existing briefing schedule remains in effect pending the determination whether the case will be selected for inclusion in the Mediation Program. (WL) [Entered: 08/26/2008 09:40 AM]

09/02/2008

4

Filed order MEDIATION (RGA): The court has determined that this appeal will not be selected for inclusion

1 pg, 23.57 KB in the Mediation Program. (WL) [Entered: 09/02/2008 04:12 PM]

10/21/2008

5

6 pg, 39.15 KB

Filed (ECF) Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC Joint Motion to extend time to file Opening brief until 11/12/2008. Date of service: 10/21/2008. [6680472] (Thoreen, Peder) [Entered: 10/21/2008 11:40 AM]

10/22/2008

6

2 pg, 24.84 KB

Filed clerk order (Deputy Clerk:TAH ): The parties' stipulated motion for extensions of time in which to file the opening, answering, and reply briefs is granted. The opening brief is due November 12, 2008. The answering brief is due December 29, 2008. The optional reply brief is due 28 days after service of the answering brief. Court records do not currently reflect that the district court has issued the certificate of record. The appellant shall monitor the issuance of the certificate. (WL) [Entered: 10/22/2008 11:17 AM]

10/28/2008

7

Filed certificate of record on appeal. RT filed in DC None (NEW) [Entered: 10/28/2008 04:38 PM]

11/12/2008

8

Submitted (ECF) Opening brief for review. Submitted by Appellant California State Employees Association,

71 pg, 225.55 KB Local 1000, Service Employees International Union, AFL­CIO­CLC. Date of service: 11/12/2008. [6705136]

(Thoreen, Peder) [Entered: 11/12/2008 04:20 PM]

11/12/2008

10

ENTRY UPDATED. Filed Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC four excerpts of record in 2 volumes. Served on 11/12/2008 (GLS) [Entered: 11/14/2008 09:37 AM]

11/14/2008

9

2 pg, 29.65 KB

Filed Opening Brief [8] filed by California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Blue cover, accompanied by certification that the brief is identical to the version submitted electronically. (PK) [Entered: 11/14/2008 09:22 AM]

11/18/2008

11

2 pg, 143.4 KB

Received original and 10 copies of Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC opening brief (Informal: No) 57 pages. Served on 11/12/2008. Deficiency: No certification that brief is identical to ECF filing. Notified counsel. (PK) [Entered: 11/19/2008 07:32 PM]

12/28/2008

12

Submitted (ECF) Answering brief for review. Submitted by Appellees William L. Blaylock, Robert A.

65 pg, 273.43 KB Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper and

Dianne Knox. Date of service: 12/24/2008. [6750036] (Young, William) [Entered: 12/28/2008 02:44 PM]

12/29/2008

13

Filed original and 15 copies of Appellees William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper and Dianne Knox answering brief of 53 pages. 5 Supplemental Excerpts of record in 1 volume. Served on 12/24/08 (BY) [Entered: 12/30/2008 09:14 AM]

01/02/2009

14

Filed Answering Brief [12] filed by Dianne Knox, William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson and Jon Jumper. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Red cover, accompanied by certification that the brief is identical to the version submitted electronically. (PK) [Entered: 01/02/2009 02:47 PM]

https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom

4/8

11/29/2017

08-16645 Docket

01/23/2009

15

Submitted (ECF) Reply brief for review. Submitted by Appellant California State Employees Association,

40 pg, 160.71 KB Local 1000, Service Employees International Union, AFL­CIO­CLC. Date of service: 01/23/2009. [6781693]

(Demain, Jeffrey) [Entered: 01/23/2009 10:57 AM]

01/23/2009

16

Filed Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC four excerpts of record in 1 volume. Served on 01/23/2009. (GLS) [Entered: 01/27/2009 03:41 PM]

01/29/2009
2 pg, 29.79 KB

Filed Reply Brief [15] filed by California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC. Within 5 working days of the filing of this order, filer is ordered to file 10 copies of the brief in paper format, with a Grey cover, accompanied by certification that the brief is identical to the version submitted electronically. (GLS) [Entered: 01/29/2009 10:17 AM]

01/29/2009

17

Received 10 paper copies of Reply brief [15] filed by California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC in 08­16645. One copy to Case Files, the remainder to Records. (WL) [Entered: 02/03/2009 01:47 PM]

05/06/2009

18

2 pg, 57.02 KB

Filed (ECF) Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC Correspondence: Scheduling of oral argument. Date of service: 05/06/2009 [6911035] (Demain, Jeffrey) [Entered: 05/06/2009 01:22 PM]

07/03/2009

19

Calendar check performed. [6980218] (MW) [Entered: 07/03/2009 01:05 PM]

07/17/2009

20

Calendar check performed. [6995451] (AW) [Entered: 07/17/2009 11:00 AM]

07/17/2009

21

CALENDARED: 10/09/2009 9:00 AM San Francisco, CA Courtroom 4 [6996471] [08­15866, 08­15909, 08­ 16750, 08­16454, 08­16463, 08­16645] (AW) [Entered: 07/17/2009 06:53 PM]

08/28/2009

22

Notice of Oral Argument on OCTOBER 9, 2009 Calendar. Please return ACKNOWLEDGEMENT OF

5 pg, 122.39 KB HEARING NOTICE form to: SAN FRANCISCO Office. Please open attached documents to view details

about your case. [7044569] (AM) [Entered: 08/28/2009 02:09 PM]

10/09/2009

23

ARGUED AND SUBMITTED TO Judges J. CLIFFORD WALLACE, DAVID R. THOMPSON and SIDNEY R. THOMAS. [7090621] (AT) [Entered: 10/09/2009 12:01 PM]

12/10/2010

24

FILED OPINION (J. CLIFFORD WALLACE, DAVID R. THOMPSON and SIDNEY R. THOMAS)

48 pg, 581.52 KB REVERSED AND REMANDED. Judge: JCW Dissenting, Judge: SRT Authoring. FILED AND ENTERED

JUDGMENT. [7575454] (RMM) [Entered: 12/10/2010 08:17 AM]

12/14/2010

25

Filed (ECF) Appellant California State Employees Association, Local 1000, Service Employees

6 pg, 760.16 KB International Union, AFL­CIO­CLC bill of costs (Form 10) in the amount of $503.40 USD. Date of service:

12/14/2010 [7580272] (Demain, Jeffrey) [Entered: 12/14/2010 01:52 PM]

01/03/2011

26

MANDATE ISSUED.(JCW, DRT and SRT) Cost awarded to APPELLANT in the amount of $503.40.

2 pg, 84.35 KB [7597057] (TB) [Entered: 01/03/2011 09:32 AM]

03/14/2011

27

Received notice from the Supreme Court: petition for certiorari filed on 03/10/2011. Supreme Court

1 pg, 42.83 KB Number 10­1121. [7681775] (TB) [Entered: 03/15/2011 02:45 PM]

06/27/2011

28

Received notice from the Supreme Court. Petition for certiorari GRANTED on 06/27/2011. Supreme Court

1 pg, 45.34 KB Number 10­1121. [7802794] (TB) [Entered: 06/29/2011 03:14 PM]

11/16/2011

29

Transmitted to the U.S. Supreme Court: 1 volume(s) of 9th Circuit U.S. Court of Appeals record proceedings; Ordered the district court to forward all inaccessible documents directly to the U. S. Supreme Court. U.S. Supreme Court Case Number: 10­1121. Tracking Information: FedEx 943607199279. [7968465] (SOS) [Entered: 11/16/2011 01:50 PM]

06/21/2012

30

1 pg, 64.83 KB

Received letter from the Supreme Court dated 06/21/2012. The opinion of this Court was announced today. The judgment or mandate of this Court will not issue for at least twenty­five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. Supreme Court No: 10­1121. [8223917] (RR) [Entered: 06/21/2012 03:47 PM]

06/21/2012

31

Received copy of Supreme Court opinion dated 06/21/2012. Supreme Court No: 10­1121. [8223933] (RR)

48 pg, 275.38 KB [Entered: 06/21/2012 03:50 PM]

07/23/2012

32

3 pg, 117.89 KB

Received certified copy of Supreme Court 06/21/2012 judgment. On Writ Of Certiorari to the United States Court of Appeals for the Ninth Circuit. This Cause came on to be heard on the transcript of the record from the above court and was argued by counsel. On Consideration Whereof, it is ordered and adjudged by this Court that the judgment of the above court is reversed with costs, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further proceedings consistent with the opinion of this Court. It Is Further Ordered that the petitioners Diane Knox, et al. recover from Service Employees International Union, Local 1000 Thirteen Thousand Three Hundred Fifty­one Dollars ($13,351.00) for costs herein expended. Supreme Court case number: 10­1121. [8258808] (RR) [Entered: 07/23/2012 10:34 AM]

07/30/2012

33

Filed (ECF) Appellees William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil,

https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom

5/8

11/29/2017

5 pg, 101.5 KB

08-16645 Docket
Thomas Jacob Hass, Patrick Johnson, Jon Jumper and Dianne Knox bill of costs (Form 10) in the amount of $134.00 USD. Date of service: 07/20/2012 [8267255] (Young, William) [Entered: 07/30/2012 08:34 AM]

07/30/2012

34

Filed clerk order: Electronically­filed document [33] Bill of Costs (ECF Filing) is stricken. Filer is not the

2 pg, 120.8 KB prevailing party. [8268799] (TB) [Entered: 07/30/2012 04:06 PM]

08/08/2012

35

Filed clerk order (Deputy Clerk: WL): Due to the death of Judge Thompson, Judge Clifton has been drawn

1 pg, 23.39 KB in his place. [8279775] (WL) [Entered: 08/08/2012 01:12 PM]

08/16/2012

36

2 pg, 16.66 KB

Order filed for PUBLICATION (J. CLIFFORD WALLACE, SIDNEY R. THOMAS and RICHARD R. CLIFTON) Pursuant to the opinion of the United States Supreme Court dated June 21, 2012, the district court opinion is vacated, and the case is remanded to the district court for further proceedings consistent with the Supreme Court’s opinion. IT IS SO ORDERED. [] [8288856] (RMM) [Entered: 08/16/2012 07:01 AM]

08/17/2012

37

5 pg, 106.6 KB

Filed (ECF) Appellees William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper and Dianne Knox bill of costs (Form 10) in the amount of 134.00 USD. Date of service: 08/17/2012 [8291209] (Young, William) [Entered: 08/17/2012 02:53 PM]

08/30/2012

38

66 pg, 1.1 MB

Filed (ECF) Appellees William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper and Dianne Knox Motion for attorney fees in the amount of $166,938.19. Date of service: 08/30/2012. [8305995] (Young, William) [Entered: 08/30/2012 02:37 PM]

09/11/2012

39

6 pg, 166.23 KB

Filed (ECF) Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC Motion for miscellaneous relief [Defendant­Appellant's Motion To Transfer Consideration of Plaintiffs­Appellees' Fee Petition To The Eastern District of California Or, In The Alternative, For An Extension Of Time To File Response To Fee Petition]. Date of service: 09/11/2012. [8318862] (Demain, Jeffrey) [Entered: 09/11/2012 12:49 PM]

09/14/2012

40

9 pg, 66.52 KB

Filed (ECF) Appellees William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper and Dianne Knox response opposing motion (,motion for miscellaneous relief (to be used only if no other relief applies)). Date of service: 09/14/2012. [8323613] (Young, William) [Entered: 09/14/2012 09:07 AM]

09/17/2012

41

8 pg, 175.99 KB

Filed (ECF) Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC reply to response (,motion for miscellaneous relief (to be used only if no other relief applies)). Date of service: 09/17/2012. [8326060] (Demain, Jeffrey) [Entered: 09/17/2012 01:26 PM]

09/25/2012

42

2 pg, 34.56 KB

Filed order (J. CLIFFORD WALLACE, SIDNEY R. THOMAS and RICHARD R. CLIFTON) Defendant­ Appellant SEIU Local 1000’s Motion to Transfer Consideration of Plaintiffs­Appellees’ Fee Petition to the Eastern District of California is DENIED. The application of Plaintiffs­Appellees Dianne Knox, et al., for an award of attorney’s fees on appeal is referred to the court’s special master, Appellate Commissioner Peter L. Shaw, who shall conduct whatever proceedings he deems appropriate, and shall have authority to enter an order concerning the application for fees. See 9th Cir. R. 39­1.9. The order is subject to reconsideration by this panel. Id. [8336517] (BJB) [Entered: 09/25/2012 11:47 AM]

09/25/2012

43

Filed (ECF) Appellant California State Employees Association, Local 1000, Service Employees

5 pg, 157.39 KB International Union, AFL­CIO­CLC Motion to extend time to file a response until 10/22/2012. Date of

service: 09/25/2012. [8337512] (Demain, Jeffrey) [Entered: 09/25/2012 04:51 PM]

10/09/2012

44

2 pg, 26.27 KB

Filed order (Appellate Commissioner): The motion by appellant Service Employees International Union Local 1000 (“SEIU”) for an extension of time to file a response to appellee Dianne Knox’s motion for attorneys’ fees is granted. SEIU’s response is due October 22, 2012, and Knox’s reply, if any is due October 29, 2012. (Appellate Commissioner) [8352409] (DL) [Entered: 10/09/2012 01:27 PM]

10/22/2012

45

4 pg, 42.59 KB

Filed (ECF) Appellees William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper and Dianne Knox Unopposed Motion for miscellaneous relief [Plaintiffs­Appellants' Motion for Leave to File Corrected Declaration of W. James Young in Support of Plaintiffs­Appellees' Petition for Attorneys' Fees and Expenses Pursuant to 42 U.S.C. 1988]. Date of service: 10/22/2012. [8370281]­­[COURT UPDATE: Removed Declaration; refiled separately (see entry: [47]). Resent NDA. 10/23/2012 by RY] (Young, William) [Entered: 10/22/2012 08:12 AM]

10/22/2012

46

81 pg, 1.1 MB

Filed (ECF) Appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC response to motion (,motion for attorney fees). Date of service: 10/22/2012. [8370833] (Demain, Jeffrey) [Entered: 10/22/2012 11:29 AM]

10/23/2012

47
28 pg, 580.96 KB

Filed (ECF) Appellees William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper and Dianne Knox Correspondence: Searchable Corrected Declaration per request. Date of service: 10/23/2012 [8373091] (Young, William) [Entered: 10/23/2012 12:34 PM]

10/24/2012

48

Filed order (Appellate Commissioner): The court referred the appellees’ motion for attorneys’ fees to the

2 pg, 24.73 KB Appellate Commissioner. The question of the appropriate amount of fees is referred to the Circuit Mediator,

https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom

6/8

11/29/2017

08-16645 Docket
who will contact the parties. The Circuit Mediator is requested to inform the Appellate Commissioner of the conclusion of the mediation. (Appellate Commissioner) [8374836] (DL) [Entered: 10/24/2012 12:08 PM]

10/24/2012

49

5 pg, 50.83 KB

Filed order MEDIATION (VLS): In furtherance of this court’s order dated October 24, 2012, the court has scheduled a telephone settlement assessment conference, with counsel only, on November 19, 2012, at 11:00 a.m. PACIFIC (San Francisco) Time to discuss whether this case is appropriate for participation in the Mediation Program. The Circuit Mediator will initiate the conference call by contacting each person on the attached list of participants at the telephone number listed. Please be available for the call at least five minutes before the scheduled time. [8375493] (WL) [Entered: 10/24/2012 04:03 PM]

10/29/2012

50

Filed (ECF) Appellees William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil,

49 pg, 574.42 KB Thomas Jacob Hass, Patrick Johnson, Jon Jumper and Dianne Knox reply to response (). Date of service:

10/29/2012. [8379642] (Young, William) [Entered: 10/29/2012 01:24 PM]

10/30/2012

51

1 pg, 31.47 KB

Filed order MEDIATION (RGA): At the request of counsel for appellant, the assessment conference originally scheduled for November 19, 2012, is continued to December 4, 2012, at 11:00 a.m. PACIFIC (San Francisco) Time. [8381622] (WL) [Entered: 10/30/2012 02:11 PM]

11/02/2012

52

3 pg, 65.03 KB

Filed (ECF) Appellees William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil, Thomas Jacob Hass, Patrick Johnson, Jon Jumper and Dianne Knox reply to response (). Date of service: 11/02/2012. [8386041] (Young, William) [Entered: 11/02/2012 11:11 AM]

11/13/2012

53

1 pg, 31.21 KB

Filed order MEDIATION (RGA): The assessment conference originally scheduled for December 4, 2012, is rescheduled to December 10, 2012, at 10:00 a.m. PACIFIC (San Francisco) Time. [8399619] (WL) [Entered: 11/13/2012 03:55 PM]

12/10/2012

54

1 pg, 31.34 KB

Filed order MEDIATION (RGA): The court will initiate a further assessment conference by telephone on January 8, 2013, at 11:00 a.m. PACIFIC (San Francisco) Time. [8432024] (WL) [Entered: 12/10/2012 01:21 PM]

01/08/2013

55

1 pg, 24.8 KB

Filed order MEDIATION (RGA): The issue of the amount of attorneys’ fees to be awarded to appellees which was referred to the court’s Mediation Program is released from the Mediation Program and is referred back to the Appellate Commissioner. The Appellate Commissioner will notify the parties if additional briefing is warranted. [8465568] (WL) [Entered: 01/08/2013 11:45 AM]

06/06/2013

56

Filed (ECF) Appellees William L. Blaylock, Robert A. Conover, Edward L. Dobrowolski, Jr., Karyn Gil,

28 pg, 167.75 KB Thomas Jacob Hass, Patrick Johnson, Jon Jumper and Dianne Knox citation of supplemental authorities.

Date of service: 06/06/2013. [8657054] (Young, William) [Entered: 06/06/2013 08:27 AM]

08/06/2014

57

11 pg, 79.82 KB

Filed order (Appellate Commissioner): ...Attorney’s fees in the amount of $102,757.50 and expenses of $1,740.69, for a total of $104,498.19, are awarded in favor of appellees and against appellant California State Employees Association, Local 1000, Service Employees International Union, AFL­CIO­CLC. This order amends the court’s mandate. (Appellate Commissioner) [9195577] (DL) [Entered: 08/06/2014 12:00 PM]

https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom

7/8

11/29/2017 Clear All

Documents and Docket Summary Documents Only
Include Page Numbers

Selected Pages: 0

Selected Size: 0 KB

View Selected

08-16645 Docket

PACER Service Center

Transaction Receipt

U.S. Court of Appeals for the 9th Circuit ­ 11/29/2017 08:57:06

PACER Login: hs0328

Client Code:

Description:

Docket Report (filtered)

Search Criteria: 08­16645

Billable Pages: 6

Cost:

0.60

https://ecf.ca9.uscourts.gov/n/beam/servlet/TransportRoom

8/8