What Trump means for teachers union

Good morning. Happy three-day week. He hasn’t even picked his team yet, but everyone is trying to figure out what a Trump presidency will mean. While it may not be immediately apparent, Trump’s victory a few weeks ago has deep implications for the balance of political power in California.

Because of his win, there could soon be a fifth vote on the U. S. Supreme Court – again – to conclude that teachers at California public schools can’t be compelled to pay union dues to the California Teachers Association in support of political activities with which they disagree.

These dues have made the CTA arguably the most powerful force in state politics, able to win passage of bills increasing taxpayer funding for the state teachers’ pension system, protecting teachers’ jobs and making it difficult for their performance to be evaluated. 

At a January hearing in the Friedrichs v. CTA case, five justices – conservatives Antonin Scalia, John Roberts, Clarence Thomas and Samuel Alito and libertarian swing voter Anthony Kennedy – appeared poised to allow teachers to opt out of CTA dues.

But in February, Scalia died. In March, the court deadlocked 4-4 on the case, and in June, it declined to hear the case again in the term that began in October.

Trump has promised to appoint a justice with Scalia-like views as his replacement. That presumably would mean five votes to put limits on what public employee union dues could be used for.

CalWatchdog has more. 

In other news:

• “At a moment of unprecedented dominance in California, Democrats woke up on Election Day to a painfully changed national landscape, raising sharp questions about how poorly their approach to outsized success on the west coast is translating in vast swaths of the nation’s interior,” writes CalWatchdog.

• “Wind and solar power proponents hope to appeal to Republican President-elect Donald Trump’s desire for economic growth to persuade him to support their industries. Their business means jobs, they say, and the president-elect promised lots of new jobs.” The San Bernardino County Sun has more. 

• The Sacramento Bee looks at six areas where Trump and CA may frequently clash. 

• Gov. Brown may be the face of opposition in CA against Trump, but he hasn’t fully embraced the role yet, writes Politico. 

Legislature:

• Gone till December. 

Gov. Brown:

• No public events announced.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New follower: @djkingassassin

While it may not be immediately apparent, Donald Trump’s victory in last week’s presidential election has deep implications for the balance of political power in California. Because of his win, there could soon be a fifth vote on the U. S. Supreme Court – again – to conclude that teachers at California public schools can’t be compelled to pay union dues to the California Teachers Association in support of political activities with which they disagree.

These dues have made the CTA arguably the most powerful force in state politics, able to win passage of bills increasing taxpayer funding for the state teachers’ pension system, protecting teachers’ jobs and making it difficult for their performance to be evaluated. A Fair Political Practices Commission report found that the CTA and affiliated entities spent $212 million to influence state politics from 2000-2009. Dues vary but are generally around $1,000 a year for the CTA’s 325,000 members.

At a January hearing in the Friedrichs v. CTA case, five justices – conservatives Antonin Scalia, John Roberts, Clarence Thomas and Samuel Alito and libertarian swing voter Anthony Kennedy – appeared poised to allow teachers to opt out of CTA dues.

But in February, Scalia died. In March, the court deadlocked 4-4 on the case, and in June, it declined to hear the case again in the term that began in October.

Trump has promised to appoint a justice with Scalia-like views as his replacement. That presumably would mean five votes to put limits on what public employee union dues could be used for.

Are dues solely used for collective bargaining or not?

The case was brought in 2013 by the libertarian-leaning Center for Individual Rights on behalf of Rebecca Friedrichs, an Orange County schoolteacher (pictured above), and other teachers who object to the CTA’s agenda and reject the claim that their dues were being used for “collective bargaining” purposes only.

The center is expected to start the ball rolling again for a new federal trial, and eventual Supreme Court review, in coming months. It’s not clear whether Friedrichs will again be the plaintiff, but there’s a broad assumption that the CTA — labelled “the worst union in America” by conservative publication City Journal — will again be the target.

As California Lawyer magazine detailed last year, conservative federal judges — not just those on the Supreme Court — seem eager to expedite the challenge to union members’ objections to political uses of their dues. Both trial court and appellate judges went along with plaintiffs’ request that the Friedrichs case be rejected based on precedent — specifically, Abood v. Detroit Board of Education, a 1977 Supreme Court ruling upholding compulsory union dues. This request was made to get the case before the high court as soon as possible.

There is little doubt that several justices are eager to scrap the precedent.

At the January hearing on the Friedrichs case, Kennedy ridiculed the argument that compelling teachers to pay union dues that were used to advocate political views they didn’t share was no big deal because those teachers could advocate for their views in other ways.

The contention that upholding Friedrichs’ challenge would destroy public employee unions also was subject to sharp challenge by justices who noted that federal employees’ unions didn’t charge “agency fees” but were able to effectively bargain on pay and benefits.

The four justices who voted to reject the Friedrichs case and side with the CTA criticized what they saw as an unseemly eagerness to reject long-held precedent. They noted that the Abood case’s finding had been challenged repeatedly over the last four decades and had only faced high court doubts in recent years.

“Sidestepping a potentially radical change for public employee unions, a deadlocked U.S. Supreme Court on Tuesday declined to topple the ability of organized labor to continue to collect dues from government workers who oppose being forced to pay fees to cover collective bargaining costs,” the San Jose Mercury News noted. “In a one-line order, the Supreme Court handed down a 4-4 ruling that effectively let stand lower court decisions backing the California Teachers Association in the closely-watched case.”

“At a time when public employee unions are under political attack in states such as Wisconsin and New Jersey, the California clash was considered a crucial showdown for organized labor and its political wallet. California teachers who support their union’s political influence have been clearly worried about the outcome in the Supreme Court, where a number of conservative justices in recent years have expressed doubt about allowing states to require fees from reluctant nonunion members.”

Political shock waves

The result drew sighs of relief from Democrats and howls from Republicans. The two parties have grown increasingly polarized around the issue of public-sector unions, which Republicans have blamed for busting state budgets and funneling cash almost exclusively to Democrats. “The case involves only public-employee unions — not private workers — but those unions are the strongest segment of an organized labor movement that is increasingly tied to the Democratic Party. At the same time, Republican governors across the nation have become embroiled in high-profile battles with the public-employee unions in their states,” the Washington Post reported.

An uncertain future

The case had become a rallying point for state Republicans in search of a bright spot this election season. “Rebecca Friedrichs, the Orange County teacher who brought Friedrichs v. California Teachers Association, received the county GOP’s Torch of Freedom award at the political group’s Lincoln Reagan Dinner at the Hilton Bayfront on Saturday,” as U-T San Diego reported.

Friedrichs, an Orange County public school teacher, “said she resigned from the California Teachers Association over differences but was still required to pay about $650 a year to cover bargaining costs,” according to Fox News. “In Abood, the court said public workers who choose not to join a union can be required to pay for bargaining costs if the fees don’t go toward political purposes.”

For their part, Democrats have claimed that anti-labor activists want nothing less than to render unions incapable of affording their basic function as collective bargainers. “Organized labor considered it the most vital Supreme Court case of the year, and one of a clutch of politically charged cases that puts the justices in the spotlight as the nation turns its attention to the elections of 2016,” the Post observed.

The split decision left labor law poised on a razor’s edge. Although the court “had raised doubts about the viability of the 1977 precedent, Abood v. Detroit Board of Education,” that authorized the “fair share fee,” “it stopped short of overturning it in two recent cases,” as Fox News noted. Now, court watchers have begun to doubt whether the justices who would alter or scrap the rule will ever be capable of cobbling together the five votes necessary to do so. President Obama, who has settled on a candidate to replace Justice Scalia, hopes to force the hand of Congressional Republicans this year and replace what had been a relatively reliable “conservative vote” on the court with a more liberal one.

As the court hears oral arguments, the challenge has made “unions which represent government workers deeply fearful for their financial future and their public stature,” SCOTUSblog noted. “A significant blow to their treasuries could come if non-union workers are able to turn broad hints by the Supreme Court into final victory in Friedrichs v. California Teachers Association.”

In the case, California teacher Rebecca Friedrichs sued the California Teachers Association over fees she must pay even though she is not a member of the union. “Teachers who, like Friedrichs, have opted out of the union are still represented by it in various contract negotiations, which is why they are required to pay a fee,” the Atlantic noted. “In California, members pay annual dues that average about $1,000 a year, while non-members pay about $600 to $650 for the agency fee alone.”

A landmark challenge

At stake is whether unions are constitutionally permitted to extract dues spent on speech opposed by dues-paying members like the plaintiffs in Friedrichs. “Here is their logic: because unions cannot charge non-members for political activity and since non-members argue that everything a public-sector union does — even bargaining — is political in nature, it follows that any fees violate their First Amendment right not to pay for activity to which they object,” according to the website.

If the court rules in their favor, they will have overturned a 1977 decision allowing the collection of what were deemed “fair share” fees. “Twenty-three states authorize collecting these fees from those who don’t join the union but benefit from a contract that covers them,” NPR reported. Currently 9 percent of teachers have not joined the CTA, the station added. According to state law, however, “any union contract must cover them too, and so they are required to pay an amount that covers the costs of negotiating the contract and administering it. The idea is that they reap the bread-and-butter benefits covered by the contract — wages, leave policies, grievance procedures, etc. — so they should bear some of the cost of negotiating that contract. They do not, however, have to pay for the union’s lobbying or political activities; they can opt out of that by signing a one-page form.”

Political posturing

In one of the arcane twists now familiar to watchers of the court, where sharply divided justices sometimes rule in atypical ways for idiosyncratic reasons, union hopes have been pegged on Justice Antonin Scalia, the resident conservative firebrand. Justice Samuel Alito, whose legal reasoning conservatives often find more reliably conventional, has been viewed as the linchpin of a ruling against the CTA. “A majority opinion by Alito in 2012 suggested the fees were constitutionally vulnerable, and another decision in 2014 stopped just short of overturning the 1977 decision — a ruling that rests on ‘questionable foundations,’ Alito said for a 5-4 majority,” according to the San Francisco Chronicle.

Perhaps predictably, unions and their liberal or progressive supporters have cast the case as the latest and most audacious effort by a wide-ranging alliance of monied interests, spearheaded by the Center for Individual Rights, to break the back of organized labor. For decades, conservatives and libertarians have arrayed themselves broadly against labor unions, which have grown more narrowly partisan in their support of Democrats and the open-ended expansion of public benefits for members and themselves. “Still, unlike the Koch political network and its plans to shape the presidential campaign, it is difficult to find evidence of a single coordinating body that has directed money toward the Center for Individual Rights and its legal campaign to allow public employees to opt out of union fees,” the New York Times observed.

Yet in California, Democrats have a similar ritual — and it draws not fire but praise from many of the state’s editorial pages. It’s the Legislature’s habit of passing tough gun control rules that are obviously going to be tossed by federal courts for cramping the Second Amendment’s right to bear arms.

Why do I say “obviously going to be tossed”? Because while it seems to have failed to sink in with most of the media, America is in a new era when it comes to gun rights. After decades of  justices’ wobbling, bobbing and weaving, the U.S. Supreme Court now has a majority that has firmly and consistently held that the Second Amendment isn’t part of a “living document.” It means what it says.

Guns aren’t just guaranteed to militia members

The turning point came at term’s end in June 2008:

WASHINGTON — The Supreme Court on Thursday embraced the long-disputed view that the Second Amendment protects an individual right to own a gun for personal use, ruling 5 to 4 that there is a constitutional right to keep a loaded handgun at home for self-defense.

The landmark ruling overturned the District of Columbia’s ban on handguns, the strictest gun-control law in the country, and appeared certain to usher in a fresh round of litigation over gun rights throughout the country. The court rejected the view that the Second Amendment’s “right of the people to keep and bear arms” applied to gun ownership only in connection with service in the “well regulated militia” to which the amendment refers.

Justice Antonin Scalia’s majority opinion, his most important in his 22 years on the court, said the justices were “aware of the problem of handgun violence in this country” and “take seriously” the arguments in favor of prohibiting handgun ownership. “But the enshrinement of constitutional rights necessarily takes certain policy choices off the table,” he said, adding: “It is not the role of this court to pronounce the Second Amendment extinct.”

Justice Scalia’s opinion was signed by Chief Justice John G. Roberts Jr. and by Justices Anthony Kennedy, Clarence Thomas and Samuel Alito Jr.

That’s from The New York Times. This most important ruling of Scalia’s career has swung like a wrecking ball ever since, helping along by a 2010 Supreme Court ruling declaring that the Second Amendment applies to local and state laws, not just federal law.

State law struck down by … 9th circuit!?!

This piece from last week in the Los Angeles Times showing a surge in concealed-carry permits reflects the new strength in Second Amendment enforcement. A state law permitting counties to set their own restrictions on such permits was struck down in February by … drumroll, please … no less a liberal pillar than the 9th U.S. Circuit Court of Appeals.

Then there is this development last week:

In another setback for California’s tough gun-control laws, a federal judge ruled Monday that the state can’t require gun buyers to wait 10 days to pick up their newly purchased weapon if they already own a gun or have a license to possess a handgun.

U.S. District Judge Anthony Ishii of Fresno said the 10-day wait for current gun owners is a restriction on constitutional rights that isn’t justified by safety concerns. He noted that all firearms purchasers, including second- and third-time buyers, must pass a state background check of their criminal and mental-health records, but said it was unreasonable to make gun owners wait the full 10 days to acquire another weapon.

That’s from the San Francisco Chronicle.

Observation about Dems holds for media

But as Bee columnist Dan Walters recently pointed out, there are still more weak laws this year coming out of a Legislature whose Democrats see guns as no less than a “secular sin.”

Dan could have noted that largely holds true for the California media as well. In 2004, New York Times ombudsman Daniel Okrent wrote a powerful essay about gun owners being among  “the groups The Times treats as strange objects to be examined on a laboratory slide.” The CA media offer the same incredulity about anyone who believes in the Scalia interpretation of the Second Amendment — in my personal experience, incredulity tipped with disdain.

Good people, you know, abhor guns! They just do! Or they’re not good.

By JOHN SEILER

Tuesday’s decision by the U.S. Supreme Court, effectively putting the federal courts in charge of California prisons, directly involved the question of states’ rights. The decision, Brown vs. Plata, mandated that from 38,000 to 46,000 must be released because overcrowding violated the Eight Amendment’s ban on “cruel and unusual punishments.” The 5-4 decision’s majority opinion was written by Justice Anthony Kennedy, a Californian.

It was the kind of federal meddling in state and local affairs that has become increasingly common since the Warren Court of the 1950s and 1960s. Federal courts now regularly oversee school busing plans, school finances, health issues, police actions — almost anything.

However, as the plural nature of our country’s name indicates, these are United States. Each state is supposed to be a “state,” that is, a sovereign political power. The Declaration of Independence declares, “That these united Colonies are, and of Right ought to be Free and Independent States….”

In a stinging dissent to Tuesday’s ruling, Justice Antonin Scalia protested against the court’s arrogance in taking over California’s prison system. He wrote:

Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals. There comes before us, now and then, a case whose proper outcome is so  clearly indicated by tradition and common sense, that its decision  ought to shape the law, rather than vice versa.   One would think that, before allowing the decree of a federal  district  court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.  Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of  a federal judge, in order to uphold the absurd. The proceedings that led to this  result were a judicial travesty.  I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article  III judges, and takes federal courts wildly beyond their institutional capacity.

Scalia’s words are an excellent explanation of states’ rights and the limitation of the role of federal judges.

Scalia Also a Centralizer

However, earlier this month Scalia himself backed a ruling that violated the rights of states to manage their own affairs. It was a case that actually was a much more “radical injunction” than the California prison case.

The case was Kentucky vs. King, decided on May 16. It eviscerated the Fourth Amendment to the U.S. Constitution, which reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The court’s summary of the Kentucky case is succinct:

Police officers in Lexington, Kentucky, followed a suspected drug dealerto an apartment complex.  They smelled marijuana outside anapartment  door, knocked loudly, and announced their  presence.   As soon as  the officers began knocking, they  heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence.  The officers announced their intent to enter the apartment, kicked in the door, and found respondent andothers.   They  saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search.   The  Circuit Court denied respondent’s motion to suppress the evidence,  holding that exigent circumstances — the need to prevent destruction of evidence — justified  the warrantless entry.   Respondent entered a conditional guilty plea, reserving his right to appeal the  suppression ruling, and  the Kentucky Court of Appeals affirmed.

So, the federal courts were involved. But here’s the key section:

The Supreme Court of Kentucky reversed.  The court assumed that exigent circumstances existed, but it nonetheless invalidated the search.  The exigent circumstances rule did not apply, the court held, because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence.

Thus, the state of Kentucky took charge of its own law enforcement, and its state Supreme Court interpreted the Fourth Amendment in a strong fashion.

But then the U.S. Supreme Court intervened and reversed the state ruling, imposing its will on Kentucky.  It said that the search was permissable, effectively eviscerating the Fourth Amendment. From now on, if police suspect you of drug use or dealing, they don’t need a warrant, as mandated by the Fourth Amendment. They can just wait outside your home until you flush the toilet, then say you are “destroying evidence” and barge inside.

The majority opinion was written by Justice Samuel Alito, and was joined in the opinion by Scalia.

So, Scalia defended states’ rights in the California prison case, but overturned states’ rights in the Kentucky case. There is a pattern here: support for law-enforcement authorities over the rights of the people. Scalia’s protestations concerning the California case, quoted above, ring hollow in light of his actions in the Kentucky case.

The Kentucky case was decided 8-1, with only Justice Ruth Bader Ginsburg dissenting. She wrote:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.  In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.

Oregon Case

In addition to his position backing federal meddling in the Kentucky search case (cited above), in 1990 in Employment Division vs. Smith, Scalia wrote the opinion in another case that violated states’ rights.

The case involved American Indians who used peyote in their Native American religious rites. When this was found out, they were fired in their jobs as drug counselors at a private drug rehabilitation clinic.

I would say that a private clinic had a right to regulate its own affairs. But the Oregon Supreme Court ruled that the firing violated the Indians’ First Amendment right to freedom of religion.

But the U.S. Supreme Court, led by Scalia, then overturned the Oregon court’s ruling, allowing the firing of the Indians. Again, Scalia took the side of law enforcement, in this case the federal “war” on drugs. He wrote:

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Actually, “to permit this” would have meant allowing the state of Oregon to interpret its own laws.

Scalia and California’s Constitution

Going back again to Tuesday’s decision on California prisons. In his dissent, Scalia also did not note that California’s Constitution also contains, in its Declaration of Rights, a section that echoes the U.S. Constitution’s Fourth Amendment. Article I of the state document includes this:

SEC. 13. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.

The California Constitution also includes the crucial Section 24, which paraphrases the federal Bill of Rights. It reads:

In criminal cases the rights of a defendant … to not suffer the imposition of cruel or unusual punishment, shall be construed by the courts of this State in a manner consistent with the Constitution of the United States.

That section effectively cedes the final interpretation of the California Constitution, and all law in California, to the federal government — that is, to the U.S. Supreme Court.

Perhaps that section is unwise. Federal meddling in many cases has done more harm than good. And other state constitutions have no such clause. California also could remove that clause from its Constitution.

But that clause actually is in the California Constitution, something Scalia seems to have neglected.

The Way Things Are

Although states’ rights is an essential part of the original compact of the American states, it has been almost completely eviscerated. Today, people on all sides of an issue commonly file lawsuits in federal court. As we have seen, even Justice Scalia, a conservative who claims to defend states’ rights, violates those rights when he deems it necessary.

Conservatives have been trying for decades to try to reverse this federal usurpation of state powers. But when even a conservative “states rights” justice like Scalia frequently increases federal powers over the states, the effort must be judged mostly futile.

In the case of California’s prisons, which really are torture chambers, at least the overcrowding now must be dealt with. Having ceded so much control to the federal government, California and other state governments now are going have to live with it.