ABOOD v. DETROIT BOARD OF EDUCATION

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Argument of Sylvester Petro

Chief Justice Warren E. Burger: We will hear arguments next in 1153, Abood v. Detroit Board of Education.

Mr. Petro, you may proceed whenever you are ready.

Mr. Sylvester Petro: Mr. Chief Justice and May it please this Court.

I represent the appellant, dissident school teachers in Detroit, who have declined willingly to pay dues to the appellee Union.

The appellee, Board of Education of Detroit empowered by the Michigan Public Employment Relations Act had agreed with the appellee, a Federation of Teachers to forge the union henceforth to discharge the appellant teachers if they refuse to pay agency fees to the Union.

In other words, what we have here is what is known as an agency shop contract; a contract which makes the payment of fees normally equivalent to Union dues, a condition of employment.

The extraordinary aspect of this case of course is that this condition of employment is a condition not of private employment, but of public employment, an employment by a subdivision of the state of Michigan.

The teachers brought suit in the Michigan courts contending that the Board’s continuing threat of discharge if they fail to pay dues to the Union, constituted an outright per se indefensible violation of their rights under the First and Fourteenth Amendment.

They went further and alleged that the Michigan statute empowering the Board to reverse to condition employment was constitutionally overbroad as well.

The case is here because the highest Michigan court to pass on the issue, the Supreme Court of Michigan having denied an appeal.

While indeed it handed down a decision which is not very easy to state clearly, nevertheless seem to have dismissed out of hand.

No question whatsoever about it; those aspects of the complaint which alleged per se an indefensible unconstitutionality.

In what maybe the one clean-cut holding of the case, the Michigan Court of Appeals did say that the Michigan Para, Section 10, authorizing the agency shop was overbroad, in so far as it had to be construed according to the Michigan Court of Appeals as authorizing the Appellee Union to use the agency fees, let us say, in anyway the Union saw fit, subject of course to its own constitution and bylaws.

There is language in the opinion of the Michigan Court of Appeals to the effect that it is well recognized that the Union, in this case, engages in political action.

The statute does not confine the Union’s use of the exact of agency fees to only those things which we may call collective bargaining, but permits the use of the fees for the times of political conduct in which the Union normally engages.

Now, while holding that the statute did permit the Union to use the agency fees for purposes other than collective bargaining, including political purposes, the truth of the matter is that the court did not say that the statute was in consequence thereof unconstitutionally overbroad.

It is virtually impossible to avoid drawing the inference that if say we had unable to obscure the court to the wall and force it to make a comment one way or the other on this issue, it would have said, yes, the statute is unconstitutionally overbroad.

As a great judge once said of another case, the opinion is instinct with that commitment from the Michigan Court of Appeals.

Still in the face, there is broad suggestion of unconstitutional overbreadth.

The Michigan Court of Appeals affirmed the dismissal of the teachers’ petition for injunctive relief.

It affirmed the dismissal of the teachers’ case completely for that matter.

Its idea seem to be that if somehow the teachers managed to get it to commit itself on the unconstitutionality of the statute, they should proceed by an action of one kind or another thereafter to recover from the Union the monies previously exacted and used by the Union unconstitutionally.

Justice William H. Rehnquist: Well, it said in so many words the teachers would have such an action, did it not?

Mr. Sylvester Petro: I do not think you can say that, Mr. Justice Rehnquist.

What it said is that the statute could violate the teachers’ rights.

Justice William H. Rehnquist: I thought it said if the Union choose to spend monies that it had collected for political activities, the Court of Appeals described political activity, then an action would lie in Michigan Courts against the Union to recover.

Mr. Sylvester Petro: That is what makes the case so extraordinarily difficult to deal with.

When the Court says it is not, that this statute is unconstitutionally overbroad, but says instead the statute could violate the teachers’ rights, all it has given as is another lawsuit.

Justice William H. Rehnquist: Well, if they thought that they are giving you another lawsuit was a sufficient cure of the over breadth, if there was any, I take it?

Mr. Sylvester Petro: We have to win on the over breadth argument all over again.

Justice William H. Rehnquist: I would not think so.

You are talking mostly just about nomenclature rather than about the actual issues.

Mr. Sylvester Petro: Well, our problem is that we were dismissed and we think that we were dismissed in spite of the fact that we have what the Michigan Court of Appeals very largely implied was a good constitutional claim.

Now, if you are correct, Justice Rehnquist, in suggesting that we won on that point then of course, the denial of release is inexplicable and plainly incompatible with everything this Court has had to say about violations of First Amendment rights.

Unknown Speaker: Was it a denial based upon the statement of the Court that your clients made no allegations at any event, specifically protested the expenditure of their funds for political purposes to which they objected?

Mr. Sylvester Petro: Well, that is what it is based on, but this is not, I mean, there is no way to ground this holding and the decisions of this Court.

Unknown Speaker: Therefore the plaintiffs are not entitled to relief on this basis.

Mr. Sylvester Petro: The Michigan Court of Appeals demanded of our clients, a kind of conduct preparatory to action that has not been required in any First Amendment case that I have ever encountered and I believe that I try to read them all.

Justice William H. Rehnquist: But you were attacking a brand new statute, were you not, where nothing had ever been exacted?

Mr. Sylvester Petro: Well, there are all sorts of people paying agency fees under that statute.

It is only our clients who had refused for a good long while to pay the agency fees.

Still some have refused, but others under protest have because of the continued threats from the Detroit Board of Education to discharge them, they have now been paying agency fees.

As a matter of fact, the other side makes a great deal of this, acting as low, our clients have disqualified themselves from this suit because they have paid the fees under protest.

Now, this is perfectly understandable that they should do so.

Many of them have been Detroit school teachers for a good long while.

They are not about to give up their jobs even though maybe they will get reinstatement at some future time, but they have preserved their rights; their payments have been under protest.

There has been no deliberate waiver.

Justice Byron R. White: One of your points here I take it is whatever the Union uses the money for; they may not collect the dues from your clients over their objections?

Mr. Sylvester Petro: At the farthest breach….

Justice Byron R. White: That is one of your issues presented here, is it not?

Mr. Sylvester Petro: We insist that compelling these teachers to pay $0.01 to the Union for whatever purpose is a per se violation of the rights of freedom of association and that this stand is made, and a fortiori one, because it is inconceivable in view of what it is that public sector unions actually do.

By the common consent of every qualified person who has ever said a word on this subject, everything that public sector unions do is political and ideological and character.

Now, we have presented….

Justice William H. Rehnquist: It did not get your answer to Justice White’s question?

Mr. Sylvester Petro: Well, the answer was yes.

It was an emphatic yes.

Justice Byron R. White: Now, let us assume we disagree with you on that.

Your point is that at least they cannot collect if they are going to use that for political purposes?

Mr. Sylvester Petro: Well, as I see things, Justice White, you see that would not be any concession on my part because everything…

Justice Byron R. White: Well, I understand, but what if we disagree with you on that.

Suppose they are using part of the money for medical benefits or legal benefits or some service to their members and we just disagreed with you that that is political?

The other point is that they are using some of it for political purposes.

Mr. Sylvester Petro: Well, the essential function of a union is to engage in these negotiations of one kind or another with their opposite numbers.

Now, it is true I suppose, I should certainly have to withdraw the suggestion that there is no conceivable way in which the union could spend money non-politically.

I said, well, they have backed for the teamsters used to spend teamster money on trips to Europe and it would be hard put to establish this as a political expenditure.

Justice Byron R. White: Well, it is quite who he had (Inaudible)

Mr. Sylvester Petro: That is true qualification except --

Unknown Speaker: Let us suppose they had a party every Friday night, just a pure social event?

Mr. Sylvester Petro: Well, once again the question is….

Justice Thurgood Marshall: What about the health facilities that unions have?

What is wrong with that?

Mr. Sylvester Petro: Let me say Justice Marshall that all the activities --

Justice Thurgood Marshall: All is that there.

Mr. Sylvester Petro: I am ready now to concede that all of the activities other than those that the union refers to as collective bargaining may putatively be non-political in character.

One would have to make an examination of instance after instance to determine but as far as those activities which the union has generally been characterizing by the words collective bargaining.

Unknown Speaker: You said bargaining for a contract, bargaining about wages would be categorized as political, when you are bargaining with the public parties?

Mr. Sylvester Petro: That is correct and I think that this Court’s decision last term, in the National League of Cities case puts this proposition beyond any further doubt.

If it is true as was held in the National League of Cities case that the determination and administration of the state or locality’s employment practices is a fundamental aspect of a state’s sovereignty and sovereignty is of course the political principle by its alliance.

Then public sector collective bargaining which is explicitly designed to influence and effect, rearrange and displace the sovereign decisions of the states and localities in respect of their employment must of necessity also be political in character.

Justice William H. Rehnquist: Well, suppose given the Michigan legislature which presumably exercises the sovereign power of Michigan along with the governor has passed a statute saying there shall be public sector collective bargaining?

Mr. Sylvester Petro: Yes indeed and I suppose the Michigan legislature has in that for the first time engaged in a constitutionally dubious piece of conduct.

Justice William H. Rehnquist: But you say that violates the National League of Cities principle?

Mr. Sylvester Petro: The National League of Cities principle, I think you wrote that opinion.

Justice William H. Rehnquist: I did.

Mr. Sylvester Petro: The National League of Cities case said that the determination of the wages, hours and other conditions of employment is an integral aspect of the sovereignty of a state.

Now, if we have a state of Michigan which proceeds to give away this sovereign authority, what is the situation we find ourselves in, are states permitted in light of their duties to their constituents to the people to whom they owe their ultimate power and position?

Are states permitted thus to dispense with, to disperse, to share out, to give to this or that private agency pieces of the state’s sovereign powers?

I should point out that we are getting into very deep water here.

Justice William H. Rehnquist: The question is singular, right?

Mr. Sylvester Petro: Some of us, one of us; for it is not I who raised the question whether the state of Michigan in passing the Para into conflict with the League of Cities case.

What I have suggested is that in passing Para, Section 10, authorizing the agency shop, the Michigan legislature was in trouble with the National League of Cities case as well as with a number of other decisions handed down last term, most notably Elrod v. Burns.

I think Elrod v. Burns is a case which is virtually indistinguishable from this one.

May I proceed, Mr. Chief Justice?

Chief Justice Warren E. Burger: You have only a minute or two left to the end of your rebuttal time now, if you wish to save any?

Mr. Sylvester Petro: My instincts do not permit me to end this abruptly so I must point out that there are some features about this case that need emphasis and need emphasis in connection with the discussion that we have just been having.

I shall go over them very rapidly because I do wish to save ten minutes for rebuttal.

Now, the first and I believe the most profound element in this case lies in the distinction between the activities of government and the activities of private persons.

Government is one thing and private persons and their activity are strictly another.

There is a great deal made by the other side of the fact that collective bargaining, while collective bargaining in the private sector is the same thing as collective bargaining in the public sector, I believe that this lacks as much discernment has would be lacked by a person who said that all of the Fords that roll of a Ford assembling line are the same; it does not matter that one is driven by Sylvester Petro, a private person and the other is driven by a policeman and is owned by a police force.

They look alike, but they are different.

The same thing is true, say, of the jet engines that are produced in such numbers.

Some go into passenger commercial flights and others go into B1 bombers or B52.

You take that same engine, take it out of a passenger plane, put it into a bomber and you have got a different animal.

In the same way, that activity of collective bargaining which looks as though it is exactly the same in the public sector as it is in the private sector is a different animal entirely.

It is an animal that participates of the political character of a government that constitutes the employer and when that collective bargaining thus becomes political in character to ask or to insist that a public employee against his will, finance it, it is the same as forcing upon that public school teacher, political and ideological objectives which quite obviously cannot be squared with the First Amendment of the Constitution of the United States, a clear compromise of the dissident teachers’ political associational and speech rights is present in the case of this kind.

Thank you.

Unknown Speaker: Did you write this brief?

I am afraid to acknowledge and that is why I am sure every member of this Court feels it has been greatly imposed upon by its language.

Would you think that this case needs 216 pages plus 53 of responsive brief of 269 pages?

We do have a lot of cases here.

Mr. Sylvester Petro: I am sorry, I made my apologies.

Unknown Speaker: Another question I want to ask was, you do not have to answer this one, but you might reread the summary of the argument and my question is whether it complies with our rules as to being a summary of your argument?

Mr. Sylvester Petro: I shall do so.

Chief Justice Warren E. Burger: Mr. Sachs.

Argument of Theodore Sachs

Mr. Theodore Sachs: Thank you, Your Honor. Mr. Chief Justice and May it please the Court.

Perhaps in the remaining few minutes before the recess it would be profitable to indicate what this case does not involve.

Clearly, I would suggest on state of the record and as the case comes before the Court, there is not a political expenditures issue dealing with the question that Mr. Justice Rehnquist asked.

The Lower Court in fact decided favorably to the contention of appellants as to the use of agency shop monies for political purposes and made clear that where such money is to be expended.

Over their objection, they would indeed have a cause of action.

The complaint was dismissed in the instant case because in fact they had never made any appropriate protest on any timely fashion.

It should be recalled if the Court please, that this complaint that is the initial complaint in Warczak of which Abood is virtually a carbon, was filed prior to the effective date of the Act.

In that circumstance, it was virtually identical to the Hanson case.

Not withstanding which, the plaintiffs alleged although not one penny had been collected from anyone, nor of course therefore, nor have one penny been expended that the Union was somehow using the money for political purposes unspecified as to which the plaintiffs objected and they sought on that account not some remedy, discrete and referable to expenditures or alleged expenditures of a political nature, but they sought as in Hanson to avoid the obligation of the Agency Shop Clause entirely.

They sought no relief whatsoever as to the claimed expenditures and they did not itemize or specify any specific compliant if any which they had.

They incanted their phrasing which presumably was intended to invoke a remedy which would set aside the clause entirely.

Moreover during the entire pendency of the litigation, they have been excused from enforcement of the clause.

There has been no discharge of any plaintiff appellant.

There has been no other enforcement.

The fact of the matter is then that the Lower Court after first saying that the statute did not admit, as this Court had interpreted the Railway Labor Act within it, of the possibility of expenditure or non-expenditure over objections of dissenters.

After saying that could present a constitutional dilemma, avoided the problem entirely by then agreeing with the contention of the plaintiffs and saying yes were that to happen, there would indeed be a remedy.

We did not cross appeal on that ruling.

That is the fashion in which the matter comes before the Court in addition as we have pointed out in our brief.

The Union complied with….

Justice John Paul Stevens: Under your understanding of the Court of Appeals ruling, would a particular member of the plaintiff group have to object to particular expenditures or would it be sufficient for him generally to object to expenditure of any money for any political purpose?

Mr. Theodore Sachs: Mr. Justice Stevens, I think under the holding of the Court, there would have to be a specific objection just as this Court stated in the Lathrop case in the context of constitutional adjudication, such a requirement would be necessary, at least it was necessary in the context of the complaint there, but I would respectfully suggest that is academic now because the Union has adopted the remedial process which was recommended by this Court in the Allen case as a means of facilitating ready restitution of the proportional payments in so far as they might be applied.

Justice John Paul Stevens: What happens to the union member who does not particularly want to disclose his disagreement with particular union policies or political policies advocated by the union, but just does not his money spent for any particular political, activity in time?

Mr. Theodore Sachs: No Your Honor.

Under the internal remedy, he need not to disclose anything specific, leave going beyond the appellate decision.

Justice John Paul Stevens: But can he then, I will go back to my first question; can he then simply say I do not want you spending my money for any political purpose?

Mr. Theodore Sachs: Yes sir, he can.

Justice John Paul Stevens: And what happens then, does he get all his money back or…?

Mr. Theodore Sachs: No, he would get in accordance with the remedy of this Court and as provided by the…

Justice John Paul Stevens: …by this Court in this Court in this case here.

Mr. Theodore Sachs: He would get a proportional refund in so far as any payments expended by the Union for political purposes are involved, has -- total expenditure.

Justice John Paul Stevens: How is that total computed, how you are going to compute that?

Mr. Theodore Sachs: We are going to compute it in the best of good faith and accordance with the suggestion of the Allen case, Your Honor.

Justice John Paul Stevens: Just tell me in dollars and cents.

Say there is this $50, how much do they get back if he says I do not want you spending my money for political purposes?

Mr. Theodore Sachs: Well Your Honor, that would involve…

Justice John Paul Stevens: Say 40% of your budget is political; does he get 40% then?

Mr. Theodore Sachs: Your Honor, under your hypothetical for 40%, there will be 40% refund.

It obviously involves the determination and as the procedure is set out in the appendix, there is a procedure for determination, there is disinterested review, there is an opportunity to make precisely those formulations and there was a deliberate intent to make the remedy as expensive and as generous as possible.

So there would not be problems of this sort.

So the fact is then I think I can fairly state to the Court as the matter comes before you, it does not involve political issues in the sense that the Court dealt with them in the Street or dealt with them in Allen.

What it seems to me is presented by this case, and the only appropriate question presented by the case is whether the rulings of this Court which seems to me are quite clear in Hanson, Street and Allen and Lathrop are equally applicable or are no less applicable in the instance of a public employer with respect to its own employees.

The case does not involve contrary to suggestions of appellants, a coerce membership of any kind that that is not the nature of the obligation.

It does not involve coerce effort of any views or positions of the Union.

It does not involve ideological conformity in any fashion.

It does not involve suppression of dissent.

It does not involve censorship of any dissidents or dissenter’s views.

None of those matters are involved and as I have already indicated, it does not involve, under the posture of the case, any of the political expenditures questions.

Unknown Speaker: But it does involve, however, compulsory financial tribute to the Union, does it not?

Mr. Theodore Sachs: It involves compulsory…

Unknown Speaker: Or by the state as a condition of governmental employment.

Mr. Theodore Sachs: I would respectfully differ with the term tribute; there is a compulsory obligation of financial support, Your Honor.

Unknown Speaker: Well, but it is not then dictionary meaning of the word tribute?

Mr. Theodore Sachs: Well, sometimes it has a pejorative sense than I would think that inappropriate in this context, Your Honor.

There is no question but there is an obligation of financial support.

Chief Justice Warren E. Burger: We will resume there at 1 o’clock.

Mr. Theodore Sachs: Thank you, Your Honor.

Chief Justice Warren E. Burger: You may continue.

Mr. Theodore Sachs: Thank you, Your Honor and May it please the Court.

Appellees would suggest that an appropriate evaluation of the central issue which is tendered, necessarily involves a consideration of the general Michigan Labor Code which is involved here.

Michigan, like many other states in extraordinary number has adopted a comprehensive Labor Relations Code which, in central and significant aspects, parallels the National Labor Relations Act.

And there are numerous decisions of our own State Supreme Court which have indicated as much and have indicated that the teachings of the Federal Act and indeed this Court’s interpretations of that Act are persuasive in terms of determining the significance and system of the State Act.

Part of that system includes not only the disciplinary measures and procedures which were before this Court in the last term in the Crestwood case involving anti-strike provisions, but involved affirmative features dealing with a process of collective bargaining, and in that respect, the Michigan statute like the federal, like the Nation Labor Relations Act, provides that where employees, in an appropriate bargaining unit have by democratic vote of majority of them, selected a representative.

The public employer, basically in the local sector, has responsibility to bargain in good faith with respect to wages, hours and conditions of employment.

The elements of those concepts are, of course, entirely familiar to this Court and they are essentially of the same meaning in the State Court.

An aspect which is critical to an understanding of the state system and indeed of the issues in this case, is the proposition that the representative chosen under the Michigan scheme is the exclusive representative, but the exclusive representative based upon majority rule.

As such, as this Court has said several times, the organization is not a “private organization.”

It is an organization which is clothed with certain legislative authority in the context of what is involved here as stated in Steele and Tunstall, it is an organization which has the authority that creates and extinguishes certain rights from the bargaining unit generally.

Unknown Speaker: Am I mistaken in my recollection that the federal labor legislation excludes governmental employers?

Mr. Theodore Sachs: No, you are quite correct, Your Honor.

Unknown Speaker: Does the legislative history of that legislation show why?

Mr. Theodore Sachs: I do not believe so Your Honor and I really cannot answer the Court’s question.

Unknown Speaker: But it does clearly exclude?

Mr. Theodore Sachs: Yes sir and that, of course, I think is complementary to leaving such matters to the states.

Presumably that was at least the essential congressional intent.

Unknown Speaker: Well, it excludes any kind of federal governmental employers also then.

Mr. Theodore Sachs: That is correct and of course, the federal governmental employees have an substantial measure been covered by various executive orders which have provided similar bargaining though not precisely the same as is involved here.

The corollary it seems to me, which is critical to again, the understanding of what is essentially here to the proposition of exclusive representation, is that there is a duty, a fair representation on the part of the exclusive bargaining representative to all members of the bargaining unit.

It is perhaps not by accident that in appellant’s entire brief, there is not an acknowledgement of the concept of the duty of fair representation or a citation of Baker or Humphrey or Hines or any of the cases in which this Court has annunciated those familiar doctrines.

Unknown Speaker: Are those cases applicable here?

Mr. Theodore Sachs: They are by borrowing by the state Courts, the Michigan Court --

Unknown Speaker: Well, it is not directly.

Mr. Theodore Sachs: Not directly, no Your Honor.

Justice William H. Rehnquist: Has the Supreme Court of Michigan ever adopted that rule?

Mr. Theodore Sachs: Yes Your Honor, in a case called Lowe against the Restaurant Workers, it has essentially adopted the authorities expressed by this Court and indeed in a more recent case, by the State Court of Appeals called Handwerk.

The Court has said that the requirements of the state statute maybe perhaps are more strict than those imposed by this Court, and allow less discretion perhaps in terms of the bargaining agents’ authority to discontinue a grievance short of arbitration then this Court might permit.

In any event, the significance is that there is a very serious burden and a very serious responsibility imposed upon the bargaining agent to represent all, including the plaintiffs in this case.

There has been no challenge in this complaint or in this argument by appellants and indeed there is a disclaimer to the concept of exclusive representation.

So that is not an issue before the Court.

Therefore, I would suggest that an appropriate corollary of the authority of the bargaining agent, indeed this Court has said virtually there is such a corollary in the part of the bargaining agent to speak for all, is to represent all fairly.

Therefore that means that those, who whatever their exposition here, challenge the procedure of the statute, nevertheless have called upon the services of the organization which is required fairly and without any discrimination to render services and no claim has been made.

Unknown Speaker: Who determines in this context what is political and what is non-political?

Mr. Theodore Sachs: In this context Your Honor?

Unknown Speaker: Yes, well under this, who would determine that what portion of the union’s expenditures were for political purposes and what the subject to refund?

Mr. Theodore Sachs: Well, under if Your Honor is inquiring as to the internal procedure, the procedures established in the first instance by the union, subject to review by a disinterested panel.

Unknown Speaker: Who was that?

Mr. Theodore Sachs: To be appointed by the organization by definition required to consist of disinterested citizens.

Unknown Speaker: But the applicant for a refund would have no voice in choosing that panel?

Mr. Theodore Sachs: Not under the procedure constituted Your Honor.

Obviously, if the procedure is defective --

Unknown Speaker: How is that procedure constituted; just by the union or by statute or by Court’s interpretation or what?

Mr. Theodore Sachs: Now that procedure, Your Honor was adopted internally by virtue of union resolution, the union thought following the recommendation --

Unknown Speaker: What does it include within the term political?

Mr. Theodore Sachs: The term, Your Honor, I think is broadly defined to refer to political issues and ideological issues of controversial nature.

The only incident I would relate to is collective barganing.

Unknown Speaker: But does everything fall within political other than the services of the union in negotiating and administering the collective bargaining contracts?

Mr. Theodore Sachs: Your Honor there has not been an application yet.

There has not been any instance for its explications would come at the conclusion of the calendar year.

The intent certainly from the language is to be expensed as I stated earlier in answer to Mr. Justice Stevens’ question to be generous in that regard, so that there would not be any bona fide question as to matters which are appropriately categorized as political would be subject to appropriate refund.

There is no dispute in that regard.

Unknown Speaker: Assume the member or the applicant does not get what he thinks he is entitled to and disagrees with the union’s determination of what is political, may he go to Court?

Mr. Theodore Sachs: I would presume so, Your Honor.

The procedure does not say so, but I would presume so.

Unknown Speaker: Would there be a cause of action formed in state Court?

Mr. Theodore Sachs: Yes sir.

Justice William H. Rehnquist: The Court of Appeals said so.

Mr. Theodore Sachs: Yes, that is my understanding.

Unknown Speaker: Mr. Sachs, what about those non-political expenditures that are also non-beneficial to the appellants, I am thinking of social expenditures or conventions and publication expenditures and travel to expense and, if you will, organization elsewhere?

Mr. Theodore Sachs: Your Honor, those matters are really not tendered by this record and I would suggest just as this Court felt it appropriate in Street and Lathrop to indicate that there ought to be an appropriate record to determine where the appropriate line is to be drawn so it ought to be here, the rebate procedure does not speak to the points which Your Honor speaks, nor do I understand the Lower Court’s decision to do so, but on the other hand, I do not understand that issue really too have been tendered and seems not to have been a focus of the litigation at any stage.

Justice John Paul Stevens: Mr. Sachs, I am not really pointing.

I understand you generally are taking the position that the rebate procedure is not right for decision in the state.

Mr. Theodore Sachs: Yes sir.

Justice John Paul Stevens: Is it not also perhaps true that the statute itself is not really before us because the Court of Appeals, as I read the opinion, held that it did not apply to existing contracts, it did not have retroactive effect and though we have a prior contract involved in this litigation?

Mr. Theodore Sachs: In a technical sense, that is true, Your Honor though in turn as I must say that there have been a sequence of contracts which in general tender -- have repeated the same thing because the contract which was initially involved here was a contract of many years ago.

Justice John Paul Stevens: But the litigant before us does not have standing to attack the statute as I piece it all together, am I right in that?

Mr. Theodore Sachs: Well, I have to say again in fairness that that point as such has not been raised but Your Honor as the lower court --

Justice John Paul Stevens: Well it is a jurisdictional point.

Mr. Theodore Sachs: Yes sir.

Justice John Paul Stevens: Would it not require us to dismiss this appeal and have the case come up where someone else was involved?

Mr. Theodore Sachs: I would think so, Your Honor, I think it is not appropriately here but again I do not want to miss --

Justice John Paul Stevens: Well, I understand, you are not relying on it, but we have a duty to satisfy our --

Mr. Theodore Sachs: We did not raise the point, but the contract is long since gone although there were successions of later contracts.

Justice John Paul Stevens: And the Court of Appeals did hold that the statute did not apply to the contract in this record?

Mr. Theodore Sachs: That is correct, and remanded in that respect and that aspect of the case has not been brought here by anyone and does not remotely involve any issues which have been tendered here by either side.

Justice John Paul Stevens: So we are really being asked to review some dictum in the Court of Appeal’s opinion?

Mr. Theodore Sachs: I think that might very well be the case, Your Honor and especially dicta which under the view of the appellees’ comports very carefully with prior pronouncements of this Court.

Unknown Speaker: May I ask -- not that I completely follow by Brother Stevens’ suggestion, it is that since the Court of Appeals held that the statute did not apply to the contact in effect, is that it?

Mr. Theodore Sachs: That is correct.

The Court of Appeals --

Unknown Speaker: Under those circumstances, there is no standing in this.

Mr. Theodore Sachs: A standing question Your Honor, and again we have not raised the point that I understood Justice Stevens to cast in turns of a jurisdictional question and I had not addressed that --

Unknown Speaker: Well, jurisdictional understanding sense is not -- as I understand it?

Mr. Theodore Sachs: Perhaps, Your Honor but the point is, again, none of the parties have addressed it and the Court has not addressed it as such that what the decision in this respect of the Lower Court was, that the statute did not have retrospective application.

Unknown Speaker: And therefore it did not apply as a contact in this record, is that it?

Mr. Theodore Sachs: Yes, Your Honor.

Unknown Speaker: Certainly in case of controversy between the employees and the Union, I mean this cause of action was or his claim was that the agency shop clause and collective bargaining agreement was invalid.

Mr. Theodore Sachs: That is correct.

Unknown Speaker: So there is certainly -- he has got to think of a controversy.

He does not want to pay over the fee, isn't that right?

Mr. Theodore Sachs: Yes sir.

Unknown Speaker: You would not say it is a Article 3, case or controversy point.

Mr. Theodore Sachs: Your Honor again I have not raised the issue, the only point --

Unknown Speaker: Well, that is jurisdictional.

Mr. Theodore Sachs: Yes sir.

Unknown Speaker: But just whether he has standing to attack the statute?

Mr. Theodore Sachs: We have not raised a standing defense.

Unknown Speaker: I know you have not, but suppose that he refused to pay under this collective bargaining agreement, would he be fired?

Mr. Theodore Sachs: After the conclusion of this litigation, presumably he would be.

Unknown Speaker: Let us suppose the statute is never been passed?

Mr. Theodore Sachs: Yes sir.

Unknown Speaker: Would he have been fired?

Mr. Theodore Sachs: I do not know because in light of the prior adjudication Your Honor, the State Supreme Court had held that there was not an appropriate statutory basis for the establishment of an agency shop clause, and therefore presumably there would not had been one and therefore there would not have been a firing clause?

Unknown Speaker: Well, I take it then that you were defending; you are the one who is relying on the statute?

Mr. Theodore Sachs: Yes Your Honor.

Unknown Speaker: Not the plaintiff.

Mr. Theodore Sachs: That is correct.

Unknown Speaker: So you are the one who raised the statute.

Mr. Theodore Sachs: That is correct.

Unknown Speaker: Otherwise you would have lost under the prior trial?

Mr. Theodore Sachs: That is correct, Your Honor.

Unknown Speaker: Thank you.

Justice John Paul Stevens: It is the federal statute, but you now concede in view of the holding of the Court of Appeals that the statute does not apply?

Mr. Theodore Sachs: I concede that the Court indicated that the statute did not have retroactive application.

Justice John Paul Stevens: So it does not apply to this case.

So you have no defense on the statute, there is no statutory question before us?

Justice William H. Rehnquist: But the statutory question was based on one of state law.

We would not interpret the Michigan statute.

Their claim, as I understand to your opponent’s claim, is that the compelled deduction of dues violates their First Amendment rights under the Federal Constitution.

Mr. Theodore Sachs: Yes sir.

Justice William H. Rehnquist: Your response is that it does not.

The way it came up to the Michigan State Courts was that the Michigan Court said yes, there is sufficient statutory authorization for you to do that and in addition, we find there is no constitutional violation.

Mr. Theodore Sachs: That is correct.

Justice John Paul Stevens: Well, but Counsel, is that not true that the compulsion for the deduction as to this contract is solely based on the contract, there is no statutory authorization for deduction?

Mr. Theodore Sachs: There was no deduction in that respect, Your Honor.

I have to indicate that both parties sought rehearing below and then clarification as to what the purpose of the remand was with respect to the retroactive period since there had been no compulsions, since there had been no collection, we could not understand what the point of it was.

I, to this date, do not understand what issue remained on that score, but it was not framed in the terms that Your Honor is now questioning me.

Justice John Paul Stevens: Let me put it this way.

If the Court of Appeals had said the statute is totally void, it never been passed or something like that, it has hed that it does not apply to this contract, then you would not have been able to compel the deduction because of an independent state ground reason, is it not that correct?

Mr. Theodore Sachs: It is totally independent.

Justice John Paul Stevens: So there is really no federal question before us as what I am saying is there is no compulsion now for a deduction as to these particular litigants?

Mr. Theodore Sachs: As to that past period that would be so subject to the point that Mr. Justice White has raised and that we acknowledge fairly.

Unknown Speaker: Part of the plan of the plaintiff was not in his complaint that was unconstitutional for the collective bargaining agreement with the state to compel and to contribute to the union activity?

Mr. Theodore Sachs: That is correct.

Unknown Speaker: That claim did not depend on whether there is a statute or not?

Justice John Paul Stevens: But as to this claim, did not the Michigan Court hold that he was right apart from this later statute?

Mr. Theodore Sachs: Now, the Court said that the contract and the statute I think were essentially one issue.

I do not think plaintiffs attempted to disassociate the contract from the statue.

Their First Amendment claim was that there was statutory action involved.

Unknown Speaker: But you relied on the statue and say that the reason that is now valid is because there is a right to a refund.

Now, whether or not that the Michigan statue was in existence or not, this petitioner’s claim was rejected and part of his claim was that collecting a fee to support union activities was unconstitutional?

Mr. Theodore Sachs: That clearly was the claim, Your Honor.

Unknown Speaker: And it still is claim right here, the number one claim.

Chief Justice Warren E. Burger: Without regard to what gives, it maybe upon --

Unknown Speaker: Statue or not, that is part of his claim right now.

Mr. Theodore Sachs: I presume that is so, Your Honor.

Justice William H. Rehnquist: Is it not that the Detroit School Board that is making the deduction to bring in to play at least of the claim of the First and Fourteenth amendment?

Mr. Theodore Sachs: The fact of the matter is, Mr. Justice Rehnquist, the Detroit School Board asked the appellants before you is not making a deduction, there has been no deduction because there has been a stay of the enforcement as to all of these appellants.

Justice William H. Rehnquist: Well, but the fact that something as stay pending review here it does not moot it for that reason, as I take it?

Mr. Theodore Sachs: No, but I want to be clear.

State in a contractual sense not by virtue of any Court action, the contract itself provided that during the pendency of litigation there would not be enforcement and therefore the plaintiffs have not been under any compulsion and they have not as I sought to state in my opening remarks, did never sought to challenge the expenditures as such, they sought to address as plaintiffs did in Hanson, the collection as such.

Unknown Speaker: Mr. Sachs, I still do not follow you colloquy with my brother White.

Didn't you tell us that Michigan Supreme Court said that this very contract between the school board and its union was invalid under the statutory authority?

Mr. Theodore Sachs: Your Honor, the Court I think in its opinion did not distinguish speak to this contract as such.

Unknown Speaker: No, I thought you referred to some earlier opinion.

Mr. Theodore Sachs: There is an earlier case not involving these parties, Your Honor.

Unknown Speaker: Alright, not involving these parties, but a contract between a public party and the labor union?

Mr. Theodore Sachs: Yes Your Honor.

Unknown Speaker: With an agency clause in it?

Mr. Theodore Sachs: Yes.

Unknown Speaker: And there held that the agency clause was unenforceable, invalid whatever?

Mr. Theodore Sachs: Of course, fairly statutory reasons.

Unknown Speaker: Alright, and it would not have applied if this statute is not applicable to the particular contract which got involved here then where is the First Amendment issue?

Unknown Speaker: The petitioner’s claim was overruled though.

It was rejected by the Michigan Supreme Court or by the Michigan Court, was it not?

Mr. Theodore Sachs: Yes sir.

Unknown Speaker: And that included the rejection of his First Amendment claim with or without a statue?

Mr. Theodore Sachs: That is correct.

I hope I have answered the Court’s questions.

Unknown Speaker: Well, at least federal question here, doesn't it?

Unknown Speaker: I am not sure it does.

Mr. Theodore Sachs: Well, Your Honor I am not sure. I do not know what time is now left.

Justice William J. Brennan: There are certain questions involved in the case of -- this contract contains an enforceable provision that must be, as if, there never was such a provision on some state law ground?

Unknown Speaker: It does not make an issue here.

Unknown Speaker: The petitioner should have won that, but he did not, did he?

Mr. Theodore Sachs: Your Honor, on that point the Court did remand with respect to an appropriate remedy as to the retroactive period.

That is not a piont in Court.

Justice William J. Brennan: Was it in Intermediate Appellate Courts?

Mr. Theodore Sachs: Yes Your Honor.

Justice William J. Brennan: I take it it could not have overruled the prior Supreme Court’s decision?

Mr. Theodore Sachs: No, of course not.

It did not presume to do so, but it was acting not in the basis, Mr. Justice Brennan, of the earlier opinion or on the basis of the intervening statute, it enacted I think in 1973 which at that point sanctioned such agreements as this and did so expressly.

So there was no longer a question of a statutory basis for the action which was taken.

Justice William H. Rehnquist: On both parties' petition to Supreme Court of Michigan for review and it was denied?

Mr. Theodore Sachs: That is correct.

The appellant’s petition on the grounds which they would bring here, we petitioned because we simply could not understand the purpose of the remand since there really was nothing that was not moot.

Since there had been no compulsion, we could not understand what was viable for purposes of any remand and indeed the appellants seem to join with us in that quandary as to what the purpose of the remand was.

In any event that is not before this Court, is not been presented.

I would simply want to emphasize that it seems that in the light of the precedence of this Court, there are no bases considering the parallel pattern of the Michigan statute to that of the federal statute if any genuine First Amendment issue or speech or association involved.

We are really back to the initiative, if the questions are here, we are back to those initial questions and it seems to me that the issue is what this Court characterized in the last term in the black lung benefits case; Usery v. Turner, Elkhorn as a legislative act adjusting the burdens and benefits of the economic life and that is all that is involved in this.

Such a statute, it seems to me, comes to this Court with a presumption of validity and it is for the plaintiffs not for the defendants to justify it.

There are no First Amendment implications involved.

Thank you.

Chief Justice Warren E. Burger: Mr. Petro, do you have anything further?

You have six minutes left.

Rebuttal of Sylvester Petro

Mr. Sylvester Petro: Mr. Chief Justice, Honorable Associate Justices, I think thoroughly without any intention Mr. Sachs has completely misled us all concerning the posture of this case.

It all goes back to the Smigel decision by the Michigan Supreme Court holding that in the absence of an authorizing agency shop provision in the Michigan Para, no public employer could as a matter of statutory power enter a union or agency shop contract.

Now after that decision, the Michigan legislature proceeded immediately to pass the statute wanting as of the time of the Smigel decision.

Now, observe very carefully Honorable Justices, it was after the passage of that enabling agency shop provision that the contract in issue in this case was entered by the parties.

If this does not establish a federal question, then I do not know what a federal question is.

The contract involved in this case was entered by the parties after the passage of 1973 Michigan Para, Section 10.

Now, since I have only three minutes left, let me proceed immediately.

Justice John Paul Stevens: Well, Mr. Petro, may I just ask why then in the Court of Appeals’ opinion did they discuss the issue of retroactivity?

Mr. Sylvester Petro: This was involved in the question whether or not a contract then existed.

A contract prior to the one sub judice should be applicable to the plaintiff in that case, not this one.

This is a new bargain.

Justice John Paul Stevens: It means in other words if the contract in the record before us is different from the contracts in the record before the Court of Appeals and where you nevertheless were reviewing that decision?

Mr. Sylvester Petro: No, an aspect of that contract involved in the Warczak case was controlled by force of precedence not by force of judgment in the Smigel decision.

This Court held only that as to that period, all these people were employees throughout that period, throughout that period they are involved in the Smigel case, throughout the period involved in this Abood, Warczak case.

Now, the question was whether or not they were going to be affected by the Michigan Para’s Amendment 1973, which -- the language of it is relevant here.

The Michigan Para speaks in terms of reaffirming its favoring an agency shop.

It is a sort of, if I may say so without antagonizing the Court, a kind of shelving used by the Michigan legislature designed to establish retroactively the validity of the Agency Shop Para passed in 1973.

Then the only thing that this Michigan Court of Appeals, from which we are appealing, did with respect to that was saying no, there cannot be no --

Justice Thurgood Marshall: Was this case filed in 1969?

Mr. Sylvester Petro: Pardon me.

Justice Thurgood Marshall: Is this case filed in 1969?

Mr. Sylvester Petro: This particular case?

Justice Thurgood Marshall: Yes sir.

Mr. Sylvester Petro: In 1969, yes.

Justice Thurgood Marshall: So the 1973 act applied in 1969.

Mr. Sylvester Petro: No, it applied as of the time when the case came back up to us, a contract, the contract of these parties are bound by, if they are bound at all, is a contract entered by the parties after 1969 -- 73.

Justice Thurgood Marshall: What was the date?

Mr. Sylvester Petro: October --

Justice John Paul Stevens: Is that contract in this record, the 73 contract in this record?

Mr. Sylvester Petro: Yes, it is in the record, let us see.

See the record brief in support of claim of appeals, the Michigan Court of Appeals, April 11, 1974 at 5:12 appendices D and G.

Letter from Theodore Sachs to Honorable Charles Kaufman of Michigan Circuit Court, October 19, 1973, enclosure.

Mr. Justice Marshall there cannot be any doubt whatsoever that the contract involved in this case is a contract postdating the Michigan Para Amendment the constitutionality of which we are challenging.

No doubt whatsoever this is the contract in issue in this case, not the one that was the subject of the Smigel decision and which by virtue of this Smigel decision --

Justice Thurgood Marshall: What did he have to with it, did Smigel name it?

Mr. Sylvester Petro: Smigel is the decision in which the Michigan Supreme Court stimulated the legislation that is involved here.

Had this Michigan Supreme Court not decided in Smigel that the state local authorities were without power to enter agency shop agreements we should probably never have had this statute.

Justice Thurgood Marshall: Did you prove Smigel up here?

You can (Inaudible) do a decision.

Mr. Sylvester Petro: Well, Smigel is not my case.

Justice Thurgood Marshall: How does it get into this?

Mr. Sylvester Petro: Well, it provides the background for the Michigan Para Amendment.

The Michigan agency shop statute was passed because the Michigan Legislature found that it could not have agency shops and public employment without specifically authorizing that.

I beg the Court for two minutes in order to make what I think is the final point that must be made.

May I have them, please?

Chief Justice Warren E. Burger: Go ahead and respond as to further response to Justice Marshall.

Mr. Sylvester Petro: The fundamental deficiency from the point of view of the First Amendment in this case is that the Union intends to have to put it most mildly forced loans from the teachers, in order to use those forced loans to promote political causes to which the teachers must be presumed in view of their general objection, the features are opposed to them.

Now, there is no way that forcing people to support political causes to which they are opposed can be squared with either the First Amendment or this Court’s uniform decision there under.

Chief Justice Warren E. Burger: Now, you are restating the arguments you made before us so we have that argument.

Mr. Sylvester Petro: Well, it goes to the rebate procedure.

The rebate procedure is nothing but --

Chief Justice Warren E. Burger: You have covered that sufficiently counsel.

I want to add something to what my brother Blackmun said about this case.

You filed a 216 page brief here and I address this not as a criticism to you primarily, but as an observation to the Bar.

In this case there are 600 pages of material filed with us which means that if every case heard today had been treated the same way, the members of this Court would have had 2,400 pages to read not including the cases and other authorities cited which we do read, and I think in a sense you may have done a favor to the Court to furnish an exhibit A for why we should activate a rule limiting the briefs in this Court to 50 pages unless the Court grants special leave.

Mr. Sylvester Petro: I pray the Court’s indulgence for just one word.

Chief Justice Warren E. Burger: I know, I need no response to that.

I am simply making an observation to Bar generally as well as to you because you have filed at 216 page brief when 75 pages easily would have done it.

Thank you gentlemen.

The case is submitted.