The Supreme Court released an opinion today in Knox v. SEIU. In California, public workers are not required to join a union. Those that do not are assessed a “fair share fee,” usually a payroll deduction remitted to the union for representing their interests in certain areas. The fee assessed is a percentage of the amount charged a union member. Under previous Supreme Court guidance, unions are required by law to notify non-members of the fee to be assessed which is based upon an audit of the previous year’s union finances. These are called Hudson notices after an earlier Supreme Court. Persons receiving the notice then have 30 days to object to the assessment. Most notably, the fees are supposed to be used for the costs incurred by the union in collective bargaining, not political advocacy.

Subsequent to the mailing of the Hudson notice, the union informed members and non-members alike that a temporary emergency assessment was added to fight attempts by California to cap spending among other items the objected to in 2005. In other words, the special assessment was to defeat ballot initiatives or for political advocacy by any other name. Knox, among others, sued the union arguing that their First and Fourteenth Amendment rights were violated in that they were not notified, via a Hudson notice, of the purpose of the special assessment, nor were they offered the 30-day opt out period. The union countered that since the original notice stated that the assessment was “subject to change,” they were covered and the annual Hudson notice suffices. The District Court agreed with Knox while the Ninth Circuit overturned that decision on appeal.

While the Supreme Court was deciding to take this case, SEIU essentially refunded the full cost of the assessments to the members of the class action. Normally, since there would at that point be no “case or controversy-” the case would be considered moot. Instead, the Court decided to take the case as there is an exception to the mootness doctrine. Specifically, they can take a case that would be considered moot under most definitions if persons will frequently be faced with similar actions, yet not have time to successfully challenge those actions given the pace of justice. For example, this case started in 2005 and now it is 2012. In other words, if the action is capable or repetition, then the Court can ignore the mootness doctrine as they did here. In fact, California this year will have a ballot question addressing this very issue. It would permit non-members to opt out of political advocacy by the union that they pay for through dues or assessments and to which they happen to disagree with the union’s position.

In an opinion authored by Justice Alito, the decision was 7-2 with Breyer and Kagan in dissent. Sotomayor and Ginsburg wrote a concurring opinion. The Court ruled that the case was not moot for the reasons cited above. Secondly, they ruled that the second “emergency assessment” violated the First Amendment rights of the non-members who paid the assessment. Even though the Hudson notice was not in question, nor was the union “subject to change” disclaimer, that disclaimer applied to the listed advocacy issues in the annual notice. In other words, they could have dropped some items and diverted those funds to another issue that interested the union, but since the second assessment dealt with nothing addressed in the original Hudson notice, a second notice should have been issued and a ssecond 30-day opt period allowed for that special assessment.

What this means is that unions cannot trample on the First Amendment rights of members and non-members any more- at least not without notifying them first. In fact, unions had been wary of a decision here which is why most of them “convinced” SEIU to settle the dispute and hope for mootness. The surprising aspect is that the judgment drew in two “liberal” members of the Court, although from this writer’s view, Sonia Sotomayor may not be exactly what Obama bargained for when he appointed her. From an analysis of her writings and questions in oral argument, she does like to cut through the BS on a lot of things and seems to stick to the facts of the case.