Knox v. Service Employees International Union, Local 1000

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KNOX ET AL. v. SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 1000
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 10–1121. Argued January 10, 2012—Decided June 21, 2012
California law permits public-sector employees in a bargaining unit to
decide by majority vote to create an “agency shop” arrangement un-
der which all the employees are represented by a union. Even em-
ployees who do not join the union must pay an annual fee for
“chargeable expenses,” i.e., the cost of nonpolitical union services re-
lated to collective bargaining. Under Abood v. Detroit Bd. of Ed., 431
U. S. 209, a public-sector union can bill nonmembers for chargeable
expenses but may not require them to fund its political or ideological
projects. Teachers v. Hudson, 475 U. S. 292, 302–311, sets out re-
quirements that a union must meet in order to collect regular fees
from nonmembers without violating their rights.
In June 2005, respondent, a public-sector union (SEIU), sent to
California employees its annual Hudson notice, setting and capping
monthly dues and estimating that 56.35% of its total expenditures in
the coming year would be chargeable expenses. A nonmember had 30
days to object to full payment of dues but would still have to pay the
chargeable portion. The notice stated that the fee was subject to in-
crease without further notice. That same month, the Governor called
for a special election on, inter alia, two ballot propositions opposed by
the SEIU. After the 30-day objection period ended, the SEIU sent a
letter to unit employees announcing a temporary 25% increase in
dues and a temporary elimination of the monthly dues cap, billing
the move as an “Emergency Temporary Assessment to Build a Politi-
cal Fight-Back Fund.” The purpose of the fund was to help achieve
the union’s political objectives in the special election and in the up-
coming November 2006 election. The union noted that the fund
would be used “for a broad range of political expenses, including tele-
2 KNOX v. SERVICE EMPLOYEES
Syllabus
vision and radio advertising, direct mail, voter registration, voter ed-
ucation, and get out the vote activities in our work sites and in our
communities across California.” Nonunion employees were not given
any choice as to whether they would pay into the fund.
Petitioners, on behalf of nonunion employees who paid into the
fund, brought a class action against the SEIU alleging violation of
their First Amendment rights. The Federal District Court granted
petitioners summary judgment. Ruling that the special assessment
was for entirely political purposes, it ordered the SEIU to send a new
notice giving class members 45 days to object and to provide those
who object a full refund of contributions to the fund. The Ninth Cir-
cuit reversed, concluding that Hudson prescribed a balancing test
under which the proper inquiry is whether the SEIU’s procedures
reasonably accommodated the interests of the union, the employer,
and the nonmember employees.
Held:
1. This case is not moot. Although the SEIU offered a full refund to
all class members after certiorari was granted, a live controversy re-
mains. The voluntary cessation of challenged conduct does not ordi-
narily render a case moot because that conduct could be resumed as
soon as the case is dismissed. See City of Mesquite v. Aladdin’s Cas-
tle, Inc., 455 U. S. 283, 289. Since the SEIU continues to defend the
fund’s legality, it would not necessarily refrain from collecting similar
fees in the future. Even if concerns about voluntary cessation were
inapplicable because petitioners did not seek prospective relief, there
would still be a live controversy as to the adequacy of the refund no-
tice the SEIU sent pursuant to the District Court’s order. Pp. 6−8.
2. Under the First Amendment, when a union imposes a special as-
sessment or dues increase levied to meet expenses that were not dis-
closed when the regular assessment was set, it must provide a fresh
notice and may not exact any funds from nonmembers without their
affirmative consent. Pp. 8−23.
(a) A close connection exists between this Nation’s commitment
to self-government and the rights protected by the First Amendment,
see, e.g., Brown v. Hartlage, 456 U. S. 45, 52−53, which 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, 202. The government may not prohibit
the dissemination of ideas it disfavors, nor compel the endorsement
of ideas that it approves. See, e.g., R. A. V. v. St. Paul, 505 U. S. 377,
382. And the ability of like-minded individuals to associate for the
purpose of expressing commonly held views may not be curtailed.
See, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 623. Close-
Cite as: 567 U. S. ____ (2012) 3
Syllabus
ly related to compelled speech and compelled association is compelled
funding of the speech of private speakers or groups. Compulsory
subsidies for private speech are thus subject to exacting First
Amendment scrutiny and cannot be sustained unless, first, there is a
comprehensive regulatory scheme involving a “mandated association”
among those who are required to pay the subsidy, United States v.
United Foods, Inc., 533 U. S. 405, and, second, compulsory fees are
levied only insofar as they are a “necessary incident” of the “larger
regulatory purpose which justified the required association,” ibid.Pp. 8−10.
(b) When a State establishes an “agency shop” that exacts com-
pulsory union fees as a condition of public employment, “[t]he dis-
senting employee is forced to support financially an organization with
whose principles and demands he may disagree.” Ellis v. Railway
Clerks, 466 U. S. 435, 455. This form of compelled speech and associ-
ation imposes a “significant impingement on First Amendment
rights.” Ibid. The justification for permitting a union to collect fees
from nonmembers—to prevent them from free-riding on the union’s
efforts—is an anomaly. Similarly, requiring objecting nonmembers
to opt out of paying the nonchargeable portion of union dues―rather
than exempting them unless they opt in―represents a remarkable
boon for unions, creating a risk that the fees nonmembers pay will be
used to further political and ideological ends with which they do not
agree. Thus, Hudson, far from calling for a balancing of rights or in-
terests, made it clear that any procedure for exacting fees from un-
willing contributors must be “carefully tailored to minimize the in-
fringement” of free speech rights, 475 U. S. 302−303, and it cited
cases holding that measures burdening the freedom of speech or as-
sociation must serve a compelling interest and must not be signifi-
cantly broader than necessary to serve that interest. Pp. 10−13.
(c) There is no justification for the SEIU’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 pro-
jects 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. The SEIU’s procedure cannot be considered to have
met Hudson’s requirement that fee-collection procedures be carefully
tailored to minimize impingement on First Amendment rights. The
SEIU argues that nonmembers who objected to the special assess-
ment but were not given the opportunity to opt out would have been
given the chance to recover the funds by opting out when the next
annual notice was sent, and that the amount of dues payable the fol-
lowing year by objecting nonmembers would decrease if the special
assessment were found to be for nonchargeable purposes. But this
4 KNOX v. SERVICE EMPLOYEES
Syllabus
decrease would not fully recompense nonmembers, who would not
have paid to support the special assessment if given the choice. In
any event, even a full refund would not undo the First Amendment
violations, since the First Amendment does not permit a union to ex-
tract a loan from unwilling nonmembers even if the money is later
paid back in full. Pp. 14−17.
(d) The SEIU’s treatment of nonmembers who opted out when
the initial Hudson notice was sent also ran afoul of the First
Amendment. They were required to pay 56.35% of the special as-
sessment even though all the money was slated for nonchargeable,
electoral uses. And the SEIU’s claim that the assessment was a
windfall because chargeable expenses turned out to be 66.26% is un-
persuasive. First, the SEIU’s understanding of the breadth of
chargeable expenses is so expansive that it is hard to place much re-
liance on its statistics. “Lobbying the electorate,” which the SEIU
claims is chargeable, is nothing more than another term for support-
ing political causes and candidates. Second, even if the SEIU’s sta-
tistics are accurate, it does not follow that it was proper to charge ob-
jecting nonmembers any particular percentage of the special
assessment. If, as the SEIU argues, it is not possible to accurately
determine in advance the percentage of union funds that will be used
for an upcoming year’s chargeable purposes, there is a risk that un-
consenting nonmembers will have paid too much or too little. That
risk should be borne by the side whose constitutional rights are not
at stake. If the nonmembers pay too much, their First Amendment
rights are infringed. But, if they pay too little, no constitutional right
of the union is violated because it has no constitutional right to re-
ceive any payment from those employees. Pp. 17−23.
628 F. 3d 1115, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, and THOMAS, JJ., joined. SOTOMAYOR, J., filed an
opinion concurring in the judgment, in which GINSBURG, J., joined.
BREYER, J., filed a dissenting opinion, in which KAGAN, J., joined.
Cite as: 567 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1121
_________________
DIANNE KNOX, ET AL., PETITIONERS v. SERVICE EM-
PLOYEES INTERNATIONAL UNION, LOCAL 1000
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 21, 2012]
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 nonmem-
bers 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 (1991); Machinists v. Street, 367 U. S.
740, 760 (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,
2 KNOX v. SERVICE EMPLOYEES
Opinion of the Court
307, n. 20 (1986). See also Davenport v. Washington Ed.
Assn., 551 U. S. 177, 181 (2007) (“[A]gency-shop arrange-
ments in the public sector raise First Amendment con-
cerns because they force individuals to contribute money
to unions as a condition of government employment”);
Street, supra, at 749 (union shop presents First Amend-
ment “questions of the utmost gravity”). Thus, in Abood v.
Detroit Bd. of Ed., 431 U. S. 209 (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. The First
Amendment, we held, does not permit a public-sector
union 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. 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.
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 Inter-
national 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
Cite as: 567 U. S. ____ (2012) 3
Opinion of the Court
monthly dues at $45. Based on the most recently audited
year, the SEIU estimated that 56.35% of its total expendi-
tures in the coming year would be dedicated to chargeable
collective-bargaining activities. Thus, if a nonunion em-
ployee objected within 30 days to payment of the full
amount of union dues, the objecting employee was re-
quired 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 in-
crease 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 conse-
quences 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’ affirma-
tive consent before charging them fees to be used for polit-
ical 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 em-
ployee unions, including $2.75 million from state worker
unions, $4.7 million from the California Teachers Associa-
tion, and $700,000 from school workers unions.”1
——————
1 Marinucci & Wildermuth, Schwarzenegger Adds Prop. 75 to His
Agenda, San Francisco Chronicle, Sept. 18, 2005, p. A–17.
4 KNOX v. SERVICE EMPLOYEES
Opinion of the Court
On July 30, shortly after the end of the 30-day objection
period for the June Hudson notice, the SEIU proposed a
temporary 25% increase in employee fees, which it billed
as an “Emergency Temporary Assessment to Build a Po-
litical 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 to
the proposal, money in the Fight-Back Fund would be
used “for a broad range of political expenses, including
television and radio advertising, direct mail, voter regis-
tration, 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 bene-
fits 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,” an-
nouncing 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.
Cite as: 567 U. S. ____ (2012) 5
Opinion of the Court
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 em-
ployee] 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 (ED 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 mem-
bers 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 Politi-
cal 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
6 KNOX v. SERVICE EMPLOYEES
Opinion of the Court
typical spending regime and to focus on activities that
were political or ideological in nature.” Id., at *8. In light
of this fact, the 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 proce-
dure 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. ___ (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 (2001). The vol-
untary cessation of challenged conduct does not ordinar-
ily render a case moot because a dismissal for mootness
Cite as: 567 U. S. ____ (2012) 7
Opinion of the Court
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 (1982). And
here, since the union continues to defend the legality of
the Political Fight-Back 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 cessa-
tion 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 be-
comes 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 (2000) (quoting
Church of Scientology of Cal. v. United States, 506 U. S. 9,
12 (1992), in turn quoting Mills v. Green, 159 U. S. 651,
653 (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 (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 reduc-
ing 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 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
8 KNOX v. SERVICE EMPLOYEES
Opinion of the Court
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 self-government and the
rights protected by the First Amendment. See, e.g., Brown
v. Hartlage, 456 U. S. 45, 52 (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 (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 (1965)
(“Maintenance of the opportunity for free political discus-
sion is a basic tenet of our constitutional democracy”);
Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis,
J., concurring); Patterson v. Colorado ex rel. Attorney
General of Colo., 205 U. S. 454, 465 (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 (2008). See
also Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 51
(1988); Mills v. Alabama, 384 U. S. 214, 218–219 (1966).
The government may not prohibit the dissemination of
ideas that it disfavors, nor compel the endorsement of
Cite as: 567 U. S. ____ (2012) 9
Opinion of the Court
ideas that it approves. See R. A. V. v. St. Paul, 505 U. S.
377, 382 (1992); Brandenburg v. Ohio, 395 U. S. 444, 447–
448 (1969) (per curiam); West Virginia Bd. of Ed. v. Bar-
nette, 319 U. S. 624 (1943); Wooley v. Maynard, 430 U. S.
705, 713–715 (1977); Riley v. National Federation of Blind
of N. C., Inc., 487 U. S. 781, 797 (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
(1984) (“Freedom of association . . . plainly presupposes a
freedom not to associate”); NAACP v. Alabama ex rel.
Patterson, 357 U. S. 449, 460–461 (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., at222–223. In United States v. United Foods, Inc., 533 U. S.
405 (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 high-
lights the importance of our analysis and our holding.
The federal Mushroom Promotion, Research, and Con-
sumer Information Act required that fresh mushroom
handlers pay assessments used primarily to fund adver-
tisements 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
10 KNOX v. SERVICE EMPLOYEES
Opinion of the Court
involving a “mandated association” among those who are
required to pay the subsidy. Id., at 414. 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. 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.
B
When a State establishes an “agency shop” that ex-
acts compulsory union fees as a condition of public employ-
ment, “[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.
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 Amend-
ment rights.” Ellis, supra, at 455. 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 non-
members from free-riding on the union’s efforts, sharing
the employment benefits obtained by the union’s collective
bargaining without sharing the costs incurred.” Daven-
port, 551 U. S., at 181. Such free-rider arguments, however,
are generally insufficient to overcome First Amend-
Cite as: 567 U. S. ____ (2012) 11
Opinion of the Court
ment objections. Consider the following examples:
“If a community association engages in a clean-up
campaign or opposes encroachments by industrial de-
velopment, no one suggests that all residents or prop-
erty owners who benefit be required to contribute. If
a parent-teacher association raises money for the
school library, assessments are not levied on all par-
ents. 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 re-
quired to join. If a 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. 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
(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 activi-
ties, what is the justification for putting the burden on
the nonmember to opt out of making such a payment?
——————
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).
12 KNOX v. SERVICE EMPLOYEES
Opinion of the Court
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
(internal quotation marks omitted).
Although the difference between opt-out and opt-in
schemes is important, our prior cases have given sur-
prisingly little attention to this distinction. Indeed, ac-
ceptance 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 consid-
ered whether a federal collective-bargaining statute au-
thorized a union to impose compulsory fees for political
activities. 367 U. S., at 774. The plaintiffs were employ-
ees 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 qual-
ify as active “dissenters” but who would nonetheless prefer
to keep their own money rather than subsidizing by de-
Cite as: 567 U. S. ____ (2012) 13
Opinion of the Court
fault 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 expenditures.
At the same time, however, we made it clear that the
procedures used by a union to collect money from non-
members must satisfy a high standard.
Contrary to the view of the Ninth Circuit panel major-
ity, we did not call for a balancing of the “right” of the
union to collect an agency fee against the First Amend-
ment 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. A union’s “collection of fees from nonmem-
bers 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. 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 “care-
fully tailored to minimize the infringement” of free speech
rights. 475 U. S., at 303. 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 nec-
essary to serve that interest.3
——————
3 The specific citation was as follows:
“See Roberts v. United States Jaycees, [468 U. S. 609, 623 (1984)]
(Infringements on freedom of association ‘may be justified by regu-
lations adopted to serve compelling state interests, unrelated to the
suppression of ideas, that cannot be achieved through means signifi-
cantly less restrictive of associational freedoms’); Elrod v. Burns, 427
14 KNOX v. SERVICE EMPLOYEES
Opinion of the Court
IV
By authorizing a union to collect fees from nonmembers
and permitting the use of an opt-out system for the collec-
tion 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, how-
ever, asks us to go farther. It asks us to approve a proce-
dure 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 prin-
ciple 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 im-
pact of paying for nonchargeable union activities. 475
U. S., at 303. 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
——————
U. S. 347, 363 (1976) (government means must be ‘least restrictive
of freedom of belief and association’); Kusper v. Pontikes, 414 U. S. 51,
58–59 (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 (1963) (‘Precision of reg-
ulation must be the touchstone’ in the First Amendment context).”
Hudson, 475 U. S., at 303, n. 11.
Cite as: 567 U. S. ____ (2012) 15
Opinion of the Court
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 devel-
opments, 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 sympa-
thetic 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 nonmem-
bers might have favored one or both of the ballot initia-
tives; 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 nonmem-
ber rights. If Proposition 75 had passed, nonmembers
would have been exempt from paying for the SEIU’s ex-
tensive political projects unless they affirmatively con-
——————
4 The dissent suggests that the union gave fair notice because it an-
nounced at the beginning of the year that “ ‘[d]ues are subject to change
without further notice to fee payers.’ ” Post, at 12 (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.
16 KNOX v. SERVICE EMPLOYEES
Opinion of the Court
sented. 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 im-
pingement 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 bargain-
ing 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, how-
ever, 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
——————
5 These nonmembers, after paying the full amount of the special as-
sessment, 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.
Cite as: 567 U. S. ____ (2012) 17
Opinion of the Court
Amendment 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; Ellis, 466 U. S.,
at 444. 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 opt-out 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
——————
6 JUSTICE SOTOMAYOR contends that a new Hudson notice should be
required only when a special assessment is imposed for political pur-
poses. Post, at 2 (opinion concurring in judgment). But as even the
dissent acknowledges, post, at 7, 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 (1963) (noting that particu-
lar 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.
18 KNOX v. SERVICE EMPLOYEES
Opinion of the Court
when the initial Hudson notice was sent also ran afoul of
the First Amendment. The SEIU required these employ-
ees 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 assess-
ment would be used to support an electoral campaign and
would not be used for ordinary union expenses. Accord-
ingly, 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 noncharge-
able 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. Accord-
ingly, use of figures based on an audit of the union’s oper-
ations 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,
——————
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 10.
But if the Hudson Court had proceeded on this assumption it is doubt-
ful 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.
Cite as: 567 U. S. ____ (2012) 19
Opinion of the Court
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 (CA2 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. Object-
ing 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; Jib-
son v. Michigan Ed. Assn., 30 F. 3d 723, 730 (CA6 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 as-
sessment at any time, with a new chargeability determi-
nation 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
——————
8 The dissent is comforted by the fact that the union “has offered to
pay for neutral arbitration of such disputes before the American Arbi-
tration Association,” post, at 9, but the painful burden of initiating and
participating in such disputes cannot be so easily relieved.
20 KNOX v. SERVICE EMPLOYEES
Opinion of the Court
were at least 66.26% chargeable. See Brief for Respond-
ent 5, n. 6. This argument is unpersuasive for several
reasons.
First, the SEIU’s understanding of the breadth of charge-
able 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 support-
ing 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 collec-
tive bargaining and related activities on behalf of non-
member 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.
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, 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 germane-
ness, it would effectively eviscerate the limitation on the
use of compulsory fees to support unions’ controversial
political activities. Public-employee salaries, pensions,
and other benefits constitute a substantial percentage of
the budgets of many States and their subdivisions. As a
Cite as: 567 U. S. ____ (2012) 21
Opinion of the Court
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 unpro-
tected 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 object-
ing nonmembers 56.35%—or any other particular per-
centage—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 dis-
senters’ funds to improper uses even temporarily.” Ellis,
466 U. S., at 444. 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. The union has simply lost
for a few months the “extraordinary” benefit of being em-
powered 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
22 KNOX v. SERVICE EMPLOYEES
Opinion of the Court
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. ___ (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 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. Therefore, 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 funds from nonmembers without their affirma-
tive consent.9
——————
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 em-
ployee 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
Cite as: 567 U. S. ____ (2012) 23
Opinion of the Court
* * *
The judgment of the Ninth Circuit is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
——————
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 7–8. 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 opt-out regime
suffices.
JUSTICE SOTOMAYOR would apparently have us proceed on the as-
sumption 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 require-
ments 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 Hudson says not one word on the
subject.
Cite as: 567 U. S. ____ (2012) 1
SOTOMAYOR, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1121
_________________
DIANNE KNOX, ET AL., PETITIONERS v. SERVICE EM-
PLOYEES INTERNATIONAL UNION, LOCAL 1000
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 21, 2012]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, concurring in the judgment.
When a public-sector union imposes a special assess-
ment intended to fund solely political lobbying efforts, the
First Amendment requires that the union provide non-
members 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 can-
not agree with the majority’s decision to address unneces-
sarily 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), “spe-
cifically 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. As
the majority explains, such political efforts are not “ger-
mane” to the union’s function as a bargaining represent-
ative, and accordingly are not chargeable to objecting
nonmembers. See Lehnert v. Ferris Faculty Assn., 500 U. S.
2 KNOX v. SERVICE EMPLOYEES
SOTOMAYOR, J., concurring in judgment
507, 519 (1991); see also Locke v. Karass, 555 U. S. 207,
211 (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 object-
ing nonmembers’ funds, lest the objector be used as “ ‘an in-
strument for fostering public adherence to an ideological
point of view he finds unacceptable.’ ” Lehnert, 500 U. S.,
at 522 (plurality opinion) (quoting Wooley v. Maynard, 430
U. S. 705, 715 (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 ob-
jected to the payment of nonchargeable expenses, and may
not collect funds from other nonmembers without provid-
ing a new Hudson notice and opportunity to opt out. See
Teachers v. Hudson, 475 U. S. 292 (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 un-
necessarily, 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
——————
1 See
Pet. for Cert. (i) (questions presented); Brief for Petitioners (i)
(same); id., at 39 (“The Court should hold that . . . when a union im-
poses a forced-fee increase primarily or solely for political purposes be-
tween 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).
Cite as: 567 U. S. ____ (2012) 3
SOTOMAYOR, J., concurring in judgment
of fee collection comports with the Constitution. See Dav-
enport v. Washington Ed. Assn., 551 U. S. 177, 181, 185
(2007); Hudson, 475 U. S., at 306, n. 16; Abood v. De-
troit Bd. of Ed., 431 U. S. 209, 238 (1977); see also ante,
at 12–13. They did not argue that the Constitution re-
quires 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 con-
sidered 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. Escon-
dido, 503 U. S. 519, 535 (1992) (quoting Stone v. Powell,
428 U. S. 465, 481, n. 15 (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 pro-
vide a fresh Hudson notice and may not exact any funds
from nonmembers without their affirmative consent.” Ante,
at 22 (emphasis added); see also ante, at 17 (“[T]he
union should have sent out a new notice allowing non-
members 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. And it ignores a fundamental
premise of our adversarial system: “ ‘that appellate courts
4 KNOX v. SERVICE EMPLOYEES
SOTOMAYOR, J., concurring in judgment
do not sit as self-directed boards of legal inquiry and
research, but essentially as arbiters of legal questions pre-
sented and argued by the parties before them.’ ” NASA
v. Nelson, 562 U. S. ___, ___, n. 10 (2011) (opinion for the
Court by ALITO, J.) (slip op., at 11, n. 10) (quoting Car-
ducci v. Regan, 714 F. 2d 171, 177 (CADC 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 doc-
trine 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 adjudica-
tion is unavoidable.” Clinton v. Jones, 520 U. S. 681, 690,
n. 11 (1997) (internal quotation marks omitted).2
——————
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 22, 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
(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 pre-
sented); 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 Hudson notice 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
Cite as: 567 U. S. ____ (2012) 5
SOTOMAYOR, J., concurring in judgment
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 funds for nonchargeable ex-
penses? May a nonmember opt not to contribute to a
special assessment, even if the assessment is levied to
fund uncontestably chargeable activities? Does the ma-
jority’s new rule allow for any distinction between non-
members 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 (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 12. 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 applica-
tion 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
——————
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 do under our rules—is decide that question without having
provided the parties and potential amici an opportunity to weigh in
with their own considered views.
6 KNOX v. SERVICE EMPLOYEES
SOTOMAYOR, J., concurring in judgment
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 14 (emphasis
added); see also ante, at 21–22 (“[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 im-
pinged upon the First Amendment rights of nonmem-
bers”); ante, at 11–12 (“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 (opinion for the Court by ALITO, J.) (slip op.,
at 11, n. 10) (“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.
Cite as: 567 U. S. ____ (2012) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1121
_________________
DIANNE KNOX, ET AL., PETITIONERS v. SERVICE EM-
PLOYEES INTERNATIONAL UNION, LOCAL 1000
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 21, 2012]
JUSTICE BREYER, with whom JUSTICE KAGAN joins,
dissenting.
In Teachers v. Hudson, 475 U. S. 292 (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. 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 (1977), 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 candi-
dates or on “express[ions of ] political views unrelated to
[the union’s] duties as exclusive bargaining representa-
tive.” Id., at 234. 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.
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
2 KNOX v. SERVICE EMPLOYEES
BREYER, J., dissenting
prior year. Those nonmembers who objected to the ap-
portionment, 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 proce-
dure 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 un-
ion’s fee,” and (3) the union did not provide objectors
with “a reasonably prompt decision by an impartial deci-
sionmaker.” Id., at 305–307.
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.
The Court added that it “recognize[d] that there are
practical reasons why ‘[a]bsolute precision’ in the calcula-
tion of the charge to nonmembers cannot be ‘expected or
required.’ ” Id., at 307, n. 18 (quoting Railway Clerks v.
Allen, 373 U. S. 113, 122 (1963)). It said that the union
retains the burden of proving that a given expense is
chargeable to nonmembers, the “nonmember’s ‘burden’ ” be-
ing simply that of making “his objection known.” 475 U. S.,
at 306, n. 16. And it added that the union “cannot
be faulted for calculating its fee on the basis of its ex-
penses during the preceding year.” Id., at 307, n. 18.
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 non-
members alike, while (2) simultaneously protecting the
Cite as: 567 U. S. ____ (2012) 3
BREYER, J., dissenting
nonmembers’ constitutional right not to support “‘ideological
causes not germane to [the union’s] duties as collective-
bargaining agent.’ ” Id., at 294 (quoting Ellis v. Railway
Clerks, 466 U. S. 435, 447 (1984)). See also Keller v. State
Bar of Cal., 496 U. S. 1, 17 (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 begin by explaining how I un-
derstand 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., collective-bargaining related)
expenditures and the amount of nonchargeable (e.g., non-
germane political) expenditures that the union ac-
tually made during 2004. The union then used the resulting
proportion (which was about 56% chargeable, 44% non-
chargeable) as the basis for apportioning the next year’s
dues. Thus in June 2005, the union sent all represented
employees a Hudson notice setting forth that (roughly) 56
to 44 figure. App. 96–106. It provided time for nonmem-
bers 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
4 KNOX v. SERVICE EMPLOYEES
BREYER, J., dissenting
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 charge-
able 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 ob-
jectors 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 dis-
advantage. 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 nonmem-
bers 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 non-
chargeable 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 possibil-
ity that an objecting nonmember’s funds will temporarily
help the union pay for a nonchargeable political expendi-
ture (say, in Year Two) is always present—though in this
case that did not happen. See infra, at 6–7.
Cite as: 567 U. S. ____ (2012) 5
BREYER, J., dissenting
Nonetheless this kind of system enjoys an offsetting
administrative virtue. It bases fees upon audited ac-
counts, thereby avoiding the difficulties and disagree-
ments that would surround an effort to determine the
relevant proportions by trying to measure union expendi-
tures 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
a “reasonably prompt” opportunity to object. Hudson, 475
U. S., at 310. 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 un-
ion’s fee “on the basis of its expenses during the preceding
year.” Id., at 307, n. 18. 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 as-
sessment 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 em-
6 KNOX v. SERVICE EMPLOYEES
BREYER, J., dissenting
ployees who raised a general objection at the beginning of
the year. The union has honored their objections by sub-
tracting 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 pre-
vious year. Hence the objecting nonmembers ended up
being charged too little, not too much, even with the spe-
cial 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 accord-
ing 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 assess-
ment charging objecting nonmembers 56% of the assess-
ment 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 assess-
ment—amounted to more than 56% of its total expendi-
tures. 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%).
Cite as: 567 U. S. ____ (2012) 7
BREYER, J., dissenting
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., at236–237.
Even were the underlying facts different, I can find no
constitutional basis for charging 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 difficul-
ties that, as explained above, are avoided with a retrospec-
tive system. See supra, at 6. And, of course, requiring the
use of some special proportion based on predicted expendi-
tures 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.
In the particular example before us these general prob-
lems 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 un-
derstand 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 (1963).
Whether a particular expenditure was funded by regular
dues or the special assessment is “of bookkeeping signifi-
cance 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
8 KNOX v. SERVICE EMPLOYEES
BREYER, J., dissenting
administrative calculation problems, is apparently to de-
part 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 assis-
tance funds. See ante, at 21–22. Although this rule is
comparatively simple to administer, it cannot be recon-
ciled 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; see also
Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 524 (1991);
Machinists v. Street, 367 U. S. 740, 760 (1961); Ellis, 466
U. S., at 447; Davenport v. Washington Ed. Assn., 551
U. S. 177, 181 (2007); Locke v. Karass, 555 U. S. 207, 210
(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 charge-
ability. See ante, at 20–21. 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 allocation. In-
deed, the 2004 accounts were audited before the special
Cite as: 567 U. S. ____ (2012) 9
BREYER, J., dissenting
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 25
(reflecting approval of the special assessment on July 30,
2005).
More specifically, the Court suggests that the Consti-
tution prohibits the union’s classification of money spent
“ ‘lobbying . . . the electorate’ ” as a chargeable expense.
See ante, at 20. But California state law explicitly permits
the union to classify some lobbying expenses as charge-
able. 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 lobby-
ing 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 representa-
tive . . .”). 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 oppor-
tunity to argue the matter.
The Court further complains that the basic administra-
tive 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 19. 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, inso-
far 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 “pred-
10 KNOX v. SERVICE EMPLOYEES
BREYER, J., dissenting
icated 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 18; that
(Step 2) this assumption does not apply to midyear as-
sessments; hence (Step 3) what appears binding precedent
(namely Hudson) does not bind the Court in its interpreta-
tion 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 ex-
penditures that the Court says underlies it. The assump-
tion 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 nonobject-
ing 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
the annual fee to object now for the first time to the mid-
year special assessment.
For one thing, insofar as a new objection permits the
Cite as: 567 U. S. ____ (2012) 11
BREYER, J., dissenting
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 6.
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 con-
cede that many administrative problems could be over-
come were the new objector allowed to withhold only the
same 44% of the fee that the union here permitted ini-
tial objectors to withhold (a figure based on 2004 au-
dited 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 ef-
fort 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 8–10.
Moreover, to provide a new opportunity to object re-
quires providing for explanations, potential challenges, the
development of separate accounts, and additional adminis-
trative 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
12 KNOX v. SERVICE EMPLOYEES
BREYER, J., dissenting
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 fee-charging 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 constitu-
tional purposes the critical fact is that annual objection is
at least one reasonably practical way to permit the princi-
pled objector to avoid paying for politics with which he
disagrees. See Hudson, 475 U. S., at 307, n. 18. 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 posi-
tions 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 nonmem-
ber 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 politi-
cal 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 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
Cite as: 567 U. S. ____ (2012) 13
BREYER, J., dissenting
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 opportu-
nity 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 af-
firmative consent.” Ante, at 22. 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 2–6 (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 as-
sessments, 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
14 KNOX v. SERVICE EMPLOYEES
BREYER, J., dissenting
which, and the circumstances under which a union that
represents nonmembers in collective bargaining can re-
quire those nonmembers to help pay for the union’s (con-
stitutionally chargeable) collective-bargaining expenses.
Twenty-three States have enacted “right to work” laws,
which, in effect, prevent unions from requiring nonmem-
bers 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 individ-
ual”). The debate about public unions’ collective-bargaining
rights is currently intense.
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 nonmem-
ber is willing to pay unless the nonmember indicates a
desire not to pay, by “opting out”? Where, as here, non-
chargeable 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 con-
siderable importance to the union, while the additional
Cite as: 567 U. S. ____ (2012) 15
BREYER, J., dissenting
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 im-
pose an opt-in requirement, see Davenport, 551 U. S., at
185, 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.