In the run-up to oral argument in Friedrichs v. California Teachers Association, OnLabor will be reviewing some of the significant amicus briefs that have been filed in the case.

A number of states have also weighed in on the side of the Friedrichs respondents. In a brief submitted by the Attorney General of New York on behalf of twenty additional states and the District of Columbia, the amici emphasize their interest in “preserving the flexibility to structure public-sector labor relations that Abood [v. Detroit Board of Education] allows.” Part of that flexibility entails the ability to impose agency-fee requirements upon non–union members — requirements that have been essential “to ensuring a stable collective-bargaining partner with the wherewithal to help devise workplace arrangements that promote labor peace.” Yet crucially, the states point out,

Abood is permissive, not mandatory. Voters and elected officials in each State remain free to decide what rules or policies should apply in public-sector labor relations. Petitioners seek to constrain those options by constitutionalizing a single approach to public-sector labor relations for all state and local governments nationwide. But this Court should decline to intervene in the ongoing policy debate about public-sector unions, just as it declined to do so nearly forty years ago in Abood. As this Court has recognized, the Constitution permits States “broad autonomy in structuring their governments” out of respect for the “integrity, dignity, and residual sovereignty of the States” and to “secure[] to citizens the liberties that derive from diffusion of sovereign power.” Shelby County v. Holder, 133 S. Ct. 2612, 2623 (2013) (quoting Bond v. United States, 131 S. Ct. 2355, 2364 (2011)).

The states further highlight their shared interest in “avoiding the vast disruption in state and local labor relations that would occur if the Court were now to overrule Abood’s approval of public-sector collective-bargaining arrangements utilizing agency-fee rules.” Abood, the amici observe, provides “the foundation for thousands of contracts involving millions of public employees in twenty-three states and the District of Columbia.” Notably, the brief also includes a lengthy appendix which catalogues the numerous state statutes authorizing not only collective bargaining in the public employment context but also the collection of agency fees to support collective bargaining.

Finally, the states take petitioners’ First Amendment argument head on by insisting that “the First Amendment does not prohibit [them] from adopting the types of agency-fee rules that private employers have long utilized”:

Petitioners give short shrift to the government’s important interest in avoiding labor unrest in government workplaces. And they overlook the leeway that this Court has traditionally granted in the First Amendment context to States acting in the role of employers — relying instead on the Court’s analysis of the considerations implicated when the government imposes an agency-fee requirement on persons who are not “full-fledged public employees,” Harris [v. Quinn], 134 S. Ct. at 2634. Abood is in line with this Court’s First Amendment cases in recognizing that the government must have flexibility to manage its own internal operations, especially with respect to matters affecting the delivery of government services.

Aside from New York, the other states to sign on to the brief are Alaska, Connecticut, Delaware, Hawai’i, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Missouri, New Hampshire, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington. As earlier noted, the District of Columbia also signed on to the brief.

In addition, the Governor of Montana has submitted his own amicus brief in support of respondents, which is available here. The Governor’s brief focuses on “Montana’s unique labor history” and asks the Court to respect his “State’s sovereignty” to craft a “collective bargaining system [that] has been crucial to ensuring labor peace in the State’s public sector and to securing essential public services for all Montanans.”