Weekend News & Commentary — April 9–10, 2016

Published April 8th, 2016 -  - 04.08.163


The petitioners in Friedrichs v. California Teachers Ass’n have formally submitted a request for reargument to the Supreme Court, reports Lyle Denniston of SCOTUSblog. Specifically, the petitioners ask the Court to “rehear [Friedrichs] after it obtains a full complement of Justices capable of reaching resolution by a five-Justice majority.” They argue that the case presents questions of “profound nation wide importance” and that “[t]here is a circuit split over certain aspects of [California’s public-sector agency-fee scheme], and similar schemes affect tens of thousands of public employees every year.” The petitioners also note that “there are multiple cases pending in the lower courts that implicate the Questions Presented,” and suggest that “[r]ather than defer this issue for resolution in some future case at some future time, the better and more efficient course would be to hold the case this Court has already agreed to decide until it is capable of issuing a decision.”

However, Denniston observes that “[p]ersuading the Court to grant rehearing is a difficult proposition as a general matter,” and “is made more difficult by the specific requirements that the Court’s rules outline for action on such a request”:

Rehearing can only be granted, following such a request by lawyers in a case, if that request has the support of at least one Justice who had voted for the result for which a rehearing is being sought.  And rehearing can be granted only if a majority of the Court votes in favor of doing so.

With only an eight-Justice Court, however, it is not entirely clear which group of Justices on opposite sides of a four-to-four split would be the ones eligible to call for rehearing in response to a lawyer’s request.  Both blocs in such a tied situation may be said to have voted for the result — that is, disposing of the case because it could not assemble a majority.

As for the impact of the confirmation of a new Justice while the rehearing petition is under consideration, Denniston notes that “it has been the customary practice that the new member would not vote on whether to grant rehearing but — if rehearing were to be granted — could then take a full part in the process.”

In other major news regarding agency fees, a Wisconsin trial court judge struck down the state’s “right-to-work” law as an unconstitutional taking of unions’ property without just compensation. Per the New York Times, various unions had challenged the law as amounting to “a seizure of their property since they were now required to provide union benefits like collective bargaining to workers who opted not to pay the equivalent of dues.” Judge C. William Foust of the Dane County Circuit Court agreed in his 15-page ruling, observing that “[l]abor is a commodity that can be bought and sold,” and comparing a union to “[a] doctor, a telephone company, [and] a mechanic” insofar as “all would be shocked to find they do not own the services they perform.” However, state Republican leaders — including Governor Scott Walker — expressed confidence that the decision would eventually be overturned by the relatively conservative Wisconsin Supreme Court.

Finally, the Boston Globe reports that the supermarket chain Stop & Shop has reached a tentative agreement on a new contract with some 35,000 workers across New England. Although details of the agreement were not immediately available, the United Food and Commercial Workers said that “the grocer had previously proposed cutting pensions, increasing health care costs, and giving new employees fewer benefits.” For its part, the company said that “it had offered increased pay and would continue providing generous paid time off and affordable health care benefits,” and that “it was not seeking to cut contributions to the pension plan.” Had the two sides — who met for fifty-seven times over the course of the past three months — been unsuccessful in reaching a deal, workers in Massachusetts had been prepared to strike.

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