[00:00:00] Speaker 05: Our next case is Fork and Moorjohn versus Engineers and Architects Association. [00:00:25] Speaker 03: Well, good morning again, Your Honors, and may it please the court. [00:00:28] Speaker 06: Just a moment. [00:00:28] Speaker 06: I'm not sure if somebody else is making their way. [00:00:31] Speaker 03: Oh. [00:00:31] Speaker 06: Yeah, just a moment. [00:00:32] Speaker 06: I'll let you know when to start. [00:00:35] Speaker 03: Musical chairs. [00:00:46] Speaker 06: Okay, you can go ahead and proceed. [00:00:48] Speaker 06: Thank you. [00:00:49] Speaker 03: Good morning again, Your Honors, and may it please the court. [00:00:51] Speaker 03: Timothy Snowball on behalf of the appellants, Camille Bourque and Peter Morjean. [00:00:55] Speaker 03: I would like to reserve two minutes for rebuttal. [00:00:57] Speaker 05: Thank you. [00:00:58] Speaker 03: Your Honors, for over 40 years, the Supreme Court has protected the First Amendment right of public employees not to have their speech compelled by public sector labor unions. [00:01:06] Speaker 02: We just heard the core of the argument, and we remember what you said a few minutes ago, and we can do that. [00:01:13] Speaker 02: So let me ask you to focus on what's different, if anything, about this case. [00:01:17] Speaker 03: Certainly. [00:01:17] Speaker 03: Absolutely. [00:01:19] Speaker 03: Our contention in this case, Your Honor, would be that the facts are even more simple and more egregious than in the case that was just presented on behalf of Michael Crane, because in particular, Camille Bork [00:01:28] Speaker 03: never authorized anything. [00:01:30] Speaker 03: It's one thing to perhaps try to cite to the Belgao case for the proposition that the union can simply raise an argument over a conflict over a card as a way to get around compelled speech claims or to try to fit it within the inopposite framework of the right case. [00:01:44] Speaker 03: In this case, it is undisputed. [00:01:46] Speaker 03: No party disputes that Camille Borg [00:01:48] Speaker 03: never affirmatively authorized anything. [00:01:50] Speaker 03: This is the closest fact pattern possible in a post-Janus world to the Janus case itself. [00:01:57] Speaker 03: And I'd like to go through, first compare the facts of this case to the Janus case to make my point, and then the statutes that are at issue in this case versus the Janus case. [00:02:05] Speaker 03: In terms of the facts, Mark Janus was a non-union member who never consented to deductions from his lawfully earned wages, but was compelled nonetheless to speak by a union using the force of state law. [00:02:16] Speaker 03: The Supreme Court concluded that this arrangement violated Janus's right to freedom from compelled speech. [00:02:23] Speaker 03: Here, Camille Bork was a non-union member who never consented to deductions from her lawfully earned wages, but again was nonetheless compelled to speak by the union using the force of state law. [00:02:34] Speaker 03: As the Supreme Court found a constitutional violation on behalf of Mark Janus, we would ask this court respectfully to find a constitutional violation on behalf of Camille Bork. [00:02:43] Speaker 03: And in failing to recognize that Bork suffered a constitutional injury at all, we would offer that the district court erred on this point. [00:02:50] Speaker 03: In regard to the statutes that are issued in this case versus the Janus case, under the Illinois Public Labor Relations Act, public employees could be forced to subsidize the political speech of a union, even if they chose not to join the union and even if they strongly objected to the political positions taken by the union. [00:03:07] Speaker 03: In that case, in the Janus case, the Supreme Court found that the union's use of this statutory authority to compel Janus' speech was sufficient to hold the union responsible for her compelled speech injuries. [00:03:20] Speaker 03: Again, here. [00:03:21] Speaker 03: Under both the Myers-Millius Brown Act and California Government Code Section 1157.12, public employees can be forced to subsidize the political speech of a union, even if they choose not to join the union, and they strongly object to the union's political positions taken in public. [00:03:38] Speaker 03: For the same reasons that the union was held responsible by the Supreme Court for Mark Janis' injuries, we would respectfully request this court find that the union in this case is responsible for Camille Bourque's injuries. [00:03:49] Speaker 03: Again, in failing to recognize that he. [00:03:51] Speaker 02: How does the other plaintiff, Mr. Morjean? [00:03:54] Speaker 02: Mr. Morjean, correct. [00:03:55] Speaker 02: How does he fit in this picture? [00:03:56] Speaker 03: Correct. [00:03:56] Speaker 03: Mr. Morjean's factual scenario is extremely similar to the factual scenario of Michael Crane, except for absent the free association claim. [00:04:05] Speaker 03: So we'd like to focus our time today on Camille Borg. [00:04:08] Speaker 03: Again in failing to recognize even that Camille Bork who authorized nothing I mean Janice changed the systems your honor if you go back and look at the pre Janice agency fee cases in those cases if a union was taking money from a employee's lawfully earned wages to subsidize political speech it was on the incumbent upon the employee to opt out from those payments Janice changes that system to an opt-in system under which a [00:04:32] Speaker 03: I mean, we can go back and forth upon what is required for an employee to do and what the standard is for knowing voluntary informed consent. [00:04:39] Speaker 03: But it's clear that the employee must do something. [00:04:41] Speaker 03: There's some action required on behalf of the employee. [00:04:44] Speaker 03: And in this case, again, no parties dispute that Camille Bork never took that affirmative action. [00:04:48] Speaker 03: The union has been entirely unable to produce even a single document showing any kind of consent on her behalf. [00:04:55] Speaker 03: Unless the court has any additional questions, I will reserve my time. [00:05:00] Speaker 05: Thank you very much. [00:05:11] Speaker 01: Good morning, Your Honors. [00:05:12] Speaker 01: Adam Kornetsky, appearing on behalf of the Engineers and Architects Association. [00:05:18] Speaker 01: This case is very similar to Crane, which you just heard oral argument in. [00:05:25] Speaker 01: And just as in Crane, the three cases, Belga, Wright, and Ochoa, are controlling here. [00:05:35] Speaker 01: I don't want to read that. [00:05:36] Speaker 02: Can you focus on what has been identified as the factual distinction? [00:05:40] Speaker 02: with regard to one of the plaintiffs, Bork, who apparently did not give authorization in the first instance. [00:05:49] Speaker 02: Does that change anything? [00:05:52] Speaker 01: That does not change anything. [00:05:54] Speaker 01: So Bork allegedly never consented to any dues deductions, but it's [00:06:05] Speaker 01: essentially the same as in Wright, where the allegation was that the union forged the membership card and that there was never any consent to dues deductions. [00:06:19] Speaker 01: So under Wright, I don't think that is a meaningful distinction. [00:06:29] Speaker 01: So as I mentioned, this case is very similar to Crane. [00:06:34] Speaker 01: only significant difference that is even potentially significant is that Crane was an expired collective bargaining agreement and in this case it was an active collective bargaining agreement but one that required affirmative written consent before any dues authorizations. [00:06:59] Speaker 01: I want to focus a little bit on [00:07:02] Speaker 01: This collective bargaining agreement, it's actually two, but they have the same language. [00:07:06] Speaker 01: These MOUs, just to be very clear, that they do require affirmative written consent. [00:07:16] Speaker 01: While there's a dues maintenance window in the MOUs, the MOUs have several provisions that require affirmative written consent for all dues deductions in compliance with state law, which, as you heard, like the state laws in Oregon and Washington that were looked at in the prior Ninth Circuit decisions, the California state laws require this kind of consent [00:07:46] Speaker 01: and they require that revocations of dues deductions be in compliance with the terms of the dues deductions. [00:07:53] Speaker 02: So that requirement- What form of consent was there from Camille Bork? [00:08:01] Speaker 01: As alleged, there was no consent from Ms. [00:08:04] Speaker 02: Bork. [00:08:05] Speaker 02: So telling me that the state law and the memorandum of understanding requires consent, [00:08:14] Speaker 02: Well, and satisfying to hear in response, not a dispute to the proposition that there wasn't consent. [00:08:21] Speaker 02: Isn't that a concern? [00:08:22] Speaker 02: I mean, I understand you've cited to write and we're bound by right, but isn't that a concern? [00:08:28] Speaker 01: It's certainly a concern that if any union members having dues deducted without consent, [00:08:35] Speaker 01: And that's the concern that the state laws and the MOU deal with. [00:08:41] Speaker 01: And it's something that's dealt with under state law. [00:08:45] Speaker 01: So the plaintiffs here, you know, could have gone to the employment relations board and they could have had a remedy for these allegedly unlawful deductions under state law. [00:08:59] Speaker 01: That's where this case should have gone and not in federal court because there's no [00:09:05] Speaker 01: First Amendment problem here. [00:09:06] Speaker 01: There's no due process problem here. [00:09:08] Speaker 01: There's a problem under state law of unauthorized deduction that the respects the contract or lack thereof between the union and the private party. [00:09:23] Speaker 01: Nothing to do with the city or the state. [00:09:25] Speaker 05: Okay. [00:09:25] Speaker 05: Thank you very much. [00:09:37] Speaker 00: Morning, your honors. [00:09:38] Speaker 00: May it please the court? [00:09:39] Speaker 00: Erica Johnson-Brooks on behalf of the city of Los Angeles. [00:09:43] Speaker 00: Essentially, the city is being sued for following a state law that the appellants do not like. [00:09:51] Speaker 00: The court is correct in the prior case. [00:09:55] Speaker 00: The state law is not discretionary. [00:09:57] Speaker 00: And the district court correctly held that the core of the alleged harm here is the union's failure to notify the city [00:10:06] Speaker 00: that the plaintiffs had withdrawn or challenged their authorization. [00:10:10] Speaker 00: Therefore, the city's role was merely ministerial processing of payroll deductions. [00:10:16] Speaker 00: The city has no control or input per the MOU and per the clear and unambiguous language in the state law. [00:10:25] Speaker 00: In addition, the appellants cannot establish that the city applied a policy other than what was required under state law and that the city's actions were the moving force in the alleged harms. [00:10:38] Speaker 00: There was no deliberate action to follow a course of action from various alternatives. [00:10:43] Speaker 00: There are no alternatives under state law. [00:10:47] Speaker 00: In addition, the allegations regarding deliberate indifference, this court and the United States Supreme Court has set a very stringent standard of fault. [00:10:57] Speaker 00: It's a high standard. [00:11:00] Speaker 00: You must show that the municipality has to be the moving force behind the injury alleged. [00:11:06] Speaker 00: There has to be deliberate conduct and there is no deliberate conduct by the city following state law. [00:11:13] Speaker 00: In addition, the district court properly ruled based on case law from this circuit and district courts within the circuit. [00:11:20] Speaker 00: that Bork lacked standing to seek perspective relief, and Morijn's claims for perspective relief are moot. [00:11:28] Speaker 00: And it's clearly on point with the case Wright, where allegations of past injury alone are insufficient to establish standing. [00:11:40] Speaker 00: The threat of these alleged future dues authorizations, as the court recognized in Wright, and it is the same here, are imaginary. [00:11:50] Speaker 00: It's conjecture and speculative. [00:11:54] Speaker 00: He's been removed, Morjean has been removed from the list, and there's no plausible suggestion that he will be subjected to unlawful wage deductions in the future. [00:12:05] Speaker 00: Likewise, Bork, [00:12:06] Speaker 00: She's conceded that the case is moot, but she relies on the voluntary cessation exception to mootness, arguing that the conduct will be repeated. [00:12:17] Speaker 00: And as I just mentioned with Morjean, the [00:12:21] Speaker 00: The district court properly found that the alleged wrongful behavior is not reasonably expected to recur. [00:12:30] Speaker 00: And that is a case few versus united teachers of Los Angeles. [00:12:35] Speaker 00: And my time is up. [00:12:37] Speaker 00: We ask that this court affirm the district court. [00:12:40] Speaker 00: Thank you very much. [00:12:40] Speaker 00: Thank you. [00:12:50] Speaker 04: Good morning again, Your Honors, and may it please. [00:12:52] Speaker 04: Welcome back. [00:12:53] Speaker 04: Thank you. [00:12:54] Speaker 04: Kristin Liska on behalf of the Attorney General again. [00:12:56] Speaker 04: I will keep it very brief out of respect for your time, and I won't repeat what I've previously said in the crane argument we all just heard. [00:13:04] Speaker 04: I do just want to reiterate that this statute, like the ones in Belgao, in Ochoa, does require written authorization for dues to be deducted. [00:13:13] Speaker 04: That if a union attests that it has that written authorization but doesn't, that would be a violation of the statute. [00:13:19] Speaker 04: And as have been discussed today, there are many state law remedies for that, suits and fraud or contract, bringing an unfair labor practice, but that the statute itself is constitutional since the statute requires a written authorization. [00:13:33] Speaker 04: If you have any questions, I'm happy to answer. [00:13:36] Speaker 04: Thank you very much. [00:13:37] Speaker 04: I will yield my time. [00:13:38] Speaker 04: Thank you. [00:13:50] Speaker 03: Thank you again, Your Honors. [00:13:52] Speaker 03: It's clear that Camille Bork never affirmatively consented or authorized anything. [00:13:59] Speaker 03: The Supreme Court has laid down a standard for what's required for a union to use state statutes in order to take money from a public employee and use it for political speech. [00:14:09] Speaker 03: The unions cannot meet the standard in this case. [00:14:12] Speaker 02: The facts report are different. [00:14:16] Speaker 02: How do [00:14:17] Speaker 02: The facts permit us to distinguish our court's decision in right. [00:14:22] Speaker 03: Certainly, Your Honor. [00:14:23] Speaker 03: I think the right case, again, the key factual distinction for the right case is the fact that in right there was an allegation of forgery, of fraud. [00:14:31] Speaker 03: The allegations in right, the complaint is replete with allegations that someone signed the card on behalf, a fraudulent card on behalf of the plaintiff in that case, and that was a misuse of state law. [00:14:43] Speaker 03: Again, there's nothing in the California statutes at issue in this case that actually require the union to have a card. [00:14:49] Speaker 03: The effect of the statutes in this case are the same as the statutes in Janus. [00:14:55] Speaker 03: The question before the court is, do the statutes allow the union to unilaterally control whether or not there are going to be deductions from an employee's lawfully earned wages? [00:15:04] Speaker 03: And that's exactly what happened in this case. [00:15:06] Speaker 02: Well, again, I understand the allegations with regard to Bork, but what Wright appears to me to say is that the reason [00:15:17] Speaker 02: our court in Wright reached the conclusion it did is expressly, we conclude the district court did not err in dismissing these claims because SEIU is not a state actor for Section 1983 purposes, we therefore affirm. [00:15:33] Speaker 02: Well, so yeah, the complaint may have been replete with allegations of forgery, but that's not what our court said in reaching the conclusion that 1983 [00:15:44] Speaker 02: didn't provide a claim. [00:15:45] Speaker 02: How is this case any different? [00:15:47] Speaker 03: I would respectfully disagree, Your Honor. [00:15:48] Speaker 03: I think if you get into the right case, what the court does when looking at the Lugar test for state action is actually bases that conclusion upon a Lugar prong one, which is the state policy requirement. [00:15:58] Speaker 03: And the court concludes the state could not have had a policy to enable fraud. [00:16:04] Speaker 03: So if the plaintiffs in right are alleging a misuse of state law, an illegal act, that could not have been a statute [00:16:11] Speaker 03: that the state had passed in order to enable that to happen. [00:16:14] Speaker 03: Therefore, it's completely intuitive and logical that you can't break law at the same time at which you're acting pursuant to state law. [00:16:23] Speaker 03: Here, the allegations are that there's nothing in the state law requiring the union to actually have a card. [00:16:28] Speaker 03: And we would encourage the court again to look at our reply brief. [00:16:30] Speaker 03: We put the text of California Government Code 1157.12 right next to the statute and write, [00:16:37] Speaker 03: to try to demonstrate to the court how different these statutes are and the fact that the statute in right does require a card. [00:16:43] Speaker 03: It says right there in the text of the statute that the union must possess a card. [00:16:46] Speaker 03: There is no such limitation on the statute and the union in this case. [00:16:50] Speaker 02: So how does the difference in the statute change the characterization of whether the union is a state actor if the California code may be less demanding than, was it? [00:17:05] Speaker 02: Washington, I've now forgotten the state. [00:17:06] Speaker 02: Oregon. [00:17:07] Speaker 02: Oregon. [00:17:11] Speaker 02: How is that going to convert the union into a state actor? [00:17:15] Speaker 02: They're simply operating under the law that California has established. [00:17:19] Speaker 03: I would submit not only somewhat different, completely different on this point, and this is the key part of the statute. [00:17:29] Speaker 03: Does the statute, like the statute in Janus, allow the union to unilaterally control? [00:17:34] Speaker 03: Can the union tell the city? [00:17:36] Speaker 03: Take money from Camille Bork and give it to us for use in political speech without possessing a card. [00:17:41] Speaker 03: And in fact, they can. [00:17:42] Speaker 03: That's exactly what happened here. [00:17:43] Speaker 03: There's been no defense today from my friends on the other side for this behavior. [00:17:47] Speaker 03: They simply claim the statutory power to do this. [00:17:50] Speaker 03: both through the Myers-Millius Brown Act and 1157.12. [00:17:53] Speaker 03: Again, this window restriction did not appear out of thin air. [00:17:56] Speaker 03: When the city sat down with the union to negotiate this contract, it didn't just get put in, and they said, oh, well, we read the whole contract, and we happen to miss this one portion that has an effect upon someone's First Amendment rights. [00:18:07] Speaker 03: The city selected this policy, and this policy was used in part to compel Camille Burke's speech. [00:18:14] Speaker 03: Just with the time remaining I have left, Your Honors, I want to push back a little bit on the idea that [00:18:18] Speaker 03: state defendants or those alleged to have acted under color of state law can simply come into court and try to control the claims pursuant to section 1983 for plaintiffs allegedly injured their constitutional rights simply by saying that we should have sought some other type of remedy. [00:18:35] Speaker 03: We don't concede or make any point about whether or not Camille Bort potentially could have sought claims through some other venue. [00:18:42] Speaker 03: The fact of the matter is that the Supreme Court in Janus was very clear on this point. [00:18:45] Speaker 03: And again, just to emphasize to the court, [00:18:48] Speaker 03: This fact pattern is as close, we think, as to Janus will be in the post Janus world. [00:18:54] Speaker 03: And so if Camille Bork did not suffer a compelled speech injury in this case, potentially the conclusion would be that no one can potentially suffer a compelled speech injury post Janus. [00:19:03] Speaker 03: And we just don't think that this court's decisions in Belgao and Wright, which dealt with very specific facts, should be interpreted as an affirmative bar [00:19:12] Speaker 03: to every compelled speech claimed by any public employee under any possible circumstances. [00:19:16] Speaker 03: And for that reason, we would ask the district court be overturned. [00:19:19] Speaker 05: Thank you very much. [00:19:20] Speaker 03: Thank you. [00:19:20] Speaker 05: We thank all counsel for their arguments this morning. [00:19:22] Speaker 05: This case is submitted.