The most prominent among the nine cases, which will be argued in December and January, is a constitutional dispute over anti-union measures known as “paycheck protection” laws, which restrict how labor unions can use the fees that nonmembers are often required to pay.
The court’s precedents make clear that nonmembers who object to their fees being used for politics may request a rebate of the amount spent on those activities. The question in the new case, from Washington State, is whether a state may go further and require affirmative consent from nonmembers before the union can spend any part of their fees on political activity.
From the labor unions’ point of view, the difference between permitting nonmembers to “opt out” and requiring them to “opt in” is substantial. They argue that it is burdensome to have to seek permission from nonmembers, and that nonmembers who do not exercise their opt-out rights should be seen as acquiescing in the expenditures.
Washington adopted the consent requirement in a voter initiative in 1992, the first such measure to be adopted in the country. Last year, after a heated campaign, California voters narrowly defeated a similar provision that would have applied only to public employee unions.
The Washington Supreme Court, finding that the affirmative consent requirement imposed an “extremely costly” and “significant” burden on a labor union’s political activities, declared it unconstitutional in March. By establishing a “presumption of dissent,” the court ruled, the measure violated the First Amendment rights of free speech and association.
The justices agreed on Tuesday to hear two appeals from that ruling, consolidated for a single argument. One, Washington v. Washington Education Association, No. 05-1657, was filed by the state, which had brought an enforcement action against the union that is the exclusive bargaining agent for 70,000 teachers.
Of those teachers, some 3,500 have chosen not to join the union, and therefore pay “agency fees” rather than union dues. The state sued the Washington Education Association in response to a complaint that the union was violating the 1992 law by failing to get authorization from the nonmembers before using part of their fees for political activities.
The second appeal, Davenport v. Washington Education Association, No. 05-1589, was filed by the National Right to Work Legal Defense Foundation on behalf of five teachers who had brought a class-action lawsuit to recover fees they alleged the union had spent improperly.
The foundation, which describes itself as dedicated to fighting “the abuses of compulsory unionism,” told the justices in its appeal that “while the power to persuade is protected by the First Amendment, the power to compel conformity (and financial support) is not.”
The union told the justices that the rights of objecting nonmembers were “fully protected” by advising them of their right to opt out.
The initiative added the labor union provision to Washington’s campaign finance law. Washington permits unions to use their general treasuries for political activities. Federal law, by contrast, requires labor unions to set up special segregated funds for political activity, to which members may make voluntary contributions.
The Supreme Court’s decision, consequently, will have no impact on the federal campaign law. According to one of the briefs in the case, five other states — Idaho, Michigan, Ohio, Utah and Wyoming — have laws prohibiting the use of union members’ dues for political purposes without their affirmative consent.
Another of the new cases the justices accepted on Tuesday was an appeal filed by the State of Arizona of a federal appeals court’s decision to permit a death row inmate to challenge his sentence on the ground that he had not received the effective assistance of counsel.
The state argues that the decision by the United States Court of Appeals for the Ninth Circuit to permit the defendant, Jeffrey Landrigan, to proceed with his habeas corpus petition failed to give proper deference to the Arizona courts’ finding that it was Mr. Landrigan himself who had obstructed his lawyer’s effort to present mitigating evidence that might have spared his life.
Mr. Landrigan was convicted of killing a man in Phoenix in 1989, after escaping from an Oklahoma prison where he was serving a term for murder. His lawyer had called Mr. Landrigan’s mother and his former wife to testify on his behalf during the sentencing phase. But Mr. Landrigan instructed them not to testify, telling the judge: “I think if you want to give me the death penalty, just bring it right on. I’m ready for it.”
When the judge tried to clarify his position, Mr. Landrigan asserted that he did not want to present any mitigating evidence.
The question in the appeal, Schriro v. Landrigan, No. 05-1575, is whether the Ninth Circuit exceeded its authority under a 1996 federal law, the Antiterrorism and Effective Death Penalty Act, in reopening the case rather than deferring to the Arizona courts’ conclusion that Mr. Landrigan’s complaint about his lawyer’s performance was “frivolous.”