Annie Lee Hudson v. The Chicago Teachers Union Local No. 1

FLAUM, Circuit Judge,

concurring in the result.

I agree with the majority opinion only insofar as it holds that the Chicago Teachers Union (CTU) plan for arbitration and rebate of agency fees violates the constitutional rights of those employees as the plan relates to fees used to finance political and ideological expenses of the CTU. In Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), the Supreme Court held that nonunion employees could not be compelled to contribute to political or ideological activities of a union. The majority in this case reaches a *1198step further and creates a constitutional right not to be compelled to contribute to any activities that are not germane to collective bargaining, regardless of whether the activities are political or ideological. The majority further holds that the CTU plan is invalid in allowing for arbitration and rebate of those fees. I believe that we need not reach these issues.

A.

In 1981, the Illinois legislature passed a statute allowing local school boards to include in collective bargaining agreements a provision requiring nonunion employees “to pay their proportionate share of the cost of the collective bargaining process and contract administration, measured by the amount of dues uniformly required by members.” Ill.Rev.Stat. ch. 122 ¶ 10-22.-40(a). The Chicago School Board and the CTU included such a provision in their collective bargaining agreement effective September 1, 1982. That provision states in pertinent part:

All full-time employees covered by this Agreement who are not members of the UNION shall ... pay to the UNION each month their proportionate share of the cost of the collective bargaining process and contract administration measured by the amount of dues uniformly required by members of the UNION.

Agreement Between the Board of Education of the City of Chicago and the Chicago Teachers Union, Article 1, § 8.2 (hereinafter “agreement”). The CTU calculated its agency fee, and then adopted its plan for arbitration and rebate of fees by nonmembers. The plan allows nonunion members to object only to

any expenditure of his or her proportionate share payments for political activities or causes, or for activities or causes involving ideological issues not germane to the collective bargaining process or contract administration.

Plaintiffs allege that, in calculating its agency fee, the CTU included expenses that are not related to collective bargaining and contract administration. In their complaint, plaintiffs raised several pendent claims under the Illinois Constitution and under the state statute. In the district court and on appeal, however, plaintiffs have focused on federal constitutional challenges to the agency fee scheme. They argue that the inclusion of any such expenses, regardless of whether the expenses are political or ideological in nature, violates their first and fourteenth amendment rights. They further argue that the CTU arbitration and rebate plan violates these rights.

The district court did not determine whether the inclusion of the challenged expenses was constitutional. The court held that the arbitration and rebate procedure was constitutionally adequate, and it ruled that all disputes over included expenses would have to be determined initially through that procedure.

B.

Plaintiffs have alleged that a portion of their agency fee is being used to pay for political and ideological activities of the union that are unrelated to collective bargaining and contract administration. It is clear that such an allegation states a cause of action for a violation of their constitutional rights of free speech and free association. Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). Where nonunion members state such a cause of action, the constitution entitles them to a procedure that prevents their compulsory subsidization of the impermissible union activity without unduly restricting the union's ability to require them to pay their fair share of the cost of permissible activity. Id. at 237, 97 S.Ct. at 1800.

Both the procedure and remedy of the CTU rebate plan fail to meet this standard. The procedure relies on an arbitrator to determine whether expenses are ideological or political and thus cannot be charged to nonunion members. This involves “difficult problems in drawing lines,” id. at 236, 97 S.Ct. at 1800, of constitutional origin. The Supreme Court has recently held that an arbitration award cannot be given pre-*1199elusive effect in a section 1983 suit, McDonald v. City of West Branch, — U.S. -, 104 S.Ct. 1799, 1804, 80 L.Ed.2d 302 (1984), reasoning that because of institutional limitations on the arbitration process, arbitration “cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights.” Id. 104 S.Ct. at 1803. Institutional limitations include the fact that most arbitrators are not lawyers, that an arbitrator’s authority extends only to enforcing the terms of the contract, and that arbitral fact-finding is not equivalent to judicial fact-finding. Id. at 1803-04. These same limitations also make arbitration an inadequate forum for drawing lines as to permissible expenses based on the first and fourteenth amendments. Because arbitration may not protect constitutional rights, the CTU procedure is invalid.

The remedy — a rebate of the fee improperly deducted — also is constitutionally invalid. A rebate procedure allows the union temporary use of money for activities that violate nonunion members’ rights. The temporary use of funds for improper purposes injures plaintiffs in two ways: it causes them to subsidize ideas with which they disagree; and it depletes their funds available for supporting causes with which they agree. See Seay v. McDonnell Douglas Corp., 427 F.2d 996, 1004 (9th Cir.1970). “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976) (plurality opinion); see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam). There are clearly less restrictive alternatives for the union. See Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, — U.S.-, 104 S.Ct. 1883, 1890, 80 L.Ed.2d 428 (1984). Thus, the rebate system is improper. See Abood v. Detroit Board of Education, 431 U.S. at 244, 97 S.Ct. at 1804 (Stevens, J., concurring).

C.

The majority opinion holds that the CTU’s inclusion of any expenses that are not germane to collective bargaining but that are not political or ideological in nature violates plaintiffs’ fourteenth amendment “liberty of association.” See ante at 1193-1194. From this, it holds that the CTU procedure is unconstitutional in that it does not ensure that the deprivation of liberty does not go further than is necessary.

No other federal appellate court has yet reached the issue of whether nonunion members have a constitutional right not to be charged for expenses that are not germane but not political or ideological. I also do not reach this issue. It is clear that both the Illinois statute and the agreement prohibit the inclusion of any expenses other than the cost of collective bargaining and contract administration. The CTU procedure allows the plaintiffs’ fees to be used temporarily for purposes that violate the statute and the agreement. It is possible that by allowing this, the procedure itself may violate the statute and/or the agreement. Cf. Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 104 S.Ct. at 1889-90 (union rebate plan violates Railway Labor Act by allowing for temporary use of fees collected in violation of Act).

It is a fundamental doctrine of federal adjudication, founded on strong prudential considerations, that a federal court should not resolve constitutional questions when an issue can be resolved on statutory or other grounds. This doctrine has been applied repeatedly where the nonconstitutional ground is a pendent state law claim. See Hagans v. Lavine, 415 U.S. 528, 546, 94 S.Ct. 1372, 1384, 39 L.Ed.2d 577 (1974) (“[t]he Court has characteristically dealt first with possibly dispositive state law claims pendent to federal constitutional claims”) and cases cited therein; Schmidt v. Oakland Unified School District, 457 U.S. 594, 102 S.Ct. 2612, 73 L.Ed.2d 245, (1982) (per curiam); Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 53 L.Ed. 753 (1909) (doctrine of deciding state pendent claim before reaching federal constitutional issue “is not departed from without important reasons”); cf. Hutchinson v. Proxmire, 443 U.S. 111, *1200122, 99 S.Ct. 2675, 2682, 61 L.Ed.2d 411 (1979). Moreover, the Supreme Court has repeatedly determined the validity of union security plans on statutory grounds before reaching constitutional issues. See Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, 104 S.Ct. at 1890; Railway Employes’ Department v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956); Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). I find no reason to depart from the doctrine here. To say that plaintiffs here have not pressed their pendent claims as grounds for disposition of this case cannot justify a different approach. If it did, parties could in effect always force federal courts to reach constitutional issues by the simple expediency of failing to press, or even to plead in the first instance, statutory grounds.1 It is for the courts, and not for the parties, to determine when a decision on constitutional grounds is both necessary and appropriate.

Whether the CTU procedure violates the statute or the collective bargaining agreement are questions purely of state law. Moreover, the parties have not argued this issue either in the district court or on appeal. Thus, I deem it inappropriate to consider these issues for the first time here. I would remand to the district court for a determination of whether this issue can be resolved on statutory or contractual grounds. See Ruslan Shipping Corp. v. Coscol Petroleum Corp., 635 F.2d 648, 651-52 (7th Cir.1980). Cf. Abood v. Detroit Board of Education, 431 U.S. at 236 n. 33, 97 S.Ct. at 1800 n. 33 (Court ruled that it would not determine whether use of fees for “social expenses” was unconstitutional but would leave issue to state courts).

. This approach, in my view, does not conflict with the Supreme Court’s holdings in Patsy v. Board of Regents, 457 U.S. 496 (1982) and Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that exhaustion of state remedies is not required prior to bringing suit in federal court under 42 U.S.C. § 1983. Those cases hold that exhaustion is not a jurisdictional prerequisite to bringing suit in federal court. Nothing in those cases, or in their reasoning, requires a federal court to reach novel issues of constitutional law where an issue may be addressed on state statutory grounds.

The majority states that "[pjendent jurisdiction is not compulsory.” Ante at 1191. It is of course clear that pendent jurisdiction is not compulsory as to the court; the district court has discretion to dismiss pendent claims. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The majority suggests, however, that pendent jurisdiction is not compulsory as to the parties. This in effect is inconsistent with this court’s holding in Harper Plastics v. Amoco Chemicals Corp., 657 F.2d 939 (7th Cir.1981), that a federal court judgment on federal law issues will, as res judicata, preclude a subsequent state court suit where the state claims could have been brought as pendent claims in the federal suit. The court rejected the argument that the uncertainty that the federal court will exercise pendent jurisdiction justifies the failure to bring pendent claims. “We fail to discern the unfairness in requiring a plaintiff to join all relevant theories of relief in a single proceeding." Id. at 946. The federal claim in Harper Plastics was based on the antitrust statutes. The Ninth Circuit has applied Harper Plastics to bar a state court suit where the federal suit was brought in part under 42 U.S.C. § 1983. Midkiff v. Tom, 725 F.2d 502 (9th Cir.1984).