As we have previously reported, most recently on January 28, 2016, the U.S. Supreme Court agreed to review Friedrichs v. California Teachers Association. Friedrichs challenged the right of public employee organizations in California to require public employees to pay “agency shop” fees. An “agency shop” arrangement requires non-union member employees to pay compulsory fees as a condition of employment even if the employees decide not to join the union.

The plaintiffs in Friedrichs alleged that agency shop fees violated their free speech and free association rights under the First and Fourteenth Amendments to the Constitution. They sought to overturn a 1977 U.S. Supreme Court decision, Abood v. Detroit Board of Education, which held that, insofar as service fees were used to finance expenditures by the union for collective bargaining, contract administration, and grievance purposes, agency shop fees were constitutional.

The Federal District Court and the Ninth Circuit Court of Appeals denied the Friedrichs plaintiffs’ request for relief, relying on the Supreme Court’s precedent in Abood. The Supreme Court agreed to review the case, signaling that it may be willing to overturn Abood, and held oral argument on January 11, 2016. Had the Supreme Court held in favor of the Friedrichs plaintiffs, the decision would have created a major disruption to the operations of public employee organizations. Since oral argument, however, Justice Antonin Scalia has passed away, leaving the court without a ninth justice to break ties.

Today, the Supreme Court upheld the lower court decision. The Court did not issue an opinion, but simply affirmed the Ninth Circuit decision with a 4-4 tie, stating only, “The judgment is affirmed by an equally divided Court.” The failure to issue an opinion, or a majority decision, leaves some uncertainty as to the legal basis for the ruling. For now, however, the right of public employee organizations to charge agency shop fees remains intact.

The Center for Individual Rights, an advocacy group representing the plaintiffs in the case, announced at the time of Justice Scalia’s death that it would file for rehearing of the case if the decision was a 4-4 tie, and announced again after the decision that they would file a petition for rehearing. (San Jose Mercury News) The group has 25 days to request rehearing, and five of the justices must vote to order reconsideration. Liebert Cassidy Whitmore will provide updates if and when reconsideration is granted.