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Non-Union Teachers Seek Friedrichs Rehearing Once Court Vacancy Is Filled

The non-union California teachers challenging the right of teachers' unions to charge them agency fees for collective bargaining have asked the U.S. Supreme Court to rehear their case once a new justice is confirmed.

The court deadlocked 4-4 last month in the case of Friedrichs v. California Teachers Association, resulting in an affirmance of a lower-court ruling that upheld agency fees. That was a victory welcomed by public-employee unions.

After the March 29 tie outcome in the case, lawyers for the 10 teachers who are challenging the agency-fee system vowed that they would file a so-called petition for rehearing, asking the high court to essentially reinstate their case to the docket once a successor to Justice Antonin Scalia, who died Feb. 13, is confirmed.

On April 8, the lawyers from Jones Day law firm and the Center for Individual Rights filed the rehearing petition.

"The questions presented in this case are too important to leave unsettled with an affirmance by an equally divided court, and they are guaranteed to recur in the absence of a definitive ruling from this court," says the petition. And leaving the issue "unresolved would needlessly prolong the prevailing uncertainty on issues that recur constantly and that affect millions of public employees in the more than 20 states that allow agency fees," it says.

The petition argues that it has been "quite common" for the Supreme Court to grant rehearing "where the court is equally divided, particularly when there is a vacancy."

Indeed, the petition cites several cases in which the court granted rehearing after it had issued a ruling of the type in Friedrichs: affirming the judgment below by an equally divided court.

But the most recent example it cites is from 1947, in a price-discrimination case called Bruce's Juices Inc. v. American Can Co.

And one of the petition's arguments might be perceived as undercutting itself.

"Right now, there are multiple cases pending in the lower courts that implicate the questions presented" in Friedrichs, the petition says. "In the absence of a precedential ruling from this court, at least one of those cases will almost certainly reach the court in the next several years."

To that, the justices might well say, why shouldn't we wait for one of those cases when we have a full bench?

But none of the pending cases involve clients represented by the Center for Individual Rights, and it is clear (and perhaps understandable) that the group would want a case in which it has invested much time and expense to be the one taken up again by the justices.

It's not uncommon for the Supreme Court to formally reject petitions for rehearing within two months of filing. For the Friedrichs teachers, their only hopeful sign would be if the court did not act on their rehearing petition while the vacancy on the court remains open.

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