KNOX v. CALIFORNIA STATE EMPLOYEES ASS'N

Hudson does not require a union to adopt procedures that impose the least intrusive burden on fee payers possible, the majority affords the union undue leniency. See, e.g., Andrews, 829 F.2d at 339-40. The majority ignores Hudson's instruction that, because employees' First Amendment interests are implicated by the collection of an agency fee, "the procedure [must] be carefully tailored to minimize the infringement." Hudson, 475 U.S. at 302-03, 106 S.Ct. 1066 (emphasis added). To eliminate any doubt, in the footnote appended to this statement, the Court cites several cases holding that when First Amendment rights are implicated, the government must avoid burdening those rights. Id. at 303, n. 11, 106 S.Ct. 1066, citing Roberts v. United States Jaycees, 468 U.S. 609, 637, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984); Elrod v. Burns, 427 U.S. 347, 363, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Kusper v. Pontikes, 414 U.S. 51, 58-59, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

Hudson emphasized, moreover, that "procedural safeguards often have a special bite in the First Amendment context." 475 U.S. at 302 n. 12, 106 S.Ct. 1066 (internal quotation marks and alteration omitted). In the agency fee context, Hudson described the goal of procedural protections as to "minimize the risk that non-union employees' contributions might be used for impermissible purposes" even temporarily, id. at 305, 309, 106 S.Ct. 1066, and to "facilitate a nonunion employee's ability to protect his rights," id. at 307 n. 20, 106 S.Ct. 1066. I therefore conclude that the majority's "reasonable accommodation test" is misguided and is inconsistent with case law that we are required to follow.

II.

The Union's procedures in this case should be evaluated in light of the principles set forth in Hudson and the legitimate interests at stake. As the majority has already set forth the facts of this case in some detail, I recite them only where particularly relevant to my views or where additional detail is warranted. I also seek to draw more attention to the well-reasoned decision of the district court.

A.

Pursuant to Hudson, the Union issues a notice to agency fee payers every June. At issue in this case is the Union's June 2005 Hudson notice. That notice set the agency fee to be extracted from nonmember's paychecks at 99.1% of full union membership dues. Nonmembers who objected to paying for nonchargeable expenses would pay a reduced agency fee, set at 56.35% of full union membership dues. The agency fees described in the notice were in effect until the following July, when a new Hudson notice was to become effective. The June 2005 Hudson notice also provided an objection period of thirty days, during which nonmember fee payers could object to the collection of the full agency fee and elect to pay the reduced agency fee. Some of the plaintiffs in this action objected to the June 2005 Hudson notice, while others did not.

In the Summer of 2005, shortly after the expiration of the period for objection to the June 2005 Hudson notice, the Union's legislative bodies began discussing a temporary dues increase. The proposal was described as an "Emergency Temporary Assessment to Build a Political Fight-Back Fund." The agenda for a July 30, 2005 Council Meeting described the purpose of the assessment as follows: "[t]he funds from this emergency temporary assessment will be used specifically in the political arenas of California to defend and advance the interests of members of Local 1000. . . ." The agenda continued to describe:

These temporary emergency assessments are made necessary by political attacks on state employees and other public workers launched by Governor Schwarzenegger and his allies which threaten the wages, benefits and working conditions of Local 1000 members, and undermine the services they provide to the people of California.

The Union contemplated that the "Political Fight-Back Fund" would not be used for the "regular costs of the union . . . such as office rent, staff salaries or routine equipment replacement." Instead, the Fund would be used "for a broad range of political expenses."

The Union approved the temporary assessment at the end of August 2005. The Union's yearly Hudson notice had been issued in June 2005, and that notice did not mention the possibility of the later-enacted temporary assessment. After passage of the temporary assessment, the Union sent a letter to members and non-members, dated August 31, 2005, informing them that "Local 1000 delegates voted overwhelmingly for a temporary dues increase to create a Political Fight-Back Fund." The letter stated that the funds collected from the dues increase would be used for several political purposes: (1) to defeat two propositions appearing on the November 2005 ballot (Propositions 75 and 76); (2) to "defeat another attack on [the] pension plan" in June 2006; and (3) "[i]n November 2006 . . . to elect a governor and legislature who support public employees and the services [they] provide." The letter explained that the $45 per month cap on dues would not apply to the temporary assessment. For sake of clarity, I point out that this letter did not constitute "notice" as contemplated in Hudson. The letter did not provide an explanation for the basis of the additional fees being imposed, and it did not provide nonmembers with an opportunity to object to the additional fees.

After receiving the Union's letter, some nonmembers attempted to object to the temporary assessment. For example, plaintiff Dobrowolski contacted the Union to lodge his objection to the "Political Fight-Back Fund." He was told, in effect, that there was nothing he could do about it; he was not allowed to object. The Union thereafter sent a letter to nonmembers, like plaintiff Dobrowolski, who attempted to object to the increase in fees. That letter, dated October 27, 2005, stated in part:

The Union has received your objection to the dues increase. We understand that you are a political objector and a fee payer in the Union and that you have raised an objection to paying this increase because you believe the money will be directed solely to political activities by the Union. We understand your frustration about paying a little more to the Union when you have not seen a new contract with a pay increase. However, we hope that by explaining the Union's position concerning this dues and fees increase, you will better understand our position. . . .

When we have a campaign that is split between political actions and collective bargaining actions the Union is required by law to annually audit the expenditures for those activities; the Union will fully comply with this requirement. However, the Supreme Court has stated that this audit must occur at the end of the fiscal year in which the activities take place, because next year's objecting fee-payer rate must be based on that audit.

This campaign will entail much work-place organizing divided over two fiscal years. At the end of each year, the Union's expenses for these activities will be audited, and the amount of expense which is not germane to collective bargaining will be used to set the objecting fee-payer rate for the next year. Presently you are an objecting fee-payer who pays the audited rate for this year. Next year, you will be able to exercise your objection again and pay the audited rate set for that year, based on the Union's expenditures this year. That rate will fully account for any political actions of the nature to which you have objected.

The temporary assessment took effect at the end of September 2005. At that time, the Controller of the State of California, defendant Steve Westly, began deducting the additional fees automatically from all nonmember employees' paychecks. Although the assessment was "temporary," it was certainly not of short duration, lasting from September 2005 until the end of December 2006.

B.

In November 2005, plaintiffs initiated this action in the United States District Court for the Eastern District of California, contending that the temporary assessment violated their First, Fifth and Fourteenth Amendment rights. Plaintiffs alleged, among other things, that the temporary assessment constituted a seizure of their money for nonchargeable political expenses, without constitutionally required procedural safeguards. The district court granted a preliminary injunction to plaintiffs. On cross-motions for summary judgment, the district court entered summary judgment in plaintiffs' favor.

There are several important features of the district court's summary judgment. First, the district court addressed the burden imposed by the temporary special assessment. The Union argued that non-members who had objected to the June 2005 Hudson notice were assessed only a 14.09% increase in the deduction from the objector's salary. The district court opined that the figure was "somewhat misleading" because it ignored the fee increase imposed on nonunion employees who had not objected to the Union's June 2005 Hudson notice. The district court indicated that the Union's quantification of the temporary assessment was misleading in other respects as well, and that the actual increase in fair share fee for non-members ranged, on average, from 25% to 33%. The district court deemed this "a material change in the amount of funds nonunion employees were required to contribute to Union expenditures;" The district court concluded, "the fair share fees paid by both objectors and nonobjectors actually increased by a much greater margin than Defendants would like to suggest."

Second, the district court discussed the characterization of the temporary special assessment. Plaintiffs asserted that the fund was intended solely for political and ideological purposes. The Union characterized the assessment as "an ordinary dues and fees increase" because, in retrospect, some of the expenses funded through the temporary assessment were eventually deemed chargeable to nonmembers. The district court thought the Union's position "def[ied] logic." The Union had described the proposed assessment as a political fund, and specifically stated that the fund was not to be used for regular costs.

Third, taking all of the above together, the district court concluded that the June 2005 notice did not provide potential objectors with sufficient information to gauge the propriety of the Union's fee, in light of the temporary special assessment. The June 2005 Hudson notice could not provide adequate notice as to the temporary assessment because it relied on categories that were not relevant to the temporary assessment. According to the Union's statements, the temporary special assessment was intended for a specific purpose and would not be used for regular expenses. The district court pointed out that, "after implementing the increase, the Union took the position that nonunion employees had already been given an opportunity to make an informed decision as to the Assessment by mejans of the 2005 Hudson notice. The Uhion now turns a blind eye to the inconsistency inherent in asking non-union employees to compare apples, in the form of the prior year's financie is, to oranges, in the form of a new Assessment."

Finally, the district court concluded that the appropriate remedy was a second Hudson notice, relying on Wagner v. Professional Engineers in California Government , 354 F.3d 1036, 1041 (9th Cir. 2004). This remedy had to be made available to nonmembers regardless of whether they had objected to the June 2005 Hudson notice, because: "[i]n order for any non-union employees' failure to object to have any legal significance, the 2005 Hudson Notice must have been valid and sufficient to cover the Assessment." The district court held that objectors to the second Hudson notice would be entitled to a refund, with interest, of any withheld amounts.

III.

In this case, the Union failed to protect adequately the First Amendment rights of nonmembers from whom it collected an agency fee. In collecting agency fees from nonmembers, the Union is subject to constraints that are both procedural and substantive in nature. See Grunwald, 994 F.2d at 1373. Procedurally, the Union did not provide nonmembers with sufficient information to gauge the propriety of the agency fee. The Union's June 2005 Hudson notice was insufficient in light of the temporary assessment. Notably, the Union adopted no other procedures to protect nonmembers' First Amendment rights upon imposition of the temporary assessment. Nonmembers were provided no additional notice, opportunity to object, dispute resolution procedure, and so forth. Compounding these procedural failures, there is a substantive problem. The temporary assessment is suspect, because it was instituted shortly after the June general Hudson notice and was explicitly and exclusively intended to fund the Union's political activities. The temporary assessment was a special purpose fund that would not be used for regular Union costs and therefore represented a departure from the Union's typical spending regime. I do not believe the Union sufficiently minimized the risk that nonmembers' funds would be used to subsidize political and ideological activities in light of these circumstances.

The majority avers that the special assessment does not represent a substantial departure from the Union's ordinary spending. Subsequent audits, however, revealed that a very substantial portion of the Union's assessment, 72.6% in 2005 and 81.2% in 2006, was used for non-chargeable purposes. In contrast, 31.2% of the Union's total expenses was determined to be non-chargeable in 2005, and 39.6% was deemed non-chargeable in 2006. The special assessment, therefore, cannot be described as being consistent with the Union's usual spending — especially when the Union explicitly stated that the assessment was necessary for political purposes.

A.

I first consider the adequacy of the Union's June 2005 Hudson notice in light of the temporary assessment. The June 2005 Hudson notice provided, in part:

Effective July 1, 2005 through June 30, 2006, the fee will be no more than 99.1% of regular membership dues. Regular monthly membership dues are currently 1.0% of monthly gross salary and are presently capped at a maximum of $45 per month. Dues are subject to change without further notice to fee payers.

Effective July 1, 2005 through June 30, 2006 (the "2005-6 Fee Payer Year") [the Union] will charge fee payers who object to expenditures not germane to collective bargaining a fee of no more than 56.35% of regular membership dues for that salary level.

The notice provided, in addition, for a "Political Action Reduction:" "Fee payers are also entitled to have their fees reduced by the pro rata portion of the fee that goes to the Political Action Fund that [the Union] sets aside for contributions to candidates and initiative campaigns, and other partisan political activities."

To provide a point of comparison, the Union's June 2006 Hudson notice, issued after the temporary assessment had been enacted, provided as follows:

Effective July 1, 2006 through June 30, 2007, the fee will be no more than 99.1% of regular membership dues. Regular monthly membership dues are currently 1.0% of monthly gross salary and are presently capped at a maximum of $45 per month. Additionally, a temporary assessment of 1/4 of 1% of monthly gross salary is being collected through December 31, 2006. Dues are subject to change without further notice to fee payers.

Effective July 1, 2006 through June 30, 2007 (the "2006-7 Fee Payer Year") [the Union] will charge fee payers who object to expenditures not germane to collective bargaining a fee of no more than 68.8% of regular membership dues for that salary level.

Regarding the "Political Action Fund," the 2006 Hudson notice provided that fee payers were also entitled "to have their fees reduced by the pro rata portion of the fee that goes to the Political Action Fund"

The Union submits that the Supreme Court has approved the retrospective method by which it calculates the yearly agency fee: a "look-back" procedure, by which the Union sets the agency fee for the upcoming year according to the proportion of chargeable versus nonchargeable expenditures in the prior year. However, the Union's June 2005 Hudson notice was not adequate to provide an explanation of the basis for the agency fee extracted from nonmembers' paychecks for the temporary assessment. To reiterate the obvious, the June 2005 Hudson notice provided no information regarding the temporary assessment, as it was enacted subsequently, in August 2005. The Union would respond that the notice was adequate to cover such future contingencies. How could that be? The temporary special assessment resulted in approximately a 25% increase in fair share fees — a fairly substantial increase. Because the temporary assessment was exempted from the dues cap, higher-earning employees might experience an effective or actual increase that was even greater. Moreover, while the assessment was "temporary," it was in effect for the bulk of the 2005 fee year, from the end of September 2005 until commencement of the next fee year in July 2006.

The district court further held that the fee increase was material, and I agree. The temporary special assessment might therefore have affected a fee payer's decision to object pursuant to the June 2005 Hudson notice. See, e.g., Dashiett v. Montgomery County, 925 F.2d 750, 756 (4th Cir. 1991) ("The test of adequacy of the initial explanation to be provided by the union is . . . whether the information is sufficient to enable the employee to decide whether to object"). Indeed, because the Union refused to give nonmember employees an opportunity to object when information about the temporary assessment was disclosed, these nonmembers were essentially left in the "dark" about the nature of the agency fee during the time period in which they were required to file objections. See Hudson, 475 U.S. at 303, 106 S.Ct. 1066 (emphasizing that unions cannot leave "nonunion employees in the dark about the source of the figure for the agency fee"). In other words, even though the special assessment significantly altered the magnitude and intended use of the agency fee, the Union and the majority believe that nonmember employees were required to object before the material information was revealed. Such an approach simply cannot be reconciled with the procedures set forth in Hudson. See id.; cf. Locke v. Karass, 382 F.Supp.2d 181, 190 (D.Me. 2005) (explaining that the use of a previous year's financial audit to set the percentage of chargeable fees would violate Hudson, when a union "cherry pick[s]" certain financial data, and fails to disclose other material information, in an effort to increase fees), affirmed by 498 F.3d 49 (2007) and by 555 U.S. 207, 129 S.Ct. 798, 172 L.Ed.2d 552 (2009).

The Union would respond, I venture, by asserting that the temporary assessment did not alter the agency fee as a percentage of total union dues. The June 2005 Hudson notice disclosed that the agency fee was 99.1% of membership dues, and that the objectors' agency fee was 56.35% of membership dues. The temporary assessment did not affect these percentages. But such an argument rests on the faulty premise that, if nonmembers' fees remain constant as a percentage of members' dues through a given fee year, any absolute increase in fees is protected from scrutiny by the yearly Hudson notice, that is, that the proportionate share is what matters, and because this was not altered there can be no constitutional violation.

I am not convinced that the proportionate share is all that matters in evaluating the adequacy of a Hudson notice. From the standpoint of a potential objector, the magnitude of the increase in fees imposed by the temporary assessment could very well be material. This increase, as an absolute amount, could affect a nonmember's decision to object or not to object even if the percentage fee remained static. And these nonmembers are the ones whose First Amendment rights are in jeopardy" not the Union's. Moreover, the temporary assessment was exempted from the cap on dues. Thus, even though the fair share fee remained constant as a basic percentage under the temporary assessment, because the assessment was exempted from the $45 per month cap on dues, some employees would in fact experience a proportionately greater share in monthly fee deductions. This is inconsistent with a static-percentage justification for the Union's failure to provide additional notice regarding the temporary assessment.

Furthermore, by exempting the temporary assessment from the cap, the Union acted contrary to the June 2005 Hudson notice. The June 2005 Hudson notice, stated: "currently 1.0% of monthly gross salary and are presently capped at a maximum of $45 per month." Exceptions from the cap, or the elimination of it, was not contemplated in the June 2005 Hudson notice. The Union's June 2005 Hudson notice also stated: "[d]ues are subject to change without further notice to fee payers." I cannot put much weight in this sweeping reservation of assumed authority; in any event, the notice did not disclose that the cap could be eliminated. For these additional reasons, I conclude that the temporary assessment might be a material factor in a nonmembers' decision to object.

I conclude that the Union's June 2005 notice did not fulfill its obligations under Hudson. The purpose of a Hudson notice is to enable informed consent or objection. See Cummings v. Connell, 316 F.3d 886, 895 (9th Cir. 2003), cert. denied, 539 U.S. 927, 123 S.Ct. 2577, 156 L.Ed.2d 604 (2003) (holding that the Hudson notice was designed to provide nonmembers with information necessary to evaluate whether to object to a union's calculation of chargeable expenses); Hoke v. Casey, 956 F.2d 399, 410 (3d Cir. 1992) ("the issue is whether the notice provided nonmembers with . . . sufficient information to determine whether they were only being compelled to contribute to chargeable activities"). The Union's June 2005 Hudson notice was inadequate to provide fee payers with a basis on which to adjudge the propriety of the Union's agency fee, and to decide whether or not to object.

Because the Union's June 2005 Hudson notice was inadequate, an employee's failure to object to it does not constitute an effective waiver, an abandonment of a known right. Lowary v. Lexington Local Bd. of Educ., 903 F.2d 422, 430 (6th Cir. 1990). Until Hudson's requirements are satisfied, employees must be afforded subsequent opportunities to object. See Mitchell v. L.A. Unif. Sch. Dist., 963 F.2d 258, 261-63 (9th Cir. 1992).

The June 2005 Hudson notice was not adequate to provide notice as to the temporary assessment for an additional reason, which warrants separate attention. The temporary assessment was a special purpose fund. The Union envisioned the temporary assessment as a political fundraising vehicle, to build a "Political Fight-Back Fund." The Union contemplated that the temporary assessment would provide a distinct source of capital for political activities and that it would not be used for the regular expenses of the union. Recognizing the unique character of the temporary assessment has two implications.

The majority acknowledges that the Union's August 2005 letter to members and agency fee payers specifically stated that the fee increase would be used for political activities. In fact, that letter makes no mention whatsoever of any non-political reason for the increase. Nevertheless, based on the October 2005 letter, the majority reasons that the Union "intended to split the increase `between political actions and collective bargaining actions.'" Maj. Op. at 1119. The October letter, however, does not state that the fee increase would be split between political and collective bargaining activities. Instead, the letter indicates that the Union would be undertaking a "year-long campaign "that would be "split" between both political and non-political functions. Nothing in the letter states that the "campaign" would be funded exclusively by the assessment. In fact, the Union's letter then identified a 2004 "Call the Governor" program, which apparently was funded by the Union's general fund from the previous year, as an example of a non-political "campaign" activity. Thus, when the August and October letters are read together, it appears the Union intended to use the fee increase to fund political aspects of the campaign, while it intended to fund non-political activities with general member and agency fees.
Similarly, the majority misapprehends the record when it suggests that the fee assessment contained no spending limitations. Maj. Op. at 1118-19. When the Union decided to increase fees, its budget committee indicated that the increase would "not be used for regular costs of the [U]nion." The agenda for the counsel meeting, wherein the Union resolved to increase fees, further states that "[t]he funds from this emergency temporary assessment will be used specifically in the political arenas of California." These appear to be spending limitations.

First, the June 2005 Hudson notice could not be adequate to enable nonmembers' informed objection to the agency fee. The June 2005 Hudson notice contemplated ordinary expenditures; the temporary special assessment stood apart from that. As the district court stated, the union asked nonmembers to compare "apples, in the form of the prior year's financie is, to oranges, in the form of a new [a]ssessment, an [a]ssessment which was not to be utilized for Union operations but was instead earmarked for discrete political purposes." Even if agency fees remained constant as a percentage of total member dues, nonmembers might well object to paving increased fees for purely political purposes; for example, they might object in light of the departure from the Union's normal spending regime.

Second, as a substantive matter, the Court has repeatedly stressed that a union may extract from nonmembers "only those fees and dues necessary to performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues." Price, 927 F.2d at 90-91 (internal quotation marks omitted). In Lehnert, the Court outlined a framework for evaluating whether an activity was germane to a union's role as exclusive bargaining agent: "chargeable activities must (1) be `germane' to collective-bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding `free riders'; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop." 500 U.S. at 519, 111 S.Ct. 1950.

To protect the distinction between chargeable and non-chargeable activities, a union is required to adopt procedures that minimize the risk that nonmembers will be compelled to subsidize political or ideological activities with which they do not agree. In Hudson, the Court explained, "[t]he Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining." Hudson, 475 U.S. at 305, 106 S.Ct. 1066; Abood, 431 U.S. at 244, 97 S.Ct. 1782 (concurring opinion).

The majority incorrectly concludes that Plaintiffs' appeal "must fail" because charge-ability of the assessment is "immaterial" to their procedural Hudson challenge. Maj. Op. at 1122 n. 4. While it is true that the Plaintiffs in this case do not raise a direct challenge to the Union's chargeability determinations, this does not mean that the political nature of the Union's special assessment is irrelevant. Indeed, the Hudson procedures were adopted to provide nonunion employees with a fair opportunity to object to a union's use of agency fees for political, ideological, and otherwise non-chargeable activities. See 475 U.S. at 306, 106 S.Ct. 1066 ("Basic considerations of fairness, as well as concern for the First Amendment rights at stake, . . . dictate that the potential objectors be given sufficient information to gauge the propriety of the union's fee"). Here, the Union's decision to raise fees to fund political activities is relevant in determining whether the Union provided sufficient information for nonunion employees to "gauge" whether or not to object.
The majority's reliance on Wagner, 354 F.3d at 1046-7, is mispled. While Wagner observed that a procedural Hudson challenge raises different questions than a challenge to a union's chargeability determinations, Wagner does not stand for the proposition that the potential chargeability of a union's mid-year fee increase cannot be considered in determining whether a union has satisfied the procedural requirements set forth in Hudson. See id.; Hudson, 475 U.S. at 306, 106 S.Ct. 1066.

The temporary assessment was contemplated as a political fundraising vehicle; it therefore cannot be justified by the interest in preventing nonmembers from free-riding on the Union's collective bargaining efforts. The temporary assessment clearly burdened the speech of nonmembers. But the Union undertook no efforts, in connection with the imposition of the temporary assessment, to minimize the impact on nonmembers' First Amendment rights. Taking these considerations together, I conclude that, in connection with the imposition and collection of the temporary assessment, the Union did not fulfill its obligation to be mindful of nonmembers' First Amendment rights.

The Union and the majority seek to evade the fact that the temporary assessment was enacted to fund political activities by arguing that the fund was ultimately used for some expenses that were chargeable to nonmembers.' I agree with the district court's assessment of the Union's post hoc rationalization: "[f]ollowing the union's logic it should be required only to show that some small fraction of this fund was used for chargeable purposes in order to justify subverting its Hudson responsibilities." The district court further reasoned that, even if the temporary assessment was not intended solely for political purposes, it was indeed intended pre- dominantly for political purposes. As such, the district court continued, "it is clear that the Union's intent was to depart drastically from its typical spending regime and to focus [the temporary special assessment funds] on activities that were political or ideological in nature."

The Union's ideological challenge to Proposition 76 cannot be categorized, as the majority attempts, as an expense chargeable to objecting agency-fee payers. According to the majority, expenses related to the Union's political challenge to this ballot measure might be considered chargeable because Proposition 76 "would have effectively permitted the Governor to abrogate the Union's collective bargaining agreements under certain circumstances." Maj. Op. at 1119 n. 2. A review of Proposition 76, however, reveals that any connection between the Union's challenge was too attenuated to its collective bargaining agreement to be considered a chargeable expense. The purpose of the ballot measure was to limit the annual amount of total state spending to the prior year's spending plus a reasonable amount of growth. See Sec'y of the St. of Cal., Official Voter Information Guide: Special Statewide Election 60 (2005). It also would have set aside budget surpluses for future use. Id. To achieve these initiatives, Proposition 76 allowed the governor to reduce spending under certain circumstances. For instance, if passed, the proposition would have given the Governor limited "authority to reduce appropriations" for future state contracts, collective bargaining agreements, and entitlement programs. Id. Thus, properly understood Proposition 76 was a ballot measure related to the allocation of tax revenue for funding government activities, which included the amount of financial support available to fund public employment. See id.
To be sure, there are some limited circumstances where a union's political activities can be deemed chargeable. According to the Supreme Court, lobbying or other political activities are chargeable when they directly relate to "ratification of negotiated agreements by the proper . . . legislative body" or "to acquiring appropriations for approved collective-bargaining agreements." Lehnert, 500 U.S. at 520, 111 S.Ct. 1950. Where, however, as in the instant case, the "challenged . . . activities relate . . . to financial support of . . . public employees generally, the connection to the union's function as bargaining representative is too attenuated to justify compelled support by objecting employees." Id. Accordingly, contrary to the majority's contention, the district court and I do not "conflate" political expenses with non-chargeable expenses. Maj. Op. at 1119 n. 2. We simply recognize that the Union's intended uses for the assessment, all of which pertained to core political activities such as the Union's challenge to Proposition 76, cannot be construed as legally chargeable. Additionally, it is peculiar that the majority even makes the assertion that the Union's political expenses would be chargeable if, as the majority avers, "chargeability is immaterial" to the instant case. Maj. Op. at 1122 n. 4.

In sum, the Union's procedures were not adequate under the circumstances. The June 2005 Hudson notice was inadequate to provide nonmembers with sufficient information from which to evaluate the propriety of the Union's agency fee. After enacting the temporary special assessment, the Union made no effort whatsoever to rninimize the infringement of nonmembers' rights. The Union did not provide notice regarding the temporary assessment; the Union also did not provide nonmembers with an opportunity to object to the temporary assessment. The Union did not provide a procedure for resolving disputes and did not place disputed amounts in escrow. Indeed, when nonmembers attempted to object to the temporary assessment, they were refused a forum for their dispute and were never provided with the opportunity to obtain the decision of a neutral hearing officer.

IV.

This brings me to the crux of the Union's argument: that Hudson approved calculating an agency fee as the proportion of chargeable to nonchrgeable expenses in the prior fiscal year, the Union asserts that the prior-year method is virtually required here, as it is a large public sector union and must calculate its agency fee on the basis of audited financial reports. Because of the audit requirement, moreover, the Union asserts that it could not prospectively apportion the temporary assessment between chargeable and nonchargeable expenses.

The majority agrees that the Union complied with its obligations. The majority recites that "absolute" precision cannot be expected or required in the calculation of an agency fee, and that the Union cannot be "faulted" for calculating its agency fee on the basis of the prior fiscal year's expenditures. Further, the majority states that the Union could not deviate from the prior-year method of calculating the agency fee with respect to the special assessment. The majority explains that the prior-year method makes lag inherent; in any given year, an objector might be "underpaying or overpaying," but "the inevitable effect of the Hudson method is that these over-and undercharges even out over time."

This strikes me as a strange argument when dealing with a First Amendment challenge. First, the Hudson notice procedure is not per se adequate to protect the rights of nonmembers in all situations. Instead, where, as here, there is a substantial deviation from the normal Hudson process, adaptation is required. Second, the prior-year calculation method does not establish the adequacy of the June 2005 Hudson notice nor does it demonstrate that the Union's procedures were adequate when viewed as a whole.

A.

We should not measure the Union's conduct by the discrete Hudson procedures alone. Hudson establishes a floor. See Keller v. State Bar of Cal., 496 U.S. 1, 17, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). In Davenport, the Court stressed, "we have described Hudson as `outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirement under Abood.' "551 U.S. at 185, 127 S.Ct. 2372.

Here, the temporary assessment was not like the Union's ordinary dues and not like the facts presented in Hudson. Several features of the special assessment distinguish this case. The temporary assessment was imposed mid-year and not in the normal course of the Hudson process. The temporary assessment imposed a material increase in agency fees over those contemplated in the Hudson notice, and was exempt from the dues cap (which was inconsistent with the Hudson notice). Hudson did not consider a fee increase outside of a normal periodic notice process. Likewise, Hudson did not contemplate a special-purpose assessment, as here. Even assuming the Union did here what was done in Hudson, it could not be sufficient to satisfy its duties in light of the unique circumstances of this case.

I cannot agree with the proposition that the Union's June 2005 Hudson notice satisfied the Union's obligations to nonmembers until issuance of the next yearly Hudson notice. The Union's mid-year conduct cannot be insulated from scrutiny. Rather, there must be some limitation on a union's imposition of fee increases between Hudson annual notices.

B.

The Union contends that it complied with the procedures set forth in Hudson, because the Court approved the calculation of an agency fee based on the proportion of the prior year's chargeable to non-chargeable expenditures. Indeed, in a footnote, the Court stated that a union "cannot be faulted for calculating its fee on the basis of its expenses during the preceding year." Hudson, 475 U.S. at 307 n. 18, 106 S.Ct. 1066. The Union represents, furthermore, that its hands were tied with regard to the temporary assessment, because it is required to base its agency fee calculation on audited financial statements. See Knight v. Kenai Peninsula Borough Sch. Dept., 131 F.3d 807, 812-13 (9th Cir. 1997), cert. denied, 32A U.S. 904, 118 S.Ct. 2060, 141 L.Ed.2d 138 (1998); Prescott v. County of El Dorado, 177 F.3d 1102, 1106-09 (9th Cir. 1999), vacated and remanded on other grounds, 528 U.S. 1111, 120 S.Ct. 929, 145 L.Ed.2d 807, reinstated, 204 F.3d 984 (9th Cir. 2000).

The prior-year calculation method used here does not satisfy all of the Union's obligations, however. The Union's allocation of expenses as chargeable or non-chargeable presents a distinct issue in the adequacy of its Hudson notice. See, e.g., Seidemann v. Bowen, 499 F.3d 119, 127 (2d Cir. 2007) (there is a "clear distinction between the adequacy of a union's notice . . . and the propriety of a union's chargeability determinations"); Hudson v. Chicago Teachers Union, 922 F.2d 1306, 1309, 1314 (7th Cir. 1991) (pointing out that a party had confused adequacy of the notice with the accuracy of the fee itself). Thus, even if the Union "cannot be faulted" for relying on prioryear expenditures in calculating the agency fee, it is not relieved from its other Hudson obligations. The Union must still provide adequate notice to enable an informed decision, an opportunity to lodge objections, a prompt hearing on objections by a neutral decisionmaker, and escrow of any amounts in dispute. Even if we look only to compliance with Hudson, therefore, the Union still falls short of the mark.

I recognize that the Union, in relying on prior-year expenditures as the basis for its agency fee, is subject to an audit requirement. In my view, application of the audit requirement relates to the appropriate remedy in this case, a question we do not reach. A district court, with a proper record, could evaluate the audit requirement in light of the temporary assessment. Indeed, the purpose of an audit is to verify that a union actually spent the amount of money it claims; the audit is not intended to verify the union's allocation as a "legal, not an accounting, decision regarding the appropriateness of the allocation of expenses to the chargeable and non-chargeable categories." Andrews, 829 F.2d at 340; accord Gwirtz v. Ohio Educ. Ass'n, 887 F.2d 678, 682 n. 3 (6th Cir. 1989); Ping v. Nat'l Educ. Ass'n, 870 F.2d 1369, 1374 (7th Cir. 1989). In any event, the audit requirement does not relate to the other Hudson protections implicated by this case, and is ultimately of limited help to the Union. Even a temporary violation of the First Amendment is a significant violation.

V.

The majority construes the issue in this appeal as "whether a union is required . . . to send a second notice when adopting a temporary, mid-term fee increase." By framing narrowly the issue in this case, the majority shifts attention to the remedy adopted by the district court. But the district court's remedy is only one consideration in this case — one we do not even reach — and should not be set up as a strawman for attack.

In this case, the Union's provision of an annual Hudson notice was insufficient to enable nonmembers to protect their First Amendment rights upon imposition of the temporary assessment. The Union, furthermore, made no effort to minimize the infringement of nonmember's First Amendment rights despite substantially increasing the fees extracted from their paychecks. I believe that the majority's opinion does not carry out the principles of Hudson. I therefore dissent.