The unexpected death in February of conservative U.S. Supreme Court Justice Antonin Scalia changed the expected outcome on a number of high-profile cases involving hot-button issues like immigration, abortion and affirmative action.

Another was Friedrichs v. California Teachers Association, a case that challenged a long-held precedent allowing unions to require public workers they represent to pay dues for collective bargaining services. Nine public school teachers brought the suit, four of whom work in Orange County – including the lead plaintiff, Rebecca Friedrichs.

Court-watchers were anticipating a 5-4 decision against the unions, with Scalia voting in the majority. It would have been a major win for conservative groups that have worked for decades to weaken the power of employee unions, arguing benefits for taxpayers and individual rights. But without Scalia, the court ended up deadlocked at 4-4 and a lower court decision favoring the unions was affirmed.

However, the fight is not over and Orange County remains in the middle of it. The Orange County Water District, the public agency that protects and extracts groundwater used by 2.4 million county residents, is waging a court battle to keep the agency’s unionized workers from requiring future employees to pay the so-called “fair share” fees.

Starting in 2012, the district’s workers, who are represented by the Orange County Employees Association, have tried to hold an election among union members on whether to require future hires represented by the union to pay dues for collective bargaining services. A petition requesting the election was signed by 98 percent of the union’s members.

The district’s board members has opposed the election in court, arguing that the arrangement isn’t allowed under the First Amendment because it discriminates against new workers by requiring them to pay representation fees and that the state Legislature’s intention was for such fee requirements to apply to all employees in a given bargaining group. Such an election needs the employer’s permission before proceeding.

So far the district’s arguments have been unsuccessful. But that hasn’t stopped it from spending what could amount to hundreds of thousands dollars on a series of appeals.

And unlike the Friedrichs case, which was privately funded, the water district has used public money to keep its case going.

It’s unclear how much in ratepayer funds has spent on the case. Water district records show over $2 million in payments to their law firm, Rutan & Tucker, for a variety of services since 2012, but officials say they don’t have documents showing what portion of that was spent fighting the employee election.

The first two rulings against the water district came from the Public Employment Relations Board (PERB), the state agency that adjudicates disputes over public employee collective bargaining.

After the union filed a complaint with PERB, an administrative law judge with the agency ruled against the district.

So the district appealed to the full PERB board, which also rejected its arguments, noting in its September ruling that the Supreme Court ruled in favor of mandatory collective bargaining fees in the 1977 Abood v. Detroit Board of Education case; and since then has not found such mandatory fees unconstitutional “on any ground, including the First Amendment.”

(Click here to read the rulings from the full PERB board and administrative law judge.)

The district’s board then appealed in October to the state’s Fourth District Court of Appeal, which has yet to rule on the issue.

This is just one of a number of cases that conservatives have brought, and by all indications will continue to bring, on this issue. In a 2014 ruling involving Illinois home health-care workers, the U.S. Supreme Court’s then-majority wrote several pages criticizing the Abood decision, signaling their likely willingness to overturn it.

The campaign to stifle the finances of public-sector unions really ramped up about eight or 10 years ago, said David Rosenfeld, a longtime labor attorney for unions who has argued cases before the Supreme Court.

“There was always a fight,” but it’s intensified because it’s better financed, he added.

As for the water district case, the agency’s First Amendment arguments are very similar to those in Friedrichs and thus won’t succeed until there’s a fifth Supreme Court justice who opposes such mandatory fees, according to UC Irvine law professor Catherine Fisk.

“The First Amendment arguments in the water district case will go nowhere unless or until there is a fifth justice who would share the conservatives’ hostility to agency or fair share fee agreements,” Fisk said.

Senate Republicans, who control the confirmation process, have rejected any hearings on President Obama’s nominee, Judge Merrick Garland, saying the nomination should be left to the next president.

Given that Republicans currently control both the U.S. House and Senate, a vote on a new justice is highly unlikely to happen before next year.

And the subsequent four years of Supreme Court decisions on this issue will likely rest with who’s elected president in November. Presumptive Republican nominee Donald Trump is considered likely to choose a conservative who supports overturning Abood, while likely Democratic nominee Hillary Clinton is expected to favor a more union-friendly justice for the high court.

“The law is clear, and won’t change until there is a fifth vote to overrule Abood,” said Fisk. “I don’t think courts will side with the water district, at least under federal law.  And I doubt California courts will lead California constitutional law off in the direction asked by the water district.”

Voice of OC contacted most of the water district’s 11 board members, including President Cathy Green, for comment on why they feel the case is important to pursue. None would talk about it for this article.

Nick Gerda covers county government for Voice of OC. He can be reached at

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