From the Oracles of the Temple of Janus By: Edwin J. Viera

Dr. Vieira is an attorney specializing in constitutional and labor law.

INTRODUCTION

On 4 March 1986, the United States Supreme Court handed down a decision with potentially revolutionary impact on the ability of public sector unions to collect so-called "agency," "service," or "fair share" fees from nonunion employees required under state or local laws to accept the unions as their exclusive representatives for the purposes of collective bargaining and adjustment of work related grievances. That decision is Chicago Teachers Union, Local No. 1 v. Annie Lee Hudson, et al.1 Briefly summarized, Hudson guarantees nonunion government workers specific and strict protections of procedural due process of law which, although clearly adumbrated in the Court's earlier decision, Abood v. Detroit Board of Education,2 major public sector unions such as the American Federation of Teachers (AFT), the National Education Association (NEA) and the American Federation of State, County and Municipal Employees (AFSCME) had categorically refused to recognize and make available to objecting employees' In that respect, the unanimous decision in Hudson represents a spectacular vindication of those employees' constitutional rights. 

However, in a style of reasoning peculiar to the Court's decisions in the area of "labor law" since the late 1930's, Hudson withheld from the victorious employees the full measure of constitutional protection traditional principles of procedural due process promise, substituting instead a watered down version of due process that the Court claimed would satisfactorily secure the employees' rights, but the true adequacy of which only further time-consuming and costly litigation can determine. 4In this sense, Hudson has two faces: one, the well-lit, benevolent visage of actual procedural due process protections, as the Court defined them, providing nonunion employees with heretofore unattainable recourse against spoilation by their exclusive representatives; the other, the shadowy, duplicitous countenance of unstated but nevertheless important procedural rights left unenforced, without any (let alone a convincing) explanation of why those rights need not be secured against abuses by unions, just as they are against violations by other wrongdoers. From the point of view of nonunion employees who now can ass' assert Hudson to terminate what are probably the worst procedural injustices of compulsory. agency fee schemes, the Court's more visible face is no doubt of decisive importance. But from the point of view of those committed to the rule of law, the Court's less visible face remains troublesome, representing as it does a continuation of a situation ethics approach to constitutional decision-making that aids politically powerful special interest groups at the expense of the impartial enforcement of society's fundamental code of behavior. 

Hudson, then, could constitute a significant new departure in constitutional jurisprudence: a signal to public, and private sector unions that the days of constitutional apartheid have come to a close, and that hereafter unions will be held accountable for violations of constitutional rights. Or it could evidence the Court's-perhaps schizophrenic, and ultimately unattainable-attempt to perpetuate the peculiar status of "labor law" in the procedural due process area, even while simultaneously imposing on unions basic due process requirements the applicability of which no reasoning person could deny. Through which of his mouths Janus' has really spoken the reader must determine for himself after perusing what follows.

PART I: HUDSON AS A "FANTASTIC VICTORY" FOR NONUNION PUBLIC EMPLOYEES

On the day the Court announced Hudson, the late Thomas J. Harris, Chairman of the National Right to Work Legal Defense Foundation (which had assisted the employees in their suit)~ hailed the decision' as a:

"...fantastic victory that workers will savor for decades.

"The high court is saying that 'before union officials take the first penny from workers who do not want this forced representation, there must be a clear-cut impartial determination of the amount of money union officials spend ...."5

Practically speaking, on the face of opinion in Hudson, this description of the results of the case is quite accurate-with respect not only to the Chicago Teachers Union (CTU), but also to most (if not all) other public sector unions, and especially those affiliated with AFT, NEA, and AFSCME. For what the HudsonCourt declared unconstitutional was (and still remains) standard operating procedure, not only with CTU and other AFT affiliates, but also with NEA and AFSCME. 

Shortly, after the Illinois General Assembly provided a statutory license for agency fee arrangements in public sector collective bargaining agreements, CTU and the Chicago Board of Education entered into an agreement whereby the Board obligated itself to deduct so-called proportionate share payments from the salaries of nonunion employees. For the 1982-1983 school year, CTU set these payments at 95 percent of its regular membership dues, purportedly by "identif[ying union] expenditures unrelated to collective bargaining and contract administration," calculating the percentage of CTU's annual income these unrelated expenditures represented, and deducting this percentage from its dues.6 CTU: 

...also established a procedure for considering objections by nonmembers. Before the deduction was made, the non-member could not raise any objection. After the deduction was made, a nonmember could object to the "proportionate share" figure by writing to, the Union President within 30 days.... The objection then would meet a three-stage procedure. First, the Union's Executive Committee would consider the objection. . . . Second, if the objector disagreed with that decision, . . . the Union's Executive Board would consider the objection. Third, if the objector continued to protest,. . . the Union President would select an arbitrator from a list maintained by the Illinois Board of Education. The Union would pay for the arbitration. . . .7

Upon CTU's "forma[l] reques[t]" for deductions, "[t]he Board accepted the Union's 95 percent determination without questioning its method of calculation and without asking to review any of the records supporting it," and began the deductions-but without "provid[ing] the nonmembers with any explanation of the calculation, or of the Union's procedures.8

When several nonunion teachers brought suit challenging the proportionate share payment scheme as a violation of their civil rights, the United States District Court for the Northern District of Illinois rejected their claims on the grounds that CTU's procedure was "fair," "represented a good-faith effort by the Union," was "not unduly cumbersome," and afforded nonunion employees due process of law.9 The United States Court of Appeals for the Seventh Circuit unanimously reversed, holding "the Union's objection procedure.. . inadequate," and ruling that "the 'constitutional minimum' of any revised procedure must include 'fair notice, a prompt administrative hearing before . . . some. . . state or local agency-the hearing to incorporate the usual safeguards for evidentiary hearings before administrative agencies-and a right of judicial review of the agency's decision'." 10

Accepting CTU's petition for review by writ of certiorari, the Supreme Court recalled its earlier decision in Abood that, although it is constitutional:

...to require nonunion [public] employees, as a condition of employment, to pay a fair share of the union's cost of negotiating and administering a collective bargaining agreement [as those employees' exclusive representative], nevertheless, ...nonunion employees do have a constitutional right [under the First Amendment] to "prevent the Union's spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative."11

Then it defined the question presented in Hudson as "whether the procedure used by [CTU] and approved by the [Board] adequately protects the basic distinction drawn in Abood" between the power of an exclusive representative to collect a fair share fee and the right of nonunion employees to demand that the representative expend such fees on collective bargaining activities alone.12

To achieve the result mandated by Abood, the Hudson Court explained, ...[p]rocedural safeguards are necessary...for two reasons. First,...the fact that [nonunion employees'] rights are protected by the First Amendment requires that the procedure be carefully tailored to minimize the infringement [of an "agency fee" scheme on those rights]. Second, the nonunion employee-the individual whose First Amendment rights are being affected-must have a fair opportunity to identify the impact of the governmental action on his interests and to assert a meritorious First Amendment claim.13

One procedural alternative the Court dismissed out of hand. Quoting its earlier decision in Ellis v. Railway Clerks, 466 U.S. 435 (1984), the Court reaffirmed that a "pure rebate approach is inadequate" because: under such an approach, in which the union refunds to the nonunion employee any money to which the union was not entitled, "the union obtains an involuntary loan for purposes to which the employee objects."14

Under Ellis, CTU's procedure was fatally defective because in practice it amounted precisely to a "pure rebate approach." "[A] remedy which merely offers dissenters the possibility of a rebate," the Hudson Court held, quoting Justice Stevens' concurring opinion in Abood, . . . does not avoid the risk that dissenters' funds may be used temporarily for an improper purpose. "[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."15
 

Two aspects of this holding are of great significance. First, the statement that a union "should not be permitted to exact a service fee from nonmembers without first establishing a procedure" adequately protective of their constitutional rights makes the existence of such a procedure the necessary condition precedent to the collection of any agency fee at all. Moreover, any monies that unions have heretofore collected in the absence of any procedure, or under color of an improper or insufficient procedure, are monies that the unions are not entitled to retain because they were not entitled to exact them in the first place-and, therefore, must be refunded in toto to every employee objecting to the exactions. Second, that the Hudson Court drew its authority for this statement from one of the key opinions in Abood clearly indicates that the Court intended the ruling inHudson apply retroactively to all then pending agency fee litigation. For, by so relying on Abood, the' Hudson Court made clear that its decision was anything but a "new" ruling or a "clear break with the past. "16

The Court then rejected CTU's contention that its reduction, of' proportionate share payments to 95 percent of union members' dues somehow safeguarded the rights of nonunion employees. This advance reduction of dues, the Court held, was inadequate because it provided nonmembers with inadequate information about the basis of the proportionate. share. In Abood, we reiterated that the nonunion employee has the burden of raising an objection [to an agency fee exaction], but that the union retains the burden of proof [as 'to the validity of the fee] Basic considerations 'of fairness, as well as concern for the First Amendment rights at' stake, also dictate that the potential objectors be given sufficient information to gauge the propriety of the union's fee. Leaving the nonunion employees in the dark about the source of the figure for the agency fee-and requiring them to object in order to receive information-does not adequacy adequately protect the careful distinctions drawn in Abood.17

Again, two aspects of this holding are fundamentally important. First, the statements that "the burden of proof" is on the union and that the union must provide "potential objectors...sufficient information to gauge the propriety of the union's fee" squarely impose on the union the responsibility itself to initiate the procedure that is the condition precedent to exaction of any fee, by affirmatively disclosing whatever information is necessary to validate "the source of the figure for the agency fee" in the minds of the dissenting employees. That is, the information must be sufficient to enable a reasoning nonunion employee, proceeding in good faith, to determine whether he ought not to object, because the union's disclosures are complete enough to remove his doubts as to the factual and legal basis for the fees it demands. Or, the union's pre-collection information must be sufficient in and of itself to prove then and there the union's reasonable entitlement to the sum it proposes to collect-for, if not so complete, it necessarily will "[l]eav[e] the nonunion employees in the dark, requiring them to object in order to receive [all the] information" they need to make a fully informed decision. So, under Hudson, the union must satisfy its burden of proof at the pre-collection stage, if it desires to collect any monies prior to a final judicial determination of the fee. 

Second, the statement that full disclosure of "the source of the figure for the agency fee" by the union is a condition precedent to the union's requiring nonunion employees to object to the fee privileges means that every nonunion employee has a right to demand procedural regularity in the collection of agency fees, even if he never objects to any other aspect of the agency. fee scheme. This means that Hudson effectively overrules earlier Supreme Court decisions denying the availability of class action relief in agency fee cases, on the ground that "dissent is not to be presumed-it must affirmatively be made known to the union by the dissenting employee."18 For if "dissent must affirmatively be made known to the union," but cannot be made known unless and until the union appraises nonunion employees of "the source of the figure for the agency fee," then any and every employee not provided with that source has just cause to complain of an agency fee exaction, precisely because it occurs under procedural circumstances through the union's nonfeasance or malfeasance, to make a reasonable decision to dissent or not on substantive grounds. Or, in cases where a union had collected agency fees without adequate procedural safeguards, a class action is proper for a complete refund of collections throughout the bargaining unit.

As a result of these holdings, within the various state statutes of limitations applicable' to civil rig' rights actions, under Hudson every public sector union that has collected agency fees without providing "potential objectors... sufficient information to gauge the propriety of the fee[s]"-and that, more likely than not, includes every union in the country collecting such fees-is liable for the full amount of all its collections (whether they have been spent or not) together with all attorneys' fees and costs nonunion employees may incur in bringing suit.19And, in every bargaining unit in which agency fees have been collected under such improper procedures, merely one nonunion employee may initiate a class action on behalf of all similarly situated employees to obtain full refunds for everyone.20

Turning from generalities to the specifics of the case before it, the Hudson Court then explained why "the original information given [by CTU] to the nonunion employees was inadequate." "Instead of identifying the expenditures for collective bargaining and contract administration that had been provided for the benefit of non-members," the Court noted, ....the Union identified the amount that it admittedly had expended for purposes that did not benefit dissenting nonmembers. An acknowledgment that nonmembers would not be required to pay any part of 5% of the Union's total annual expenditures was not an adequate disclosure of the reasons why they were required to pay their share of 95%.

....[A]dequate disclosure surely would include the major categories of [collective bargaining] expenses, as well as verification by an independent auditor."21

The practical importance of this holding is that, besides providing another reason for striking down CTU's proportionate share payment scheme, it settles once and for all the impropriety of the so-called "residuum theory" for calculating agency fees. That is the approach whereby unions such as the NEA and AFSCME, in addition to AFT, regularly have set the fees by subtracting from their membership dues some small percentage they concede they expend on activities unrelated to collective bargaining, while assuming without proof that everything else (the residuum) is properly chargeable, simply because they say it is.22

In light of Abood, the Hudson Court's summary rejection of the residuum theory is easily understandable. Abood recognized that all expenditures of public sector unions are, from the constitutional perspective, political and ideological in nature; and that therefore any agency fee scheme infringes on nonunion employees' freedoms of speech and association under the First Amendment. But the AboodCourt held that that subset of union expenditures demonstrably collective bargaining in character is chargeable to those employees nevertheless.23 Under this reasoning, the calculation of an agency fee can never involve subtractionsfrom a presumably valid gross amount measured by union membership dues-because every penny of those dues the union expends, by constitutional hypothesis, on political and ideological activity, but (absent appropriate proof) not necessarily on collective bargaining activity. Rather, a valid calculation must always employ additions to an initially chargeable amount of nothing, with the union demonstrating that each such addition represents a specific collective bargaining, not merely a union, expenditure. The residuum theory adopts a subtractive, not an additive, approach. Therefore, it is improper on its face. 

The significant advance that Hudson makes over Abood lies in the HudsonCourt's requirement that "adequate disclosure [of the basis for the agency fee] surely would include the major categories of [union collective bargaining] expenses, as well as verification by an independent auditor." Two aspects of this statement deserve emphasis. First, the concept major categories of expenses has both a factual and a legal component. Not only must the union prove by way of satisfactory accounting evidence that it has expended (or reasonably intends to and will expend) $X on activity A, $Y on activity B, and $Z on activity C; but also it must demonstrate that activities A, B, and C are collective bargaining in nature as a matter of constitutional law. 

As now structured and operated, most public sector unions will face serious practical difficulties providing even the satisfactory accounting evidence to support their agency fee demands. Typically, the unions' records are not structured and cannot be analyzed to show the amount of money they expend at their local, state and national levels on such obviously collective bargaining activities as negotiating agreements with public employers, administering collective bargaining contracts or processing employee grievances thereunder. And any truly independent auditors would so conclude. 

Decisively, moreover, no auditor-independent or otherwise (other than a judge) can verify the legality of union activities the collective bargaining character of which is in dispute, either because nonunion employees deny that the activities are properly categorizable as collective bargaining at all under any legal standard, or because they contend that, notwithstanding the nominally collective bargaining nature of the activities, they do not qualify under Abood as the type of collective bargaining activities for which unions can charge agency fees as a matter specifically of constitutional law.24 Therefore, if at the pre-collection stage nonunion employees reasonably dispute the collective bargaining nature of "major categories of [union] expenses" as a matter of law, no "verification [of the agency fee] by an independent auditor" is possible; a fortiori, then, the union has not made adequate disclosure of the basis for the fee; and no collection of monies representing the challenged categories is permissible. Inasmuch as public sector unions originally adopted the nondefunct residuum theory because their internal auditors were aware of the impossibility of factoring out collective bargaining costs as a matter of pure accounting and also because their attorneys knew that the collective bargaining character of the vast majority of activities in the residuum is legally doubtful at best, the requirement of legal verification at the pre-collection stage could sound the effective death knell of most agency fee schemes now in existence.25

A final complication involves selection of the independent auditor. At a later stage in its opinion, the Hudson Court denied that an arbitrator whose "selection represents the Union's unrestricted choice" from a list maintained by a government agency could be sufficiently impartial to review the propriety of an agency fee.26 If an arbitrator whom the union selects cannot be deemed impartial simply because of his selection by the union, then certainly an auditor similarly selected cannot be deemed independent. For this reason, either the nonunion employees must participate equally with the union in the nomination of the auditor or a neutral governmental agency must decide his identity. Presumptively, the public employer is not such a neutral agency-inasmuch as it agreed with the union to impose the agency fee on its nonunion employees in the first place, and therefore has a special political (as well as legal) interest in seeing the fee sustained. However, because the public employer does have a distinct legal interest in the premises (primarily to avoid liability for denial of its nonunion employees' civil rights by conspiring with the union to impose on them an excessive fee), in the absence of preemptive participation by some other, neutral governmental agency the employer could reasonably demand that its own auditor also verify the union's major categories of expenses before it begins deducting agency fees from the wages of nonunion employees. The factual and legal complications and conundrums arising from what would probably be different and conflicting verifications of the fee by different auditors the reader can well imagine. 

In short, the Hudson Court's requirement of "verification by an
independent auditor" as a condition precedent to collecting of agency fees could effectively terminate all agency fee schemes for major unions such as AFT, NEA, and AFSCME until those unions reorganize themselves so as to make such pre-collection verification a practical possibility both factually and legally. 

Raving disposed of the residuum theory, the Hudson Court then focused on the issue of how objections to agency fees-presumably arising from nonunion employees' scrutiny of the unions' adequate disclosure of collective bargaining expenses-should be processed. Explaining that "the nonunion employee . .. is entitled to have his objections addressed in an expeditious, fair, and objective manner," the Court rejected Out of hand CTU's "suggestion that the availability of ordinary judicial remedies is sufficient" in the general case.27 That is, a public employer and union cannot simply seize employees' wages and, when the victims object, say "Sue us!" Rather, because, ....the agency shop itself is "a significant impingement on First Amendment rights,"... the government and the union have a responsibility to provide procedures that minimize that impingement and that facilitate a nonunion employee's ability to protect his rights. We are considering here the procedural adequacy of the agency shop arrangement itself; we presume that the courts remain available as the ultimate protectors of constitutional rights.28

The Court's emphasis that Hudson involved "the procedural adequacy of the agency shop arrangement itself," coupled with its denial that "the availability of ordinary judicial remedies is sufficient and with its mandate that "the government and the union have a responsibility to provide procedures that minimize...impingement [on First Amendment rights] and that facilitate a nonunion employee's ability to protect his rights," compels the conclusion that Hudsonrequires the government and the union to establish a procedure less practically burdensome to nonunion employees than ordinary judicial remedies and be at least as, if not more, protective of their constitutional rights. 

The procedure CTU and the Board adopted did not meet the standard "because it did not provide for a reasonably prompt [post-collection] decision by an impartial decision maker," but instead incorporated two layers of consideration and review by CTU's own hardly disinterested officials, with "the third step-review by a union-selected arbitrator-[being] also inadequate because the selection represents the union's unrestricted choice" from a list of arbitrators maintained by a governmental agency.29
 

Unwilling to require at this time "a full dress administrative hearing, with evidentiary safeguards, [as] part of the 'constitutional minimum'," the Court suggested that "an expeditious arbitration might satisfy the requirement of a reasonably prompt decision by an impartial decision maker, so long as the arbitrator's selection did not represent the union's unrestricted choice."30 The key indicium of the merely suggestive nature of this statement is the verb might. Even if the arbitrator is impartial, and the arbitration expeditious, the requirement only might be satisfied. The Court's suggestion, then, is along the lines of earlier dicta in Abood and other cases that, on fuller consideration, it repudiated in Hudson:31 namely, an exhortation in this case to governments and unions to work out something that obviates further litigation, and avoids the necessity for the Court to impose "a full-dress administrative hearing, with evidentiary safeguards;" and an admonition that, if governments and unions remain obdurate, the Court in some other case will conclude that such a "full-dress...hearing" is, after all, "part of the 'constitutional minimum'." The Court further reinforced the merely suggestive nature of its encouragement of expeditious arbitration by noting that "[t]he arbitrator's decision would not receive preclusive effect in any subsequent [civil rights] action."32 And, of course, no arbitrator would have authority to pass on the numerous legal-and especially constitutional-issues involved in assessing the propriety of an agency fee in public sector employment.33

Finally, the Hudson Court rejected CTU's argument that, because the union had escrowed all of the agency fees and "would not object to the entry of a judgement compelling it to maintain an escrow system in the future," CTU had "avoid[ed] the risk that dissenters' [fees] could be used improperly," and had "eliminate[d] any valid constitutional objection to [its collection] procedure."34 Conceding that CTU's "self-imposed remedy eliminates the risk that nonunion employees' [fees] may be temporarily used for impermissible purposes," the Court nevertheless held the agency fee scheme flawed because "[i]t does not provide an adequate explanation for the advance reduction of dues, and it does not provide a reasonably prompt decision by an impartial decision maker."35 However, leaving to the trial court on remand "the task of fashioning a proper remedy," the HudsonCourt refrained from holding that, ...a 100% escrow is constitutionally required. Such a remedy has the serious defect of depriving the union of access to some escrowed funds that it is unquestionably entitled to retain. If, for example, the original disclosure by the union had included a certified public accountant's verified breakdown of expenditures, including some categories that no dissenter could reasonably challenge, there would be no reason to escrow the portion of the nonmember's fees that would be represented by those categories.36

Here, obviously, the controlling criteria are "funds that [the union] is unquestionably entitled to retain" and "categories [of union expenditures] that nodissenter could reasonably challenge." If factual and legal questions do exist, and some dissenter does advance an arguable reason for challenging the union's claims, then transfer of the funds from escrow to the union is improper. 

The Court's comments concerning the standards governing release of monies from escrow must be glossed in conjunction with its earlier rulings that "the union should not be permitted to exact" (that is, to collect at all) "a service fee from nonmembers without first establishing a procedure" satisfying constitutional requirements, and that "potential objectors [must] be given sufficient information to gauge the propriety of the union's fee" before they are required to object (and, therefore, logically before their money is collected for deposition in escrow, as only objectors' money must be escrowed). Taken together, all these holdings support the following tripartite approach, applicable to components $X, $Y, and $Z of an agency fee representing, respectively, the union's expenditures on activities A, B, and C:

1. If activity A is unquestionably collective bargaining in nature, and its factual and legal character not capable of reasonabl[e] challenge, then the union is entitled immediately to collect and receive $X from nonunion employees. 

2. If the factual or legal character of activity B is questionable or subject to reasonable challenge, but arguably could be collective bargaining in nature, then the union is entitled to collect $Y from nonunion employees and deposit the money in an escrow account, subject to "a reasonably prompt decision by an impartial decision maker." 
 

3. If the factual or legal character of activity C is unquestionably not collective bargaining in nature, or if the union has provided no information about B or information insufficient to support a reasonable inference of its possibly collective bargaining nature, then no collection of $Z is permissible, even for deposit into escrow.

Here, categories 1 and 3 should present no great problems in the usual case. If, for example, the union establishes with appropriate evidence that activity A consisted of actual negotiation of a collective bargaining agreement for the bargaining unit that includes the nonunion agency fee payors; and if the union supplies an independent "certified public accountant's verified breakdown of expenditures" for activity A (negotiations), then the union would be entitled to immediate receipt of $X, because negotiations on behalf of the fee payors are unquestionably collective bargaining in character. Conversely, if the evidence shows that activity C consisted of training union members in the bargaining unit to engage in partisan political campaigns, in lobbying, or in other forms of political activism, the union could not demand even collection, let alone receipt, of $Z. 

If, however, the evidence consists merely of the accountant's verification that the union expended $Y on undifferentiated salaries, administration, overhead, contingency funds and the like, without any specific attributions to distinct and proven collective bargaining activities generating the costs, the union should also be denied collection of the monies. For, as the Hudson Court held, [b]asic 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. Leaving the nonunion employees in the dark about the source of the figure for the agency fee-and requiring them to object in order to receive information-does not adequately protect the careful distinctions drawn in Abood.37

Where the information the union provides is nonexistent or vague, potential objectors cannot rationally "gauge the propriety of the union's fee"-and, therefore, simply to protect themselves, must "object in order to receive information." Yet, absent some further safeguard, by objecting (albeit reasonably) they trigger the collection and escrowing of the very fees to the collection of which the union's own dereliction in supplying information has compelled them to object. Unless the union must provide some reasonable minimum of material information before any collection is proper, even one that results in escrowing the monies in issue, the union can automatically deprive nonunion employees of their property precisely by "[l]eaving [them] in the dark about the source of the figure for the agency fee carefully tailored to minimize the infringement [on employees' First Amendment rights recognized in Abood as inherent in the agency shop]."38 Because the union alone has the ability to "protect the careful distinctions drawn in Abood" and to 'minimize the infringement [on employees' rights]" by providing "sufficient information" at the pre-collection stage, if such information exists, and because the union retains the burden of proof throughout the entire agency fee procedure, common sense (if not traditional evidentiary and constitutional precepts) demands that the union exercise its ability and carry its burden to a degree consistent with the First Amendment in order to qualify as collectible any portion of the fee it demands, even if that portion would be subject to immediate escrowing upon collection. That is, the condition precedent sine qua non to collection of any portion of an agency fee is provision by the union, at the pre-collection stage, of information logically, factually, and legally sufficient to support the inference that the activities subsidized by that portion of the fee are arguably collective bargaining in character.

Now, Hudson explicitly requires that the union present this "sufficient information" to all nonunion employees, in order to provide them with a rational basis to object vel non. But implicit in the Court's holding "the government and the union have a responsibility to provide procedures. . . that facilitate a nonunion employee's ability to protect his rights"39 is the further requirement that the union apprise the public employer of the basis for the fee, and that the public employer withhold any and all action looking towards collection of employees' monies for deposition into escrow until it concludes in good faith that the union has fully satisfied the condition precedent to collection defined above. For the entity that actually effects the collections is, after all, the public employer with the legal responsibility for paying the employees' salaries. If the union-which is only the recipient of the monies and not the entity capable of physically transferring them-violates the Constitution by not providing sufficient information at the pre-collection stage, and if both "the government and the union have a responsibility to provide [proper] procedures," then the public employer must also violate the Constitution if it makes agency fee collections without its own sound factual and legal basis for believing that the portions of the fee it collects (either for distribution to the union or deposition in escrow) are intended to subsidize activities at least arguably collective bargaining in character. 

For example, if a union demands $X as a portion of its agency fee to defray the cost of activity A; if nonunion employees object to the collection of $X on the grounds that the union has provided information about A insufficient to qualify it as collective bargaining in nature, or has provided information disqualifying A; and if the public employer, notwithstanding its employees' objections, collects $X and either transfers that sum to the union or deposits it in escrow-then, if the employees ultimately prove correct in their assertions, their employer (as well as the union) is liable for violation of their civil rights in the collection, transfer and expenditure (if any) of the monies. Moreover, the employer may interpose no alleged defense that it mechanically relied in good faith on the union's representations because only the union knew what the facts were. For Hudsonrecognizes that both "the government and the union have a responsibility to provide procedures," and that a key element of these procedures is actual pre-collection disclosure of the requisite information-leading inexorably to the conclusion that, although the public employer itself cannot disclose the necessary information, it nevertheless is responsible to assure such disclosure by the union, and therefore is responsible for itself scrutinizing for factual and legal sufficiency of what the union provides. Furthermore, even if the union ultimately disproves the employees' objections by supplying additional information later on, the employer may nevertheless be liable if it did not challenge the union's original deficient disclosure. For the employees have an absolute right to procedural due process at every stage in the collection of agency fees, whatever the final decision as to the validity of their objections to the amounts of those fees. 40

In sum, on its face Hudson provides meaningful protections heretofore unavailable to most nonunion public employees exposed to agency fee requirements. Whether the lower state and national courts strictly enforce it, or disregard its requirements as they have largely disregarded the requirements of Abood and Ellis, only time will tell. But, at least so far, Hudson is a fantastic victory for employees throughout the nation.

PART II: HUDSON AS A PROSTITUTION OF THE CONSTITUTION IN THE INTEREST OF CONTINUING UNION POWER

That nonunion public employees everywhere may benefit significantly from Hudson should not obscure the possibility that Hudson actually denies, and was knowingly intended by the Supreme Court to deny, the full measure of protection the Constitution offers those employees, for the purpose of permitting public sector unions to exercise as much power as the Court felt prevailing informed public opinion would tolerate. 

That the employees in Hudson themselves "argue[d] that th[e] case should be considered through the prism of the [Fourteenth Amendment] procedural due process protections necessary for deprivations of property," whereas the Court "[a]s in Abood ... analyze[d] the problem from the perspective of First Amendment concerns," going out of its way to emphasize its "convi[ction] that... the procedures required by the First Amendment also provide the protections necessary for any deprivation of property,"41 should immediately alert a careful reader of the opinion to this likelihood. For any lawyer conversant with constitutional law will attest that the Court has traditionally (if improperly) held property rights in lesser esteem than First Amendment rights (at least since the mid 1930's). Furthermore, any knowledgeable lawyer will also attest that, where the Court can decide a case without enunciating some new constitutional doctrine, it will do so. So, any lawyer familiar with constitutional litigation would have predicted that, if the Court could have decided Hudson simply under Fourteenth Amendment precedents establishing "procedural due process protections necessary for deprivations of property," it would have in preference to expounding sua sponte on "the [traditionally stricter] procedures required by the First Amendment"-which, if arguably adumbrated in Abood, are certainly fully enunciated only in Hudson. And that the Court could have decided Hudson under normal procedural due process principles it itself admitted, by claiming that "the procedures required by the First Amendment also provide protections necessary for any deprivation of property," clearly intimating (or leading the reader to assume) that the protections are coextensive under both the First and the Fourteenth Amendments. The Court's reliance on the First Amendment in preference to the Fourteenth, therefore, was at the very least eccentric. 

Another passage in Hudson strongly supports the suspicion that eccentricity alone was not involved. Reviewing the history of its agency fee cases, the Hudson Court stated that:

.....[i]n Abood v. Detroit Board of Education, 431 U.S. 209 (1977), we...rejected the claim that it was unconstitutional for a a public employer to designate a union as the exclusive collective bargaining representative of its employees, and to require nonunion employees, as a condition of employment, to pay a fair share of the union's cost of negotiating and administering a collective bargaining agreement.

"Earlier cases had construed the [private sector] Railway Labor Act to permit a similar arrangement without violating the Constitution. See Railway Clerk' v. Allen, 373 U.S. 113 (1963); Machinists v. Street, 367 U.S. 740 (1961); Railway Employees v. Hanson, 351 U.S. 225 (1956)."42

To be sure, Abood and Hanson rejected constitutional challenges to the requirement that employees, in the public and private sectors respectively, "pay a fair share of the union's cost of negotiating and administering a collective bargaining agreement." But Allen and Street involved the decision of noconstitutional issues at all. And none of these cases decided, or even involved as a question presented for decision by any party, "the claim that it was unconstitutional for a public [or a private] employer to designate a union as the exclusive collective bargaining representative [of its employees]." 

Certainly Abood decided nothing about exclusive representation. Indeed, exclusive representation was not even tangentially at issue in Abood. The nonunion employees' complaints did not challenge it.43 The lower courts did not rule on it.44 The parties did not contest it in the Supreme Court,45 but instead agreed that the "appeal . .. does not raise the question."46 And the Aboodplurality opinion defined the question presented as "whether [an agency shop] arrangement violates . . . constitutional rights," holding that "[a]ll we decide is that the complaint . . . establish[es] a cause of action" with respect to the agency shop.47

Moreover, no opinion in Abood addressed the legality vel non of exclusive representation. Justice Stewart adverted to the representative's various responsibilities in collective bargaining to rationalize the practical need for the agency shop-without identifying any decision sustaining the constitutionality of that status in public or private employment.48 Justice Powell noted that a "collective bargaining agreement to which a public agency is a party . . has all the attributes of legislation," and warned that "voters could complain... that their voting power and influence on the [governmental] decision making process had been constitutionally diluted" by delegation to a private group power to participate in making such economic laws-but he, too, refrained from any constitutional judgment on the subject.49 Justices Rehnquist and Stevens said nothing on the subject. And the parties themselves reserved, or remained wholly silent on, the delegation question Powell mentioned.50

Furthermore, the sole constitutional precedent sustaining Abood's decision on the agency shop, Railway Employees' Department v. Hanson, 351 U.S. 225 (1956), on its face had nothing to do with exclusive representation. The Abood plurality correctly cited Hanson only in connection with the agency shop.51 And at least one United States Court of Appeals had squarely held Hanson irrelevant to exclusive representation the year Abood was briefed and argued.52

In sum, the record in Abood did not frame the issue of exclusive representation; the parties did not present, argue, or even rhetorically contest the matter; resolution of the question was unnecessary for the Court's decision; and none of the Justices' opinions even described, let alone analyzed or solved, the legal problems involved. 
 

The bald statement in Hudson that Abood upheld the constitutionality of exclusive representation, then, was obviously false. And, presuming that the Justices and their law clerks can read and understand what the Court's own opinions say and do not say, an observer must also conclude that the statement was knowingly false, too. 

The reason for the Hudson Court's misleading description of Abood must await explanation elsewhere. Suffice it to say here that, given that description, the Court's claim that "the procedures required by the First Amendment also provide the protections necessary for any deprivations of property [otherwise guaranteed by the Fourteenth Amendment]"53 require suspiciously careful scrutiny, not blind credence. 

Indeed, rather than raising a typical First Amendment issue, Hudson involved the archtypical Fourteenth Amendment procedural due process situation, wherein an alleged private creditor invokes state power to seize property from an alleged private debtor under 'color of some untested claim of right arising from the creditor's 'supposed provision of services or tangible goods to the debtor.54

Under color of Illinois law, in their collective bargaining agreement the Board (a governmental agency) and CTU (an alleged private creditor) agreed to impose on nonunion employees (alleged private debtors) definite monetary liabilities (proportionate share payments to compensate CTU for services it claimed it had rendered would render as those employees' exclusive representative. The Board and CTU also agreed to collect this alleged debt by having the Board mechanically garnish the employees' wages and transfer the monies directly to CTU, without any governmental investigation of he merits of CTU's claims or the employees' defenses. As a matter of its own discretion, and long after litigation began, CTU then segregated the payments in what it labelled an escrow account, pending 'either the employees' submission of their objections to CTU's hand picked arbitrator, with whatever subsequent judicial review of his decision Illinois law might allow, or their initiation of an independent state court civil action. 

To be sure, insofar as Hudson differed from the paradigmatic procedural due process situation, its differences exacerbated the problems involved. First, the constitutionally proper proportionate hare payments due CTU from the nonunion employees were unknown. In the typical debtor-creditor case, the debt is both fixed and known, whether because the debtor voluntarily contracts it with the creditor, as evidenced by a promissory note, a conditional sales agreement, or some similar instrument; or because the debtor willingly accepts tangible goods or services from the creditor, as evidenced by readings on a gas or electric utility meter, or some similar objective measure. In Hudson, distinguishably, although Illinois statute purported to set the proportionate share payments,55 the nonunion employees' lawful indebtedness depended on two unknowns: 

(i) what alleged services CTU provided as their exclusive representative; and (ii) whether these services satisfied the First Amendment as collective bargaining activities. Thus, CTU had only an abstract and inchoate statutory claim to proportionate share payments, for the perfection of which in the face of the dissenters' challenge it bore the burden of proving-but had not proven-what specific services it provided as their exclusive representative, whether these services satisfied the constitutional collective bargaining standard, what the costs of the services were and what constituted a proper allocation of their costs to individual employees. 

Second, because the constitutionally proper proportionate share payments were unknown, the weight of CTU's alleged property interest in the nonunion employees' wages was also indeterminate. In the typical debtor-creditor case, the property subject to seizure (be it money loaned, an apartment rented, or some consumer good furnished) was originally the creditor's undisputed, unencumbered property. The debtor obtained possession and use of it only conditionally, by agreeing to pay principal and interest, rent, or installments. Invoking state power to seize the property from the debtor, the creditor asserts a failure of the condition upon which the debtor's possession depends and a pre-existent right of reversion of possession to the creditor (or a right of the government to hold the property pendente lite on his behalf). And the key fact justifying seizure is that the debtor has violated the conditions of continued possession as against the original owner. In Hudson, distinguishably, the wages the Board garnished indisputably were earned by and initially belonged exclusively to the nonunion employees. Illinois law licensed the Board and CTU formally to encumber these wages through the Board's agreement with CTU's unilateral claim to proportionate-share payments. But the maturation of this claim sufficient to justify the conclusion that CTU had a property interest substantial enough to support government seizure of a determinate part of the wages depended upon CTU's satisfaction of the necessary evidentiary conditions precedent as to the identities of the services it provided, their collective bargaining character, their costs, and so on. Absent such evidence, the weight of CTU's entitlement was conjectural, even spectral; whereas, the weight of the employees' entitlement to what their own labor had earned was clear. 

Third and last, although how CTU intended to spend the proportionate share payments determined the constitutionality of its entitlement to them, the propriety of that use was irrelevant to the dissenters' right to procedural due process in the initial seizure. In the typical debtor-creditor case, ceteris paribus the use the creditor makes of the property seized from the debtor is irrelevant; for the property in dispute was originally the creditor's to employ as he willed, and came into and could remain in the debtor's possession only upon his fulfillment of the creditor's conditions. In Hudson, distinguishably, CTU was entitled to proportionate share payments only if it spent those monies on constitutional collective bargaining activities it performed as the employees' exclusive representative. Thus, CTU's intended use of the monies was material to the size of the debt. Yet, even if CTU could ultimately have shown that this use was entirely collective bargaining in character, the nonunion employees would nevertheless have been entitled to the same measure of procedural due process obtaining in the typical debtor-creditor situation where use is not a substantive issue.56

In sum, operationally Hudson presented the paradigmatic debtor-creditor government procedural due process situation, aggravated from the debtors' (the nonunion employees') perspective by the indeterminacy of the alleged debt, the speculative weight of the creditor's (CTU's) interest, and the absence of proof as to CTU's actual expenditures. If traditional First Amendment procedure agency fee case issues were involved at all, they emphasized the need strictly to apply procedural due process protections. 

Nevertheless, the effect of the Hudson Court's First Amendment procedure is to deny nonunion employees the never before questioned protection of the Fourteenth Amendment that a state may not deprive any person of the possession and use (as well as titular ownership) of property without due process of law, no matter how the recipient of that property intends to use it. For, according to the Court, if CTU is eventually held entitled to any part of the wages seized from nonunion employees for deposition into escrow, then the initial seizure is constitutional in toto, even though the employees are deprived for an indeterminate time of the possession and use of some monies (otherwise undoubtedly owed to them) that CTU will never receive as compensation for collective bargaining activities. Moreover, the Hudson Court supported this extraordinary result without citing a single Fourteenth Amendment procedural due process decision that sanctions, or that it even described as sanctioning, such a seizure of property. Rather, the Court leapt from the holdings of Abood, Ellis, and earlier related agency fee cases-that the First Amendment imposes substantivelimitations on the uses of monies unions may compel dissenters to pay under color of agency fee schemes-to the unconnected conclusion that, therefore, that Amendment permits a procedure at variance with the outstanding body of otherwise unquestionably applicable Fourteenth Amendment law. Where any opinion written in those cases, or any brief the various parties submitted, decided, addressed or even raised a procedural due process issue akin to that in Hudson, the Court did not say-because, of course, Abood, Ellis and the other cases dealt solely with challenges to certain union expenditures of monies already collected from nonunion employees, not to the proper procedures for collecting those monies in the first instance. 

Contrary to the Hudson Court's fundamental premise that the application and content of procedural due process protections somehow depend on the existence of nonunion employees' First Amendment right to be free from providing compulsory subsidization of a union's political and ideological activity that is not collective bargaining in nature, the United States Reports overflow with decisions in which the Court has applied the Fourteenth Amendment to seizures of property wholly unrelated to First Amendment freedoms, but which parallel the wage garnishment scheme involved in Hudson. Minimum procedural safeguards, the Court has reiterated on other occasions, include "notice detailing the reasons for proposed [deprivation of property]"57 and a pre-deprivation hearing.58 These requirements do not depend on the property constituting "absolute 'necessities' of life,"59 and are not diluted because the property holder's right arises from state law,60 because the ownership of the property is disputed,61 because the property holder's interest in possession and use is arguably not weighty,62 because the property holder cannot show that he "will surely prevail at [a] hearing,"63 or even because he suffers no actual injury other than the dispossession itself.64 Indeed, the Court "ha[s] described 'the root requirement' of the Fourteenth Amendment's Due Process Clause as being 'that an individual be given an opportunity for a hearing before he be deprived of any significant property interest'."65

To be sure, prior to Hudson the Court had countenanced some pre-hearing seizures of property-but, in those extraordinary, truly unusual and limitedinstances, the seizures were "directly necessary to secure an important governmental or general public interest;" there was "a special need for very prompt action;" and "the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance."66 Furthermore, in such cases, the Court "relied upon the extent to which [the govern-mental] interest [would] be frustrated by the delay necessitated by a prior hearing."67

Absent the " necessity of quick action by the State or the impracticality of providing any predeprivation process," however, the Court's pre-Hudson decisions uniformly taught that "a post-deprivation hearing [is] constitutionally inadequate"-a teaching that is "particularly true where . . the State's only post-[deprivation] process comes in the form of an independent tort action,"68 as it did in Hudson.For an early example, Sniadach v. Family Finance Corp.69 overturned a Wisconsin wage garnishment statute. "[T]he clerk of the court issues the summons at the request of the creditor's lawyer," the Court explained;

"...[a]nd it is the latter who by serving the garnishee sets in motion the machinery whereby the wages are frozen. They may, it is true, be unfrozen if the trial of the main suit is ever had and the wage earner wins on the merits. But in the interim the wage earner is deprived of his enjoyment of earned wages without any opportunity to be heard and to tender any defense he may have, whether 'it be fraud or otherwise. 

"...[I]n the present case no situation requiring special protection to a state or creditor interest is presented by the facts; nor is the ... statute narrowly drawn to meet any such unusual condition."70

Concurring, Justice Harlan reiterated the basic rule that "due process is afforded only by the kinds of 'notice' and 'hearing' which are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property or its unrestricted use."71

Then, Fuentes v. Shevin72 declared certain Florida and Pennsylvania replevin statutes unconstitutional on similar grounds. "There is no requirement" in the Florida statute, the Court noted,

..... that the applicant make a convincing showing before the seizure that the goods are, in fact, 'wrongfully detained.' Rather, Florida law automatically relies on the bare assertion of the party seeking the writ that he is entitled to one and allows a court clerk to issue the writ summarily. It requires only that the applicant file a complaint, initiating a court action for repossession...and that he file a security bond....on the sole basis of the complaint and bond, a writ is issued....

"Thus, at the same moment that the defendant receives the complaint seeking repossession of property through court action, the property is seized from him. He is provided no prior notice and allowed no opportunity whatever to challenge the issuance of the writ. After the property has been seized, he will eventually have an opportunity for a hearing, as the defendant in the trial of the court action for repossession, which the plaintiff is required to pursue." 
  
 

"[T]he Pennsylvania law does not require that there ever be opportunity for a hearing on the merits of the conflicting claims to possession of the replevined property. The party seeking the writ is not obliged to initiate a court action for repossession. Indeed, he need not even formally allege that he is lawfully entitled to the property. 

"If the party who loses property is to get even a post-seizure hearing, he must initiate a lawsuit himself." 

Turning to the question of whether the statutes "are constitutionally defective in failing to provide for hearings 'at a meaningful time'," the Court emphasized that "neither . . . statute provides for notice or an opportunity to be heard before the seizure." A prior hearing, the Court explained, "minimize[s] substantively unfair or mistaken deprivations of property, a danger that is especially great when the Senate seizes goods simply upon the application of and for the benefit of a private party." Therefore, the Court ruled,

....the right to notice and a hearing...must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual's possessions can be returned to him if they were unfairly or mistakenly taken....Damages may even be awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking... has already occurred.

Although the statutes imposed various requirements on the creditor, the Court made clear that, ...those requirements are hardly a substitute for a prior hearing, for they test no more than the strength of the applicant's own belief in his rights. Since his private gain is at stake, the danger is all too great that his confidence in his cause will be misplaced....Because of the understandable, self-interested fallibility of litigants, a court does not decide a dispute until it has had an opportunity to hear both sides-and does not generally take even tentative action until it has itself examined the support for the plaintiff's position. The Florida and Pennsylvania statutes do not even require the official issuing a writ of replevin to do that much.

Concluding, the Court found that the broadly drawn statutes "serve no ...important governmental or general public interest" requiring immediate action, such as "furthering a war effort or protecting the public health." Instead, "[t]hey allow summary seizure...when no more than private gain is directly at stake." Moreover,

...[t]he statutes...abdicate effective state control over state power. Private parties, serving their own private advantage, may unilaterally invoke state power to [seize] goods from another. No state official participates in the decision to seek a writ; no state official reviews the basis for the claim to repossession; and no state official evaluates the need for immediate seizure. There is not even a requirement that the plaintiff provide any information to the court on these matters. The state acts largely in the dark.73

Similarly, North Georgia Finishing, Inc. v. Di-Chem; Inc. struck down a Georgia garnishment scheme because the statute lacked the necessary saving characteristics: 

The writ of garnishment is issuable on the affidavit of the creditor or his attorney, and the latter need not have personal knowledge of the facts....The affidavit...need contain only conclusory allegations. The writ is issuable...by the court clerk, without participation by a judge. Upon service of the writ, the debtor is deprived of the use of the property....There is no provision for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment.74

Together, then, Snidach, Fuentes, and North Georgia Finishing established that a seizure of property without a prior hearing is unconstitutional where: (i) no extraordinary circumstances compel immediate action to protect a substantial governmental interest; (ii) no state official (in particular, a judge) participates in the decision to initiate the seizure, reviews the factual and legal bases of the creditor's claim, or evaluates the need for a pre-hearing seizure; (iii) no statutory provision requires the creditor to establish the probable validity of his claim, to make a convincing factual showing, or even to present some evidence beyond mere assertions, conclusory allegations, or hearsay; (iv) no mandate exists for an early hearing; and (v) no safeguards protect against abuse of the system by self-interested parties seeking private gain. 

Where, prior to Hudson, the Court had sustained seizures of property without a preliminary adversary hearing, the statutes a issue incorporated procedures within the rule of Sniadach, Fuentes and North Georgia Finishing. For example, Mitchellv. W.T. Grant Co.75 a case antedating North Georgia Finishing and explicitly distinguished therein,76 sustained a Louisiana sequestration statute that permitted a pre-hearing seizure. But, as the Court noted, "the property sequested 

"...is [not] exclusively the property of the...debtor;" "both seller and buyer had current, real interests in the property," the former through a vendor's lien. Furthermore,

"....[t]he writ...will not issue on the conclusory allegation of ownership or possessory rights... [but] "only when the nature of the claim and the amount thereof...and the grounds relied upon for the issuance of the writ clearly appear from specific facts" shown by a verified petition or affidavit....[T]he clear showing required must be made to a judge, and the writ will issue only upon his authorization and only after the credit seeking the writ has filed a sufficient bond.

"[T]he statute entitles the debtor immediately to seek dissolution of the writ, which must be ordered unless the creditor "proves the grounds upon which the writ was issued,"...failing which the court may ... assess damages in favor of the debtor, including attorney's fees."77

Concurring, Justice Powell emphasized that the statute required the creditor to "make a specific factual showing before a neutral officer or magistrate of probable cause to believe that he is entitled to the relief requested."78 And the Court characterized the factual issues involved-such as "existence of the debt, the lien and the delinquency"-as "ordinarily uncomplicated matters that lend themselves to documentary proof."79 In addition, the Court catalogued how the circumstances in Mitchell differed materially from those in Sniadach andFuentes.80 
 

More recently, Mathews v. Eldridge held that a hearing was not constitutionally required prior to the termination of certain governmental benefits because of the "fairness and reliability of the existing pretermination procedures."81 Describing how "a medical assessment is required," the Court noted that "[t]his is a ... sharply focused and easily documented decision," not involving "a wide variety of information (that] may be deemed relevant" or "issues of witness credibility and veracity [that] often are critical to, the decision making process." Rather, "the decision...will turn, in most cases, upon 'routine, standard and unbiased medical reports by physician specialists'." Moreover, a "detailed questionnaire which the state agency periodically sends the recipient identifies with particularity the information relevant to the...decision." And "[a] further safeguard against mistake is the policy of allowing the...recipient's representative full access to all information relied upon by the state agency."82

Finally, Mackey v. Montrym held that, "when prompt post-deprivation review is available for correction of administrative error," pre-deprivation procedures need only "be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be.83 The pre-deprivation procedures were reasonably reliable in the Court's view because they involved "objective facts either within the personal knowledge of an impartial government official or readily ascertainable by him;" "the risk of erroneous observation or deliberate misrepresentation of the facts by the reporting officer in the ordinary case seem[ed] small" and "there will rarely be any genuine dispute as to the...facts." Moreover, the aggrieved individual could receive immediate "independent review...by a detached public officer," which "should suffice in the ordinary case to minimize the only type of error that could be corrected by something less than [a full] evidentiary hearing."84

In sum, rather than questioning or qualifying the rule of Sniadach, Fuentes, and North Georgia Finishing, Mitchell, Mathews and Mackey reaffirmed and reemphasized the due process criteria of the former opinions. Furthermore, Mitchell, Mathews and Mackey added that, given the circumstances of Sniadach, Fuentes and North Georgia Finishing, a seizure of property without a prior hearing is even more compellingly unconstitutional where: (vi) the creditor has no current legal interest in the property seized; (vii) the necessary proofs involve a variety of complex matters, with possibly critical reliance on the credibility and veracity of witnesses, rather than resting on objective facts within the knowledge of a governmental official; (viii) the party whose property is seized lacks reasonable access to the evidence; (ix) there is no immediate, independent review of the seizure by a detached public official; and (x) the applicable statute denies awards of damages or attorneys' fees in the case of a wrongful seizure.85

Especially important here is that in every decision from Sniadach through Mackey the Court never held that a governmental deprivation of property satisfies the Fourteenth Amendment without some reasonably reliable pre-deprivation fact-finding procedure in which a neutral governmental official plays a key investigatory and decision making role. Moreover, in Sniadach, Fuentes and North Georgia Finishing, the Court explicitly rejected the notion that the property owners supposed rights to post-seizure judicial hearings are relevant to the due process issue.86

Where, prior to Hudson, the Court had upheld the procedural due process sufficiency of a post-deprivation judicial remedy, as in Parratt v. Taylor, "the loss [was] not a result of some established state procedure;" the loss was "beyond the control of the State;" and "it [was] not only impracticable, but impossible, [for the State] to provide a meaningful hearing before the deprivation."87 Holding that a post-deprivation judicial hearing sufficed as a remedy for a state official's negligent deprivation of an individual's property, the Parratt Court explained that,

...[a]lthough [the complainant] has been deprived of property under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedures. There is no contention that the procedures themselves are inadequate nor is there any contention that it was practicable for the State to provide a pre-deprivation hearing.88

Concurring, Justice Blackmun emphasized that, 

when it is possible for a State to institute procedures to contain and direct the intentional actions of its officials, it should he required, as a matter of due process, to do so...In the majority of such cases, the failure to provide adequate process prior to inflicting the harm would violate the Due Process Clause. The mere availability of a subsequent tort remedy before tribunals of the same authority that...deliberately inflicted the harm...might well not provide...due process...89

Then, in Logan v. Zimmerman Brush Co., the Court cited numerous precedents for the proposition that, 

absent, "the necessity of quick action by the State or the impracticality of providing any pre-deprivation process," a post-deprivation hearing...would be constitutionally inadequate....That is particularly true where...the State's only post-[deprivation] process comes in the form of an independent tort action.90

And Hudson v. Palmer91 reaffirmed and applied Parratt and Logan to deprivations of property caused by the intentional but unauthorized actions of state officials. "The controlling inquiry," the Court held, "is solely whether the State is in a position to provide for pre-deprivation process." Although ruling against the complainant 
because he did "not even allege that the asserted destruction of his property occurred pursuant to a state procedure," the Court emphasized that a post-deprivation state remedy does not "satisf[y] due process where the property deprivation is effected pursuant to an established state procedure. "92

Thus, Parratt, Logan and Hudson v. Palmer added to the criteria of the decisions from Sniadach through Mackey the further element that: 

(xi) a seizure of property without a prior hearing cannot be constitutional where it occurs pursuant to an established state procedure under circumstances in which the government is in a position to, but does not, provide adequate pre-deprivation process.93

Revealingly, however, the Hudson Court did not even attempt to square its supposed First Amendment procedure with the principles enunciated in earlier Fourteenth Amendment procedural due process decision from Sniadach and Fuentes through Logan and Hudson v. Palmer. Indeed, the Court did not mention (let alone consider the application of) even one of these decisions! Instead, the Hudson Court sub silentio overruled the central holding of the Sniadach line of precedents-that, absent extraordinary circumstances, procedural due process requires a hearing that precedes a person's deprivation of the possession and use of property establishing in its place the previously unheard of rule that, at least in "labor" cases, seizure of nonunion employees' monies and deposition thereof in an escrow account pendente lite, without a pre-garnishment hearing of any kind,satisfies due process requirements. The Court neglected to address the obvious problems with this new ruling that, rather than constituting due process, on its face the escrow scheme violates traditional Fourteenth Amendment criteria because the "seizure and escrow" rule guarantees that nonunion employees are deprived of the interim possession and use of their own wages. Escrowing garnished wages may theoretically forefend violations of nonunion employees'substantive First Amendment rights by removing the risk that the union might improperly expend the monies on noncollective bargaining activities. But, even so, it does not obviate those employees' separate procedural right to a pre-seizure hearing. For the right to procedural due process does not depend upon a deprivation of property also abridging the victims' First Amendment freedoms, or on the victims' proof that they have suffered some redressable substantive injury.94

The Hudson Court's complete avoidance of earlier Fourteenth Amendment law is amazing, inasmuch as systematic application of the eleven criteria established in the procedural due process decisions from Sniadach through Hudson v. Palmerproves beyond doubt the thoroughgoing unconstitutionality of CTU's agency fee collection scheme: 

1. In Hudson, no extraordinary circumstances arguably compelled an immediate, pre-hearing garnishment of the nonunion employees' wages to protect a substantial governmental interest that otherwise would have been frustrated. Indeed, CTU's own offer on appeal to accept a judgment requiring escrow of 100% of the fees until after a hearing on their propriety belies the existence of such circumstances. For, under either the Fourteenth Amendment's requirement of a pre-garnishment hearing or the union's own acceptance of a post-hearing release of monies from escrow, CTU would receive and could expend no agency fees until after it had prevailed in whole or in part at a hearing. Moreover, as the Court had noted earlier in a related context, "delayed payment is not nonpayment, and there are means available. .. to recover at least some of the costs of a hearing."95 Thus, whatever interest the state may have in the agency fee scheme would have been equally served-according to the primary beneficiary of that scheme-whether or not the Hudson Court ordered a pre-garnishment hearing. Actually, the union's position really reduced to the inadmissible argument that its private convenience licensed it and the Board to disregard the commands of the Fourteenth Amendment. "[C]onvenience alone," however, "is insufficient to make valid what otherwise is a violation of due process of law."96 "[A] prior hearing always imposes some costs in time, effort and expense,...[b]ut these rather ordinary costs cannot outweigh the constitutional right" to procedural due process.97

Although overwhelmingly immediate governmental interests may justify departures from the presumptive right to a pre-deprivation hearing, in a case such as Hudson, operationally involving at base only a dispute between an alleged private creditor (CTU) and private debtors (nonunion employees), "care must be taken not to confuse the interests of partisan organizations with governmental interests."98 "[S]tate intervention in a private dispute hardly compares to state action furthering a war effort or protecting the public health."99 And so thought the Illinois Legislature, which made proportionate share payment arrangements merely permissible, but not mandatory, thereby evidencing its judgment that immediate seizures of nonunion employees' wages were unnecessary; or, that the governmental interest in those payments (whatever it may be) does not significantly exceed the government's general interest in effectuating the collection of private creditors' valid claims from their private debtors. 

2. Other than the Board's agreement with CTU to garnish the teachers' wages, no state official (in particular, no judge) participated in the decision to initiate the garnishments, reviewed the factual or legal basis (if any) of CTU's claim before the seizures began or evaluated the need for pre-hearing seizures. 

3. No state statute or regulation or provision of the collective bargaining agreement required CTU to establish the probable validity of its claims, to make a convincing factual showing, or even to present some evidence beyond mere self-serving assertions before the wage garnishments commenced. 

4. No mandate existed in state law for an early hearing on the propriety of the garnishments. 

5. No safeguards protected against CTU's abuse of the proportionate share payment system for its own private gain. 

6. When the wage garnishments occurred, CTU had no current legal interest in the monies the Board seized from the nonunion employees, only an abstract, unperfected claim to some undetermined portion of them. 

7. What actually constituted CTU's allowable collective bargaining costs involves difficult questions of constitutional law and complex evidentiary proofs with possibly critical reliance on the credibility and veracity of witnesses to CTU's operations, rather than resting on settled legal principles and objective facts within the knowledge of the Board.100

8. The nonunion employees had no access to the only complete source of evidence concerning the propriety of CTU's claim: the officials, employees and organizational records of CTU and its affiliates. 

9. No neutral government official performed an immediate, independent review of the amount of the wage garnishments. 

10. Illinois law provided no awards of damages or attorneys' fees to the nonunion employees had the wage garnishments ultimately proved wrongful, or even fraudulent. 

11. The wage garnishments occurred pursuant to an established state procedure, under circumstances in which the government was in a position to, but did not, provide adequate-or even any-pre-deprivation process, but by default (if not by intention) relegated the nonunion employees to a post-deprivation state-court tort action. 

An even more detailed citation of chapter and verse from Sniadach and related decisions proving the unconstitutionality of CTU's agency fee scheme under the Fourteenth Amendment is possible, but would simply bring owls to Athens. After all, even on its face the case is overwhelming. Why, then, did the Hudson Court weave [from whole cloth a never before imagined "First Amendment procedure" that relied not at all on any of these outstanding Fourteenth Amendment rulings? To preserve the apartheid of "labor law" and the unstated-because indefensible-special privileges that labor unions have exercised since the late 1930's to act in the quasi-governmental capacity of exclusive representatives of wage earners who neither need nor desire such representation, but who must accept and pay for it nonetheless. 

To be sure, Hudson does require that unions provide nonunion employees with adequate notice of the amount of-and, more importantly, the evidentiary basis for-the agency fees they intend to charge. However, with adequate notice (whatever that may prove to be after years of further litigation in the lower courts), the unions may demand that public employers cooperate in seizing and depositing in escrow nonunion employees' monies the unions' entitlement to which remains in dispute-thereby depriving those employees of their property (the interim possession and use of their own wages) without a hearing on the propriety of that deprivation. So, in the peculiar realm of "labor law," the Hudson Court has found that the First Amend-merit, far from protecting nonunion employees' full panoply of procedural due process rights, actually strikes down one of the two central aspects of Fourteenth Amendment procedural law: it requires the unions to give notice, but dispenses with the requirement of, a pre-seizure hearing.

Moreover, although the Court's Fourteenth Amendment precedents clearly require that a hearing, whenever held, involve a governmental decision maker such as an administrative agency or a court, Hudson equivocally suggests that "an expeditious arbitration might satisfy the requirement of a reasonably prompt decision by an impartial arbitrator."101 No doubt, again after years of litigation in the lower courts, this suggestion will prove as legally fallacious and practically unworkable as others the Court has advanced in earlier "labor" cases in its feckless attempts to avoid having to face up to the fundamentally unsalvageable character of the agency shop.102 In the interim, though, nonunion employees-unlike any other identifiable group in American society-will be required perforce of Hudson to struggle with union imposed arbitration of statutory and especially constitutional claims that only validly constituted administrative agencies and courts are empowered to decide. 

Interestingly, even as nonunion employees' statutory exclusive representatives, unions lack authority to require them, through either the unions' unilateral dictate or in agreements the latter negotiate with public employers, to submit the employees' statutory and constitutional claims to arbitrators.103 Now, Hudson has invoked the protections the First Amendment guarantees to nonunion employees to suggest the existence of union powers that theretofore no legislature could grant directly. Apparently, in the never-never land of "labor law" as interpreted by the Hudson Court, employees have constitutional freedoms to suffer dictation and manipulation by unions! Hudson thus continues the familiar litany of past "labor law" decisions that amount, in truly Orwellian fashion, to the practical assertion that freedom equals slavery. For every time the Court has protected the rights of dissident employees against the unions claiming to represent them-from its invention of the "duty of fair representation" in Steele, through its support for agency shop schemes in private and public employment in Hanson and Abood, to its creation in Hudson of First Amendment procedures that sweep away traditional Fourteenth Amendment guarantees-it has raised noxious brick by brick the wall separating "labor law" from the law common to all other segments of society. Perhaps, then, before Congress pontificates too sanctimoniously on the injustices of distant South Africa, it should correct the rather glaring system of apartheid under which American wage earners suffer here at home. 
 

 

CONCLUSION

In fine then, out of which mouth has Janus spoken? Are the truly worthwhile-but none the less incomplete-procedural protections the Hudson Court extended to public employees the harbingers of a new direction in and ultimately the dissolution of "labor law" or simply part of a desperate rear guard action on the part of jurists living in the past to perpetuate that peculiar institution in the face of evolving social attitudes hostile to the collectivistic premises of compulsory unionism?104 On this question, the oracles are yet dumb. 
  
 

Footnotes

 

1106 S. Ct. 1066 (1986). 

243l U.S. 209 (1977). 

3Because the decision in Abood rested on constitutional precepts the Court had earlier enunciated and applied in cases involving private employment, where unions were collecting compulsory agency tees under color of their statutory status as the nonunion employees' exclusive representatives, Hudson should apply to private sector cases to the same degree it governs in the public sector. The Hudson Court did not rule on, or intimate its view of, this issue, though. 

4The term "labor law" is appropriately placed in quotation marks to emphasize that, at least from the constitutional perspective, there exists no warrant for segregating "labor" questions from other issues amenable to judicial scrutiny, or for treating "labor" questions as deserving or necessitating relaxation of the rules commonly applicable in other fields. See E. Vierira, Jr., "To Break and Control the Violence of Faction": The Challenge to Representative Government from Compulsory Public-Sector Collective Bargaining (1980), at 63-75. Historically, nonetheless, for the past half century the Supreme Court (and, following its lead, lower state and national courts) have applied to "labor" cases raising problems of constitutional law a system of analysis and set of doctrines not only demonstrably different from, but even antithetical to, the analysis and doctrines they employ and upon which they rely in all nonlabor situations. Part of the explanation for this plainly unprincipled special interest pleading is doubtlessly the continuing influence of the pernicious teachings of Justices Holmes and Brandeis during the first third of this century. See, e.g., Shenfield, "The Influence of Holmes and Brandeis on Labor Law," Government Union Review, Vol.3, No.3 (Summer 1982), at 30. 

5"Jail ruled not liable for wounding inmate," The Washington Times, Wednesday, 5 March 1986, at SA. 

6106 S. Ct. at 1070. 

7Id.

8Id.

9Id. at 1071. See Hudson v. Chicago Teachers Union, Local No.1, 573 F. Supp. 1505 (N.D. 111.1983) (Bua, J.). 

10106 S. Ct. at 1072. See Hudson v. Chicago Teachers Union, Local No.1, 743 F.2d 1187 (7th Cir. 1984) (Posner, J.). 

11106 S. Ct. at 1073. 

12Id. at 1074. 

13Id. (footnotes omitted). 

14Id. citing 466 U.S. at 443, 444. 

15106 S. Ct. at 1075, citing 431 U.S. at 244. 

16Shea v. Louisiana, 105 5. Ct. 1065,1069 (1985). 

17106 S. Ct. at 1075-76 (footnotes omitted). 

18IAM v. Street, 367 U.S. 740, 774(1961). Accord BRAC v. Allen, 373 U.S. 113, 119 (1963). 

19See 42 U.S.C. §§ 1983, 1985(3),1986, and 1988. 

20(Of course, potential members of the class may affirmatively choose not to take advantage of the proffered relief) See Federal Rule of Civil Procedure 23(c). 

21 106 S. Ct. at 1076 & n.18. 

22Some states have explicitly adopted this residuum calculation in their agency fee statutes. e.g., Minn. Stat. § 179.65, subd. 2. After Hudson the constitutionality of these statutes is highly dubious. 

23See 431 U.S. at 227-37 (opinion of Stewart, J.). 
24On some of the major constitutional problems involved, see Vierira, "Constitutional Limitations on the Assessment of Agency Fees in Public Sector Employment," Government Union Review, Vol.3, No.4 (Fall 1982), at 31. 25Of course, the unions could largely avoid this problem by setting up separate collective bargaining divisions, scrupulously segregated in terms of personnel, financing, and other relevant aspects from the organizations' other programs and activities. In relatively short order, through a few test cases, the legality of the major operations of these special collective bargaining divisions could be adjudicated. leaving only (or primarily) questions of accounting for further verification under Hudson.

26106 S. Ct. at 1077. 

27106 S. Ct. at 1076 & n.20. 

28Id. at 1076 n.20. 

29Id. at 1077. 

30Id. at 1077 n.2 1. 

31Id. at 1076 & n.19 See also Ellis. 466 U.S. at 443-44. 

32106 S. Cr. at 1077 n.2 1, citing McDonald v. City of West Branch, 466 U.S. 284 (1984). Accord, Barrentine v. Arkansas-Best Freight System, 450 U.S. 728.743-46 (198 1); NLRB v. Magnavox Co., 415 U.S. 322, 324-26 (1974); Alexander v. Gardner-Denver Co., 415 U.S. 36,51(1974); Clover v. St. L(Louis S.F. Ry... 393 U.S. 324,329-31(1969); Steele v. Louisville & N.R.R., 323 U.S. 192, 206 (1944).

33E.g., McDonald, 104 5. Ct. at 1803-4. 

34106 S. Ct. at 1077. 

35Id
36Id at 1977-78 (footnote omitted). 

37Id. at 1076 (footnote ommitted). 
38Id. at 1076, 1074 (footnote omitted).

39Id. at 1076 n.20 (emphasis supplied). 

40"See Carey v. Piphus, 435U.S. 247, 266 (1978) (property owner has "absolute" right to procedural due process, even if he suffers no "other actual injury" than loss of his property, and that loss is justified"). 

41106 S. Ct. at 1074 n.13.

 

42 106 S. Ct. at 1073 & n.8. 

43Appendix to Brief for Appellants, Abood v. Detroit B(1. of Educ.., 75-1153 153 (U.S. Sup. Ct., filed 2 July 1976), at 6-15, 39-52. See 431 U.S. at 213 (opinion of Stewart,.!.). 

44Appendix to Brief for Appellants in Abood, at 94-104. See 431 U.S. at 215 (opinion of Stewart, J.). 

45Jurisdictional statement in Abood (filed 13 February 1976), at 6; Brief for the Appellants in Abood (filed 9 July 1976), at 4; Brief for Appellees in Abood (filed 10 September 1976), at x. 

46Brief for the Appellants in Abood, at 148. "[T]he states are free to adopt the federal model of...exclusive representation(which appellants do not challenge).Brief for Appellees in Abood, at 34 (emphasis supplied). 

47431 U.S. at 211,236-37 (opinion of Stewart, J.). Accord, id. at 217,224-25 (opinion of Stewart, J.). Indeed, if (as it did) the complainant in the case challenged only the agency shop, and if (as it did) the Supreme Court held only that "the complaint establish[es] a cause of action," then the Court's decision of any other issue was legally impossible according to its own statement of its ruling. 

48See 431 U.S. at 224-25. Stewart merely accepted as unchallenged (which it was) the government's "determin[ation] that labor stability will be served by a system of exclusive representation."Id. at 229. But this statement was no more a decision of constitutional law under the First Amendment than the equallyvalid statement that "labor stability will be served by a system of slavery" would have constituted a decision upholding exclusive representation under the Thirteenth Amendment. On the equivalence of the two statements, see Vieira, "Of Syndicalism, Slavery and the Thirteenth Amendment: The Unconstitutionality of 'Exclusive Representation' in Public Sector Employment," 12 Wake Forest Law Rev. 515 (1976). Indeed, the United States Reports' are replete with instances in which the state or national governments have determined that this or that scheme serves some general interest, only to have the Supreme Court declare the scheme violative of one or another particular constitutional guarantee. 

49431 U.S. at 252-53,262 n.l5 (opinion concurring ii) the judgement). Powell's very use of the conditional verb "could" indicate the hypothetical nature of his comments. 

50"Appellants in Abood noted in passing the relevance of certain earlier Supreme Court decisions to the delegation of power problem. But they explicity disclaimed any intent to "advert to the controlling nature of these decisions on the issue of exclusive representation" because [i]t is not our purpose to raise the[se] constitutional conundrums." Brief for the Appellants in Abood, at 126. Appellees' brief contained neither discussion of the issue nor even citation of the cases to which Appellants referred. 

51431 U.S. at 215, 217 n.l0, 222 (opinion of Stewart, J.). 

52Knight v. Alsop, 535 F.2d 466, 470-71(8th Cir. 1976): "The ...constitutional challenge to . . . exclusive representation . . , is distinct from Hanson...Hansonwas confronted with an attack on the [Railway Labor Act], which allows for exclusive representation ... but it did not resolve the validity of such a scheme. . .. Hanson does not 'foreclose the subject' of . . . exclusive representation 

53106 S. Ct. at 1074 n.13. 

54Typically, in agency fee cases the First Amendment issue is substantive, not procedural: viz.,on what activities has the union expended, or is it expending, nonunion employees' monies; and are these activities collective bargaining in nature? In Hudson, f course, because CTU had segregated and spent none of the monies the Board had seized from dissenters and transferred to the union, no substantive violation had yet 'occurred. 

55The definitions of allowable proportionate share or fair share payments are patently defective in both the original and the amended Illinois laws. The former measured a proportionate share payment by the "the amount of dues uniformly required by [sic, no doubt 'of' was intended] members [of the exclusive representative]. Ill. Rev. Stat., ch. 122, § 10-22.40(a) (1983). Under the latter, a fair share fee must neither "exceed the dues uniformly required of members [of the exclusive representative]" nor "include any fees for contributions related to the election or support of any candidate for political office." Ill. Stat. Ann., ch. 48, ¶ 1711 (Smith-Hurd 1984 Supp.). Yet, although rare cases may satisfy these criteria, generally (as is judicially noticeable) unions do nat expend all of their dues incomes, or all of those incomes less only their "contributions related to the election or support of... candidate[sl for political office," on activities properly categorizable as collective bargaining in a labor relations, let alone the constitutional, sense. See e.g., Local 1625, Retail Clerk v. Schermerhorn,, 373 U.S. 746, 753-54 & n.6 (1963). 

56See Carey v. Piphus, 435 U.S. 247, 266 (1978). 

57Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970). 

58Fuentes v. Shevin, 407 U.S. 67, 88-89 (1972) (citing numerous earlier case"). 

59Id. at 88-90, cited with approval in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 608 (1975). Accord, Mathews v. Eldridge, 424 U.S. 319, 325-26 (1976), citing Fuentes, 407 U.S. at 88-89, and Bell v. Burson, 402 U.S. 535, 539 (1971). 

60Logan v. Zimmerman Brush, Co., 455 U.S. 422, 431-32 (1982). 

61Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 11-12 (1978), citing Fuentes 407 U.S. at 86. 

62Board of Regents v. Roth,, 408 U.S. 564, 570-71(1972). When a state law deprives a person of property, due process applies even though the deprivation may not be "grievous." Goss v. Lopez, 419 U.S. 565, 576(1975). 

63Lopez, 407 U.S. at 87.

64Cares v. Piphus, 435 U.S. 247, 266 (1978). 

65Cleveland Bd. of Educ.. v. Loudermill, 105 5. Ct. 1~87, 1493 (1985) (footnote omitted; emphasis retained), quoting Boddie v. Connecticut, 410 U.S. 371, 379 (1971). 

66Fuentes, 407 U.S. at 90-91. 

67Mackey v. Montrym, 443 U.S. 1, 25-26 (1979) (Stewart, .1. dissenting) (emphasis supplied). 

68Logan, 455 U.S. at 436 (footnote omitted). 

69395 U.S. 337 (1969). 

70Id. at 338-39 (footnotes omitted). 

71Id. at 343 (separate opinion) (emphasis retained). 

72407 U.S. 67 (1972).

73Id. at73-78, 80, 80-81, 81-82, 83, 92-93.93 (footnotes omitted). 

74419 U.S. 601, 607 (1975).

75416 U.S. 600 (1974). 

76419 U.S. at 606-07.

77416 U.S. at 604, 605-06 (footnotes omitted).

78Id. at 625 (separate opinion). Re then went on to distinguish Fuentes on the basis that the "statutes [in that.......did not require an applicant...to make any factually convincing showing," and did not mandate a prompt adversary hearing with the burden of proof on the creditor. Id. at 625-27 & n. I. 

79Id. at 609. 

80Id. at 614-18 (footnotes omitted): 

In Snidach, the Court...observed that garnishment was subject to abuse of creditors without valid claims, a risk minimized by the nature of the security interest here at stake and the protections to the debtor offered by Louisiana procedure. Nor was it apparent in Sniadach with what speed the debtor could challenge the validity of the garnishment, and obviously the creditor's claim could not rest on the danger of destruction of wages, the property seized, since their availability to satisfy the debt remained within the power of the debtor who could simply leave his job. The suing creditor in Snidach, had no prior interest in the property attached.

The Florida law...in Fuentes authorized repossession of the sold goods without judicial order, approval, or participation. A writ of replevin . . . was issued by the court clerk. As the Florida law was perceived by the Court, "[t]here Is no requirement that the applicant make a convincing showing before the seizure," ... the law required only "the bare assertion of the party seeking the writ that he is entitled to one" as a condition to the clerk's issuance of the writ...The Pennsylvania law was considered to be essentially the same. . except that it did "not require that there ever be opportunity for a hearing on the merits of the conflicting claims to possession of the replevied property." ...The party seeking the writ was not obliged to initiate a Court action.

The Louisiana sequestration statute...mandates a considerably different procedure....[B]are conclusory claims of ownership or lien will not suffice under the Louisiana statute....[T]he requisite showing must be made to a judge, and judicial authorization obtained....The Louisiana law provides for judicial control of the process from beginning to end. This control...is buttressed by the provision that should the writ be dissolved there are "damages for the wrongful issuance of a writ" and for attorney's fees....

....In Louisiana,...the facts relevant to obtaining a writ of sequestration are narrowly confined....[Dlocumentary proof is particularly suited for questions of the existence of a vendor's lien and the issue of default. There is thus far less danger here that the seizure will be mistaken and a corresponding decrease in the utility of an adversary hearing which will be immediately available in any event.

81424 U.S. 319, 343 (1976).

82Id. at 343-44, 345, 345-46. 

83443 U.S. 1,13 (1979).

84Id. at 13-16. 

85Criteria (i) through (v) appear ante, pp. 00.

86See Snidach,, 395 U.S. at 338-39 (opinion of the Court). 343 (Harlan. I., concurring);Fuentes, 407 U.S. at 73-78, 80-84; North, Georgia Finishing. Inc., 419 U.S. at 606-08. 

87451 U.S. 527,541 (1981). 

88Id. at 543. 

89d at 546 (separate opinion, joined by White, J.), citing Sniadach, Fuentesand Goldberg. 

90445 U.S. 422,436 (1982). In keeping with the distinction made in cases such as Mackey, Logan contrasted its situation with one in which a post-deprivation hearing was permissible because the deprivation "was based on a reliable pretermination finding." Id., citing Barry v. Barchi, 443 U.S. 55,64-65 (1979).

91 104 S. Ct. 3194 (1984).

92Id. at 3204 (emphasis supplied). The dichotomy is between "a deprivation of property...caused by conduct pursuant to established State procedure," and a deprivation arising from "random and unauthorized action [by state officials]." Id. at 3203 (footnote omitted). 

93Criteria (i) through (v) and (vi) through (x) appear ante pp.00 and 00.

94See Fuentes v. Shevin, 407 U.S. 67, 87 (1972); Carey v. Piphus, 435 U.S. 247, 266 (1987). 

95Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 20 n.25 (1978). 

96Cleveland Bd.. of Educ. v. LaFleur, 414 U.S. 632,647(1974); see Fuentes,407 U.S. at 90-93. 

97Fuentes, 407 U.S. at 90 n.22. 

98Elrod v. Burns~, 427 U.S. 347. 362 (1976) (plurality opinion of Brennan, J.). 

99Fuentes, 407 U.S. at 93. 

100See, e.g., Abbod, 431U.S. at 236. 

101106 S. Ct. at 1077 n.21.

102For example, the "internal union rebate scheme," which the Court finally abandoned in Ellis.

103See McDonald v. City of West Branch, 104 S. Ct. I 799, 1~03-04 (1984); Arkansas-Best Freight System' Inc., 450 U.S. 728, 743-46 (1981); NLRB v. Magnavox Ca., 415 U.S. 322, 324-26 (1974); Alexander v. (Gardner-Denver Ca.,415 U.S. 36, 51(1974); Glover v. St. Louis. Ry., 393 U.S.324,329-3 1(1969);Steele v. Louisville & N.R.R., 323 U.S. 192, 206 (1944).

104For example, a plausible explanation of the haste with which the Supreme Court granted review in Hudson before the lower state and national courts had had an opportunity to apply the rather abstract due process principles enuciated by the Court of Appeals for the Seventh Circuit and thereby to generate a body of det decisional law i' that the Supreme Court wanted to impose its ersatz First Amendment procedure immediately as the controlling rule, rather than risk the lower Courts general reliance on traditional Fourteenth Amendment principles in agency shop cases By deciding Hudson quickly on jury rigged First Amendment grounds the Supreme Court temporarily foreclosed the possibility that a new line of procedural due process cases would breach the wall separating "labor law" from real constitutional law.