The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2017 edition. To sign up for a free copy of the newsletter via mail please see the form at the bottom of the page.

First Amendment lawsuit challenging mandatory union payments could free over 5 million public employees

WASHINGTON, DC – On September 28, the United States Supreme Court agreed to hear Janus v. AFSCME, which challenges mandatory union fees for public employees as a violation of the First Amendment. Mark Janus is a civil servant child support specialist from Illinois who turned to attorneys from the National Right to Work Legal Defense Foundation and the Liberty Justice Center for free legal aid when he felt that his rights were violated by forced union fees.
Janus’ attorneys will argue that forcing employees to pay money to union officials as a condition of government employment violates the First Amendment. If the High Court agrees, the ruling would create a precedent protecting every public employee from being forced to subsidize union activities.

Illinois Worker’s Lawsuit Reaches High Court

The Janus case began in February 2015, when newly-elected Illinois Governor Bruce Rauner issued an executive order prohibiting state agencies from requiring nonmember state employees to pay union fees, based on a 2014 Right to Work Foundation U.S. Supreme Court victory in another Illinois case. Rauner also filed a federal lawsuit in the U.S. District Court for the Northern District of Illinois, asking for a declaratory judgment that the forced fee provisions violate the First Amendment and that his executive order was valid.

In March 2015, staff attorneys from the Foundation and the Liberty Justice Center filed a motion for Mark Janus to intervene in the case. Janus’s complaint requested not only a declaratory judgment but also an injunction and damages from the unions for the compelled fees. Ultimately, the court granted Janus’ motion to intervene which allowed the suit to continue to move forward even after the court ruled that Governor Rauner lacked the proper standing to pursue the lawsuit.

After the Supreme Court deadlocked 4-4 following Justice Scalia’s death in a case which raised the same constitutional issue, Janus became the lead case challenging forced dues as a violation of the First Amendment.

Citing Abood v. Detroit Board of Education, which permitted public sector unions to require fees to subsidize monopoly bargaining, both the district court and later the Seventh Circuit Court of appeals ruled against Mr. Janus as expected. That allowed Foundation staff attorneys to file a petition to the U.S. Supreme Court to take the case. In September the Supreme Court announced it would hear Janus, making it the 18th Supreme Court case litigated by Foundation attorneys.

Janus follows a series of decisions that suggest a willingness by the Supreme Court to reconsider the constitutionality of forced union fees. In 1977, the High Court held in Abood that, although union officials could not constitutionally spend objectors’ funds for some political and ideological activities, unions could require fees to subsidize monopoly bargaining.

Recent Foundation Supreme Court Victories Set Stage for Landmark Showdown

However, in 2012, the Supreme Court began to question Abood’s underpinnings. In Knox v. SEIU, brought to it by National Right to Work Legal Defense Foundation staff attorneys, the Court held that union officials must obtain affirmative consent from workers before using workers’ forced union fees for special assessments or dues increases.

In the opinion Justice Samuel Alito authored, the door was left open to challenge all forced union fees as a violation of the First Amendment. Alito wrote, “By allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed, our cases have substantially impinged upon the First Amendment rights of nonmembers.”

Two years later, the Foundation assisted a group of Illinois home care providers, including Pam Harris, a mother taking care of her disabled son, in case challenging a state scheme authorizing Service Employees International Union (SEIU) officials to require providers like Harris to pay union dues or fees. National Right to Work Legal Defense Foundation staff attorneys took the case to the Supreme Court, which held that the forced dues requirement violated the First Amendment.

‘I was never given a choice’

In its Harris ruling, the Court continued to criticize the reasoning of Abood and refused to extend Abood to the “new situation” before it. The decision held Illinois’ provider forced dues scheme unconstitutional and cracked the door even further open for the Court to revisit Abood and the constitutionality of forced union fees, which it is now doing in Janus.

For Mark Janus, the case is about reclaiming his voice and his First Amendment rights stripped away by forced union fees. By standing up for his rights, his case could establish a precedent that would protect over 20 million teachers, police officers, firefighters and other public employees in America.

“The union voice is not my voice. The union’s fight is not my fight,” Janus wrote in an op-ed featured in the Chicago Tribune. “But a piece of my paycheck every week still goes to the union.”
“I went into this line of work because I care about kids. But just because I care about kids doesn’t mean I also want to support a government union,” he continued. “Unfortunately, I have no choice. To keep my job at the state, I have to pay monthly fees to the American Federation of State, County and Municipal Employees, or AFSCME, a public employee union that claims to ‘represent’ me.”

“The First Amendment guarantees freedom of speech and freedom of association. I don’t want to be associated with a union that claims to represent my interests and me when it really doesn’t.”

Janus stressed that he just wants all Americans to have the opportunity to exercise that freedom of association whether they want to join a union or not.

“I’m definitely not anti-union. Unions have their place and many people like them. … I was never given a choice,” he told the Washington Free Beacon. “I really didn’t see that I was getting any benefit [from the union]. I just don’t think I should be forced to pay a group for an association I don’t agree with—that goes to the First Amendment.”

“Somebody’s got to do something,” Janus said in the interview. “I figure it’ll be a wake-up call to the union that they would have to provide a better benefit [to workers].”

“[The case] has national implications, but I don’t look at that way, I just look it as an average guy standing up for his own rights and free speech. I don’t look at is if I’m anybody special or anybody extraordinary,” the civil servant child worker said.

Foundation Attorney to Argue Forced Dues Showdown

As this issue goes to print a date has not yet been set for oral arguments, although the Supreme Court has notified Janus’ Foundation-provided staff attorneys to expect arguments in January. Because Janus is considered one of the highest-profile cases the High Court has agreed to hear, Supreme Court experts expect a ruling would come at the very end of the 2017-2018 term in June.

Veteran Foundation staff attorney William Messenger will argue the case before the nine Justices, in what will be his third oral argument before the Supreme Court. In 2014, Messenger was lead attorney in the Foundation’s Harris victory, which successfully struck down forced dues for homecare providers as a violation of their First Amendment rights.

As National Right to Work Foundation president Mark Mix told the New York Times when the Supreme Court agreed to hear the case: “We are now one step closer to freeing over five million public sector teachers, police officers, firefighters, and other employees from the injustice of being forced to subsidize a union as a condition of working for their own government.”