Amicus Curiae Brief — JoAnne Troesch, et al., Petitioners v. Chicago Teachers Union, et al.

Nos. 20-1603 & 20-1786

In The

Supreme Court of the United States

____________________

SUSAN BENNETT,

v.

Petitioner,

AFSCME, COUNCIL 31, AFL-CIO, et al.,

____________________

JoANNE TROESCH, et al.,

v.

Respondents.

Petitioners,

CHICAGO TEACHERS UNION, et al.,

____________________

Respondents.

On Petitions for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

____________________

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

DLaFetra@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

i

QUESTIONS PRESENTED

No. 20-1603, Bennett v. AFSCME, Council 31, AFLCIO:

Whether an employee’s signature on a union

membership card and dues deduction authorization

by itself authorizes a government employer and

public-sector union to withhold union dues or other

fees from an employee’s wages consistent with this

Court’s affirmative consent waiver requirement set

forth in Janus?

No. 20-1786, Troesch v. CTU:

Under the First Amendment, to seize payments for

union speech from employees who provide notice they

are nonmembers and object to supporting the union,

do governments and unions need clear and compelling

evidence those employees knowingly, intelligently,

and voluntarily waived their First Amendment rights

and that enforcement of the purported waiver is not

against public policy?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 4

I.

THE DECISIONS BELOW CONFLICT

WITH THIS COURT’S DECISIONS

REQUIRING INFORMED CONSENT TO

WAIVE CONSTITUTIONAL RIGHTS ........ 4

A.

Due Process Requires States To

Provide Sufficient Notice of

Constitutional Rights. ................................ 4

B.

The Waiver of First Amendment

Rights Requires Voluntary, Informed,

Affirmative Consent ................................... 8

II.

UNIONS DO NOT AND WILL NOT

PROVIDE EMPLOYEES WITH A

BALANCED EXPLANATION OF THE

FIRST AMENDMENT RIGHTS THEY ARE

ASKED TO WAIVE ..................................... 11

CONCLUSION.......................................................... 16

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977) ....................................... 1, 10

Aetna Ins. Co. v. Kennedy,

301 U.S. 389 (1937) ............................................. 6

Bayo v. Napolitano,

593 F.3d 495 (7th Cir. 2010) ............................... 9

Berguis v. Thompkins,

560 U.S. 370 (2010) ............................................. 9

Boardman v. Inslee,

978 F.3d 1092 (9th Cir. 2020), cert.

pending No. 20-1334 .......................................... 13

Brady v. United States,

397 U.S. 742 (1970) ........................................... 10

Brentwood Academy v. Tennessee Secondary

School Athletic Ass’n,

531 U.S. 288 (2001) ............................................. 5

Brosterhous v. State Bar of Cal.,

12 Cal. 4th 315 (1995) ......................................... 1

Crum v. Vincent,

493 F.3d 988 (8th Cir. 2007) .............................. 6

Curtis Publ’g Co. v. Butts,

388 U.S. 130 (1967) ............................................. 8

D.H. Overmyer Co. Inc., of Ohio v. Frick Co.,

405 U.S. 174 (1972) ............................................. 6

Davies v. Grossmont Union High School

Dist., 930 F.2d 1390 (9th Cir. 1991) ................. 10

iv

Echavarria v. Pitts,

641 F.3d 92 (5th Cir. 2011) ............................. 5–6

Fuentes v. Shevin,

407 U.S. 67 (1972) ............................................... 6

Gete v. INS,

121 F.3d 1285 (9th Cir. 1997) ............................. 6

Janus v. American Fed’n of State, Cty., and

Mun. Emp’s., Council 31,

138 S. Ct. 2448 (2018) ............... 1–4, 9, 12, 14, 15

Johnson v. Zerbst,

304 U.S. 458 (1938) ......................................... 3, 8

Jones v. Flowers,

547 U.S. 220 (2006) ......................................... 5–7

Keller v. State Bar of Cal.,

496 U.S. 1 (1990) ................................................. 1

Knox v. Service Emp. Int’l Union, Local

1000, 567 U.S. 298 (2012) ....................... 2, 10–11

Lugar v. Edmondson Oil Co., Inc.,

457 U.S. 922 (1982) ............................................. 5

Masiello v. U.S. Airways, Inc.,

113 F. Supp. 2d 870 (W.D.N.C. 2000) ............... 14

Mazdabrook Commons Homeowners’ Ass’n

v. Khan, 210 N.J. 482 (2012) ............................... 8

McCreary Cty., Ky. v. Am. Civil Liberties

Union of Ky., 545 U.S. 844 (2005) ..................... 15

Miranda v. Arizona,

384 U.S. 436 (1966) ......................................... 6–8

Moran v. Burbine,

475 U.S. 412 (1986) ............................................. 8

v

Mullane v. Central Hanover Bank & Tr. Co.,

339 U.S. 306 (1950) ............................................. 5

N.L.R.B. v. Magnavox Co. of Tenn.,

415 U.S. 322 (1974) ........................................... 13

Nose v. Attorney Gen. of United States,

993 F.2d 75 (5th Cir. 1993) ............................... 10

Ohio Bell Tel. Co. v. Public Utilities

Comm’n, 301 U.S. 292 (1937) .............................. 6

Old Dominion Branch No. 496, National

Association of Letter Carriers v. Austin,

418 U.S. 264 (1974) ........................................... 14

Patterson v. Illinois,

487 U.S. 285 (1988) ............................................. 9

Rendon v. Holder,

400 F. App’x 218 (9th Cir. 2010) ......................... 6

Rodriguez v. Drug Enforcement

Administration,

219 F. App’x 22 (1st Cir. 2007) ........................... 6

Sneed v. Greensboro City Bd. of Ed.,

299 N.C. 609 (1980) ............................................. 7

United States v. One Star Class Sloop

Sailboat, 458 F.3d 16 (1st Cir. 2006) ................. 6

Virginia State Bd. of Pharm. v. Virginia

Citizens Consumer Council, Inc.,

425 U.S. 748 (1976) ............................................. 3

Yi Tu v. Nat’l Transp. Safety Bd.,

470 F.3d 941 (9th Cir. 2006) ............................... 6

Statutes

Cal. Gov’t Code § 3550 ............................................ 15

vi

Cal. Gov’t Code § 3553 ............................................ 15

Rules of Court

Sup. Ct. R. 37.2(a) ..................................................... 1

Sup. Ct. R. 37.6 ......................................................... 1

Other Authorities

ASEA/AFSCME Local 52, Union

Membership & Dues Deduction

Authorization Form,

https://www.afscmelocal52.org/member ........... 12

Austin, Ellie R. and Hirschfeld-Sussman,

Sarah, School & College Legal Services

of California, Legal Update (June 28,

2018), https://sclscal.org/wpcontent/uploads/ 2018/06/06-2018CCJanus-v.-American-Federation-of-StateCounty-and-Municipal-EmployeesERASHS.pdf ...................................................... 15

Cal. Teachers Ass’n, Our Advocacy: Social

Justice, https://www.cta.org/ouradvocacy/social-justice ....................................... 14

California Public Employment Relations

Board Unfair Practice Case Nos. SF-CE1188-H, SF-CE-1189-H, and SF-CE1192-H, PERB Decision (Mar. 1, 2021),

https://perb.ca.gov/wp-content/uploads/

decision-2755h.pdf ............................................. 15

DeChiara, Peter D., The Right to Know: An

Argument for Informing Employees of

Their Rights Under the National Labor

Relations Act,

32 Harv. J. on Legis. 431 (1995) ......................... 9

vii

Dep’t of the Treasury, Internal Revenue

Service, Form 990 (California Teachers

Association), https://www.guidestar.org/

profile/94-0362310 ............................................. 14

International Brotherhood of Teamsters

Local 8, Membership and Dues

Deduction Authorization Card,

https://www.ibtlocal8.org/docs/Membersh

ip%20and%20Dues

%20Deduction%20Authorization%20Car

d%202018_103118.pdf ....................................... 13

La Fetra, Deborah J., Miranda for Janus:

The Government’s Obligation to Ensure

Informed Waiver of Constitutional

Rights, 55 Loyola L.A. L. Rev. __

(forthcoming Spring, 2022),

https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=3825917 ......................................... 15

SEIU Local 1000 Membership Application

Form, https://www.seiu1000.org/sites/

main/files/file-attachments/

membershipform.pdf ........................................ 12

Webster, Kimberly S., Fissured

Employment Relationships and

Employee Rights Disclosures: Is the

Writing on the Wall for Workers’ Right to

Know Their Rights?,

6 Ne. U. L. J. 435 (2014)...................................... 9

1

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF) was founded in

1973 and is widely recognized as the largest and most

experienced nonprofit legal foundation of its kind. 1

Among other things, PLF litigates in defense of the

right of workers not to be compelled to make payments

to support political or expressive activities with which

they disagree. See, e.g., Keller v. State Bar of Cal., 496

U.S. 1 (1990); Brosterhous v. State Bar of Cal., 12 Cal.

4th 315 (1995). PLF also has participated as amicus

curiae in virtually all of this Court’s cases involving

labor unions compelling workers to support political

speech from Abood v. Detroit Bd. of Educ., 431 U.S.

209 (1977), to Janus v. American Fed’n of State, Cty.,

and Mun. Emp’s., Council 31, 138 S. Ct. 2448 (2018).

PLF supports these petitions because it believes the

Constitution requires states to fulfill an affirmative

obligation to ensure that public employees have

sufficient information and opportunity to exercise

their First Amendment right to refrain from

subsidizing a public employee union.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioners are public employees challenging state

and union policies that block them from exercising

1 Pursuant to this Court’s Rule 37.2(a), all parties received notice

of Pacific Legal Foundation’s intent to file this brief more than

10 days in advance and consented to the filing of this brief.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2

their First Amendment right to stop paying union

dues unless they make their request during a short

annual “escape period” ranging from 15–30 days. The

unions are willing to accept employees’ resignations

from membership but consider employees bound to

continue paying dues regardless of membership

status until the designated escape period. Bennett

App. 2a; Troesch App. 8. The state continues to deduct

union dues until the union releases the employees.

This joint effort undermines Janus, which held that a

public employer may not deduct union dues without a

public employee’s affirmative consent that effects a

clear and knowing waiver of the employees’ First

Amendment rights. 138 S. Ct. at 2486. An Illinois

district court dismissed both cases on the grounds that

the plaintiffs had signed dues deduction cards prior to

Janus and the Seventh Circuit affirmed. Bennett App.

3a, 12a–16a; Troesch App. 2–3.

The reasoning of the Seventh Circuit extends

beyond cards signed prior to Janus. New and existing

employees who are ignorant of their constitutional

rights regarding union membership and subsidization

may sign cards and only subsequently discover that

they are bound to pay union dues for a full year. Or

employees may become disenchanted with a union’s

political goals and no longer desire membership. See

Knox v. Service Emp. Int’l Union, Local 1000, 567 U.S.

298, 315 (2012) (workers’ choice to fund union

activities may change as developments warrant).

With the power of the state behind them, however,

public employee unions continue to bind unwilling

employees to associations and speech that they

oppose, and take hundreds of dollars from the

employees’ paychecks to fund the offensive speech.

The First Amendment cannot countenance this

3

infringement and Janus provides a roadmap to avoid

it. However, the courts below did not follow the

directions.

Janus adopted the constitutional waiver

requirements of Johnson v. Zerbst, 304 U.S. 458, 464

(1938) (Waiver is “an intentional relinquishment or

abandonment of a known right or privilege.”)

(emphasis added), cited in Janus, 138 S. Ct. at 2486.

States must provide an opportunity for employees to

make informed decisions. In this circumstance, the

government

must

“open

the

channels

of

communication rather than [] close them.” Virginia

State Bd. of Pharm. v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748, 770 (1976). An increasing

number of post-Janus statutes and regulations

effectively close channels of communication that

would permit the state (or independent, statedesignated third parties) to present information to

public employees that is unfiltered by union

preferences. Allowing the state to garnish employee

wages based on a unilaterally presented union

membership form and dues deduction authorization,

without any disclosure of the constitutional rights

about to be waived, unconstitutionally diminishes the

rights of public workers to exercise their First

Amendment rights.

Far too many states are abdicating their

responsibility to ensure that their employees are not

deprived of their constitutional rights without the

employees’ express, clear consent. This Court should

grant the petitions in these related cases to reaffirm

that the rules governing constitutional waivers apply

in the context of public employee union dues.

4

ARGUMENT

I

THE DECISIONS BELOW

CONFLICT WITH THIS COURT’S DECISIONS

REQUIRING INFORMED CONSENT TO WAIVE

CONSTITUTIONAL RIGHTS

A.

Due Process Requires States To

Provide Sufficient Notice of

Constitutional Rights

By permitting the State to make payroll

deductions to support inherently political public

employee unions, employees are waiving their First

Amendment rights to refrain from subsidizing the

unions. And because waivers “cannot be presumed,” to

be effective, the waiver must be “freely given” as

affirmative consent demonstrated by “clear and

compelling evidence.” Janus, 138 S. Ct. at 2486

(cleaned up). That is, employees do not join and

subsidize a union by default; affirmative consent

based on a full understanding of the legal

consequences of the waiver must precede any statefacilitated payment of dues. However, Janus’s

promise is largely unfulfilled due to lower courts’

misunderstanding of what constitutes a valid waiver,

the requirements for which are mandated by the

notice requirements of due process.

This Court elaborated on the general due process

requirements in the context of government foreclosure

of tax-delinquent property. In that circumstance, due

process requires the government to act affirmatively

to make it as likely as possible that property owners

are made aware that they are in danger of losing their

rights. When a tax sale threatens to deprive an owner

5

of real property, due process requires that “when

mailed notice of a tax sale is returned unclaimed, the

State must take additional reasonable steps to

attempt to provide notice to the property owner before

selling his property.” Jones v. Flowers, 547 U.S. 220,

226 (2006) (emphasis added). The notice must be

“such as one desirous of actually informing the

absentee might reasonably adopt to accomplish it.”

Mullane v. Central Hanover Bank & Tr. Co., 339 U.S.

306, 315 (1950). See also Echavarria v. Pitts, 641 F.3d

92, 94–95 (5th Cir. 2011) (“When the government has

knowledge that notice was not effected, it cannot

‘simply ignore’ that information.”).

In the foreclosure context, when the state sells a

property owner’s tax debt to a private investor, the

investor also receives the mandate to deliver proper

notice. See Brentwood Academy v. Tennessee

Secondary School Athletic Ass’n, 531 U.S. 288, 295

(2001) (the Fourteenth Amendment provides a

“judicial obligation” to “assure that constitutional

standards are invoked ‘when it can be said that the

State is responsible for the specific conduct of which

the plaintiff complains’”); Lugar v. Edmondson Oil

Co., Inc., 457 U.S. 922, 932–34 (1982). Similarly here,

when the state delegates to public employee unions

the ability to tell the state treasurer or controller to

deduct union dues from employee paychecks, the

unions must also step into the shoes of the state for

the purpose of providing constitutionally required

notice. 2

2 Outside of the real estate context, multiple Circuit courts rely

on Jones to require additional steps after failed attempts at

notice in cases involving property interests including $1,500 in

6

The most well-known notice requirement arose in

Miranda v. Arizona, which held that a police officer

who wants to question a criminal suspect in custody

must explain that the suspect “has a right to remain

silent, that any statement he does make may be used

as evidence against him, and that he has a right to the

presence of an attorney, either retained or appointed.”

384 U.S. 436, 444 (1966). 3 It doesn’t matter that the

suspect may already know his rights, or that his

friends may be advising him to keep quiet and call a

lawyer. Id. at 468. The state itself is obligated to

inform the suspect of his constitutional rights so that

cash, personal property, denial of government applications, and

revocation of licenses. See, e.g., Rodriguez v. Drug Enforcement

Administration, 219 F. App’x 22, 23–24 (1st Cir. 2007) (Jones

required additional notice of administrative forfeiture of $1,905);

Echavarria, 641 F.3d at 95 (Jones applies to forfeiture of

bondsman’s $1,500); Rendon v. Holder, 400 F. App’x 218, 219 (9th

Cir. 2010) (additional reasonable steps required to notify

immigrant of denial of application for legalization); United States

v. One Star Class Sloop Sailboat, 458 F.3d 16, 23 n.7, 25 (1st Cir.

2006) (applying Jones to civil forfeiture of sailboat); Crum v.

Vincent, 493 F.3d 988, 992–93 (8th Cir. 2007) (Jones applies to

state’s deprivation of physician’s medical license without due

process); Yi Tu v. Nat’l Transp. Safety Bd., 470 F.3d 941, 945–46

(9th Cir. 2006) (additional steps required to notify pilot of

suspension of his pilot’s license).

3 Requirements to waive constitutional rights are the same in

both civil and criminal contexts. See Fuentes v. Shevin, 407 U.S.

67, 94 n.31 (1972); D.H. Overmyer Co. Inc., of Ohio v. Frick Co.,

405 U.S. 174, 185 (1972) (noting that waivers in the criminal

context where personal liberty is involved are parallel to civil

cases involving a property right); Ohio Bell Tel. Co. v. Public

Utilities Comm’n, 301 U.S. 292, 307 (1937) (heavy burden against

the waiver of constitutional rights in civil cases); Aetna Ins. Co.

v. Kennedy, 301 U.S. 389, 393 (1937) (same); Gete v. INS, 121

F.3d 1285, 1293 (9th Cir. 1997); (principles governing waiver of

constitutional rights apply equally in criminal and civil context).

7

they are not waived out of ignorance. Id. at 468 (“For

those unaware of the privilege, the warning is needed

simply to make them aware of it—the threshold

requirement for an intelligent decision as to its

exercise.”). The state’s act of informing the suspect of

his constitutional rights is a necessary predicate to

the suspect effecting a waiver of these rights; a “clear

and affirmative” waiver that must be made

“voluntarily, knowingly, and intelligently.” Id.

Moreover, Miranda requires the state to accept

invocation of a waiver at any time—even if the suspect

answers some questions, the police must cease their

interrogation immediately once the suspect invokes

his right to remain silent or to ask for a lawyer. Id. at

445.

The common thread between Jones and Miranda

and countless other due process cases is that the

government has an affirmative obligation to ensure

that it does not deprive people of their constitutional

rights through waiver unless they understand the

nature and consequences of the potential loss. “Due

process is not met by a procedure which accords a

fundamental right only to the already informed, or

which engenders unnecessary obstacles to the right’s

fulfillment.” Sneed v. Greensboro City Bd. of Ed., 299

N.C. 609, 619 (1980) (schools must affirmatively notify

indigent students and their parents that fee waivers

or reductions are available and explain how the

students or parents may apply for a partial or

complete exemption from fee requirements).

8

B.

The Waiver of First Amendment Rights

Requires Voluntary, Informed,

Affirmative Consent

In Johnson v. Zerbst, 304 U.S. 458, this Court

established the basic parameters of a constitutional

waiver. Waiver is “an intentional relinquishment or

abandonment of a known right or privilege,” id. at

464, and whether such a relinquishment or

abandonment has occurred depends “in each case,

upon the particular facts and circumstances

surrounding that case, including the background,

experience, and conduct” of the person who chooses

whether to waive a constitutional right. Id. Zerbst

applies where, as here, a state bears the burden of

showing a waiver of constitutional rights. Moran v.

Burbine, 475 U.S. 412, 450 (1986) (“[T]he burden of

proving the validity of a waiver of constitutional rights

is always on the government.”). The Constitution does

not permit the state to bank on employees possibly

being made aware, through their own efforts, of the

nature and effect of the waiver. Curtis Publ’g Co. v.

Butts, 388 U.S. 130, 144 (1967).

“In order for waiver to be meaningful, notice of the

right must also be combined with a meaningful

opportunity to exercise that right.” Miranda, 384 U.S.

at 479. 4 An employee, therefore, must be presented

with and understand “the nature of the right being

abandoned and the consequences of the decision to

4 See also Mazdabrook Commons Homeowners’ Ass’n v. Khan, 210

N.J. 482, 506 (2012) (Ostensible waiver of homeowner’s right to

post signs before getting homeowner association board approval,

without “any idea about what standards would govern the

approval process” could not “constitute a knowing, intelligent,

voluntary waiver of constitutional rights.”).

9

abandon it.” Patterson v. Illinois, 487 U.S. 285, 292

(1988) (citation omitted). The waiver inquiry “has two

distinct dimensions”: waiver must be “voluntary in the

sense that it was the product of a free and deliberate

choice rather than intimidation, coercion, or

deception,” and “made with a full awareness of both

the nature of the right being abandoned and the

consequences of the decision to abandon it.” Berguis v.

Thompkins, 560 U.S. 370, 382–83 (2010). The failure

to provide information necessary to make an

informed, knowing waiver unconstitutionally burdens

public employees’ First Amendment rights.

Public employees must be informed about their

First Amendment rights as a necessary precondition

to making an informed decision as to whether to join

or subsidize a public employee union. Janus, 138 S.

Ct. at 2486; see also Kimberly S. Webster, Fissured

Employment Relationships and Employee Rights

Disclosures: Is the Writing on the Wall for Workers’

Right to Know Their Rights?, 6 Ne. U. L. J. 435, 435

(2014) (“A right does not exist in any meaningful sense

unless people know about it and have the means to

exercise it.”); Peter D. DeChiara, The Right to Know:

An Argument for Informing Employees of Their Rights

Under the National Labor Relations Act, 32 Harv. J.

on Legis. 431, 438 (1995) (“Ignorance of the law

disempowers people. It prevents them from seeking

redress for legal wrongs, and also causes them to shy

away from taking actions to which they are legally

entitled.”) (citations omitted). An affirmative waiver

of First Amendment rights must be based on actual

knowledge of the content and consequences of the

waiver. See Bayo v. Napolitano, 593 F.3d 495, 504 (7th

Cir. 2010) (refusing to substitute a “presumption of

knowledge for the requirement of actual knowledge”

10

as “it would render all waivers of constitutional rights

signed without coercion valid, regardless of whether

the signatory understood a single word on the page.”);

Nose v. Attorney Gen. of United States, 993 F.2d 75,

78–79 (5th Cir. 1993) (same).

A waiver is “knowing [and] intelligent” when “done

with sufficient awareness of the relevant

circumstances and likely consequences.” Brady v.

United States, 397 U.S. 742, 748 (1970) (factors for

determining when a guilty plea waives the right

against self-incrimination); Davies v. Grossmont

Union High School Dist., 930 F.2d 1390, 1394 (9th Cir.

1991) (“Constitutional rights may ordinarily be

waived [only] if it can be established by clear and

convincing evidence that the waiver is voluntary,

knowing and intelligent.”). This Court suggested the

type of information and knowledge relevant to a

waiver of First Amendment rights in Knox, 567 U.S.

at 314. In that case, state law allowed the union to

deduct money from agency shop fee payer paychecks

mid-year, for the purpose of advocating against two

ballot initiatives. Id. at 315. Unlike the opt-out

procedure then in place for annual dues, the union did

not give the workers an opportunity to opt-out of the

mid-year deduction, nor did it give them any

information relevant to making a choice whether to do

so. Id. at 314. In the context of that case, which

concerned only the narrow range of political activities

as defined under Abood, the union withheld from

workers the critical information of how the union

intended to use the funds. Id. Among other things, the

Court noted that workers may have favored one or

both of the targeted initiatives or may simply have not

wanted to delegate to the union how to allocate the

workers’ dollars on political matters. Id. at 315–16.

11

The Court’s holding in Knox is explicitly tied to the

constitutional requirement that employees must

provide informed consent to the union’s deductions:

“Giving employees only one opportunity per year to

make this choice is tolerable if employees are able at

the time in question to make an informed choice. But

a nonmember cannot make an informed choice about

a special [mid-year] assessment or dues increase that

is unknown when the annual notice is sent.” Id. at

315. In the post-Janus world, the information that

public employees need to know to make an informed

decision is that they have constitutional rights

relating to union membership and dues that give them

the option of continuing their employment without

joining or subsidizing the union. The Seventh Circuit

in these cases failed to ensure that public workers are

provided that necessary information and they

therefore could not have effectively waived their First

Amendment rights.

II

UNIONS DO NOT AND WILL NOT

PROVIDE EMPLOYEES WITH A BALANCED

EXPLANATION OF THE FIRST AMENDMENT

RIGHTS THEY ARE ASKED TO WAIVE

Public employee unions have every financial

incentive to withhold information about constitutional

waivers. Unions can and do fail to provide the

information or opportunity necessary to make an

informed decision whether to waive constitutional

rights and a union’s imposition of a restrictive

resignation scheme is itself a factor that workers may

weigh in deciding whether they wish to join the union

or not. When union representatives present

applications for membership to employees, those

12

applications make no mention of the First

Amendment or Janus. As a representative sampling,

consider

ASEA/AFSCME

Local

52’s

Union

Membership & Dues Deduction Authorization Form: 5

YES! I choose to be a union member. I

understand my membership supports the

organization advocating for my interests as a

bargaining unit member and as an individual.

ASEA negotiated labor contracts result in

better wages, benefits and working conditions.

Union strength is a reflection of its

membership. Being a member makes the

union more effective for everyone. ASEA

membership is opt-in and paying union dues

is not a condition of employment. By

submitting this form I choose to be a union

member.

Other unions, such as SEIU Local 1000, have a

Membership Application Form 6 that doesn’t even

acknowledge the voluntary opt-in nature of union

membership, directing workers to “the SEIU Local

1000 policy file, which is subject to amendment by the

union, and any applicable memorandum of

understanding between SEIU Local 1000 and the

state of California,” and asking the worker to

acknowledge only that “a copy of the policy file and

applicable memoranda of understanding are always

available for my review.” Under union pressure to

sign, how many workers will demand to review the

policies and memoranda that are otherwise

concealed? Teamsters Local Union 8’s Membership

5 https://www.afscmelocal52.org/member (visited Aug. 3, 2021).

6 https://www.seiu1000.org/sites/main/files/file-attachments/

membershipform.pdf (visited Aug. 3, 2021).

13

and Dues Deduction Authorization Card 7 asks

workers to sign that they “voluntarily authorize”

payment of dues with the understanding that “[t]his

voluntary authorization and assignment shall be

irrevocable, regardless of whether I am or remain a

member of the Union” except for a 15-day escape

period of the type present in the Petitioners’ cases. All

these unions share a common practice of asking

workers to “voluntarily” join a union on a form devoid

of information that purportedly allows workers to

exercise informed consent to waive their First

Amendment rights. Indeed, the forms typically are

presented with general onboarding paperwork, none

of which contains any indication that workers waive

constitutional rights by signing.

The public employee unions are acting in their selfinterest (as does any other voluntary organization).

Unions promote an identifiable “pro-union” viewpoint

that benefits the unions both as institutions 8 and as a

social movement. For example, the California

Teachers Association (CTA) defines its mission as: “to

protect and promote the well-being of its members, to

improve the conditions of teaching and learning, to

advance the cause of free, universal, and quality

public education, to ensure that the human dignity

7 https://www.ibtlocal8.org/docs/Membership%20and%20Dues

%20Deduction%20Authorization%20Card%202018_103118.pdf

(visited Aug. 3, 2021).

8 See Boardman v. Inslee, 978 F.3d 1092, 1130 (9th Cir. 2020)

(Bress, J., dissenting) (an incumbent union’s view is that it

“should stay in power”), cert. pending No. 20-1334; N.L.R.B. v.

Magnavox Co. of Tenn., 415 U.S. 322, 325 (1974) (“[I]t is difficult

to assume that the incumbent union has no self-interest of its

own to serve by perpetuating itself as the bargaining

representative.”).

14

and civil rights of all children and youth are protected,

and to secure a more just, equitable, and democratic

society.” Dep’t of the Treasury, Internal Revenue

Service, Form 990 (California Teachers Association). 9

The CTA advocates on issues touching virtually every

aspect of public policy, including “racism, classism,

linguicism, ableism, ageism, heterosexism, religious

bias and xenophobia.” Cal. Teachers Ass’n, Our

Advocacy: Social Justice. 10 This is no anomaly. Yet

public employees in many states are entirely reliant

on union membership information provided to them

by the very unions that enjoy exclusive representation

rights over the workforce and use that position to

pursue political and social goals. See Janus, 138 S. Ct.

at 2467.

Unions have long pressured employees to join

without incurring any legal liability. See, e.g., Old

Dominion Branch No. 496, National Association of

Letter Carriers v. Austin, 418 U.S. 264, 277 (1974)

(union may legally post a list of non-members and

label non-members as “scabs” to persuade nonmembers to join). By effectively leaving it entirely to

the unions to decide whether and how to advise

workers of their rights, the state ensures that most

workers remain uninformed. 11 This is not a mere byhttps://www.guidestar.org/profile/94-0362310 (visited Aug. 3,

2021).

10 https://www.cta.org/our-advocacy/social-justice (visited Aug. 3,

2020).

11 This is consistent with public employee unions’ long,

documented history of failing to provide adequate information

regarding dues payments. See Masiello v. U.S. Airways, Inc., 113

F. Supp. 2d 870, 877 (W.D.N.C. 2000) (noting the “woeful

inadequacy and downright arrogance of the union’s practices and

9

15

product; it is the goal. In California, for example, state

law prohibits public employers from communicating

with workers about their First Amendment rights.

Cal. Gov’t Code §§ 3550, 3553. When the University of

California sent a letter to employees accurately

describing the holdings of the Janus decision, the

union filed an unfair labor practice claim with the

Public Employee Relations Board, which ruled in

favor of the union. California Public Employment

Relations Board Unfair Practice Case Nos. SF-CE1188-H, SF-CE-1189-H, and SF-CE-1192-H, PERB

Decision at 1, 6–9 (Mar. 1, 2021). 12 Attorneys serving

public agencies in the state advise them to make no

mention of Janus or First Amendment rights

whatsoever. 13 This Court need not—and should not—

turn a blind eye to this reality. See McCreary Cty., Ky.

v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 866

(2005) (government action is properly viewed by one

“familiar with the history of the government’s actions

and competent to learn what history has to show” such

that a court will not “turn a blind eye to the context”

in which a policy is enacted).

procedures” that halved the amount of the dues reduction to

which nonmembers were entitled). See generally Deborah J. La

Fetra, Miranda for Janus: The Government’s Obligation to

Ensure Informed Waiver of Constitutional Rights, 55 Loyola L.A.

L. Rev. __ (forthcoming Spring, 2022), https://papers.ssrn.com/

sol3/papers.cfm?abstract_id=3825917.

12 https://perb.ca.gov/wp-content/uploads/decision-2755h.pdf.

13 See, e.g., Ellie R. Austin and Sarah Hirschfeld-Sussman,

School & College Legal Services of California, Legal Update, at

3, 5 (June 28, 2018), https://sclscal.org/wp-content/uploads/

2018/06/06-2018CC-Janus-v.-American-Federation-of-StateCounty-and-Municipal-Employees-ERASHS.pdf.

16

CONCLUSION

The petitions for writs of certiorari should be

granted.

DATED: August, 2021.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

DLaFetra@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation