Amicus Curiae Brief — Christopher A. Woods, et al., Petitioners v. Alaska State Employees Association, AFSCME Local 52, et al.
Supreme Court briefNov 24, 2021
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No. 21-615
In the Supreme Court of the United States
CHRISTOPHER A. WOODS; LINDA CREED;
TYLER RIBERIO,
Petitioners,
v.
ALASKA STATE EMPLOYEES ASSOCIATION /
AFSCME LOCAL 52, et al.,
Respondents.
——————
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF OF AMICI CURIAE
WEST VIRGINIA AND 14 OTHER STATES
IN SUPPORT OF PETITIONERS
PATRICK MORRISEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
lindsay.s.see@wvago.gov
(304) 558-2021
LINDSAY S. SEE
Solicitor General
Counsel of Record
MICHAEL R. WILLIAMS*
Special Counsel
VIRGINIA M. PAYNE
Assistant Solicitor
General/Deputy Attorney
General
Counsel for Amicus Curiae State of West Virginia
[additional counsel listed at end]
QUESTIONS PRESENTED
Petitioners were once union members. After this
Court’s decision in Janus v. AFSCME, Council 31, 138 S.
Ct. 2448 (2018), they resigned their union memberships
and asked their employers and now-former unions to stop
withholding union dues from their paychecks. The unions
refused, citing pre-Janus dues authorizations that the
employees signed when they were union members.
The questions presented are:
1. Do government employers and unions need clear
and compelling evidence showing that non-unionmember employees have waived their First
Amendment right to refrain from subsidizing union
speech before those employers can withhold money
from employees’ paychecks and direct it to the
unions?
2. When a union acts jointly with a State to deduct and
collect union payments from employees’ wages, is
the union a state actor under 42 U.S.C. § 1983?
II
TABLE OF CONTENTS
Question Presented .............................................................. I
Introduction and Interests Of Amici Curiae ................... 1
Summary Of Argument ....................................................... 2
Reasons For Granting The Petition ................................... 4
I.
The Court Should Grant The Petition To
Extract States From The Untenable
Tug Of War Between Unions And Employees .......... 4
II. The Ninth Circuit’s View Conflicts With
Many Others’ Interpretations Of Janus .................. 10
III. The Ninth Circuit’s View Conflicts With
Janus And Other Decisions Of This Court
Addressing Waivers Of Constitutional Rights ........ 16
Conclusion ........................................................................... 20
Additional Counsel ............................................................. 21
III
TABLE OF AUTHORITIES
Page(s)
Cases
Allen v. Ohio Civ. Serv. Emps. Ass’n
AFSCME, Loc. 11,
No. 2:19-cv-3709, 2020 WL 1322051
(S.D. Ohio Mar. 20, 2020) ............................................... 6
Asociación Puertorriqueña de Profesores
Universitarios, Inc. v. Estado Libre
Asociado,
No. SJ2018CV05688, 2019 WL 2185047
(P.R. Cir. Feb. 28, 2019)................................................. 7
Belgau v. Inslee,
141 S. Ct. 2795 (2021) ..................................................... 7
Belgau v. Inslee,
975 F.3d 940 (9th Cir. 2020) ................................... 10, 18
Bennett v. Am. Fed’n,
No. 20-1603, 2021 WL 5043580
(U.S. Nov. 1, 2021) .......................................................... 7
Boardman v. Inslee,
978 F.3d 1092 (9th Cir. 2020) ....................................... 10
Brady v. United States,
397 U.S. 742 (1970) ................................................. 16, 17
Burse v. Pa. Lab. Rels. Bd.,
425 A.2d 1182 (Pa. Commw. Ct. 1981) .......................... 6
IV
TABLE OF AUTHORITIES
(continued)
Page(s)
Cohen v. Cowles Media Co.,
501 U.S. 663 (1991) ................................................. 18, 19
Coll. Savings Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd.,
527 U.S. 666 (1999) ....................................................... 16
Curtis Pub. Co. v. Butts,
388 U.S. 130 (1967) ....................................................... 17
D.H. Overmyer Co. v. Frick Co.,
405 U.S. 174 (1972) ....................................................... 16
Davenport v. Wash. Educ. Ass’n,
551 U.S. 177 (2007) ......................................................... 4
Democratic Nat’l Comm. v. Republican
Nat’l Comm.,
673 F.3d 192 (3d Cir. 2012) .......................................... 16
Edelman v. Jordan,
415 U.S. 651 (1974) ....................................................... 16
Fuentes v. Shevin,
407 U.S. 67 (1972) ......................................................... 16
Harris v. Quinn,
573 U.S. 616 (2014) ..................................................... 1, 6
Int’l Ass’n of Machinists Dist. Ten & Loc.
Lodge 873 v. Allen,
904 F.3d 490 (7th Cir. 2018) ....................................... 6, 8
V
TABLE OF AUTHORITIES
(continued)
Page(s)
J. Endres v. Ne. Ohio Med. Univ.,
938 F.3d 281 (6th Cir. 2019) ......................................... 16
Janus v. Am. Fed’n of State, Cnty., &
Mun. Emps., Council 31,
138 S. Ct. 2448 (2018) ................................1, 9, 10, 15, 16
Janus v. Am. Fed’n of State, Cnty. & Mun.
Emps., Council 31; AFL-CIO,
942 F.3d 352 (7th Cir. 2019) ........................................... 4
Johnson v. Zerbst,
304 U.S. 458 (1938) ....................................................... 15
Knox v. Serv. Emps. Int’l Union, Loc.1000,
567 U.S. 298 (2012) ....................................................... 18
Lehnert v. Ferris Fac. Ass’n,
500 U.S. 507 (1991) ......................................................... 9
Loc. Joint Exec. Bd. of Las Vegas v. NLRB,
540 F.3d 1072 (9th Cir. 2008) ......................................... 8
NLRB v. Penn Cork & Closures, Inc.,
376 F.2d 52 (2d Cir. 1967) ............................................ 17
Ohio Bell Tel. Co. v. Pub. Utils. Comm’n,
301 U.S. 292 (1937) ....................................................... 16
Ohlendorf v. United Food & Com. Workers
Int’l Union,
883 F.3d 636 (6th Cir. 2018) ........................................... 5
VI
TABLE OF AUTHORITIES
(continued)
Page(s)
Pattern Makers’ League of N. Am., AFLCIO v. NLRB,
473 U.S. 95 (1985) ........................................................... 4
Riley v. Nat’l Fed’n of the Blind of N.C.,
Inc.,
487 U.S. 781 (1988) ......................................................... 1
Scofield v. NLRB,
394 U.S. 423 (1969) ......................................................... 5
Stewart v. NLRB,
851 F.3d 21 (D.C. Cir. 2017) .......................................... 5
Taylor Sch. Dist. v. Rhatigan,
900 N.W.2d 699 (Mich. Ct. App. 2016).......................... 6
Troesch v. Chi. Tchrs. Union, Loc. 1,
No. 20-1786, 2021 WL 5043587
(U.S. Nov. 1, 2021) .......................................................... 7
United Auto., Aerospace & Agric.
Implement Workers of Am. Loc. 3047 v.
Hardin Cnty.,
842 F.3d 407 (6th Cir. 2016) ........................................... 4
W. Va. AFL-CIO v. Justice,
No. 21-P-156, 2021 WL 4806638
(W. Va. Cir. Ct. June 16, 2021) ...................................... 8
Williams v. NLRB,
105 F.3d 787 (2d Cir. 1996) ............................................ 5
VII
TABLE OF AUTHORITIES
(continued)
Page(s)
Ysursa v. Pocatello Educ. Ass’n,
555 U.S. 353 (2009) ......................................................... 8
Other Authorities
Amicus Br. of State of Alaska, et al.,
Belgau v. Inslee, 975 F.3d 940 (2020)
(No. 20-1120), 2021 WL 1089791 ................................. 14
Amicus Br. of State of Alaska, et al.,
Troesch v. Chic. Tchrs Union, Loc. 1,
No. 20-1786 (S. Ct. Jul. 23, 2021),
2021 WL 3262119 .......................................................... 14
Application of the United States Supreme
Court’s Janus Decision to Public
Employee Payroll Deductions for
Employee Organization Membership
Fees and Dues,
Att’y Gen. of Tex., Op. No. KP-0310,
2020 WL 7237859
(Tex. A.G. May 31, 2020) ........................................ 12, 13
Brian A. Powers & Andrew Kelser,
Dues-Checkoff Dreams Do Come True,
They Do, They Do,
29 ABA J. Lab. & Emp. L. 299 (2014) .......................... 5
VIII
TABLE OF AUTHORITIES
(continued)
Page(s)
Br. of the Freedom Found. as Amicus
Curiae in Supp. of Pet.,
Bennett v. AFL-CIO, No. 20-1603
(U.S. Aug. 26, 2021), 2021 WL 3884251 ........................ 9
Decision on Request for General
Statement of Policy or Guidance,
Off. of Pers. Mgmt.,
71 F.L.R.A. 571 (Feb. 14, 2020) ............................ 14, 15
E.B. McNatt, Check-Off,
4 Lab. L.J. 123 (1953) ..................................................... 7
First Amendment Rights and Union Dues
Deductions and Fees,
Att’y Gen. of Alaska, 2019 WL 4134284
(Alaska A.G. Aug. 27, 2019) ................................... 11, 12
Int’l Bhd. of Teamsters Loc. 385,
366 NLRB No. 96 (June 20, 2018) .............................. 10
Matthew Dimick, Productive Unionism,
4 U.C. Irvine L. Rev. 679 (2014) ................................... 7
Payroll Deductions for Public Sector
Employees,
Att’y Gen. of Ind., Op. No. 2020-5,
2020 WL 4209604
(Ind. A.G. June 17, 2020)........................................ 13, 14
IX
TABLE OF AUTHORITIES
(continued)
Page(s)
State of Michigan Civil Service
Commission,
Proposed Amendments to Rule 6-7,
Dues and Service Fees (June 5, 2020) ........................ 13
1
INTRODUCTION AND INTERESTS
OF AMICI CURIAE1
The First Amendment’s guarantee of freedom of
speech “necessarily compris[es] the decision of both what
to say and what not to say.” Riley v. Nat’l Fed’n of the
Blind of N.C., Inc., 487 U.S. 781, 796-97 (1988) (emphasis
in original). And just as the government cannot force
citizens to speak, it also cannot force them to hand over
dollars in service of others’ speech. After all, “compelled
funding of the speech of other private speakers or groups
presents the same dangers as compelled speech.” Harris
v. Quinn, 573 U.S. 616, 647 (2014). Consequently, three
years ago the Court held that “States and public-sector
unions” cannot “extract” money from non-member
employees to fund union speech—at least where those
employees have not deliberately waived their First
Amendment right to abstain. Janus v. Am. Fed’n of State,
Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2486
(2018).
Janus should have been easy enough to apply. If a
State and a union have “clear and compelling” evidence
that an employee wants to pay union dues, then the State
can take dues from that employee’s paycheck; otherwise,
it cannot. Janus, 138 S. Ct. at 2486. But the Ninth
Circuit—and other courts like it—have rewritten the test.
In those circuits, a union need only invoke a prior
authorization, even one that predates Janus, to trump the
employee’s present refusal to pay. A waiver in those
jurisdictions can thus result from less intentional, less
informed decisions than the Court rightly demands before
1
Pursuant to Supreme Court Rule 37.2(a), amici timely
notified counsel of record of their intent to file this brief.
2
recognizing other waivers of constitutional rights. “Clear
and compelling evidence” requires more.
Until this question is resolved public employers will
continue to find themselves stuck in the middle. These
employers regularly face demands from unions waving
contracts and insisting that the States hand over funds
from public-sector employees’ wages. Yet they also
receive outcry from their nonconsenting employees that
diverting payroll to union purposes violates the First
Amendment. Amici States—the States of West Virginia,
Alabama, Arkansas, Idaho, Indiana, Kansas, Louisiana,
Montana, Nebraska, New Hampshire, South Carolina,
South Dakota, Tennessee, Texas, and Utah—ask the
Court to put the present fight to an end. Most must deal
with public-employee dues authorizations.
Without
intervention from this Court, those States will continue to
weather case after case from both sides. And all Amici
States (even those without public unions) have a strong
interest in seeing First Amendment protections respected
nationwide.
The Court should grant the Petition and reaffirm what
it said in Janus: Employees’ First Amendment rights
matter. Absent clear and compelling evidence that they
wish to continue lending financial support to unions’
speech, employees—even former union members—should
not be compelled to pay.
SUMMARY OF ARGUMENT
Janus should have put the first question presented to
rest. Unfortunately, lower courts have ignored Janus’s
directive and undermined the fundamental rights of
public-sector employees who object to paying union dues.
These choices have in turn put many States in an
untenable position.
3
I. Unions are using purportedly “voluntary”
agreements to lock employees into months or years of
dues payments—even over their objections. These
agreements are often written in ways that make it difficult
(or practically impossible) for workers to exercise their
constitutional right to abstain from subsidizing union
speech. The problematic agreements have then resulted
in waves of litigation over whether they are enforceable
consistent with well-established case law governing the
waiver of fundamental rights. Those cases have, in turn,
drawn in the States, many of whom stand as
intermediaries in the union-dues-deduction process.
Without the Court’s help, States will likely continue to be
pummeled by lawsuits on these issues.
II. Lower courts have often construed Janus in ways
that are inconsistent with the approaches of States trying
to give full effect to public-sector workers’ constitutional
rights. In particular, various State authorities—and one
member of the Federal Labor Relations Authority—have
concluded that effective Janus waivers must be truly
voluntary; pre-Janus, automatically renewing dues
authorizations won’t do. In contrast, the Ninth Circuit and
other federal courts of appeals have held that any contract
can lock an employee into wage payments even though he
or she now objects on constitutional grounds. The Court
should resolve this confusion.
III. The lower court’s view that dues authorization
agreements effectively erase employees’ First
Amendment rights is inconsistent with this Court’s cases
governing the waiver of constitutional rights and Janus
itself. Those cases require clear and compelling evidence
that a person intended to waive a constitutional right, and
nothing about the right to abstain from paying union dues
or fees as a non-member calls for a different result.
4
Rather than applying this well-understood test, lower
courts have chosen to look to state common law and
inapplicable contract-law principles to determine whether
the federal constitutional right rises or falls. That choice
is mistaken.
If Janus means anything, it must mean that unions
cannot take the pay of objecting non-union employees.
When it comes to automatic payroll deduction disputes,
this Court should grant the Petition to clarify exactly that.
REASONS FOR GRANTING THE PETITION
I.
The Court Should Grant The Petition To
Extract States From The Untenable Tug Of War
Between Unions And Employees.
As public employers, States and state agencies are the
parties actually responsible for deciding where employee
wages go—so they have a responsibility to ensure the
money gets to the right place. Yet disagreement over how
to apply Janus’s clear and compelling evidence standard
to inventive dues agreements has placed States with
public-employee unions in the middle of a never-ending
fight.
A. After Janus, unions have employed a number of
measures to try to preserve their “extraordinary state
entitlement to acquire and spend other people’s money.”
Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 187 (2007)
(emphases in original).
Perhaps most commonly, many unions have drafted
maintenance-of-dues provisions that require one-time
union members to continue paying union dues for a fixed
period—even if the members later attempt to resign.
Under these provisions, those employees are effectively
compelled to remain members in everything but name, at
5
least temporarily. After all, “the obligation to pay dues to
a union is the practical equivalent of requiring union
membership.”
United Auto., Aerospace & Agric.
Implement Workers of Am. Loc. 3047 v. Hardin Cnty., 842
F.3d 407, 421 (6th Cir. 2016). Janus and other authorities,
however, are clear that this kind of involuntary
involvement is wrong. See, e.g., Pattern Makers’ League
of N. Am., AFL-CIO v. NLRB, 473 U.S. 95, 107 (1985)
(“Congress in 1947 sought to eliminate completely any
requirement that the employee maintain full union
membership.”); Janus v. Am. Fed’n of State, Cnty. &
Mun. Emps., Council 31; AFL-CIO, 942 F.3d 352, 358 (7th
Cir. 2019) (explaining that this Court held in Janus that
“the state may not force a person to pay fees to a union
with which she does not wish to associate”).
Another common tack is to create dues authorizations
that contain only narrow windows for former members to
opt out. See Brian A. Powers & Andrew Kelser, DuesCheckoff Dreams Do Come True, They Do, They Do, 29
ABA J. Lab. & Emp. L. 299, 303 & n.32 (2014). In this
very case, for example, Alaska public employees were
given only ten days per year in which they could revoke
their authorization to deduct union dues. If they missed
the window, their “irrevocable” authorizations would
renew automatically, year after year. See Pet. App. 16.
And this case is no outlier. See, e.g., Ohlendorf v. United
Food & Com. Workers Int’l Union, 883 F.3d 636, 639 (6th
Cir. 2018) (15-day window); Stewart v. NLRB, 851 F.3d 21,
25 (D.C. Cir. 2017) (same); Williams v. NLRB, 105 F.3d
787, 789 (2d Cir. 1996) (10-day window). These time limits
are sometimes paired with other rigid requirements—
spelled out in the finest of print—such as a requirement
that the employee provide written notice by certified mail.
See, e.g., Ohlendorf, 883 F.3d at 639. In a real sense, then,
many resigning members are not “free to leave the union”
6
and “escape” its reach. Scofield v. NLRB, 394 U.S. 423,
430 (1969).
What’s more, these provisions are habitually written in
confusing ways that might befuddle even a seasoned labor
lawyer. For example, a maintenance-of-dues provision’s
length can often be tied to the length of the relevant
collective-bargaining agreement—as is the case here. See
Pet. App. 16. But frequently it is not obvious to an
individual employee when the applicable collectivebargaining agreement will expire. The authorizations
themselves can be no help, as they frequently omit definite
dates. See, e.g., Pet. App. 6, 27. Sometimes a union will
negotiate a separate “union security agreement” that
could further extend an individual employee’s obligations
in ways that may not be obvious at signing. See, e.g.,
Taylor Sch. Dist. v. Rhatigan, 900 N.W.2d 699, 708 (Mich.
Ct. App. 2016) (discussing a ten-year union security
agreement). And in the usual case, the act of resigning
union membership and the act of revoking a dues
authorization are treated as separate acts, so employees
who “resign” with the intent to free themselves from all
ties with the union may instead remain on the hook for
union-related financial obligations for months or years to
come. See, e.g., Burse v. Pa. Lab. Rels. Bd., 425 A.2d 1182,
1186 (Pa. Commw. Ct. 1981). Still other times, employees
are never told that they have a First Amendment right to
decline membership, so they sign an agreement at the
outset with no understanding that they had a right to say
no. See, e.g., Allen v. Ohio Civ. Serv. Emps. Ass’n
AFSCME, Loc. 11, No. 2:19-cv-3709, 2020 WL 1322051, at
*10 (S.D. Ohio Mar. 20, 2020).
B. In the face of onerous provisions like these, it likely
comes as no surprise that dues-authorization agreements
have spurred round after round of litigation. And because
7
unions are not themselves parties to the authorizations,
see, e.g., Int’l Ass’n of Machinists Dist. Ten & Loc. Lodge
873 v. Allen, 904 F.3d 490, 492 (7th Cir. 2018), States
frequently end up being named as defendants in these
“expensive” dues-related disputes, Harris, 573 U.S. at
637.
Together, troublesome agreements and the
ambiguous state of the law have put States with publicsector unions in the middle of never-ending cycles of suits.
On the one hand, many employees have taken the plain
language of Janus to heart and sought to free themselves
from union dues by resigning union membership. When
unions then refuse to let public-sector employers stop
taking dues from those employee’s paychecks, the
employees sue—a lot. Just looking to the federal courts,
employees have filed dozens of cases since Janus asking
for employers and unions to respect their First
Amendment right to stop paying union dues. Many of
these cases have made their way to this Court—where the
Court has, to this point, denied certiorari. See, e.g.,
Troesch v. Chi. Tchrs. Union, Loc. 1, No. 20-1786, 2021
WL 5043587, at *1 (U.S. Nov. 1, 2021); Bennett v. Am.
Fed’n, No. 20-1603, 2021 WL 5043580, at *1 (U.S. Nov. 1,
2021); Belgau v. Inslee, 141 S. Ct. 2795 (2021). There looks
to be no end to these lawsuits in sight.
On the other hand, unions do not go quietly into the
night if States insist on clear and compelling proof of
employee consent to pay. No, “unions defend union
security with great intensity,” Matthew Dimick,
Productive Unionism, 4 U.C. Irvine L. Rev. 679, 705 n.147
(2014), and checkoffs have long been an especially
important form of union security, E.B. McNatt, Check-Off,
4 Lab. L.J. 123, 123 (1953). So unions have not been shy
about suing States that decline to respect old check-off
arrangements out of deference to Janus.
8
For example, when Alaska tried to implement a new
system requiring meaningful consent for union-dues
payments, one of the same Respondents from this case
sued and won almost $200,000 in damages and fees. See
Pet. App. 81. Any other State that tries to follow Alaska’s
lead could face similar threats based on allegations of
breach of contract (as to union-security agreements) or
unfair labor practices (for changing the terms of
employment unilaterally).
See also, e.g., Asociación
Puertorriqueña de Profesores Universitarios, Inc. v.
Estado Libre Asociado, No. SJ2018CV05688, 2019 WL
2185047 (P.R. Cir. Feb. 28, 2019) (discussing and
ultimately reversing a lower court’s injunction against a
Puerto Rican administrative action that attempted to
implement Janus’s consent requirement).
States cannot even remove themselves from the
process altogether without substantial difficulty. When
the West Virginia Legislature eliminated public-uniondues checkoff agreements earlier this year, unions quickly
sued and obtained a preliminary injunction against the
new law. See Order, W. Va. AFL-CIO v. Justice, No. 21P-156, 2021 WL 4806638, at *19 (W. Va. Cir. Ct. June 16,
2021). The Supreme Court of Appeals of West Virginia
was forced to intervene and reverse the injunction. See
generally Justice v. W. Va. AFL-CIO, No. 21-0559, 2021
WL 5446106 (W. Va. Nov. 22, 2021). Likewise, a federal
district court deemed a ban on public-employee payroll
deductions in Idaho unconstitutional—until this Court
stepped in and reversed. See generally Ysursa v.
Pocatello Educ. Ass’n, 555 U.S. 353 (2009); cf. Loc. Joint
Exec. Bd. of Las Vegas v. NLRB., 540 F.3d 1072, 1074 (9th
Cir. 2008) (describing a union’s challenge to an employer’s
effort to end dues-checkoffs). So even when a State
chooses to opt out from any role as intermediary between
9
unions and employees, it may well find itself facing a
lawsuit.
C. Without the Court’s intervention, the situation is
unlikely to improve any time soon.
Absent a clear standard for valid waivers of employees’
constitutional rights under circumstances like these,
unions will have room to experiment with any number of
methods to ensure that dues checkoffs continue for the
longest possible duration. Unions would be free, for
instance, to create ever-increasing barriers to
revocation—opt-out windows could shorten, renewal
periods could lengthen, and revocation methods could
become more logistically challenging. See Int’l Ass’n of
Machinists Dist. Ten & Loc. Lodge 873 v. Allen, 904 F.3d
490, 513 (7th Cir. 2018) (Manion, J., dissenting) (“It is in
the union’s interest to procure the maximum irrevocability
period allowed under the law, not to bargain for the best
interests of its members.”). These tactics are likely to
encourage even more litigation from objecting employees,
who might reasonably believe that they should be free of
the burden of union dues when they are no longer part of
the union. In short, leaving unresolved the question of
valid revocation of union dues agreements “seems
calculated to perpetuate give-it-a-try litigation.” See
Lehnert v. Ferris Fac. Ass’n, 500 U.S. 507, 551 (1991)
(Scalia, J., concurring in the judgment in part and
dissenting in part).
The concern that unions might be motivated to test the
limits is real. Unions have been known to press hard for
dues revenue in the past. One organization recounted, for
instance, how unions on the West Coast have used
frequent phone calls and other communications to place
undue pressure on employees to join or stay on as union
members. See Br. of the Freedom Found. as Amicus
10
Curiae in Supp. of Pet. at 19, Bennett v. AFL-CIO, No. 201603 (U.S. Aug. 26, 2021), 2021 WL 3884251, at *20. The
same organization catalogued many cases alleging that
union membership forms and authorizations were forged.
Id. at *21. Another organization described how, after
Michigan implemented a “right to work” law in 2012,
unions sent former members to collections agencies after
they tried to leave the union and stop paying dues. See
Br. of Amicus Curiae Mackinac Ctr. For Pub. Policy in
Supp. of Pet. at 41, Janus v. AFSCME, Council 31, 138 S.
Ct. 2448 (2018) (No. 16-1466), 2017 WL 6311774. In still
another example, unions successfully lobbied to pass a law
that gave them exclusive access to employee contact
information—in a calculated attempt to shut out groups
that sought to inform employees about their Janus rights.
See Boardman v. Inslee, 978 F.3d 1092, 1123-25 (9th Cir.
2020) (Bress, J., dissenting). And in yet another case, the
National Labor Relations Board found that a union “failed
time and again to respond to [employees’] requests [to
revoke their dues authorizations] or, if they did respond,
did so only after the employees’ window periods closed or
charges were filed.” Int’l Bhd. of Teamsters Loc. 385, 366
NLRB No. 96 (June 20, 2018).
Granting the Petition to reaffirm the “clear and
compelling evidence” standard for waiver would help put
an end to such gamesmanship—and with it, the neverending litigation that has too often drawn in the States.
II.
The Ninth Circuit’s View Conflicts With Many
Others’ Interpretations Of Janus.
Janus held that union dues cannot be taken without an
employee’s “affirmative[ ] consent,” which must
deliberately waive the employee’s First Amendment
rights. 138 S. Ct. at 2486. And the consent must be shown
11
through “clear and compelling evidence.” Id. The Ninth
Circuit, however, held that a mere dues authorization
form (including one executed before Janus) can bind an
employee even after that employee no longer supports the
union—in other words, employees are locked into
“join[ing] and support[ing] the union” until such time as
state contract law says they can be free. Pet. App. 17
(quoting Belgau v. Inslee, 975 F.3d 940, 950 (9th Cir.
2020)). No constitutional waiver analysis was applied,
much less any reference to “clear and compelling
evidence.”
Trouble is, the Ninth Circuit’s construction is not only
wrong, see infra Part III, but it conflicts with the
approaches of several States and at least one member of
the Federal Labor Relations Authority as they endeavor
to apply Janus properly and safeguard public employees’
rights.
The State of Alaska. In 2019, Alaska’s Attorney
General issued a legal opinion on the State’s union dues
deduction process after the Court’s decision in Janus. See
First Amendment Rights and Union Dues Deductions
and Fees, Att’y Gen. of Alaska, 2019 WL 4134284 (Alaska
A.G. Aug. 27, 2019). In examining Alaska’s then-in-place
payroll deduction practice, the Attorney General
concluded that “Janus require[d] a significant change to
the State’s current practice in order to protect state
employees’ First Amendment rights.”
Id. at *1.
Specifically, the opinion reasoned that the State must
conduct its “payroll deduction process for union dues and
fees to ensure that it does not deduct funds from an
employee’s paycheck unless it has ‘clear and compelling
evidence’ of the employee’s consent.” Id. at *2. The
opinion further explained that “forcing individuals to
subsidize the speech of any other private speaker,
12
including a union, burdens those individuals’ First
Amendment rights.” Id. Ultimately, the Attorney
General found that the State’s checkoff system did not
adequately ensure the existence of “clear and compelling
evidence” of each employee’s freely given consent. Id. at
*4.
In evaluating potential fixes, the opinion determined
consent “must be reasonably contemporaneous, free from
coercion, and accompanied by a clear explanation” of the
rights being waived. 2019 WL 4134284, at *5. In the
specific context of automatic payroll deductions of union
dues and fees, a valid waiver must include a demonstrated
awareness of the choice “to elect to retain one’s First
Amendment rights, or to financially support a union and
thereby affiliate with and promote a union’s speech and
platform.” Id. In that vein, Janus’s requirement of “clear
and compelling evidence” demands that employers
conduct “periodic inquir[ies] into whether a public
employee wishes to continue to waive” his or her rights.
Id. at *7.
The Attorney General concluded that the State’s
system did not satisfy these minimum requirements
because, by placing the onus to collect automatic payroll
deduction authorizations on unions, the State had not been
fulfilling its duty to ensure that waivers were “freely
given.” 2019 WL 4134284, at *7. Indeed, the opinion
emphasized the inherent risk that, as the collector and
beneficiary of these authorizations, unions may add terms
that render them irrevocable for significant periods—and
thus raise additional concerns about valid waiver. Id. at
*8.
In response to the Attorney General’s opinion,
Governor Dunleavy issued Administrative Order No. 312
for the express purpose of “establish[ing] a procedure that
13
ensures that the State of Alaska honors the First
Amendment free speech rights of state employees to
choose whether or not to pay union dues and fees through
payroll deduction.” Pet. App. 73. The decision below, of
course, thwarts that goal, and highlights the difficulty of
avoiding litigation even when the employer and employee
agree about the scope of fundamental speech rights.
The State of Texas. In 2020, the Attorney General of
Texas issued his own legal opinion explaining how Janus
applies to automatic public employee payroll deductions
for union fees. See Application of the United States
Supreme Court’s Janus Decision to Public Employee
Payroll Deductions for Employee Organization
Membership Fees and Dues, Att’y Gen. of Tex., Op. No.
KP-0310, 2020 WL 7237859 (Tex. A.G. May 31, 2020). The
Texas opinion acknowledged Janus’s requirement that a
valid payroll deduction for union dues or fees can only
occur where the employee has voluntarily waived his or
her First Amendment rights, as shown by “clear and
compelling evidence.” Id. at *1. At a minimum, Janus
requires public employers to ensure that employee
consent to automatic payroll deductions remains
voluntarily given. Id. at *3.
The State of Michigan. The Michigan Civil Service
Commission quickly followed suit. Days after the Texas
opinion, the Commission proposed amendments to its own
rules requiring that employees have notice of their rights
and intentionally reauthorize dues deductions each year.
See State of Michigan Civil Service Commission,
Proposed Amendments to Rule 6-7, Dues and Service
Fees (June 5, 2020), available at https://www.michigan.
gov/documents/mdcs/SPDOC_20-06_693193_7.pdf.
In
explaining the amendments, the Commission observed
that “[o]ngoing deduction of fees based on old
14
authorizations is problematic.” Id. at 1. Among other
things, those authorizations were executed “when
employees were unaware of later developments in …
Janus” and “while [employees were] legally compelled to
pay either [an agency] fee or higher dues.” Id. The
proposed amendments became effective in Michigan later
in 2020.
The State of Indiana. Also in 2020, the Indiana
Attorney General issued a legal opinion adopting the same
interpretation of Janus. See Payroll Deductions for
Public Sector Employees, Att’y Gen. of Ind., Op. No. 20205, 2020 WL 4209604 (Ind. A.G. June 17, 2020). That
opinion reasoned that compliance with Janus required (1)
notice to employees of their First Amendment rights
advising “against compelled speech”; (2) a showing “by
clear and compelling evidence” of a voluntary waiver of
the employee’s First Amendment rights coupled with
consent to an automatic payroll deduction of union dues or
fees; and (3) an annual renewal of any waiver. Id. at *1.
More generally, this is not the first time the States
have asked the Court to intervene to clarify how Janus
applies in this important context. See Amicus Br. of State
of Alaska, et al., Troesch v. Chic. Tchrs Union, Loc. 1, No.
20-1786 (S. Ct. Jul. 23, 2021), 2021 WL 3262119 (signed by
sixteen States); Amicus Br. of State of Alaska, et al.,
Belgau v. Inslee, 975 F.3d 940 (2020) (No. 20-1120), 2021
WL 1089791 (signed by thirteen States). Those briefs
urge the Court to solidify the rule that a stale dues
authorization—especially one signed before Janus—
cannot be “clear and compelling evidence” of a waiver of
fundamental constitutional rights. The schism between
the Ninth Circuit’s contract-focused approach to Janus
and the States’ waiver-focused approach is another reason
why this Court should grant the Petition.
15
The Federal Labor Relations Authority. Finally,
there is at least some confusion on the federal level as well.
The Federal Labor Relations Authority (“FLRA”) was
also asked to provide guidance on Janus and the First
Amendment rights that automatic payroll deduction for
federal employees. See Decision on Request for General
Statement of Policy or Guidance, Off. of Pers. Mgmt., 71
F.L.R.A. 571 (Feb. 14, 2020). While the FLRA addressed
only the issue of revocation of dues assignments, member
James Abbott authored a more expansive concurrence.
See id. at 574-75. He explained that “the constitutional
principles clarified in Janus have general applicability to
agencies and labor organizations in the area of federal
employees’ requests to revoke union dues assignments.”
Id. at 574. Indeed, the “theme of Janus is that an
employee has the right to support, or to stop supporting,
the union by paying, or to stop paying, dues.” Id. Member
Abbott therefore concluded that Janus “indicates that
[when] the employee wishes to revoke an earlier-elected
dues withholding, that employee’s consent no longer can
be considered to be ‘freely given’ and the earlier election
can no longer serve as a waiver of the employee’s First
Amendment rights.” Id. at 575.
The decision below gives short shrift to employees’
right to support a union—or not—at a time when many
States are working to give Janus’s holding full effect for
the benefit of their workers. The Court should intervene
to clarify that when dubious contractual waivers conflict
with speech and associational rights, the First
Amendment wins.
16
III.
The Ninth Circuit’s View Conflicts With Janus
And Other Decisions Of This Court Addressing
Waivers Of Constitutional Rights.
The Ninth Circuit’s decision holds that former union
members may be bound to continue paying union dues
even if they object to further payments and signed dues
authorizations without understanding the constitutional
rights at stake and with no other evidence of voluntary and
genuine waiver. This result contravenes this Court’s
holdings on constitutional waiver and Janus itself, which
recognized the right of a non-member to refuse to
subsidize union speech. Janus, 138 S. Ct. at 2486
(recognizing that waiver principles apply to “any …
payment … deducted from a nonmember’s wages”).
A waiver is an “intentional relinquishment or
abandonment of a known right or privilege.” Johnson v.
Zerbst, 304 U.S. 458, 464 (1938). Given the importance of
constitutional rights, waiver must be freely given—that is,
voluntary, knowing, and intelligently made. See D.H.
Overmyer Co. v. Frick Co., 405 U.S. 174, 185-86 (1972). To
meet that standard, the waiver must be “done with
sufficient awareness of the relevant circumstances and
likely consequences.” Brady v. United States, 397 U.S.
742, 748 (1970).
“Constructive consent” is not enough to show waiver of
a constitutional right. Edelman v. Jordan, 415 U.S. 651,
673 (1974). Nor will the Court “presume acquiescence in
the loss of fundamental rights.” Ohio Bell Tel. Co. v. Pub.
Utils. Comm’n, 301 U.S. 292, 307 (1937). To the contrary,
“[c]ourts indulge every reasonable presumption against
waiver of fundamental constitutional rights.”
Coll.
Savings Bank v. Fla. Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 682 (1999) (cleaned up;
emphasis added).
17
There is thus nothing new about Janus’s insistence
that waiver must be shown by “clear and compelling
evidence.” 138 S. Ct. at 2484. Contractual language does
not operate as a waiver if it fails to “clear[ly]” call out the
nature of the right at stake. See Fuentes v. Shevin, 407
U.S. 67, 95 (1972) (holding that a contract did not waive a
party’s right to a hearing where the contract did not
address the prospect of a hearing); accord J. Endres v. Ne.
Ohio Med. Univ., 938 F.3d 281, 300 (6th Cir. 2019)
(“[P]arties may agree by contract to waive their
constitutional rights, … [but] [s]uch contracts, … require
‘clear and unmistakable language.’”); Democratic Nat’l
Comm. v. Republican Nat’l Comm., 673 F.3d 192, 205 (3d
Cir. 2012) (“[C]onstitutional rights ... may be contractually
waived where the facts and circumstances surrounding
the waiver make it clear that the party foregoing its rights
has done so of its own volition, with full understanding of
the consequences of its waiver.”).
The pre-Janus dues authorizations that the Ninth
Circuit and other lower courts endorse do not satisfy this
standard. Most obviously, public employees could not
have knowingly and intelligently signed up for dues
checkoffs before Janus because Janus was what made
clear they had a First Amendment right to reject paying
agency fees at all. See Curtis Pub. Co. v. Butts, 388 U.S.
130, 145 (1967) (“We would not hold that Curtis waived a
‘known right’ before it was aware of the New York Times
decision.”).
Unsurprisingly, none of the dues
authorizations at issue here expressly referenced the
constitutional right to abstain from payment.
Voluntariness was also impossible before Janus, as
employees were typically bound to pay something to a
public-sector union—either union dues or agency fees. Cf.
NLRB v. Penn Cork & Closures, Inc., 376 F.2d 52, 56 (2d
Cir. 1967) (Friendly, J.) (recognizing that “a union
18
security clause would be the procuring cause of checkoff
authorizations for a substantial number of employees”).
Nor is there any other suggestion that the employees in
this case were informed of their rights at the time of
signing.
Now that Janus has given them a full
understanding of the “relevant circumstances and likely
consequences” of waiver, these same employees want out.
Brady, 397 U.S. at 748.
Because the dues authorization contracts at issue here
do not provide “clear and compelling” evidence of a true
waiver, employees subject to them must be allowed to
withdraw. That result should have been even more
obvious under the circumstances here: The employees’
once-upon-a-time status as union members is irrelevant
because they were non-union members when they first
signed the authorizations, and they are non-union
members now. See Pet. 9-10. It is highly unlikely nonmembers would have voluntarily chosen to pay agency
fees—at a minimum, there is no evidence to the contrary
here. To hold them to agreements about the method of
collecting fees signed at a time when they could not refuse
to pay makes Janus’s promise a lie.
Decisions like this one thus show insufficient respect
for employees’ First Amendment interests. Indeed, the
Ninth Circuit has seemed to subordinate the interest in
freedom from compelled speech (which drove Janus) to
the separate interest in freedom from compelled
association. Contra Knox v. Serv. Emps. Int’l Union, Loc.
1000, 567 U.S. 298, 309 (2012) (recognizing that “compelled
speech and compelled association” are “closely related” to
“compelled funding,” but nevertheless treating them as
distinct). In a prior dues case, the Ninth Circuit saw no
cause for concern because “employees who do not want to
be part of the union … can resign their union membership
19
after joining … subject to a limited payment commitment
period.” Belgau, 975 F.3d at 952. Yet even if freedom
from compelled association were the sole concern, it would
hardly make sense to condition the exercise of that right
on the payment of an involuntary sum—what the law often
calls a fine. And were the Ninth Circuit correct that the
financial imposition is “limited,” that temporal limit would
not solve the problem, either: “[E]ven temporarily,”
unions “cannot be allowed to commit dissenters’ funds to
improper uses.” Knox, 567 U.S. at 321 (emphasis added).
Cohen v. Cowles Media Co., 501 U.S. 663 (1991), a case
factoring heavily in the Ninth Circuit’s and other courts’
rejections of former members’ claims, does not erase
Janus rights. There, the Court held that two newspapers
could be sued on a promissory-estoppel theory after they
broke a promise to keep the identity of a source
confidential. Id. at 665-66. The Court reasoned that
“generally applicable laws do not offend the First
Amendment simply because their enforcement against the
press has incidental effects on its ability to gather and
report the news.” Id. at 669. In further explaining why
the state law at issue was generally applicable, the Court
observed that “any restrictions” imposed on the First
Amendment right at issue—that is, the right to publish
“truthful information”—were “self-imposed” by the
choice to promise confidentiality. Id. at 671.
Cohen’s passing comment about “self-imposed”
obligations cannot support a new rule in an entirely
different context that the mere invocation of a contract
excepts a case from the rules of constitutional waiver.
Perhaps more importantly, nothing about the underlying
right in Cohen changed between the time the promise was
made and when the suit was brought. In contrast, here,
employees’ understanding of the nature of the underlying
20
right has substantially changed, such that the initial
agreement cannot be deemed “knowing” in a post-Janus
world. Cohen’s confidentiality agreement also involved
none of the coercive elements in the dues authorizations
here. In short, Cohen is beside the point.
The Court should thus grant the Petition and bring the
conflicting body of union-dues cases in line with the many
other cases holding that constitutional waiver requires
more—contract or no contract.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
PATRICK MORRISEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
lindsay.s.see@wvago.gov
(304) 558-2021
LINDSAY S. SEE
Solicitor General
Counsel of Record
MICHAEL R. WILLIAMS*
Special Counsel
VIRGINIA M. PAYNE
Assistant Solicitor
General/Deputy
Attorney General
*admitted in the District of
Columbia, Michigan, and
Virginia; practicing under
supervision of West
Virginia attorneys
Counsel for Amicus Curiae State of West Virginia
21
ADDITIONAL COUNSEL
STEVE MARSHALL
Attorney General
State of Alabama
DOUGLAS J. PETERSON
Attorney General
State of Nebraska
LESLIE RUTLEDGE
Attorney General
State of Arkansas
John M. Formella
Attorney General
State of New Hampshire
LAWRENCE WASDEN
Attorney General
State of Idaho
ALAN WILSON
Attorney General
State of South Carolina
THEODORE E. ROKITA
Attorney General
State of Indiana
JASON RAVNSBORG
Attorney General
State of South Dakota
DEREK SCHMIDT
Attorney General
State of Kansas
HERBERT SLATERY III
Attorney General
State of Tennessee
JEFF LANDRY
Attorney General
State of Louisiana
KEN PAXTON
Attorney General
State of Texas
AUSTIN KNUDSEN
Attorney General
State of Montana
SEAN D. REYES
Attorney General
State of Utah
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.