Amicus Curiae Brief — Jonathan Savas, et al., Petitioners v. California Statewide Law Enforcement Association, et al.

No. 22-212

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------JONATHAN SAVAS, et al.,

Petitioners,

v.

CALIFORNIA STATEWIDE LAW

ENFORCEMENT AGENCY, et al.,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The Ninth Circuit Court Of Appeals

---------------------------------♦--------------------------------BRIEF AMICUS CURIAE OF GOLDWATER

INSTITUTE IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------TIMOTHY SANDEFUR*

SCHARF-NORTON CENTER FOR

CONSTITUTIONAL LITIGATION

AT THE GOLDWATER INSTITUTE

500 E. Coronado Rd.

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

*Counsel of Record

Counsel for Amicus Curiae Goldwater Institute

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

The Court in Janus v. AFSCME, 138 S. Ct. 2448,

2486 (2018), held it violates the First Amendment for

a state and union to compel employees to subsidize

union speech. Notwithstanding Janus, the State of

California continues to compel objecting employees to

subsidize union speech pursuant to “maintenance of

membership” agreements that require all employees

who are union members to remain union members, and

to pay full union dues, for the duration of the collective

bargaining agreement. Also notwithstanding Janus,

the United States Court of Appeals for the Ninth Circuit held a “maintenance of membership requirement

does not implicate the First Amendment.” Pet. App. 5.

The questions presented are:

1.

Does it violate the First Amendment for a

state and union to compel objecting employees to remain union members and to

subsidize the union and its speech?

2.

To constitutionally compel objecting employees to remain union members and to

subsidize the union and its speech, do

states and unions need clear and compelling evidence the objecting employees

waived their First Amendment rights?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

TABLE OF CONTENTS ......................................

ii

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

iii

IDENTITY AND INTEREST OF AMICUS CURIAE .................................................................

1

SUMMARY OF REASONS FOR GRANTING

THE PETITION ...............................................

2

REASONS FOR GRANTING THE PETITION .....

3

I.

II.

III.

The Court of Appeals mischaracterized the

right at stake .............................................

3

The Court’s refusal to apply Janus represents only the latest in the lower courts’

refusal to comply with that case’s requirements .........................................................

8

Proper analysis is unconstitutional conditions ........................................................... 14

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

iii

TABLE OF AUTHORITIES

Page

CASES

Agency for International Development v. Alliance for Open Society International, Inc., 570

U.S. 205 (2013) ........................................................14

Arizona Free Enterprise Club’s Freedom Club

PAC v. Bennett, 564 U.S. 721 (2011) .........................1

Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020),

cert. denied, 141 S. Ct. 2795 (2021) .................. 13, 14

Boudreaux v. Louisiana State Bar Ass’n, 3 F.4th

748 (5th Cir. 2021) .....................................................1

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001) ...............................13

Brown v. Li, 308 F.3d 939 (9th Cir. 2002).....................6

Coleman v. City of Mesa, 284 P.3d 863 (Ariz.

2012) ..........................................................................2

Crowe v. Oregon State Bar, 989 F.3d 714 (9th Cir.

2021) ..........................................................................1

Debont v. City of Poway, No. 98CV0502-K(LAB),

1998 WL 415844 (S.D. Cal. Apr. 14, 1998) ..............11

Fleck v. Wetch, 937 F.3d 1112 (8th Cir. 2019), cert.

denied, 140 S. Ct. 1294 (2020) ............................ 9, 10

Hatfield v. Board of County Commissioners of

Cotton County, No. CIV-20-937-J, 2021 WL

6201204 (W.D. Okla. Dec. 13, 2021) ..........................6

Janus v. AFSCME, 138 S. Ct. 2448 (2018) ......... passim

iv

TABLE OF AUTHORITIES—Continued

Page

Jarrett v. Marion Cnty., No. 6:20-cv-01049-MK,

2021 WL 65493 (D. Or. Jan. 6, 2021), appeal

docketed, No. 21-35133 (9th Cir. Feb. 19,

2021) ........................................................................13

Lake James Cmty. Volunteer Fire Dep’t, Inc. v.

Burke Cnty., N.C., 149 F.3d 277 (4th Cir.

1998) .................................................................. 12, 15

Loc. 58, Int’l Bhd. of Elec. Workers (IBEW), AFLCIO v. NLRB, 888 F.3d 1313 (D.C. Cir. 2018) .........11

Local 647, United Automobile Workers, 197

NLRB 608 (1972).....................................................11

Marlin Rockwell Corp. (Auto. Workers, Loc. 197)

(AFL-CIO), 114 NLRB 553 (1955) ..........................11

McCahon v. Pa. Tpk. Comm’n, 491 F. Supp.2d

522 (M.D. Pa. 2007) .................................................12

Minn. Voters All. v. Mansky, 138 S. Ct. 1876

(2018) .........................................................................2

NLRB v. Augusta Chem. Co., 187 F.2d 63 (5th

Cir. 1951) ...................................................................3

Pattern Makers’ League of N. Am., AFL-CIO v.

NLRB, 473 U.S. 95 (1985) .........................................3

Pollock v. Williams, 322 U.S. 4 (1944) ..........................5

Protect My Check, Inc. v. Dilger, 176 F. Supp.3d

685 (E.D. Ky. 2016) ....................................................2

Quezambra v. United Domestic Workers of Am.

AFSCME Local 3930, 445 F. Supp.3d 695

(C.D. Cal. 2020), appeal docketed, No. 2055643 (9th Cir. June 23, 2020) ................................13

v

TABLE OF AUTHORITIES—Continued

Page

Schell v. Chief Justice & Justices of the Oklahoma

Supreme Court, 11 F.4th 1178 (10th Cir.

2021) ..........................................................................1

Schiewe v. SEIU Loc. 503, No. 3:20-CV-00519JR, 2020 WL 5790389 (D. Or. Sept. 28, 2020) ........13

Scofield v. NLRB, 394 U.S. 423 (1969) .........................3

Semerjyan v. SEIU Loc. 2015, 489 F. Supp.3d

1048 (C.D. Cal. 2020), appeal dismissed,

No. 21-55104, 2021 WL 6881066 (9th Cir. Nov.

12, 2021) ..................................................................13

Shea v. International Association of Machinists

& Aerospace Workers, 154 F.3d 508 (5th Cir.

1998) ........................................................................11

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) ..........................................6

Wright v. SEIU Loc. 503, No. 20-35878, 2022 WL

4295626 (9th Cir. Sept. 19, 2022)............................13

Yates v. Wash. Fed’n of State Emps., 466

F. Supp.3d 1197 (W.D. Wash. 2020), appeal

docketed, Yates v. AFSCME Council 28, No.

20-35879 (9th Cir. Oct. 8, 2020) ..............................13

Zielinski v. SEIU Loc. 503, No. 20-36076, 2022

WL 4298160 (9th Cir. Sept. 19, 2022) .....................13

vi

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Heidi Marie Werntz, Waiver of Beck Rights

and Resignation Rights: Infusing the UnionMember Relationship with Individualized Commitment, 43 Cath. U. L. Rev. 159 (1993) ......... 4, 6, 15

James Gray Pope, Contract, Race, and Freedom

of Labor in the Constitutional Law of “Involuntary Servitude,” 119 Yale L.J. 1474 (2010) ...........5

1

IDENTITY AND INTEREST

OF AMICUS CURIAE1

The Goldwater Institute was established in 1988

as a nonpartisan public policy and research foundation

devoted to advancing the principles of limited government, individual freedom, and constitutional protections through litigation, research, policy briefings, and

advocacy. Through its Scharf-Norton Center for Constitutional Litigation, the Institute litigates cases, and

it files amicus briefs when it or its clients’ objectives

are directly implicated.

The Institute devotes substantial resources to defending the constitutional principles of free speech

and freedom of association. Specifically relevant here,

Institute litigators represent attorneys challenging a

mandatory association in several cases, including

Crowe v. Oregon State Bar, 989 F.3d 714 (9th Cir. 2021)

(reversing dismissal of First Amendment challenge to

mandatory bar association membership); Boudreaux v.

Louisiana State Bar Ass’n, 3 F.4th 748 (5th Cir. 2021),

and Schell v. Chief Justice & Justices of the Oklahoma

Supreme Court, 11 F.4th 1178 (10th Cir. 2021). The Institute has also litigated and won important victories

for other aspects of free speech, including Arizona Free

1

The parties have consented to the filing of this amicus brief.

Amicus curiae gave counsel of record for all parties notice of its

intention to file this brief at least ten days before the brief ’s due

date. Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae affirms that no counsel for any party authored this brief in

whole or in part and that no person or entity, other than amicus,

its members, or counsel, made a monetary contribution to the

preparation or submission of this brief.

2

Enterprise Club’s Freedom Club PAC v. Bennett, 564

U.S. 721 (2011) (matching-funds provision violated

First Amendment); Coleman v. City of Mesa, 284 P.3d

863 (Ariz. 2012) (First Amendment protects tattoos as

free speech); and Protect My Check, Inc. v. Dilger, 176

F. Supp.3d 685 (E.D. Ky. 2016) (scheme imposing different campaign contribution limits on different classes of donors violated Equal Protection Clause). The

Institute has appeared frequently as amicus curiae in

this Court and other courts in free-speech cases. See,

e.g., Janus v. AFSCME, 138 S. Ct. 2448 (2018); Minn.

Voters All. v. Mansky, 138 S. Ct. 1876 (2018).

---------------------------------♦---------------------------------

SUMMARY OF REASONS FOR

GRANTING THE PETITION

The Ninth Circuit refused to apply either Janus’s

voluntary waiver analysis or the unconstitutional conditions analysis to the contract at issue, on the ground

that the Petitioners “made the affirmative choice to

become members” of the union. Pet. App. 3. But the

question is not whether they signed the membership

agreement—the question is whether they affirmatively

consented to surrender their right to resign their

membership. Obscuring the right at stake here was

a fallacy central to the decision below, and it demands correction, given the degree to which lower

courts are failing to apply Janus faithfully. The Court

should grant certiorari to make clear that the affirmative consent requirement applies to all waivers of

3

constitutional rights, whether by those who are classified as union members or not.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

I.

The Court of Appeals mischaracterized the

right at stake.

The First Amendment right at issue here is the

right to disassociate. The right to resign from an organization as a way of expressing disapproval or disagreement, is an essential facet of one’s associational and

expressive rights. It is so essential, in fact, that even a

member of this Court has employed it.2 This Court has

often recognized the centrality of the right to resign

from a union. Scofield v. NLRB, 394 U.S. 423, 430

(1969); cf. Pattern Makers’ League of N. Am., AFL-CIO

v. NLRB, 473 U.S. 95, 105 (1985) (“the inconsistency

between union restrictions on the right to resign and

the policy of voluntary unionism [inherent in the

Wagner Act] supports the Board’s conclusion that

League Law 13 is invalid.”); NLRB v. Augusta Chem.

Co., 187 F.2d 63, 64 (5th Cir. 1951) (The Wagner Act’s

“avowed purpose was not to favor or promote unions as

such. It was to promote and protect the rights of individual employees to join or not to join unions and to

be free from coercion and interference either way.”). Yet

the court below gave short shrift to this right. Viewing

this case only through the lens of voluntary joining, it

2

Justice Benjamin Curtis, who resigned in protest over the

Dred Scott decision.

4

concluded that because the Petitioners were not compelled to join—a dubious proposition in itself, given

that they were forced to choose between joining and

paying unconstitutional agency fees—and were given

a one-month opportunity to quit in 2019, there was no

constitutional injury, Pet. App. 3, even though they

were deprived of the right to disassociate through a

collective bargaining agreement that postdated their

membership.

The right to resign is more important than the

right not to join in the first place. Being forced to associate with an organization is offensive enough, but it is

a one-time injury; being denied the right to disassociate if that organization commits an act one regards as

wrong is worse—because it stretches that associational and expressive injury into the indefinite future.

Being denied the right to quit therefore involves not

only associational rights but “the doctrine of unconscionability[ ] and the Thirteenth Amendment’s prohibition against involuntary servitude.” Heidi Marie

Werntz, Waiver of Beck Rights and Resignation Rights:

Infusing the Union-Member Relationship with Individualized Commitment, 43 Cath. U. L. Rev. 159, 174

(1993). The right of members or employees to resign

is also crucial to ensuring that the organization or

employer is responsible to the individuals concerned,

as opposed to enjoying a position of authoritarianism

from which it can dictate to those individuals.

Professor James Gray Pope has referred to a

worker’s right to quit as an inalienable right, “because

it provides workers with a necessary ‘defense against

5

oppressive hours, pay, working conditions, or treatment.’ Without it, there is no ‘power below’ or ‘incentive

above’ to curb domination or to promote wholesome

conditions.” Contract, Race, and Freedom of Labor in

the Constitutional Law of “Involuntary Servitude,” 119

Yale L.J. 1474, 1490–91 (2010). Pope’s scholarship focuses on the “involuntary servitude” prohibition of the

Thirteenth Amendment, but his findings are relevant

here because he seeks to balance the right to quit with

the person’s power to make a contract promising not to

quit.

As Pope explains, people must have the ability to

make binding promises not to quit, or their freedom of

contract would be rendered largely worthless. Id. at

1480–81. Yet there must be some boundaries on even

self-imposed limitations of the right to resign, since it

is an inherently unwaivable part of a person’s natural

liberty. In balancing these two concerns, Pope argues

that courts should follow the rule suggested by Pollock

v. Williams, 322 U.S. 4 (1944), and hold that an employee’s right to quit “should be protected if it is necessary to provide workers with the ‘power below’ and

employers the ‘incentive above’ to prevent ‘a harsh

overlordship or unwholesome conditions of work.’ ”

Pope, supra, at 1566 (quoting Pollock, 322 U.S. at 18).

The same should apply to union membership. Restrictions on the right to quit a union must be enforced

to the degree necessary to prevent “overlordship” on

the part of union bosses.

This is not just a matter of organizational management, but of expression as well. The right to resign

6

is a form of dissent, no less than the right to refuse to

salute the flag in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), or the right to refuse to endorse statements one disagrees with, Brown

v. Li, 308 F.3d 939, 952 (9th Cir. 2002), or the right not

to disclose one’s political views, Hatfield v. Board of

County Commissioners of Cotton County, No. CIV-20937-J, 2021 WL 6201204, at *2 (W.D. Okla. Dec. 13,

2021).

Werntz, supra, at 220–25, argues that a waiver of

the right to resign also risks unconscionability unless

it includes a specified duration, in addition to the clear

notice Janus already requires. Although her discussion

was limited to private sector unions rather than the

public-sector unions at issue here and in Janus, her

argument is nonetheless instructive: a union must permit members to disassociate, or the membership agreement would be unconscionable. Id. at 223. The proper

balance, she wrote, required unions to “carefully tailor

contracts waiving resignation rights to accommodate

concepts of limited duration, independent consideration, and notice.” Id. The membership agreement here

would obviously fail that test, too—if the Ninth Circuit

had applied it, or any genuine analysis.

Yet as Janus recognized, special concern must apply when the union in question is a public sector union,

which represents government employees in labor negotiations against government agencies. For one thing,

a private sector union’s demands on management are

necessarily limited by market forces, because if the

demands are excessive, and result in prices that are

7

too high for consumers, both management and the union will suffer—but in the public sector, no such market discipline applies because the “consumer” is the

taxpayer, who is forced to pay, and who has no place at

the bargaining table between the government union

and the government employer. Also, every expenditure

by a government employer is a matter of public concern—whether it be for wages or changes in working

conditions—which is not the case in the private sector.

Cf. Janus, 138 S. Ct. at 2474–77. And public sector

employees rarely have the same range of options that

private sector employees do—police officers and firefighters are virtually always government employees

and are not able, as private-sector workers are, to seek

non-union alternatives, or a different union, if they disagree with the policies of a particular union.

These factors warrant greater judicial skepticism

toward representation agreements in public-sector union cases. A “maintenance of membership” agreement

in the public sector context runs an even greater risk

than did the agency fees at issue in Janus of reinforcing an in-government faction which can exploit its monopoly position to demand greater and greater shares

of public resources—with the taxpayer “consumers”

left out of the deal (except to pay the bills).

But the Ninth Circuit considered none of this. It

simply said that because the Petitioners signed membership agreements—at a time before Janus, when, as

the panel admitted, they could only choose between

membership and having to pay illegal agency fees—

their challenge to the “maintenance of membership”

8

provision could not be heard, regardless even of the

fact that that provision postdates the membership

agreement and therefore could not have been affirmatively consented to by the Petitioners. That was plainly

incorrect and warrants reversal.

II.

The Court’s refusal to apply Janus represents

only the latest in the lower courts’ refusal to

comply with that case’s requirements.

Certainly the right to resign, like any other First

Amendment right, can be voluntarily surrendered by

contract to some degree in appropriate circumstances.

But Janus made clear that the state bears the burden

of proving, by clear and convincing evidence, that a person has knowingly agreed to such a surrender. 138

S. Ct. at 2486.

Here, the Ninth Circuit refused to apply that test

on the grounds that Janus concerned people who were

not union members, whereas this case involves people

who did join the union—albeit before the Janus decision. Pet. App. 3. Consequently, it simply asserted that

Petitioners waived their right to quit. This is plainly

inadequate. Janus’s analysis was not limited to people

who are non-members. On the contrary, it was premised on longstanding First Amendment rules whereby

courts refuse to presume a waiver of First Amendment

rights by anyone, and instead place the burden on the

government to prove such a waiver. Nothing in Janus

suggests that such constitutional protections are inapplicable to union members.

9

In fact, limiting Janus in that way makes no logical sense. Janus was concerned not only with compulsory payment to the union by non-members, but also

with “allowing the government to . . . require all employees to support the union irrespective of whether

they share its views,” 138 S. Ct. at 2478 (emphasis

added)—a concern not confined to just non-members.

The illogicality of confining Janus to non-members

was made clear by Fleck v. Wetch, 937 F.3d 1112 (8th

Cir. 2019), cert. denied, 140 S. Ct. 1294 (2020), in which

the Eighth Circuit said that Janus and other cases protecting the free speech rights of workers “have involved ‘agency shop’ relationships . . . in which

employees may be non-members,” rather than “ ‘union

shop’ [situations in which] every employee must be a

union member.” Id. at 1118. This Court, Fleck said,

has never decided whether a public-sector

union shop would violate employees’ First

Amendment associational rights. If the Court

upheld a mandatory membership requirement . . . [w]e have little doubt the Court

would impose a requirement that the union

adopt procedures “carefully tailored to minimize the infringement” of a dissenting

member’s First Amendment rights. . . . But

because of the practical differences when an

organization deals with members and nonmembers, we do not assume that the “Hudson

notice” requirements would be the same in

every detail.

Id. (emphasis added, citation omitted). This is irrational, because for government to force people to join a

10

union is more constitutionally objectionable than to

mandate an agency shop relationship, not less—because it combines a speech and associational injury,

whereas a compulsory agency shop relationship at

least allows the individual some means of disassociation.

Also, even if it were the case that Janus’s language

regarding payment is only applicable to non-members,

it cannot be true that its affirmative consent requirement is applicable only to people whose names do not

appear on membership agreements. If membership itself is a waiver of constitutional rights, then it is illogical to say that only those who refuse to sign can invoke

the Janus requirement that the state produce clear

and compelling evidence of voluntary waiver. Obviously the protections provided by that test are most

needed by those who (are alleged to) have signed.

The panel here, however, like the panel in Fleck,

effectively reduced the constitutional protection for

workers who are forced, or constructively forced, to join

unions. Under the reasoning adopted below, signing a

union membership agreement can become a one-time

thing, eliminating a person’s right to change her mind

afterward and even characterizing her as having “consented” to agreements formed only after she signed.

Restricting Janus’s requirement of clear and compelling evidence to cases of non-members makes the

Janus decision easy to evade, by the simple expedient

of making it prohibitively difficult to quit the union.

Unions have engaged in such tactics for generations.

11

In Shea v. International Association of Machinists &

Aerospace Workers, 154 F.3d 508 (5th Cir. 1998), for example, the union established a procedure for workers

to object to being compelled to join: employees were required to submit a written notice within a thirty-day

window during each year of employment; the union

also changed its address without notifying would-be

objectors, and then treated any objections sent to the

wrong address as untimely and void. Id. at 510–11.

The court of appeals rightly characterized this “unduly

cumbersome annual objection requirement” as an intentional effort “to prevent employees from exercising

their constitutionally-based right of objection” and to

continue “collecting full dues from nonmembers who

would not willingly pay.” Id. at 515. In Local 647,

United Automobile Workers, 197 NLRB 608, 609 (1972),

the union gave members a ten-day window in which

they could resign—and that ten-day period was carefully timed to coincide with the Christmas holiday:

only resignations presented between December 22 and

31 would be accepted. Id. at 609. And these were then

subjected to a sixty-day “waiting period,” so that resignations only became valid in March. Id. The NLRB

said this “amount[ed], in effect, to a denial to members

of a voluntary method of severing their relationship

with the Union.” Id. Accord, Marlin Rockwell Corp.

(Auto. Workers, Loc. 197) (AFL-CIO), 114 NLRB 553,

589 (1955) (same arrangement). See also Loc. 58, Int’l

Bhd. of Elec. Workers (IBEW), AFL-CIO v. NLRB, 888

F.3d 1313, 1317 (D.C. Cir. 2018) (union required members to resign in person and show picture identification

to do so); Debont v. City of Poway, No. 98CV0502-

12

K(LAB), 1998 WL 415844, at *2 (S.D. Cal. Apr. 14,

1998) (collective bargaining agreement that “required

[plaintiff ] to remain a member of the union for an extended period of time merely because at some point in

the past, he chose to join the union” was unconstitutional); McCahon v. Pa. Tpk. Comm’n, 491 F. Supp.2d

522, 527 (M.D. Pa. 2007) (where the contract “lock[ed]

plaintiffs into union membership for the duration,” so

that “the only way plaintiffs can resign from the union

is to leave their employment,” the result was “a direct

and deleterious impact on plaintiffs’ rights under the

First Amendment.”).

The logic of the decision below would go even further: presumably, if the contract had made these Petitioners lifetime members, or if the union were to

declare them tomorrow to be lifetime members, the

Ninth Circuit would have held that they can never resign, because they signed a membership agreement

that incorporates whatever restrictions on the right to

resign the union sees fit to impose on them. That would

obviously be legally erroneous—because the proper focus is on whether the individual voluntarily, affirmatively, and knowingly agreed to surrender the right to

resign or the right to refuse payment. Cf. Lake James

Cmty. Volunteer Fire Dep’t, Inc. v. Burke Cnty., N.C., 149

F.3d 277, 280 (4th Cir. 1998) (“The contractual waiver

of a constitutional right must be a knowing waiver,

must be voluntarily given, and must not undermine

the relevant public interest in order to be enforceable.”).

13

Amazingly, lower courts’ refusals to address concerns like these in the wake of Janus has even enabled

unions to continue extracting funding from employees

whose signatures on union membership documents

were forged. In many post-Janus cases,3 plaintiffs have

argued that their signatures on union membership

forms were falsified, but courts have dismissed these

claims, largely relying on Belgau v. Inslee, 975 F.3d 940

(9th Cir. 2020), cert. denied, 141 S. Ct. 2795 (2021),

which said that such forgery does not qualify as state

action and is therefore exempt from Janus—with the

result that the individuals involved have no remedy

for the state-enforced seizure of their earnings to

subsidize the unions in question. This conclusion was

obviously fallacious because the taking of the employees’ moneys was accomplished solely through state

action, and the relationship between the unions and

the states in those cases was plainly one of “pervasive

entwinement.” Brentwood Acad. v. Tenn. Secondary

3

See, e.g., Zielinski v. SEIU Loc. 503, No. 20-36076, 2022 WL

4298160 (9th Cir. Sept. 19, 2022); Jarrett v. Marion Cnty., No.

6:20-cv-01049-MK, 2021 WL 65493 (D. Or. Jan. 6, 2021), appeal

docketed, No. 21-35133 (9th Cir. Feb. 19, 2021); Schiewe v. SEIU

Loc. 503, No. 3:20-CV-00519-JR, 2020 WL 5790389 (D. Or. Sept.

28, 2020); Wright v. SEIU Loc. 503, No. 20-35878, 2022 WL

4295626 (9th Cir. Sept. 19, 2022); Semerjyan v. SEIU Loc. 2015,

489 F. Supp.3d 1048 (C.D. Cal. 2020), appeal dismissed, No. 2155104, 2021 WL 6881066 (9th Cir. Nov. 12, 2021); Yates v. Wash.

Fed’n of State Emps., 466 F. Supp.3d 1197 (W.D. Wash. 2020),

appeal docketed, Yates v. AFSCME Council 28, No. 20-35879 (9th

Cir. Oct. 8, 2020); Quezambra v. United Domestic Workers of Am.

AFSCME Local 3930, 445 F. Supp.3d 695 (C.D. Cal. 2020), appeal

docketed, No. 20-55643 (9th Cir. June 23, 2020).

14

Sch. Athletic Ass’n, 531 U.S. 288, 298 (2001). Thus, as

Petitioners have said, Belgau should be overruled.

In any event, as Petitioners make clear, nothing in

this case suggests that they knowingly waived their

right to resign or agreed to the unreasonably narrow

resignation opportunity involved here. The membership documents they signed only said “there are limitations on the time period in which an employee can

withdraw,” Pet. at 15, and it was years later that the

restrictions at issue here were imposed via the collective bargaining agreement. Obviously, they could not

knowingly and affirmatively consent to a restriction on

their rights that was not even written until years after

the fact. Yet because the Court of Appeals simply refused to apply Janus, on the grounds that the Petitioners here are union members, the proper affirmativeconsent test was never applied to their claims. That

warrants reversal.

III. Proper analysis is unconstitutional conditions.

Even if Janus were not applicable here, the proper

analysis would be the unconstitutional conditions

test—and that, too, was simply ignored.

In Agency for International Development v. Alliance for Open Society International, Inc., 570 U.S. 205,

213–15 (2013), this Court characterized the test as

asking (1) whether the contractual conditions would

be unconstitutional if they were imposed on the parties directly through a statute or regulations and (2)

15

whether the conditions affect protected conduct outside the scope of the government program or benefit at

issue.

Here, the purported waiver of the right to resign

would easily fail that test. First, it would obviously

violate the First Amendment for the state to directly

deprive a person of the right to quit supporting a group

whose principles one disagrees with. Second, the restriction of that right here effectively bars the petitioners from withdrawing from the union for any reason,

and thus it applies far beyond whatever narrow limits

might be justified by the needs of labor peace.

Another version of the unconstitutional conditions

test that specifically addresses waivers of First

Amendment rights balances “the condition that a

person give up his constitutional rights . . . against

the government’s interest in promoting the efficiency

of public services.” Lake James Cmty. Volunteer Fire

Dep’t, 149 F.3d at 282. But here, that balancing would,

again, turn in the Petitioners’ favor—if the court below

had attempted it. In Janus, there was no reason to believe that forcing non-members to pay agency fees was

the best-tailored means of accomplishing labor peace,

138 S. Ct. at 2465–66, and there is no evidence here

that barring the Petitioners from quitting the union is

essential to labor peace.

The union might argue that forbidding people

from disassociating themselves from it is important

to ensuring that it can bring an effective strike if

necessary, see Werntz, supra, at 171–72, but this is

16

essentially a “free rider” argument, and Janus made

clear that “avoiding free riders is not a compelling interest” sufficient to overcome First Amendment rights.

Id. at 2466. If it were, the Court asked, “[c]ould the government require that all seniors, veterans, or doctors

pay for that service even if they object?” Id. A similar

rhetorical question could be asked here: if preventing

resignation from the union is a constitutional means of

preventing free-riding or ensuring the efficiency of government operations, why not simply forbid members

from resigning at all? Or forbid them from resigning

for the first 25 years of employment? The answers to

these questions are obvious: such a burden would vastly

outweigh any legitimate government interest and unjustifiably curtail the expressive rights of workers. Yet

the court below failed to even ask these questions, or to

consider such balancing. That warrants certiorari.

---------------------------------♦---------------------------------

CONCLUSION

The petition should be granted.

Respectfully submitted,

TIMOTHY SANDEFUR*

SCHARF-NORTON CENTER FOR

CONSTITUTIONAL LITIGATION

AT THE GOLDWATER INSTITUTE

500 E. Coronado Rd.

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

*Counsel of Record

Counsel for Amicus Curiae Goldwater Institute