Amicus Curiae Brief — Alaska, et al., Petitioners v. Alaska State Employees Association/American Federation of State, County and Municipal Employees Local 52, AFL-CIO

No. 23-179

IN THE

Supreme Court of the United States

_________

STATE OF ALASKA, ET AL.,

Petitioners,

v.

ALASKA STATE EMPLOYEES ASSOCIATION / AMERICAN

FEDERATION OF STATE, COUNTY AND MUNICIPAL

EMPLOYEES LOCAL 52, AFL-CIO,

_________

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF ALASKA

_________

BRIEF OF AMICUS CURIAE NATIONAL RIGHT TO

WORK LEGAL DEFENSE FOUNDATION, INC. AND THE

FAIRNESS CENTER IN SUPPORT OF PETITIONERS

_________

NATHAN J. MCGRATH

WILLIAM L. MESSENGER

THE FAIRNESS CENTER

Counsel of Record

500 N. Third St., Ste. 600B

c/o NATIONAL RIGHT TO

Harrisburg, PA 17101

WORK LEGAL DEFENSE

(844) 293-1001

FOUNDATION, INC.

njmcgrath@fairnesscenter.org 8001 Braddock Rd.,

Ste. 600

Springfield, VA 22160

(703) 321-8510

wlm@nrtw.org

Counsel for Amici Curiae

September 29, 2023

QUESTION PRESENTED

Whether the First Amendment prohibits a state

from taking money from employees’ paychecks to subsidize union speech when the state lacks sufficient evidence that the employees knowingly and voluntarily

waived their First Amendment rights.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

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

INTEREST OF THE AMICI CURIAE ...................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 3

I.

Employees’ First Amendment Right to Stop

Subsidizing Union Speech Is Being Severely

Restricted in at Least Seventeen States.......... 3

II.

Lower Courts Are Allowing States to Restrict

Employees’ Rights under Janus, and to Seize

Union Payments from Nonmembers, Without

Proof the Employees Waived Their First

Amendment Rights ........................................... 8

A. Five Circuit Courts allow states and unions

to restrict when employees can stop paying

for union speech without requiring evidence

those employees waived their First Amendment rights ....................................................... 8

B. The Ninth Circuit has gutted Janus’ affirmative consent requirement................................ 12

III.

The Question Presented Is Exceptionally

Important ........................................................ 16

CONCLUSION .......................................................... 18

(ii)

TABLE OF AUTHORITIES

CASES

Page(s)

Allen v. Ohio Civ. Serv. Emps. Ass’n,

No. 2:19-cv-3709, 2020 WL 1322051

(S.D. Ohio Mar. 20, 2020) ........................................6

Belgau v. Inslee,

975 F.3d 940 (9th Cir. 2020) .............................. 9,16

Burns v. Sch. Serv. Emps. Union Loc. 284,

75 F. 4th 857 (8th Cir. 2023) ................................ 6,8

Coll. Sav. Bank v. Fla. Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666 (1999) .................9

Curtis Publ’g Co. v. Butts,

388 U.S. 130 (1967)....................................... 2,4,9,11

D.H. Overmyer Co. v. Frick Co.,

405 U.S. 174 (1972)..................................................9

Fuentes v. Shevin,

407 U.S. 67 (1972)....................................................9

Harris v. Quinn,

573 U.S. 616 (2014)..................................................1

Hendrickson v. AFSCME Council 18,

992 F.3d 950 (10th Cir. 2021) .............................. 6,9

Janus v. AFSCME, Council 31,

138 S. Ct. 2448 (2018).................................. 1-6,8-17

Johnson v. Zerbst,

304 U.S. 458 (1938)..................................................9

Knox v. SEIU Local 1000,

567 U.S. 298 (2012)............................................. 1,11

(iii)

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Moran v. Burbine,

475 U.S. 412 (1986)................................................ 10

Ochoa v. Pub. Consulting Grp., Inc.,

48 F. 4th 1102 (9th Cir. 2022) ............................... 16

Ramon Baro v. Lake Cnty. Fed’n of Tchrs. Loc. 504,

57 F.4th 582 (7th Cir. 2023) ............................... 8,10

Savas v. Cal. State Law Enf’t Agency,

No. 20-56045, 2022 WL 1262014

(9th Cir. Apr. 28, 2022)) ..................................... 7,12

Schiewe v. Serv. Emps. Int’l Union Loc. 503,

No. 20-35882, 2023 WL 4417279

(9th Cir. July 10, 2023).......................................... 14

Town of Newton v. Rumery,

480 U.S. 386 (1987)............................................. 9,10

Weyandt v. Pa. State Corr. Officers Ass’n,

No. 1:19-cv-1018, 2019 WL 5191103

(M.D. Pa. Oct. 15, 2019)...........................................6

Wheatley v. New York State United Tchrs,

- F.4th -- , No. 22-2743-CV, 2023 WL 5688399

(2d Cir. Sept. 5, 2023) ..............................................8

Wright v. Serv. Emps. Int’l Union Loc. 503,

48 F. 4th 1112 (9th Cir. 2022) ...................... 2,12-15

v

TABLE OF AUTHORITIES—Continued

Page(s)

Statutes

Federal Statutes

42 U.S.C. § 1983 .................................................... 14

State Statutes

Cal. Gov’t Code § 1157.12 .................................. 5,15

Cal. Gov’t Code § 3513(i) ......................................... 7

Cal. Gov’t Code § 3540.1(i)(1).................................. 7

Cal. Gov’t Code § 3583(a) ........................................ 7

Cal. Educ. Code § 45060.......................................... 5

Colo. Rev. Stat. § 24-50-1111(2).............................. 5

Conn. Publ. Act No. 21-25, §§ 1(a)(i–j) ................... 5

Del. Code Ann. tit. 19, § 1304 .............................. 5,6

Haw. Rev. Stat. Ann. § 89-4(c) ................................ 5

Ind. Code § 20-29-5-6(c)(3). ..................................... 4

5 Ill. Comp. Stat. § 315/6(f). ................................. 5,6

Mass. Gen. Laws ch.180 § 17A ............................... 5

Nev. Rev. Stat. § 288.505(1)(b) ............................... 5

N.J. Stat. Ann. § 52:14-15.9e .................................. 5

N.Y. Civ. Serv. Law § 208(1)(b) .............................. 5

Or. Rev. Stat. § 243.806 ..................................... 5,15

43 P.S. § 1101.301(8) ............................................... 7

Wash. Rev. Code § 41.80.100 ............................. 5,15

OTHER AUTHORITIES

A Bill for Establishing Religious Freedom, 2 Papers

of Thomas Jefferson 545 (J. Boyd ed. 1950) ......... 17

Affirming Lab. Rts. and Obligations in Pub. Workplaces, Cal. Att’y Gen. Op. (undated) .....................5

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Affirming Lab. Rts. and Obligations in Pub. Workplaces, Mass. Att’y Gen. Op. (undated) ..................5

Affirming Lab. Rts. and Obligations in Pub. Workplaces, Or. Att’y Gen. Op. (undated) ......................5

Affirming Lab. Rts. and Obligations in Pub. Workplaces, Wash. Att’y Gen. Op. (undated)..................5

Application of the U.S. Supreme Court’s Janus

Decision to Pub. Emp. Payroll Deductions for

Emp. Org. Membership Fees and Dues, Att’y

Gen. of Tex., Op. No. KP-0310, 2020 WL 7237859

(May 31, 2020) .........................................................4

Barry T. Hirsch & David A. Macpherson, Union

Membership and Coverage Database from the Current Population Survey: Note, 56 Indus. & Labor

Rels. Rev. (2003) .................................................... 16

First Amendment Rts. and Union Due Deductions

and Fees, Alaska Att’y Gen. Op. (Aug. 26, 2019) ...4

Guidance for Pub. Emps., N.Y. Dep’t of Lab. (undated) .......................................................................5

Guidance on the Rts. and Responsibilities of Pub.

Emps. Following Janus, Pa. Att’y. Gen. Op. (undated) .......................................................................5

Guidance Regarding Rts. and Duties of Pub. Emps.

after Janus, Ill. Att’y Gen. Op. (July 19, 2018) ......5

Guidance Regarding the Rts. and Duties of Pub.

Emps. After Janus, Conn. Att’y Gen. Op. (undated) .......................................................................5

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Guidance on the Rts. and Duties of Pub. Emps.

After Janus, Md. Att’y Gen. Op. (undated) ............5

La Fetra, Deborah J., Miranda for Janus: The

Government’s Obligation to Ensure Informed

Waiver of Constitutional Rights,

55 Loyola L.A. L. Rev. 405 (Spring 2022) ............. 11

Payroll Deductions for Pub. Sector Emps., Ind. Att’y

Gen. Op., 2020 WL 4209604 (June 17, 2020) .........4

Pub. Lab. Rts. and Obligations Following Janus,

Vt. Att’y Gen. Op. (undated) ...................................5

Pub. Sector Emps. After Janus, N.M. Att’y Gen. Op.

(undated)..................................................................5

INTEREST OF THE AMICI CURIAE1

Since 1968, the National Right to Work Legal Defense Foundation, Inc. has been the nation’s leading

advocate for employee freedom to choose whether to

associate with unions. To this end, Foundation staff

attorneys have represented individuals before the Supreme Court in several major cases involving individuals’ First Amendment rights to refrain from subsidizing unions and their expressive activities. They include Janus v. AFSCME, Council 31, 138 S. Ct. 2448

(2018); Harris v. Quinn, 573 U.S. 616 (2014); and Knox

v. SEIU, Local 1000, 567 U.S. 298 (2012).

The Fairness Center is a nonprofit, public interest

law firm that provides free legal services to those hurt

by public-sector union officials. The Fairness Center

has represented multiple clients who resigned their

union memberships only to have their public employer

force them to continue funding the speech and activities of the union. These union nonmembers objected to

supporting the union and had no say in how their

money was used, yet had dues seized from their

paychecks.

The Foundation and Fairness Center submit this

amicus brief to inform the Court that: (1) unions and

states are impeding employees’ ability to exercise

their First Amendment rights under Janus, and

(2) five Circuit Courts have sanctioned these impediments by reading Janus’ waiver requirement out of

1 Rule 37 statement: All parties received timely notice of the

Amici’s intent to file this brief. No party’s counsel authored any

part of the brief and no one other than the Foundation and the

Fairness Center funded its preparation or filing.

(1)

2

existence. Amici urge the Court to grant review to

make clear that it meant what it said in Janus: that,

to seize payments for union speech from nonmembers,

a “waiver must be freely given and shown by ‘clear and

compelling’ evidence.’” 138 S. Ct. at 2486 (quoting

Curtis Publ’g Co. v. Butts, 388 U.S. 130, 145 (1967)

(plurality opinion)).

SUMMARY OF ARGUMENT

The Court’s review is urgently needed because

states and unions are severely curtailing employees’

right to stop paying for union speech and the lower

courts are allowing states and unions to do so. The

laws of at least seventeen states require government

employers to enforce policies that prohibit employees

from stopping government deductions of union dues

except during short periods. Under Janus, these restrictions on when employees can exercise their First

Amendment right to stop paying for union speech

should be unconstitutional absent clear and compelling evidence the employees waived their speech

rights. See 138 S. Ct. at 2486.

Yet, five Circuit Courts have now held that states

and unions can constitutionally seize payments for

union speech from dissenting employees without proof

they waived their constitutional rights. See infra at 8.

In the Ninth Circuit, such payments can be seized

without any actual proof of employee consent at all.

According to the Ninth Circuit, it is constitutional for

a state to deduct union payments from employees’

wages based on unverified and false union assertions

that the employees consented to the deductions. See

Wright v. Serv. Emps. Int’l Union Loc. 503, 48 F.4th

1112, 1125 (9th Cir. 2022), cert. denied, 143 S. Ct. 749

3

(2023). Also according to the Ninth Circuit, it is constitutional for unions to collect these payments from

nonconsenting employees because unions are not

state actors subject to the First Amendment. Id. at

1123-24. The Ninth Circuit has effectively abrogated

Janus’ core holding: that “[n]either an agency fee nor

any other payment to the union may be deducted from

a nonmember’s wages, nor may any other attempt be

made to collect such a payment, unless the employee

affirmatively consents to pay.” 138 S. Ct. at 2486.

The Court should not allow the employee speech

rights it recognized in Janus to be hamstrung in these

ways. The Court should grant the petition to reestablish that it violates the First Amendment for states

and unions to seize payments for union speech from

employees, and to restrict employees’ right to stop

making those payments, unless there is clear and

compelling evidence the employees knowingly waived

their speech rights.

ARGUMENT

I.

Employees’ First Amendment Right to

Stop Subsidizing Union Speech Is Being

Severely Restricted in at Least Seventeen

States.

In 2018, the Court recognized in Janus that public

employees have a First Amendment right not to subsidize union speech. 138 S. Ct. at 2486. The Court held

it unconstitutional for states and unions to deduct or

collect union payments from a nonmember employee

“unless the employee affirmatively consents to pay.”

Id. This consent, in turn, requires proof the employee

waived his or her rights. Id. The Court explained that

“[b]y agreeing to pay, nonmembers are waiving their

4

First Amendment rights, and such a waiver cannot be

presumed.” Id. “Rather, to be effective, the waiver

must be freely given and shown by ‘clear and compelling’ evidence.” Id. (quoting Curtis Publ’g Co., 388 U.S.

at 145).

States reacted to Janus’ waiver holding in different ways. Some sought to comply with Janus. Attorneys General for Alaska, Texas, and Indiana issued

opinions advising that states must reform their payroll deduction procedures to ensure employees knowingly consented to union dues deductions.2 Indiana

later amended its payroll deduction statute to require,

among other things, that government dues deduction

forms include the statement that “I am aware that I

have a First Amendment right, as recognized by the

United States Supreme Court, to refrain from joining

and paying dues to a union (school employee organization).” Ind. Code § 20-29-5-6(c)(3) (as amended by

P.L. 98-2021, § 1, eff. Apr. 22, 2021).

Other states chose to disavow Janus’ waiver holding and to restrict the speech rights the Court recognized. Eleven states that filed briefs in Janus opposing its ultimate outcome issued strikingly similar

guidance declaring Janus inapplicable to government

2

See First Amendment Rts. and Union Due Deductions and

Fees, Alaska Att’y Gen. Op. (Aug. 26, 2019) (Pet.App. 133); Application of the U.S. Supreme Court’s Janus Decision to Pub.

Emp. Payroll Deductions for Emp. Org. Membership Fees and

Dues, Tex. Att’y Gen. Op., Op. No. KP-0310, 2020 WL 7237859

(Tex. A.G. May 31, 2020); Payroll Deductions for Pub. Sector

Emps., Ind. Att’y Gen. Op., Op. No. 2020-5, 2020 WL 4209604

(Ind. A.G. June 17, 2020).

5

deductions of union dues from employees who sign

dues deduction authorization forms.3

A dozen states amended their dues deduction laws

after Janus to require government employers to enforce restrictions on when employees can stop payroll

deductions of union dues. This includes California,

Colorado, Connecticut, Delaware, Hawaii, Illinois,

Massachusetts, Nevada, New Jersey, New York, Oregon, and Washington.4 In the wake of Janus, government employers in at least four other states—New

3 See Affirming Lab. Rts. and Obligations in Pub. Workplaces,

Cal. Att’y Gen. Op. (undated), rb.gy/wwetc5; Guidance Regarding

the Rts. And Duties of Pub. Emps. After Janus, Conn. Att’y Gen.

Op. (undated), rb.gy/qaw4ud; Guidance Regarding Rts. and Duties of Pub. Emps. after Janus, Ill. Att’y Gen. Op. (July 19, 2018),

rb.gy/cphkyj; Guidance on the Rts. and Duties of Pub. Emps. After Janus, Md. Att’y Gen. Op. (undated), rb.gy/v71fyp; Affirming

Labor Rts. and Obligations in Pub. Workplaces, Mass. Att’y Gen.

Op. (undated), rb.gy/guzdxw; Pub. Sector Emps. After Janus,

N.M. Att’y Gen. Op. (undated); Guidance for Pub. Emps., N.Y.

Dep’t of Lab. (undated), https://www.nyspffa.org/main/wp-content/uploads/2018/07/nys_dol_janus_guidance.pdf;

Affirming

Lab. Rts. and Obligations in Pub. Workplaces, Or. Att’y Gen. Op.

(undated), rb.gy/ovweir; Guidance on the Rts. and Responsibilities of Pub. Emps. Following Janus, Pa. Att’y. Gen. Op. (undated), rb.gy/mb5ade; Pub. Lab. Rts. and Obligations Following

Janus, Vt. Att’y Gen. Op. (undated), rb.gy/umfmzo; Affirming

Lab. Rts. and Obligations in Pub. Workplaces, Wash. Att’y Gen.

Op. (July 17, 2018), rb.gy/saakuh.

4 See Cal. Gov’t Code § 1157.12; Cal. Educ. Code §§ 45060; Colo.

Rev. Stat. § 24-50-1111(2); Conn. Publ. Act No. 21-25, §§ 1(a)(i–

j); Del. Code Ann. tit. 19, § 1304; Haw. Rev. Stat. Ann. § 89-4(c);

5 Ill. Comp. Stat. § 315/6(f); Mass. General Laws ch.180 § 17A;

Nev. Rev. Stat. § 288.505(1)(b); N.J. Stat. Ann. §52:14-15.9e; N.Y.

Civ. Serv. Law § 208(1)(b); Or. Rev. Stat. § 243.806(6); Wash.

Rev. Code § 41.80.100(d).

6

Mexico, Ohio, Minnesota, and Pennsylvania—have

enforced restrictions on stopping payroll deductions

under preexisting state laws.5 Alaska can be included

in that list if the Court does not review and reverse

the Alaska Supreme Court decision sub judice. This

brings the total count of states restricting employees’

rights under Janus to at least seventeen.

These restrictions typically prohibit employees

from stopping government deductions of union dues

except during ten or fifteen-day annual periods.6

Here, according to the Alaska Supreme Court, state

law requires the State of Alaska to enforce dues deduction authorizations that prohibit employees who

resign their membership in the Alaska State Employees Association (“ASEA”) from stopping State deductions of union dues except during an annual ten-day

period. Pet.App. 155, 157. The result is to prohibit

Alaska state employees from exercising their First

Amendment right to stop subsidizing ASEA’s speech

for 355 days of each year.

Some restrictions are even worse. California and

Pennsylvania authorize “maintenance of membership” requirements that compel employees who are or

5 See Burns v. Sch. Serv. Emps. Union Loc. 284, 75 F.4th 857,

860-61 (8th Cir. 2023)); Hendrickson v. AFSCME Council 18, 992

F.3d 950 (10th Cir. 2021), cert. denied, 142 S. Ct. 423 (2021); Allen v. Ohio Civ. Serv. Emps. Ass’n, No. 2:19-cv-3709, 2020 WL

1322051, at *2 (S.D. Ohio Mar. 20, 2020); Weyandt v. Pa. State

Corr. Officers Ass’ns, No. 1:19-cv-1018, 2019 WL 5191103, at *2

(M.D. Pa. Oct. 15, 2019).

6 See, e.g., 5 Ill. Comp. Stat. § 315/6(f) (authorizing ten-day period

for stopping dues deductions and “a period of irrevocability that

exceeds one year”); Del. Code Ann. tit. 19, § 1304 (authorizing

annual fifteen-day period for stopping payroll deductions).

7

become union members to remain dues-paying union

members for the duration of a collective bargaining

agreement and permit them to withdraw from the union only during a thirty-day or fifteen-day period before the expiration of that agreement. See Cal. Gov’t

Code §§ 3513(i), 3540.1(i)(1), 3583(a); 43 P.S.

§ 1101.301(18). Given that most collective bargaining

agreements last three years or more, maintenance of

membership policies prohibit employees from exercising their First Amendment right to stop subsidizing

union speech for several years. See Savas v. Cal. State

Law Enf’t Agency, No. 20-56045, 2022 WL 1262014, at

*2 (9th Cir. Apr. 28, 2022), cert. denied, 143 S. Ct. 2430

(2023) (holding it constitutional for California and a

union to prohibit employees from stopping state dues

deductions for four years).

These restrictions infringe on the First Amendment rights of dissenting employees who resign their

union membership and object to paying for union

speech. These nonmembers are compelled to continue

to pay for union speech against their will, by means of

government deductions of union dues from their

wages, unless and until they submit another objection

during a short revocation window. This compulsion is

indistinguishable from a state and union requiring

employees who resign their union membership to pay

agency fees to that union for a time period. If anything, it is worse because the dissenting nonmembers

are being forced to pay not reduced agency fees, but

full union dues that include union expenses for partisan political activities.

8

II.

Lower Courts Are Allowing States to

Restrict Employees’ Rights under Janus,

and to Seize Union Payments From Nonmembers, Without Proof the Employees

Waived Their First Amendment Rights.

A. Five Circuit Courts allow states and

unions to restrict when employees can

stop paying for union speech without

requiring evidence those employees

waived their First Amendment rights.

After Janus, it should be unconstitutional for

states and unions to seize payments from employees

who become nonmembers of a union absent clear and

compelling evidence the employees earlier waived

their First Amendment right to stop paying for union

speech. 138 S. Ct. at 2486. It also should be unconstitutional for states and unions to restrict when employees can exercise that First Amendment right absent

proof the employees knowingly waived it. Indeed, even

without Janus’ waiver holding, the latter proposition

should be common sense.

Yet, five Circuit Courts have now held that states

and unions do not need evidence of a waiver to seize

union payments from employees who resign their

membership and object to paying union dues. According to these lower courts, and contrary to Janus, these

seizures are constitutional if there is a contract that

authorizes the seizures. See Wheatley v. New York

State United Tchrs., -- F.4th --, No. 22-2743-CV, 2023

WL 5688399 at * 3 (2d Cir. Sept. 5, 2023); Burns v.

Sch. Serv. Emps. Union Loc. 284, 75 F.4th 857, 86061 (8th Cir. 2023); Ramon Baro v. Lake Cnty. Fed’n of

9

Tchrs. Loc. 504, 57 F.4th 582, 586 (7th Cir.), cert. denied, 143 S. Ct. 2614 (2023); Hendrickson v. AFSCME

Council 18, 992 F.3d 950 (10th Cir. 2021), cert. denied,

142 S. Ct. 423 (2021); Belgau v. Inslee, 975 F.3d 940,

950-52 (9th Cir. 2020), cert. denied, 141 S. Ct. 2795

(2021).

The lower courts’ decisions to substitute a lesser

contract standard for the waiver requirement this

Court set forth in Janus matters because a waiver

standard is more exacting. The Court explained in Janus that a “waiver must be freely given and shown by

‘clear and compelling’ evidence.” 138 S. Ct. at 2486

(quoting Curtis Publ’g, 388 U.S. at 145). The Court

then cited three precedents holding an effective

waiver requires proof of an “‘intentional relinquishment or abandonment of a known right or privilege.’”

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 527 U.S. 666, 682 (1999) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938); see Curtis

Publ’g, 388 U.S. at 143–45 (applying this standard to

an alleged waiver of First Amendment rights). The

Court has sometimes formulated these criteria as requiring that a waiver must be “voluntary, knowing,

and intelligently made.” D. H. Overmyer Co. v. Frick

Co., 405 U.S. 174, 185 (1972); see Fuentes v. Shevin,

407 U.S. 67, 94–95 (1972) (same). Along with these

criteria, public policy must support enforcing a purported waiver of a constitutional right. Town of Newton v. Rumery, 480 U.S. 386, 392 (1987).

A significant difference between a waiver standard

and contract standard is that a waiver of a constitutional right requires proof the person knew of that

right. A person can contractually agree to do some-

10

thing, like restrict when they can stop paying for union speech, without knowing they have a constitutional right not to do it. In contrast, to be enforceable,

a “waiver must have been made with a full awareness

of both the nature of the right being abandoned and

the consequences of the decision to abandon it.” Moran

v. Burbine, 475 U.S. 412, 421 (1986). Under a waiver

standard, states and unions could not restrict when

employees can exercise their First Amendment rights

under Janus without proving the employees were notified of their rights and intelligently chose to waive

them.7

Equally significant is that a purported waiver is unenforceable “if the interest in its enforcement is outweighed in the circumstances by a public policy

harmed by enforcement of the agreement.” Rumery,

480 U.S. at 392. The most common way states and unions frustrate employees’ right under Janus—prohibiting them from stopping government deductions of

union dues except during an annual ten- or fifteen-day

period—cannot satisfy this criterion.

7 Ramon Baro illustrates the point. The case concerned a teacher

who signed a dues deduction form at a mandatory union orientation without knowing she had constitutional right to not support

the union. 57 F.4th at 584-85. When the teacher learned of that

right a few days later and tried to exercise it, she was compelled

to continue to pay union dues until a revocation period set forth

in the form. Id. at 585. Applying contract principles, the Seventh

Circuit held the teacher’s lack of knowledge of her rights did not

render the restriction on her rights unenforceable. Id. at 586-87.

The outcome would have been different under a waiver standard.

The teacher not knowing of her constitutional right not to subsidize union speech would have proven that she did not knowingly

waive that right by signing the form.

11

The policy weighing against prohibiting employees

from exercising their rights under Janus for 350 or

355 days of each year is of the highest order: employees’ First Amendment right not to subsidize speech

they do not wish to support. See Janus, 138 S. Ct. at

2463–64. “[C]ompelled subsidization of private speech

seriously impinges on First Amendment rights” and

“cannot be casually allowed.” Id. at 2464. In Curtis

Publishing, the Court rejected an alleged waiver of

First Amendment freedoms, finding that “[w]here the

ultimate effect of sustaining a claim of waiver might

be an imposition on that valued freedom, we are unwilling to find waiver in circumstances which fall

short of being clear and compelling.” 388 U.S. at 145.

No sufficient countervailing interest exists. The

Court held in Knox that unions have no constitutional

entitlement to monies from dissenting employees. 567

U.S. at 313. Union financial self-interests in collecting

monies from dissenting employees do not outweigh

those employees’ First Amendment rights. Id. at 321.

The constitutional-waiver standard the Court

adopted in Janus would do much to curtail state and

union suppression of employees’ right to stop paying

for union speech they oppose. It also would have the

salutary effect of ensuring employees can make informed decisions about whether to subsidize a union

and its expressive activities. See La Fetra, Deborah J.,

Miranda for Janus: The Government’s Obligation to

Ensure Informed Waiver of Constitutional Rights, 55

Loyola L.A. L. Rev. 405 (Spring 2022).

In contrast, the lesser contract standard that several Circuit Courts have now adopted in defiance of

Janus leads to the opposite result. It allows states and

12

unions to easily restrict when employees can exercise

their First Amendment rights under Janus by simply

writing restrictions into the fine print of dues deduction forms. The forms at issue here illustrate the

point. Pet.App. 155, 157.

Unlike under a waiver standard, there is no requirement that employees presented with dues deduction

forms be notified of their constitutional right not to financially support a union. Employees can unwittingly

sign their First Amendment rights away for a year or

more without having any idea they are doing so. There

are few impediments to states and unions including

oppressive restrictions in the forms. According to the

Ninth Circuit, it is not problematic to prohibit employees from exercising their rights under Janus for four

years based on an oblique reference to a maintenance

of membership requirement in a dues deduction form.

See Savas, 2022 WL 1262014, at *2. The decisions of

the five Circuit Courts to not enforce Janus’ waiver

requirement have given unions and their governmental allies wide latitude to throttle employees’ ability to

exercise their right to stop paying for objectionable

union speech.

B. The Ninth Circuit has gutted Janus’

affirmative consent requirement.

1. If the foregoing were not bad enough, the Ninth

Circuit has made matters even worse for employees.

The court has effectively abrogated this Court’s holding in Janus that it is unconstitutional for states to

deduct, and for unions to collect, union payments from

employees without proof the employee affirmatively

consented to pay. 138 S. Ct. at 2486. According to the

13

Ninth Circuit’s decision in Wright, the First Amendment does not require that states or unions have objective proof of employee consent to pay. 48 F.4th at

1123-25. Under Wright, states can rely on unverified

union assertions that employees want to pay union

dues and unions are not subject to First Amendment

strictures at all. Id.

In Wright, an Oregon state employee (Wright) sued

a state agency and a union (the SEIU) for seizing union dues from her wages without her consent. Id. at

1116-17. Wright alleged SEIU caused the state agency

to take union dues from her wages based on a forged

authorization card, which the agency did not receive

or review. Id. When affirming a lower court’s dismissal of the employee’s complaint, the Ninth Circuit issued two holdings that together eviscerate Janus’ consent requirement.

First, the Ninth Circuit rejected the employee’s position “that Janus created a constitutional ‘duty’ for

the State to ensure that the employees listed in SEIU's certification had duly authorized dues deducted

from their salaries.” Id. at 1124-25. The lower court

held that “Janus does not require that Oregon ensure

the accuracy of SEIU's certification of those employees

who have authorized dues deductions” and, more generally, that “Janus imposes no affirmative duty on

government entities to ensure that membership

agreements and dues deductions are genuine.” Id. at

1125.

Second, the Ninth Circuit held the union that demanded the state agency seize payments from Wright

without her consent, and that received those pay-

14

ments, is not a state actor subject to the First Amendment. Id. at 1122-24. The union thus faced no liability

under 42 U.S.C. § 1983 and could keep the payments

it wrongfully seized. Under Wright, unions in the

Ninth Circuit have no constitutional duty whatsoever

to ensure that employees consent to pay union dues

before seizing dues from those employees. As the

Ninth Circuit later put it: a “union was not a state actor when it provided the dues authorization to the

state employer, even if the authorization was fraudulent.” Schiewe v. Serv. Emps. Int’l Union Loc. 503, No.

20-35882, 2023 WL 4417279, at *1 (9th Cir. July 10,

2023) (citing Wright, 48 F.4th at 1123-25). In the

Ninth Circuit, unions are no longer subject to Janus’

affirmative consent holding at all.

Taken together, Wright’s holdings make it constitutional in the Ninth Circuit for states to deduct payments for unions from nonmembers’ wages, and for

unions to collect those payments, without any actual

proof the employees consented to pay. This result is

the exact opposite of what the Court held in Janus:

that “[n]either an agency fee nor any other payment

to the union may be deducted from a nonmember’s

wages, nor may any other attempt be made to collect

such a payment, unless the employee affirmatively

consents to pay.” 138 S. Ct. at 2486.

The Alaska Supreme Court here followed the Ninth

Circuit’s lead and held there is no state action when

the State and ASEA deduct and collect union dues

from employees’ wages. Pet.App. 23-26. Under this

holding, it is questionable if even the State of Alaska

is subject to the First Amendment, and thus to Janus’

affirmative consent holding, when the State takes union payments from employees’ wages.

15

2. The Ninth Circuit’s gutting of Janus’ affirmative

consent requirement has real consequences. Three

states in the Ninth Circuit—California, Oregon, and

Washington—have laws that require public employers to deduct union dues from any employee whose

name appears on a union-provided list. See Cal. Gov’t

Code § 1157.12(a); Or. Rev. Stat. § 243.806(7); Wash.

Rev. Code § 41.80.100(2)(g). The laws require that “a

public employer shall rely on the list to make the authorized deductions and to remit payment to the labor

organization.” Or. Rev. Stat. § 243.806(7); see Cal.

Gov’t Code § 1157.12(a) (similar); Wash. Rev. Code

§ 41.80.100(2)(g) (similar). California and Washington

also require that public employers rely on union assertions when it comes to stopping deductions of union

dues from employees’ wages. See Cal. Gov’t Code

§ 1157.12(b); Wash. Rev. Code §§ 41.80.100(2)(e)-(f).

California, Oregon, and Washington have effectively

given unions control over their payroll deduction systems when it comes to taking union dues from employees’ wages. According to the Ninth Circuit in Wright,

the First Amendment does not apply to unions when

they exercise that control and states can blindly follow

union orders without verifying that employees actually consent to paying for union speech. Wright thus

allows unions to control state payroll deduction systems with no constitutional accountability to employees. In the Ninth Circuit, the foxes are being allowed

to run the henhouse.

Equally as shocking, the Ninth Circuit held this

scheme in which a state grants a self-interested party

(a union) the power to decide whether the state will

seize monies for it from other parties (public employees) does not violate due process guarantees. See

16

Ochoa v. Pub. Consulting Grp., Inc., 48 F.4th 1102,

1110-11 (9th Cir. 2022), cert. denied, 143 S. Ct. 783

(2023). Turning a vice into a virtue, the Ninth Circuit

reasoned that a state’s “’mandatory indifference to the

underlying merits of the [employees’] authorization’”

to pay money to a union makes this process constitutional. Id. at 1111 (quoting Belgau, 975 F.3d at 948).

This rationale makes a mockery of this Court’s holding in Janus that states cannot deduct union payments from employees’ wages “[u]nless employees

clearly and affirmatively consent before any money is

taken from them.” 138 S. Ct. at 2486.

III. The Question Presented Is Exceptionally

Important.

The restrictions on employees’ speech rights that

five Circuit Courts and the Alaska Supreme Court

have now sanctioned impact millions of public employees. In 2022, approximately 6,090,600 state and local

government employees were union members.8 Of

those employees, approximately 4,849,000 work in the

seventeen states that require government employers

to enforce prohibitions on when employees who resign

their union membership can stop payroll deductions

of union dues.9 It is thus reasonable to estimate that

8

Barry T. Hirsch & David A. Macpherson, Union Membership

and Coverage Database from the Current Population Survey:

Note, 56 Indus. & Labor Rels. Rev. 349–54 (2003) (updated annually at unionstats.com); https://www.unionstats.com/members/members_index.html (estimating that 2,143,900 state employees and 3.946,700 local government employees were union

members in 2022).

9

See Barry T. Hirsh, supra, https://www.unionstats.com

/state/htm/state_2022.htm.

17

well over four million public employees cannot exercise their First Amendment rights under Janus except

during a few days each year.

These restrictions infringe on the employees’ fundamental speech and associational rights. The Court in

Janus recognized that, just as “[c]ompelling individuals to mouth support for views they find objectionable

violates . . . [a] cardinal constitutional command,” 138

S. Ct. at 2463, “[c]ompelling a person to subsidize the

speech of other private speakers raises similar First

Amendment concerns.” Id. at 2464. “As Jefferson famously put it, ‘to compel a man to furnish contributions of money for the propagation of opinions which

he disbelieves and abhor[s] is sinful and tyrannical.’”

Id. (quoting A Bill for Establishing Religious Freedom, 2 Papers of Thomas Jefferson 545 (J. Boyd ed.

1950)). A restriction on when employees can stop paying for union speech compels employees who no longer

want to contribute money to propagate union speech

to do so anyway.

Unless the Court grants review and breathes new

life into Janus’ waiver requirement, unions and their

governmental allies will continue to severely restrict

the right of millions of employees to stop subsidizing

union speech. The Court should not tolerate this resistance to its holding in Janus.

18

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

WILLIAM L. MESSENGER

Counsel of Record

c/o NATIONAL RIGHT TO

WORK LEGAL DEFENSE

FOUNDATION, INC.

8001 Braddock Rd., Ste. 600

Springfield, VA 22160

(703) 321-8510

wlm@nrtw.org

September 29, 2023