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

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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 AMICUS CURIAE

OF GOLDWATER INSTITUTE

IN SUPPORT OF PETITIONERS

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

PARKER JACKSON

SCHARF-NORTON CENTER FOR

CONSTITUTIONAL LITIGATION

AT THE GOLDWATER INSTITUTE

500 E. Coronado Rd.

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

Counsel for Amicus Curiae

Goldwater Institute

*Counsel of Record

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

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.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

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

ii

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

iii

IDENTITY AND INTERESTS OF

AMICUS CURIAE ............................................

1

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

2

ARGUMENT ........................................................

3

I.

II.

III.

The Alaska Supreme Court’s erroneously

narrow interpretation of Janus eviscerates employees’ First Amendment rights

to refrain from speaking and to freely disassociate ....................................................

3

The pervasive use of restrictive opt-out

windows undermines Janus and must be

curtailed .....................................................

8

The Alaska Supreme Court botched the

“state action” analysis by repeatedly ignoring binding precedent .......................... 13

A. Granting access to state payroll systems is a government subsidy of

speech for First Amendment purposes 14

B. State action occurs when private parties invoke the aid of state officials to

take advantage of state-created procedures to deprive another private party

of property ........................................... 17

CONCLUSION..................................................... 20

iii

TABLE OF AUTHORITIES

Page

CASES

Ams. for Prosperity Found. v. Bonta, 141 S. Ct.

2373 (2021) ................................................................1

Anderson Federation of Teachers v. Rokita, No.

23-1823 (7th Cir. filed June 15, 2021) .................. 1, 2

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

cert. denied, 141 S. Ct. 2795 (2021) ........................18

Borgelt v. City of Austin, No. 22-1149 (Tex. Sup.

Ct. filed Feb. 6, 2023).................................................2

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

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

Brentwood Academy v. Tennessee Secondary

School Athletic Ass’n, 531 U.S. 288 (2001) ..............17

Brown v. Alexander, 718 F.2d 1417 (6th Cir.

1983) ........................................................................15

Chauffeurs, Teamsters, Warehousemen &

Helpers Union, Local No. 377, Case No. 8-CB9415-1, 2004 WL 298352 (N.L.R.B. Feb. 11,

2004) ..........................................................................5

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

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

Cummings v. Connell, 316 F.3d 886 (9th Cir.

2003) ..........................................................................6

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

1998 WL 415844 (S.D. Cal. Apr. 14, 1998) ..............12

Gilmore v. Gallego, No. CV-23-0130 PR (Ariz.

Sup. Ct. filed May 18, 2023) ......................................2

iv

TABLE OF AUTHORITIES—Continued

Page

Harris v. Quinn, 573 U.S. 616 (2014) .........................17

Interpipe Contracting, Inc. v. Becerra, 898 F.3d

879 (9th Cir. 2018) ............................................. 15, 16

Janus v. AFSCME, 138 S. Ct. 2448

(2018) ................................................... 1-4, 6-9, 14, 20

Local 58, Int’l Bhd. of Elec. Workers (IBEW),

AFL-CIO v. NLRB, 888 F.3d 1313 (D.C. Cir.

2018) ........................................................................12

Local 647, United Automobile Workers, 197

N.L.R.B. 608 (1972) ........................................... 11, 12

Local 74, SEIU, 323 N.L.R.B. 289 (1997) .....................5

Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982).... 18, 19

Marlin Rockwell Corp., 114 N.L.R.B. 553 (1955) .......12

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

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

Monson Trucking Inc., 324 N.L.R.B. 933 (1997) ..........5

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

1102 (9th Cir. 2022) ...................................................6

Off. & Pro. Emps. Int’l Union, Local 29, AFLCIO, 331 N.L.R.B. 48 (2000) ............................... 9, 10

Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37 (1983) .........................................16

Railway Employes’ Dep’t v. Hanson, 351 U.S. 225

(1956) .......................................................................17

Regan v. Taxation with Representation of

Washington, 461 U.S. 540 (1983) ............................14

v

TABLE OF AUTHORITIES—Continued

Page

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).................7

S.C. Educ. Ass’n v. Campbell, 883 F.2d 1251 (4th

Cir. 1989) .................................................................15

San Leandro Tchrs. Ass’n v. Governing Bd. of

San Leandro Unified Sch. Dist., 209 P.3d 73

(Cal. 2009) ...............................................................16

Savas v. Cal. State Law Enf ’t Agency, No. 2056045, 2022 WL 1262014 (9th Cir. 2022), cert.

denied, 143 S. Ct. 2430 (May 1, 2023) ....................11

Schell v. Oklahoma Sup. Ct. Justices, 11 F.4th

1178 (10th Cir. 2021) .................................................2

Scofield v. NLRB, 394 U.S. 423 (1969) .........................7

Shea v. Int’l Ass’n of Machinists & Aerospace

Workers, 154 F.3d 508 (5th Cir. 1998) ................. 6, 10

Shelley v. Kraemer, 334 U.S. 1 (1948) .........................17

Sniadach v. Family Finance Corp., 395 U.S. 337

(1969) .......................................................................18

Tavernor v. Ill. Fed’n of Teachers, 226 F.3d 842

(7th Cir. 2000)............................................................5

Toledo Area AFL-CIO Council v. Pizza, 154 F.3d

307 (6th Cir. 1998) ...................................................15

Utah Educ. Ass’n v. Shurtleff, 565 F.3d 1226

(10th Cir. 2009)........................................................15

Wis. Educ. Ass’n Council v. Walker, 705 F.3d 640

(7th Cir. 2013)..........................................................15

Wooley v. Maynard, 430 U.S. 705 (1977) ......................6

vi

TABLE OF AUTHORITIES—Continued

Page

Wright v. SEIU Local 503, 48 F.4th 1112 (9th

Cir. 2022) ...................................................................6

Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353

(2009) ................................................................. 14, 16

OTHER AUTHORITIES

Jeff Canfield, Comment, What a Sham(e): The

Broken Beck Rights System in the Real World

Workplace, 47 Wayne L. Rev. 1049 (2001) ................5

Joseph E. Slater, Will Labor Law Prompt

Conservative Justices to Adopt a Radical

Theory of State Action?, 96 Neb. L. Rev. 62

(2017) .......................................................................17

Parker Jackson, Goldwater Demands Tucson

Unified School District Stop Trapping Its

Employees in Unions, Goldwater Institute

(January 18, 2023) ..................................................11

Parker Jackson, Goldwater Tells Federal Agency

to Protect Workers’ Rights from Union Power

Grab, Goldwater Institute (January 25, 2023) ......11

R. Bradley Adams, Union Dues and Politics:

Workers Speak Out Against Unions Speaking

For Them, 10 U. Fla. J. L. & Pub. Pol. 207

(1998) .........................................................................5

Tom G. Palmer, Democracy and the Contest for

Liberty, 102 Nw. U. L. Rev. 443 (2008) ....................10

1

IDENTITY AND INTERESTS

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 its or its clients’ objectives

are directly implicated.

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

freedom of association. The Institute has appeared frequently as counsel for parties or as amicus curiae in

cases implicating speech and associational rights. See,

e.g., Ams. for Prosperity Found. v. Bonta, 141 S. Ct.

2373 (2021); Janus v. AFSCME, 138 S. Ct. 2448 (2018);

Anderson Federation of Teachers v. Rokita, No. 23-1823

(7th Cir. filed June 15, 2021) (regarding State of Indiana’s Janus compliance); 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

1

The parties received timely notice of the Goldwater Institute’s intent to file this amicus brief per Supreme Court Rule 37.2.

Pursuant to 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

Bar Ass’n, 3 F.4th 748 (5th Cir. 2021); Schell v. Oklahoma Sup. Ct. Justices, 11 F.4th 1178 (10th Cir. 2021).

The Institute devotes particular attention to government subsidies for special interests such as unions.

See, e.g., Rokita, supra; Borgelt v. City of Austin, No. 221149 (Tex. Sup. Ct. filed Feb. 6, 2023) (challenging union release time under Texas Gift Clause); Gilmore v.

Gallego, No. CV-23-0130 PR (Ariz. Sup. Ct. filed May

18, 2023) (same under Arizona Gift Clause).

The Institute believes its litigation experience and

public policy expertise will aid this Court in considering the appeal.

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

SUMMARY OF ARGUMENT

Affirmative consent is the bedrock principle that

undergirds the First Amendment right to freely associate.

Although the Court recognized this in Janus v. AFSCME, 138 S. Ct. 2448, 2486 (2018) (affirmative consent required for any payment to a union), lower courts

have not gotten the message, even when some states

have gone out of their way to comply with Janus and

protect employees’ associational rights. The Alaska Supreme Court’s decision here is just the latest example

of a decision that, if left undisturbed, would effectively

narrow the vital principles of Janus to its precise facts.

The time is right for this Court to reaffirm that the

First Amendment protects the right of all citizens to

3

freely associate—and freely disassociate—and that

states are not only permitted, but required to have

“clear and compelling evidence” of affirmative consent

before engaging in any state action that subsidizes a

private organization at the expense of employees and

taxpayers or results in compelled association.

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

ARGUMENT

I.

The Alaska Supreme Court’s erroneously

narrow interpretation of Janus eviscerates

employees’ First Amendment rights to refrain

from speaking and to freely disassociate.

In rejecting Alaska’s efforts to comply with this

Court’s holdings in Janus, the Alaska Supreme Court

posits that Janus affects only public employees who

are not union members, and only with regard to agency

fees. App. 18. But such a cabined interpretation ignores

the fact that the First Amendment protects all citizens

against compelled speech and compelled association,

not just non-union-member public employees.2 And

Petitioners correctly point out that the Janus Court expressly said the limitations applied to “any . . . payment,” not just agency fees. Pet. at 6 (quoting Janus,

138 S. Ct. at 2486). Janus’s First Amendment analysis

2

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.

4

therefore applies to any form of state action that results in nonconsensual association or subsidization.

The court below also completely ignored the directive in Janus that affirmative consent to join a union, pay union dues, and waive First Amendment

rights “cannot be presumed.” 138 S. Ct. at 2486. The

court below declared that “voluntarily joining a union

and agreeing to pay dues . . . itself is clear and compelling evidence that the employee has waived those

rights.” App. 19–20 (emphasis added). But that statement is a presumption. Janus instructs that a waiver

of constitutional rights “must be freely given and

shown by clear and compelling evidence. Unless employees clearly and affirmatively consent before any

money is taken from them, this standard cannot be

met.” 138 S. Ct. at 2486 (cleaned up; emphasis added).

The agreement to join a union cannot by itself satisfy

these requirements. While it may be true that the voluntary choice to join a union necessarily waives the

rights associated with not being a union member, it is

not the case that a person’s joining a union in and of

itself proves by clear and compelling evidence that the

person’s choice was actually voluntary, freely given,

clear, and affirmative. In using circular reasoning, the

Alaska Supreme Court effectively destroys the requirement that consent be shown by clear and compelling evidence.

And, of course, historical experience shows that it

has often been the case that people have joined unions

without actually voluntarily, freely, and affirmatively

intending to waive their constitutional rights. Unions

5

frequently engage in intimidation, manipulation, and

other unfair tactics to obtain “agreement” from employees. Unions have spent years concealing from prospective members that they have a right to refuse. See

generally Monson Trucking Inc., 324 N.L.R.B. 933, 935

(1997) (union failed to provide employee Beck rights

notice); Local 74, SEIU, 323 N.L.R.B. 289, 290 (1997)

(same); Chauffeurs, Teamsters, Warehousemen & Helpers Union, Local No. 377, Case No. 8-CB-9415-1, 2004

WL 298352 (N.L.R.B. Feb. 11, 2004) (“I find that the

membership application with the ‘Notice’ hidden on

the second and third page did not serve to adequately

apprise newly-hired employees of their Beck rights.”);

Jeff Canfield, Comment, What a Sham(e): The Broken

Beck Rights System in the Real World Workplace, 47

Wayne L. Rev. 1049, 1050 (2001) (noting that union behavior “makes it nearly impossible for average employees to successfully assert these rights granted by the

Court”); R. Bradley Adams, Union Dues and Politics:

Workers Speak Out Against Unions Speaking For

Them, 10 U. Fla. J. L. & Pub. Pol. 207, 222 (1998)

(“[M]ost union members are unaware of their right to

prevent the union from spending their fees and dues

on political causes.”).

Some unions have adopted procedural requirements for workers to object to the unlawful expenditure of their dues that are so complicated as to

effectively deprive members of those rights. See, e.g.,

Tavernor v. Ill. Fed’n of Teachers, 226 F.3d 842, 848 (7th

Cir. 2000) (union collected full amount of dues from

nonmembers rather than 85 percent associated with

6

collective bargaining, and required year-long process

for rebate); Cummings v. Connell, 316 F.3d 886, 890–

91 (9th Cir. 2003) (confusing and incomplete notice of

Hudson rights was unconstitutional); Shea v. Int’l

Ass’n of Machinists & Aerospace Workers, 154 F.3d 508,

515 (5th Cir. 1998) (requiring workers to object to

paycheck deductions annually in writing, rather than

to assert continuing objection). In many cases, unions

have forged workers’ signatures on their membership

cards. See, e.g., Ochoa v. Pub. Consulting Grp., Inc., 48

F.4th 1102 (9th Cir. 2022); Wright v. SEIU Local 503,

48 F.4th 1112 (9th Cir. 2022). Such obstructionist tactics make it clear why the overly simplistic notion

adopted below—that a person’s membership in a union

per se waives First Amendment rights—is inadequate.

The Alaska Supreme Court’s cabined view of Janus threatens the constitutional rights of all publicsector employees—including both “the right to refrain

from speaking,” Wooley v. Maynard, 430 U.S. 705, 714

(1977), and “[t]he right to eschew association for expressive purposes,” Janus, 138 S. Ct. at 2463—because

it effectively prohibits the State from gathering,

through its own forms and procedures, the clear and

compelling evidence of an employee’s affirmative consent that Janus requires. If the decision below stands,

deference will be given to unions when determining

who their members (and, therefore, their financiers)

are, collective bargaining agreements will continue to

be used to contract away the constitutional rights of

public employees (union member or not), and public

employees may find themselves trapped in union

7

membership and compelled to pay dues even if they

wish to exercise their First Amendment right to no

longer associate with or subsidize the union. In other

words, the waiver of purported union members’ First

Amendment rights will be presumed in violation of Janus. 138 S. Ct. at 2486.

This Court’s precedents make clear that without

the right to disassociate, the right to associate means

little. Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984)

(“Freedom of association . . . plainly presupposes a

freedom not to associate.”). In fact, the Court long ago

recognized the centrality of the right to resign from a

union. Scofield v. NLRB, 394 U.S. 423, 430 (1969) (union members’ freedom to leave the union and escape

union rule meant rule was not coercive).

Association with any organization should not, and

constitutionally cannot, be a one-way ticket. In fact,

the right to resign is more important than the right not

to join in the first place.3 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 the associational and expressive injury into the indefinite future.

To avoid such constitutional injuries, the State of

Alaska was well within constitutional boundaries

3

Even members of this Court have exercised their right to

resign in protest: Justice Benjamin Curtis resigned in the wake of

the Dred Scott ruling.

8

when it decided, through Administrative Order 312,4

to issue its own dues deduction forms, require that the

forms be submitted by its employees directly to the

state rather than through a union middle-man, and allow employees to opt out of union membership and

state-facilitated payroll deductions for union dues at

will.

II.

The pervasive use of restrictive opt-out

windows undermines Janus and must be

curtailed.

One particularly troubling aspect of the decision

below is its indifference (at best) to clever efforts to

trap public-sector employees into union membership

and—more importantly from the union’s perspective—

the ongoing obligation to pay dues. “Pursuant to statute, both [of ASEA’s collective bargaining agreements

at issue] required the State to deduct union dues from

ASEA union members’ paychecks, upon members’

written authorizations provided by ASEA, and to

transmit the money to ASEA.” App. 8 & n.17 (citing AS

23.40.220) (emphasis added). But ASEA’s dues deduction form includes an automatically renewing annual

4

ASEA’s state separation of powers and administrative law

objections to the administrative order are not at issue here and

are irrelevant to the question of whether the Alaska Supreme

Court properly interpreted and applied Janus. See App. 17. And,

of course, whether the CBA or PERA are enforceable depends on

whether they comport with First Amendment requirements as

outlined in Janus. See App. 26 et seq. Therefore, the Court will

need only decide whether the changes announced by Administrative Order 312 comply with the First Amendment.

9

commitment to pay dues, which can only be revoked

during a ten-day period each year, the dates of which

vary by employee based on when they were hired. App.

9; Petition at 11. Failure to formally resign during5 that

tiny opt-out period—even if consent for dues deductions has already been informally revoked—automatically results in a full additional year of union dues

withheld by the state from the employee’s paycheck.

The First Amendment does not compel a state to

participate in such a scheme. And, indeed, it mirrors

the kind of manipulation in which unions have frequently engaged, in violation of workers’ constitutional

rights. For example, in Off. & Pro. Emps. Int’l Union,

Local 29, AFL-CIO, 331 N.L.R.B. 48 (2000), the union

created a mechanism whereby workers could object to

the spending of dues for political purposes—rules so

complicated that they nullified the right to object. A

worker had to specify exactly the amount of fees she

believed were wrongly withheld, and what the money

had been spent on—information most workers would

find too difficult to obtain—and the union “treat[ed]

the failure to [provide such information] . . . as a

waiver of the right to challenge the expenditures.” Id.

at 49. The National Labor Relations Board found that

this “simply place[d] too high a burden on the objector’s

5

ASEA apparently “changed its procedures” in 2020—after

Janus and after being sued here—so that they could hold any

premature requests and process them during the applicable window rather than force employees to wait another year. App. 9. This

suggests that the union is aware that “clear and compelling evidence” of affirmative consent cannot be shown where a member

has expressed a desire to revoke consent.

10

exercise of her right to challenge the Union’s figures.”

Id. Likewise, in Shea, the Fifth Circuit noted that the

procedure created for objecting dissenters was intended to prevent them from vindicating their rights:

It seems to us that the unduly cumbersome

annual objection requirement is designed to

prevent employees from exercising their constitutionally-based right of objection, and

serves only to further the illegitimate interest

of the [union] in collecting full dues from nonmembers who would not willingly pay more

than the portion allocable to activities germane to collective bargaining.

154 F.3d at 515. The point is simple: even if it could be

shown by clear and compelling evidence that employees freely consented in advance to a restrictive opt-out

window, rules that make it “unduly cumbersome” to

withdraw that consent—to resign and refuse to subsidize the union further—would render such consent essentially meaningless. It would be the equivalent of

what political scientists, describing when legitimately

instituted governments take subsequent action to remain in power illegitimately, have jocularly called the

principle of “one man, one vote, one time.” Tom G.

Palmer, Democracy and the Contest for Liberty, 102 Nw.

U. L. Rev. 443, 444 (2008) (emphasis added). Of course,

insulating the union from the consequences of abrupt

membership decline would further reduce the union’s

accountability to its membership.

11

Unfortunately, restrictive opt-out windows of

myriad forms have become pervasive.6 For example, in

Tucson, Arizona, the Tucson Unified School District’s

various collective bargaining agreements contain annual opt-out deadlines or windows as narrow as two

weeks in length. See Parker Jackson, Goldwater Demands Tucson Unified School District Stop Trapping

Its Employees in Unions, Goldwater Institute (January

18, 2023).7 The National Treasury Employees Union

recently sought to convince the Federal Labor Relations Authority to adopt restrictive annual opt-out periods for all federal employees. See Parker Jackson,

Goldwater Tells Federal Agency to Protect Workers’

Rights from Union Power Grab, Goldwater Institute

(January 25, 2023).8 See also Petition at 19–20 (citing

additional examples).

There is nothing new about such obstructionist

tactics. In Local 647, United Automobile Workers, 197

N.L.R.B. 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

6

To say nothing of opt-out windows’ pernicious cousins, socalled “maintenance of membership” requirements. See Savas v.

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

*1–2 (9th Cir. 2022), cert. denied, 143 S. Ct. 2430 (May 1, 2023)

(upholding “maintenance of membership requirement”).

7

https://www.goldwaterinstitute.org/goldwater-demandstucson-unified-school-district-stop-trapping-its-employees-inunions/.

8

https://www.goldwaterinstitute.org/goldwater-tells-federalagency-to-protect-workers-rights-from-union-power-grab/.

12

between December 22 and 31 would be accepted. And

these were then subjected to a sixty-day “waiting period,” so that resignations only became valid in March.

Id. The N.L.R.B. 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., 114 N.L.R.B. 553, 589 (1955) (same arrangement). See also Local 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-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”). In short, restrictive opt-out windows designed

to trap employees in unions are simply compelled association and compelled subsidization in disguise.

Unions could potentially avoid at least some of the

associational rights problems caused by restrictive

opt-out windows simply by charging annual dues as a

lump sum rather than asking to use the state’s payroll

system to spread dues out over the course of a year. Of

13

course, that would put more scrutiny on the annual

cost of membership, which is easily masked when broken down into monthly or biweekly increments. It

would be much easier for a union—or, critically, the

State—to show clear and compelling evidence of valid

consent if only one payment were at issue and that

payment was made prior to the revocation of consent.

But when dues deductions are spread out over a long

period of time, it becomes difficult if not impossible to

prove clear and compelling evidence of affirmative consent for each individual payment, particularly after

such consent has been revoked by the employee.9 That

alone justifies the state in seeking means of ensuring

that worker consent is indeed knowing, intelligent, and

voluntary.

III. The Alaska Supreme Court botched the

“state action” analysis by repeatedly ignoring binding precedent.

Not only did the Alaska Supreme Court misinterpret the scope and nature of the rights the state sought

to protect, it also erroneously concluded that “[t]he

9

Note that an employee’s obligation to pay dues to the union—a private entity—is separate and apart from the authorization of state payroll deductions. If a state ceases to deduct union

dues from an employee’s paycheck, the employee remains free to

contribute financially to the union by other means. And even if a

union can prove a contractual entitlement to a specific employee’s

union dues, the state is not obligated by the First Amendment to

enforce the contract through payroll deductions because the state

is not constitutionally required to subsidize a union or any other

private organization.

14

State’s acquiescent role facilitating interaction and

agreements between two private parties, the union

member employee and the union, does not amount

to state action.” App. 23. But the state is hardly a passive observer when it takes money from someone’s

paycheck and hands it to someone else. Janus, in short,

is not the only binding precedent that the court below

failed to respect in its analysis.

A. Granting access to state payroll systems is a government subsidy of speech

for First Amendment purposes.

In Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353,

364 (2009), various unions brought a First Amendment

challenge against an Idaho law prohibiting payroll

deductions for union political activities. The Court

rejected that challenge with regard to government employers, explaining that the First Amendment question

was “whether the State must affirmatively assist [i.e.,

subsidize] political speech by allowing public employers to administer payroll deductions for political activities.” Id. (emphasis added). The answer, of course, was

“no.” Id.

Ysursa relied on Regan v. Taxation with Representation of Washington, 461 U.S. 540, 549 (1983), which

made clear that a government’s “decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict

scrutiny.” And federal appellate courts, applying Ysursa, have rightly characterized payroll deductions for

15

union dues (and similar payments) as government subsidies of union speech. See, e.g., Wis. Educ. Ass’n Council v. Walker, 705 F.3d 640, 645 (7th Cir. 2013) (“[T]he

Supreme Court has settled the question: use of the

state’s payroll systems to collect union dues is a state

subsidy of speech that requires only viewpoint neutrality.”); Interpipe Contracting, Inc. v. Becerra, 898 F.3d

879, 898 (9th Cir. 2018) (law allowing wage credit contributions to third-party industry advancement funds

is a state subsidy of speech subject to rational basis review).

Because the service of taking money from workers’

paychecks and giving it to the union is itself a subsidy,

the government can refuse to participate without

transgressing the First Amendment. See Utah Educ.

Ass’n v. Shurtleff, 565 F.3d 1226, 1228 (10th Cir. 2009)

(“Utah is under no obligation to aid the Unions’ exercise of their First Amendment rights utilizing payroll

systems. . . . Failing such an obligation the [ban on

payroll deductions for union political funds] is subject

only to rational basis review.”). See also S.C. Educ.

Ass’n v. Campbell, 883 F.2d 1251, 1257 (4th Cir. 1989)

(“[T]he First Amendment does not impose an affirmative obligation on the state to assist the program of the

association by providing payroll deduction services.”);

Brown v. Alexander, 718 F.2d 1417, 1422 (6th Cir. 1983)

(“[T]he First Amendment does not impose any duty on

a public employer to affirmatively assist, or even to recognize a union.”); Toledo Area AFL-CIO Council v.

Pizza, 154 F.3d 307, 320 (6th Cir. 1998) (“[P]ublic employees . . . have no more right than private employees

16

to compel their employer to assist them in exercising

their First Amendment rights.”).

As the Ninth Circuit quipped in Interpipe Contracting, “what the government giveth it can taketh

away.” 898 F.3d at 897. That is because “the State is

not constitutionally obligated to provide payroll deductions at all.” Ysursa, 555 U.S. at 359. Cf. Perry Educ.

Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 54

(1983) (limiting access to school mail system did not

burden a fundamental right and was therefore subject

to rational basis review); San Leandro Tchrs. Ass’n v.

Governing Bd. of San Leandro Unified Sch. Dist., 209

P.3d 73, 77 (Cal. 2009) (school district could prohibit

distribution of campaign flyers in teachers’ office mailboxes without transgressing the First Amendment).

And, by the principle that the greater includes the

lesser, if payroll deductions can be eliminated entirely,

government employers can also place less-restrictive,

rational limitations on access to state payroll systems.

“Because speech subsidies are not coated with constitutional protection, the government is typically free to

limit or remove speech subsidies at its discretion, and

such limitations are generally subject to rational basis

review.” Interpipe Contracting, 898 F.3d at 896.

17

B. State action occurs when private parties invoke the aid of state officials to

take advantage of state-created procedures to deprive another private party

of property.

Government subsidization of speech is more than

a mere “acquiescent role facilitating interaction and

agreements between two private parties.” App. 23.

Choosing to grant access to state payroll systems

(whether by statute,10 contract, or some other method),

constitutes state action for First Amendment purposes.

It is, frankly, absurd to suggest that the enforcement of

a private agreement is state action in a case like Shelley v. Kraemer, 334 U.S. 1 (1948), and that the “pervasive entwinement of public institutions and public

officials” in Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 298 (2001), are

enough to make the actions of private entities into

10

In Harris v. Quinn, 573 U.S. 616, 628–31 (2014), the Court

criticized Railway Employes’ Dep’t v. Hanson, 351 U.S. 225, 238

(1956), which held that the Railway Labor Act, a federal statute

authorizing private-sector rail unions to enter into union-shop

arrangements, “is no more an infringement or impairment of

First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated

bar.” Of course, mandatory bars present similar compelled

speech and compelled association problems, but more pressing

here is the fact that Harris seemed to imply that enacting a

statute authorizing private contracts that affected workers’

speech and associational rights was sufficient state action to

merit First Amendment scrutiny. See generally Joseph E. Slater,

Will Labor Law Prompt Conservative Justices to Adopt a Radical

Theory of State Action?, 96 Neb. L. Rev. 62, 64–65 (2017) (discussing Harris and Hanson).

18

state action—but that the state’s regulation of its own

payroll system with respect to public employee unions

is not.11

Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) also

supports a finding of state action here.12 Lugar concerned the deprivation of property through a private

creditor’s use of the State of Virginia’s prejudgment attachment13 procedures. Id. at 924. After recognizing

that “the Court has articulated a number of different

factors or tests [for state action] in different contexts,”

the Court conducted two inquiries: first, “whether the

claimed deprivation has resulted from the exercise of

a right or privilege having its source in state authority,” and second “whether, under the facts of [the] case,

. . . private parties may be appropriately characterized

as ‘state actors.’ ” Id. at 939. A statute’s authorized procedures for the prejudgment attachment (and therefore deprivation) of private property were at issue in

Lugar, satisfying the first step: “While private misuse

11

The Ninth Circuit’s decision in Belgau v. Inslee, 975 F.3d

940, 948 (9th Cir. 2020), cert. denied, 141 S. Ct. 2795 (2021), on

which the Alaska Supreme Court heavily relied, should be overruled for a similar state action analysis that characterizes the

processing of payroll deductions for union dues as a mere “ministerial” act as opposed to a state subsidy of speech, which is an

affirmative act of assistance as discussed in the cases above.

12

The Alaska Supreme Court cites Lugar only in passing, ignoring its facts or analysis. App. 22 & nn. 44–45.

13

The Court’s prior prejudgment attachment cases applied

the same constitutional requirements to garnishment procedures.

See, e.g., Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).

Garnishments are enforced through an employer’s payroll system

just like dues deductions.

19

of a state statute does not describe conduct that can be

attributed to the State, the procedural scheme created

by the statute obviously is the product of state action.

This is subject to constitutional restraints. . . .” Id. at

941. On the second question, the Court reiterated that

“a private party’s joint participation with state officials

in the seizure of disputed property is sufficient to characterize that party as a ‘state actor’ for purposes of the

Fourteenth Amendment.” Id. Merely “invoking the aid

of state officials to take advantage of state-created attachment procedures” is sufficient to render the private creditor a state actor and thus lead to a finding of

state action. Id. at 942.

Here, as in Lugar, one private party—the union—

invokes the aid of state officials to take advantage of

state-created procedures to take property from another private party. The state created the statute authorizing dues deductions—AS 23.40.220. See also

App. 8. The state negotiated and was a full party to

each of the collective bargaining agreements requiring

such deductions. See id. The unions actively invoke the

aid of state officials in taking advantage of the state’s

payroll deduction system.14 And, of course, the state

14

Moreover, like the ex parte attachment application in Lugar, the state here has no direct input from the person whose

property is being taken; both the statute and the collective bargaining agreements prohibit the state from engaging with the employee without going through the union. App. 8. The written dues

deduction authorizations are provided not by the employees directly, but by the union, on a form created exclusively by the union. Id. Even though such authorizations are purportedly signed

by the employee, the State cannot show by clear and compelling

20

does the actual deducting from its employees’

paychecks and transmits the amount to the union.

There is little doubt this conduct constitutes state action.

In short, it is impossible for a government entity

to subsidize speech for First Amendment purposes

without also engaging in state action that triggers

First Amendment scrutiny. And there is no lack of state

action when a state assists a private party in taking

advantage of state-created procedures to deprive another private party of property.

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

CONCLUSION

The decision below demonstrates the need for this

Court to reemphasize its instructions in Janus that affirmative consent to join a union and waive First

Amendment rights cannot be presumed, but rather

must be shown by clear and compelling evidence. Direction from the Court is needed not just in Alaska, but

across the country in response to widespread union

and judicial resistance to Janus. The Court should take

the opportunity to make clear that the days of compelled speech and compelled association through manipulative tactics such as restrictive opt-out windows

are over as far as the Constitution is concerned.

evidence that the signatures are either valid or voluntary, as discussed supra.

21

Just as importantly, the Court should grant certiorari to correct the Alaska Supreme Court’s improper

state action analysis, which if left uncorrected, threatens not just the First Amendment rights of public-sector employees, but all constitutional rights of all

Alaskans whenever there is a state action component.

The threat is particularly acute in cases involving government subsidies or private property rights.

The Court should grant the petition.

Respectfully submitted,

TIMOTHY SANDEFUR*

PARKER JACKSON

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