Amicus Curiae Brief — Torey Jarrett, Petitioner v. Service Employees International Union Local 503, et al.

No. 23-372

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

In The

Supreme Court of the United States

---------------------------------♦--------------------------------TOREY JARRETT, Petitioner,

v.

SERVICE EMPLOYEES INTERNATIONAL UNION,

LOCAL 503, et al., Respondents.

---------------------------------♦--------------------------------MARGO CASH SCHIEWE, Petitioner,

v.

SERVICE EMPLOYEES INTERNATIONAL UNION,

LOCAL 503, et al., Respondents.

---------------------------------♦--------------------------------SHARRIE YATES, Petitioner,

v.

WASHINGTON FEDERATION OF STATE EMPLOYEES,

AFSCME COUNCIL 28, et al., Respondents.

---------------------------------♦--------------------------------MARIA QUEZAMBRA, Petitioner,

v.

UNITED DOMESTIC WORKERS OF AMERICA,

AFSCME LOCAL 3930, et al., Respondents.

---------------------------------♦--------------------------------THEODORE MENDOZA, Petitioner,

v.

AFSCME LOCAL 3299, et al., Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

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

QUESTIONS PRESENTED

In the cases below, public sector unions directed

government employers to deduct union dues from Petitioners’ wages, even though they were non-union

public employees who had not affirmatively consented

to the deductions. Petitioners’ employers continued the

unauthorized deductions even after Petitioners objected.

For nearly a half century, this Court has implicitly

found unions to be state actors under these circumstances, potentially liable for constitutional violations when directing the government to divert nonconsenting employees’ wages for union dues. Despite

these decisions, and in conflict with the Seventh Circuit, the Ninth Circuit has since Janus v. Am. Fed. of

State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448

(2018), consistently held that a union cannot be liable

for constitutional violations under 42 U.S.C. § 1983 because a union is not a “state actor” so long as it claims

to have a public employee’s affirmative consent.

The questions presented are:

1. Is a state-designated exclusive representative

a state actor under 42 U.S.C. § 1983 when it directs a

public employer to deduct dues from non-union employees who have not affirmatively consented?

2. Are public employees’ due process rights violated when the public employer diverts employees’

wages to a union with no pre-deprivation procedural

safeguards?

ii

TABLE OF CONTENTS

Page

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

i

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

ii

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

iii

IDENTITY AND INTERESTS OF AMICUS CURIAE .................................................................

1

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

2

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

3

I.

Government employers and public-sector

unions are state actors when they collect

union dues through government payroll

systems ......................................................

3

II.

The lower courts’ erroneously narrow interpretation of Janus eviscerates employees’

First Amendment rights to refrain from

speaking and to freely disassociate ........... 10

III.

The pervasive use of restrictive opt-out

windows undermines Janus and must be

curtailed ..................................................... 16

CONCLUSION..................................................... 21

iii

TABLE OF AUTHORITIES

Page

CASES

Alaska v. Alaska State Emps. Ass’n, No. 23-179

(pending)............................................................ 1, 2, 5

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

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

Anderson Fed’n of Teachers v. Rokita, No. 231823 (7th Cir. pending) .............................................1

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

cert. denied, 141 S. Ct. 2795 (2021) ................ 3, 9, 10

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

pending) .....................................................................2

Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass’n, 531 U.S. 288 (2001) .........................................5

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

1983) ..........................................................................4

Chauffeurs, Teamsters, Warehousemen & Helpers

Union, Loc. No. 377, Case No. 8-CB-9415-1,

2004 WL 298352 (N.L.R.B. Feb. 11, 2004) ..............12

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

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

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

2003) ........................................................................13

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

1998 WL 415844 (S.D. Cal. Apr. 14, 1998) ..............20

Gilmore v. Gallego, No. CV-23-01-130-PR (Ariz.

pending) .....................................................................2

iv

TABLE OF AUTHORITIES—Continued

Page

Janus v. AFSCME, 138 S. Ct. 2448 (2018) ...........1-3, 5,

.............................................................7-11, 13-16, 21

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

2021 WL 65493 (D. Or. Jan. 6, 2021), aff ’d,

2023 WL 4399242 (9th Cir. July 7, 2023) .................3

Loc. 58, Int’l Bhd. of Elec. Workers (IBEW), AFLCIO v. NLRB, 888 F.3d 1313 (D.C. Cir. 2018) .........19

Loc. 74, Serv. Emps. Int’l Union, 323 N.L.R.B.

289 (1997) ................................................................12

Local 647, United Automobile Workers, 197

N.L.R.B. 608 (1972) .................................................19

Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) ..... 5, 6

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

(AFL-CIO), 114 N.L.R.B. 553 (1955).......................19

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

522 (M.D. Pa. 2007) .................................................20

Monson Trucking Inc., 324 N.L.R.B. 933 (1997) ........12

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

1102 (9th Cir. 2022) .................................................13

Office & Professional Employees International

Union, Local 29, AFL-CIO, 331 N.L.R.B. 48

(2000) .......................................................................17

Quezambra v. United Domestic Workers of Am.

AFSCME Loc. 3930, 445 F. Supp.3d 695 (C.D.

Cal. 2020)...................................................................3

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)......... 14, 15

v

TABLE OF AUTHORITIES—Continued

Page

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

Cir. 1989) ...................................................................4

Savas v. Cal. State L. Enf’t Agency, No. 20-56045,

2022 WL 1262014 (9th Cir. Apr. 28, 2022), cert.

denied, 143 S. Ct. 2430 (2023) .......................... 11, 18

Schiewe v. SEIU Loc. 503, No. 3:20-cv-00519-JR,

2020 WL 5790389 (D. Or. Sept. 28, 2020) .................3

Scofield v. NLRB, 394 U.S. 423 (1969) .......................15

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) ..........................................................................3

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

Workers, 154 F.3d 508 (5th Cir. 1998) ......... 13, 17, 18

Shelley v. Kraemer, 334 U.S. 1 (1948) ...........................5

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

(1969) .........................................................................5

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

(7th Cir. 2000)..........................................................12

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

307 (6th Cir. 1998) .....................................................4

Wooley v. Maynard, 430 U.S. 705 (1977) ....................13

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

2022) .................................................................... 3, 13

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

F. Supp.3d 1197 (W.D. Wash. 2020) .................... 3, 11

vi

TABLE OF AUTHORITIES—Continued

Page

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

(2009) ..................................................................... 4, 9

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

WL 4298160 (9th Cir. Sept. 19, 2022) .......................3

STATUTES

42 U.S.C. § 1983 ........................................................ 2, 6

C.G.C. § 1153(b) ............................................................9

C.G.C. § 1153(c) .............................................................8

C.G.C. § 1153(g) ............................................................8

C.G.C. § 1153(h) ..........................................................14

C.G.C. § 1157.12 ............................................................7

O.R.S. § 243.806(6)......................................................14

O.R.S. § 243.806(7)........................................................7

O.R.S. § 243.806(8)........................................................8

R.C.W. § 41.80.100(2)(f ) ..............................................14

R.C.W. § 41.80.100(2)(g)................................................7

R.C.W. § 41.80.100(d)–(e) ............................................14

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) ..............12

vii

TABLE OF AUTHORITIES—Continued

Page

Parker Jackson, Goldwater Demands Tucson

Unified School District Stop Trapping Its

Employees in Unions, Goldwater Institute

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

Parker Jackson, Goldwater Tells Federal Agency

to Protect Workers’ Rights from Union Power

Grab, Goldwater Institute (January 25, 2023) ......19

R. Bradley Adams, Union Dues and Politics:

Workers Speak Out Against Unions Speaking

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

(1998) .......................................................................12

Tom G. Palmer, Democracy and the Contest for

Liberty, 102 Nw. U. L. Rev. 443 (2008) ....................18

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); Alaska v. Alaska State Emps. Ass’n, No. 23-179

(pending); Anderson Fed’n of Teachers v. Rokita, No. 231823 (7th Cir. pending); Crowe v. Oregon State Bar,

989 F.3d 714 (9th Cir. 2021) (reversing dismissal of

First Amendment challenge to mandatory bar association membership). The Institute devotes particular

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

attention to government subsidies for special interests

such as unions. See, e.g., Alaska, supra; Rokita, supra;

Borgelt v. City of Austin, No. 22-1149 (Tex. pending);

Gilmore v. Gallego, No. CV-23-01-130-PR (Ariz. pending).

The Institute believes its litigation experience and

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

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

SUMMARY OF ARGUMENT

Does Janus v. AFSCME, 138 S. Ct. 2448, 2486

(2018), mean what it says? That is, must government

employers have clear and compelling evidence of an

employee’s affirmative consent before taking money

out of their paycheck and handing it over to a union?—

or may states force government employers to defer to

a union’s own assertions regarding employee consent?

And when public-sector unions illegally forge dues deduction authorization forms—thus thwarting Janus’s

protections—are they shielded from liability under 42

U.S.C. § 1983 on the grounds that the forgery and the

subsequent illegal deduction of dues are not “state action”?

The answer is simple: Janus requires clear and

compelling evidence of actual voluntary, affirmative

consent before the state may take money from a person’s paycheck for the benefit of the union. Without

that protection for genuine consent, the right to freely

associate—and freely disassociate—means little. Yet

3

thanks to a series of recent decisions by lower courts,2

Janus’s protection for these rights have been effectively gutted. This Court should act to give full protection to the First Amendment rights of public sector

employees who have been victimized by fraudulent

union dues deduction schemes, restrictive opt-out

windows designed to trap them into ongoing dues payments, and other schemes whereby public sector unions are effectively nullifying the rights to which Janus

and other cases promise protection.

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

ARGUMENT

I.

Government employers and public-sector

unions are state actors when they collect

union dues through government payroll

systems.

It goes without saying that a forged authorization

form is not clear and compelling evidence of an employee’s affirmative consent to pay union dues. But if a

2

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

denied, 141 S. Ct. 2795 (2021); Zielinski v. SEIU Loc. 503, No. 2036076, 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), aff ’d, 2023 WL 4399242 (9th Cir. July 7, 2023); Schiewe v.

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

Sept. 28, 2020); Wright v. SEIU Loc. 503, 48 F.4th 1112 (9th Cir.

2022); 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); Yates v. Wash. Fed’n of State Emps., 466

F. Supp.3d 1197 (W.D. Wash. 2020); Quezambra v. United Domestic Workers of Am. AFSCME Loc. 3930, 445 F. Supp.3d 695 (C.D.

Cal. 2020).

4

“private” union does the forging, is there any state action to be found? The answer is doubly “yes”: The state

is not a passive observer when it takes money from

someone’s paycheck and hands it to someone else.

When it chooses to subsidize a union by granting access to government payroll systems, it is acting as a

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

353, 364 (2009). It is the government that does the

subtracting—from government employees’ paychecks

through the government’s payroll system, none of which

is required for the union to exist or operate. See, e.g.,

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.’ ” (citation omitted));

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 to compel their employer to assist them in exercising their First Amendment rights.”).

Indeed, “the State is not constitutionally obligated

to provide payroll deductions at all.” Ysursa, 555 U.S.

at 359. When it chooses to do so, that action must withstand First Amendment scrutiny.3 In other words, it is

3

As the Petition correctly points out, the question of whether

a government employer engages in state action when deducting

union dues from public employee paychecks is before the Court in

5

impossible for a government entity to subsidize speech

for First Amendment purposes without also engaging

in state action that triggers First Amendment scrutiny.

Therefore, the government itself—not just union middlemen—must have clear and compelling evidence of

an employee’s affirmative consent before it deducts union dues through a state payroll system.

But more importantly here, the answer is also

“yes” with regard to public-sector unions because even

“private” parties count as state actors when they invoke the aid of state officials to take advantage of

state-created procedures to deprive another private

party of property.4

Lugar v. Edmonson Oil Co., 457 U.S. 922, 939

(1982), is particularly instructive. Lugar concerned the

deprivation of property through a private creditor’s use

of Virginia’s prejudgment attachment procedures—a

deprivation which the plaintiff said violated the Due

Process of Law Clause. Id. at 924. See also Sniadach

v. Family Finance Corp., 395 U.S. 337 (1969) (applying

Alaska v. Alaska State Emps. Ass’n, Case No. 23-179, in which a

petition for certiorari is pending. The Court should grant review

of both as companion cases, as both cases involve union resistance

to Janus and other related precedent.

4

It would be 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 Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 298 (2001), are enough

to make the actions of private entities into state action—but that

the union’s use of and measure of control over government payroll

systems to deprive public-sector employees of property is not.

6

Due Process of Law protections to prejudgment wage

garnishments). The Court found that the deprivation

was state action, which meant the plaintiff ’s case could

proceed.

The Court reached this conclusion based on two

considerations: 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.’ ” Lugar, 457 U.S. at 939. As to the first question,

the statute authorized the prejudgment attachment of

property without hearing from the property owner, a

“procedural scheme” that was “obviously” the “product

of state action,” and therefore “subject to constitutional

restraints.” Id. at 941.

On the second question, the Court found 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.’ ” Id. (emphasis

added). See also id. at 927 n. 6 (“Joint action with a

state official to accomplish a prejudgment deprivation

of a constitutionally protected property interest will

support a § 1983 claim against a private party.”).

Merely “invoking the aid of state officials to take advantage of state-created attachment procedures” was

sufficient to satisfy the state action requirement. Id. at

942.

Here, as in Lugar, a private party—the union—invokes the aid of state officials to take advantage of

7

state-created procedures to take property from another private party without clear and compelling evidence of the property owner’s consent. That private

party could not accomplish the taking without those

state-created procedures, after all. And this fact means

that the statutory schemes must comport with all constitutional requirements, including those articulated

in Janus.

But the statutes in this case obviously fall short,

because they substitute blind deference to union assertions regarding employee consent for the constitutionally mandated clear and compelling evidence of

affirmative consent. See, e.g., O.R.S. § 243.806(7) (“A

public employer shall rely on the [union’s] list to make

the authorized deductions and to remit payment to

the [union].” App.116a.); R.C.W. § 41.80.100(2)(g) (“The

employer shall rely on information provided by the exclusive bargaining representative regarding the authorization and revocation of deductions.” App.119a.);

C.G.C. § 1157.12 (covered public employers “shall . . .

[r]ely on a certification from any employee organization requesting a deduction or reduction that they have

and will maintain an authorization, signed by the individual from whose salary or wages the deduction or

reduction is to be made.” App.124a.).

That deference results in the delegation of a public

function to the union, joint participation and involvement of the government in the union’s deprivation

schemes, and a sufficient nexus between the union and

the government to render the unions state actors in the

context of payroll deductions for union dues.

8

The fact that states have tried to pass the buck

onto the unions only buttresses the conclusion that

the statutorily mandated deference makes the unions

state actors. Both Oregon’s and California’s statutes

attempt to shield those states from any liability. O.R.S.

§ 243.806(8) (“[A] public employer that makes deductions and payments in reliance on the [union’s] list . . .

is not liable to a public employee for actual damages

resulting from an unauthorized deduction . . . A labor

organization that receives payment from a public employer shall defend and indemnify the public employer

for the amount of any unauthorized deduction resulting from the public employer’s reliance on the list.”

App.116a–117a); C.G.C. § 1153(c) (“reliev[ing] the state,

its officers and employees, of any liability that may result from making, canceling, or changing requested deductions or reductions.” App.120a.); C.G.C. § 1153(g)

(“The employee organization shall indemnify the Controller for any claims made by the employee for deductions made in reliance on that notification.” App.121a.).

But state statutes cannot transfer the government’s constitutional obligation to obtain clear and

compelling evidence of a public employee’s affirmative

consent to a union—at least, not without turning the

union into a state actor. To ignore the constitutional

requirements expressed in Janus while citing compliance with state statutes is to miss the (un)constitutional forest for the statutory trees. See App.42a

(citing “the state’s statutory obligation to deduct dues

based on union authorization (even if fraudulently

obtained)”); App.52a (“[T]he law requires the State to

9

enforce the dues deduction arrangement without an

inquiry into the merits of the agreement.”).

California’s statute goes even further and attempts to eviscerate Janus’s requirement entirely; it

states that “[a]n employee organization that certifies

that it has and will maintain individual employee authorizations shall not be required to provide a copy of

an individual authorization to the Controller unless a

dispute arises about the existence or terms of the authorization.” C.G.C. § 1153(b) (App.120a). This inverts

the constitutional rule that affirmative consent be obtained “before any money is taken from [employees],”

Janus, 138 S. Ct. at 2486, and says instead that evidence cannot be required until after a dispute has

arisen.

The courts below characterize the problem of

forged dues deduction authorizations as “an exclusively private act,” App.42a, and mere “private misuse

of a state statute.” App.22a (citation omitted). But the

deliberate transfer of control, liability, and constitutional obligations onto the unions show that these statutes are functioning precisely as designed.

Lower courts’ reliance on Belgau, supra, is also

misplaced. For all Belgau’s flaws,5 it at least arguably

involved a valid private agreement in effect between

5

Among other legal errors, Belgau wrongly framed the processing of payroll deductions for union dues as a mere “ministerial” act, 975 F.3d at 948; see also App.53a, as opposed to a state

subsidy of speech, which is an affirmative act of assistance. See,

e.g., Ysursa, 555 U.S. at 364.

10

the employees and the union. See 975 F.3d at 945. But

that is clearly not true in the case of a forged agreement. The government employer may have had clear

and compelling evidence of affirmative consent in Belgau (at least initially), but no such showing can be

made in these cases. Thus, where “the ‘source of the

alleged constitutional harm’ ” in Belgau may not have

been a state statute, “but [instead] the particular private agreement between the union and Employees,” id.

at 947, the government policies here of enforcing fraudulent deduction authorizations are sources of the

harm. And because the government here “facilitates

unconstitutional conduct through its involvement with

a private party” and is a “joint participant in the challenged activity,” id. (citation & marks omitted), these

states are not off the hook for the unions’ fraud because

the statutes fail to meet the standards articulated by

this Court in Janus.

The Court should accept review and reinforce Janus by holding both government employers and publicsector unions liable when they act in concert to deprive

employees of pay to fund union activities, including political activities.

II.

The lower courts’ erroneously narrow interpretation of Janus eviscerates employees’

First Amendment rights to refrain from

speaking and to freely disassociate.

The courts below minimized the significance of

Janus, effectively limiting it to its precise facts and

11

misconstruing its broader principles. For example, the

District Court in Yates wrote that Janus “spoke only to

the deduction of state compelled fees from nonconsenting, non-union members, not union members like Plaintiff,” App.77a (emphasis in original), and claimed that

“Janus established only protected liberty or property

interests for non-union members, not union members

like Plaintiff.” App.78a (emphasis in original). More

egregiously, the Ninth Circuit repeatedly claimed that

“Janus did not impose an affirmative duty on the government to confirm that the agreement between the

union and employee is genuine.” App.3a.

But such cabined interpretations of Janus ignore

the fact that the First Amendment protects all citizens

against compelled speech and compelled association,

not just non-union-member public employees.6 As the

Petition observes, Janus applied not just to agency fees

but to “any other payment to the union.” Janus, 138

S. Ct. at 2486 (emphasis added). Janus’s First Amendment analysis therefore applies to all forms of state

action that result in nonconsensual association or subsidization.

Of course, historical experience shows that it

has often been the case that people have joined or

made payments to unions without actually voluntarily,

6

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—as, for example, in Savas v. Cal. State L. Enf ’t

Agency, No. 20-56045, 2022 WL 1262014 (9th Cir. Apr. 28, 2022),

cert. denied, 143 S. Ct. 2430 (2023).

12

freely, and affirmatively intending to waive their constitutional rights. Unions 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); Loc. 74, Serv. Emps. Int’l

Union, 323 N.L.R.B. 289, 290 (1997) (same); Chauffeurs, Teamsters, Warehousemen & Helpers Union,

Loc. 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 newlyhired 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’y 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

13

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

nonmembers rather than 85 percent associated with

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). And here, unions have

forged workers’ signatures on their membership cards.

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

F.4th 1102 (9th Cir. 2022); Wright v. SEIU Loc. 503, 48

F.4th 1112 (9th Cir. 2022).

The lower courts’ cabined view of Janus threatens

the constitutional rights of all public-sector 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 reads

out Janus’s requirement that a government employer

must have clear and compelling evidence of an employee’s affirmative consent before deducting union

dues from the employee’s wages.

If the decisions below stand, courts will defer to

unions whenever determining who union members

(and, therefore, their financiers) are—which means

state statutes will continue to be used to override the

constitutional rights of public employees (union member or not), and public employees will find themselves

trapped in union membership, and compelled to pay

14

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.

It isn’t just the forged authorization cards that

present a First Amendment problem. Restrictions on

the right to leave the union and stop7 paying union

dues8 are constitutionally infirm as well. This Court’s

precedents make clear that without the right to disassociate, the right to associate means little. Roberts v.

7

Delaying the termination of dues deductions after a request

has been received is a form of compelled subsidization as well, as

consent no longer exists for any additional payments. See R.C.W.

§ 41.80.100(2)(f ) (App.119a) (allowing delay of termination until

“the second payroll after receipt of the confirmation” of revocation

from the union); C.G.C. § 1153(h) (App.121a) (allowing delay of

any change to deductions through “the month subsequent to the

month in which the request is received”).

8

Each of the three states’ statutes here purport to allow unions to place restrictions on the right to revoke dues deduction

authorizations in their collective bargaining agreements or dues

deduction authorization forms. O.R.S. § 243.806(6) (App.116a) (“A

public employee’s authorization for a public employer to make a

deduction . . . shall remain in effect until the public employee revokes the authorization in the manner provided by the terms of

the agreement.”); C.G.C. § 1153(h) (App.121a–122a) (“[A] deduction for an employee organization may be revoked only pursuant

to the terms of the employee’s written authorization.”); R.C.W.

§ 41.80.100(d)–(e) (App.118a–119a) (“The employee’s authorization remains in effect until expressly revoked by the employee in

accordance with the terms and conditions of the authorization. . . .

An employee’s request to revoke authorization for payroll deductions must be in writing and submitted by the employee to the

exclusive bargaining representative in accordance with the terms

and conditions of the authorization.”).

15

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.9 Being forced to associate with

an organization is offensive enough, but it is effectively

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, Janus requires government employers—not just union middlemen—to have clear and compelling evidence of an

employee’s affirmative consent before facilitating any

payment to a union. The Court should take the opportunity here to bolster that requirement and correct the

lower courts’ efforts to dispense with it.

9

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.

16

III. The pervasive use of restrictive opt-out

windows undermines Janus and must be

curtailed.

One particularly troubling aspect of the decisions

below is the lower courts’ indifference to clever efforts

to trap public-sector employees into union membership

and the ongoing obligation to pay dues. Public employees should have the freedom to opt out of union

membership and state-facilitated payroll deductions

for union dues at will, at least where they have not

entered a contractual obligation to pay a specified

amount of dues.

In at least four of the consolidated cases here, the

respective unions utilized restrictive opt-out windows,

severely limiting when the Petitioners could opt out of

union membership and dues deductions. Pet. at 5, 6, 8.

Each of these resulted in the government employer

deducting dues from the employees’ paychecks for

months after the employees had revoked their consent.

Id. at 5–6, 8–9. This means that for all of those postrevocation payments, the government could not show

clear and compelling evidence of affirmative consent,

and Petitioners’ rights were violated.

Importantly, these opt-out windows—at least in

the cases of Petitioners Yates and Mendoza—were not

included in the original authorization forms when they

initially joined, but were included in the subsequently

produced forged authorizations. Id. at 6, 8; see also

App.60a (Yates’ alleged authorization “could only be

nullified during a 10-day window at the end of the

17

yearly period’). That the unions would attempt to insert this provision into forged authorizations suggests

that they are aware that “clear and compelling evidence” of affirmative consent cannot be shown where a

member has expressed a desire to revoke consent.

Such a scheme mirrors the kind of manipulation

in which unions have frequently engaged, in violation

of workers’ constitutional rights. For example, in Office

& Professional Employees International 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 exercise of

her right to challenge the Union’s figures.” Id.

Likewise, in Shea, supra, 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

18

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 equivalent to 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).

Of course, insulating the union from the consequences of abrupt membership decline also further reduces a union’s accountability to its membership.

Unfortunately, restrictive opt-out windows of myriad forms have become pervasive.10 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

10

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

2022 WL 1262014 at *1–2 (upholding “maintenance of membership requirement”).

19

Tucson Unified School District Stop Trapping Its Employees in Unions, Goldwater Institute (January 18,

2023).11 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).12 See also Petition at 19–20 (citing additional examples).

There’s nothing new about such obstructionist

tactics. In Local 647, United Automobile Workers, 197

N.L.R.B. 608 (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 N.L.R.B. 553, 589 (1955) (same arrangement).

See also Loc. 58, Int’l Bhd. of Elec. Workers (IBEW),

11

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

12

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

20

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 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

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

21

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. States

should not be allowed to shirk away from their duty to

ensure that worker consent is indeed knowing, intelligent, and voluntary before compelling payment.13

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

CONCLUSION

The taking of money from public employee paychecks based on forged dues deduction authorization

forms is government-facilitated theft, and it results in

compelled speech and compelled association. The deference given by California, Oregon, and Washington

to union assertions regarding such forms cannot be

reconciled with Janus’s clear and compelling evidence

standard. And neither government employers nor the

public-sector unions who collude with them in this

mutually beneficial funding scheme are shielded

from liability or constitutional scrutiny by a lack of

state action.

13

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.

22

To address these proliferating injustices and to reaffirm the First Amendment’s broad speech and associational rights protections, 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