Amicus Curiae Brief — Terry Klee, Petitioner v. International Union of Operating Engineers, Local 501, et al.

No. 24-1306

In the Supreme Court of the United States

TERRY KLEE,

Petitioner,

V.

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL 501, ET AL.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 14 OTHER STATES

IN SUPPORT OF PETITIONER

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

DAVID E. GILBERT

Deputy Attorney General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

QUESTION PRESENTED

1. Whether a public-sector union that invokes the aid of

state officials to deduct union dues from a nonconsenting

public-sector employee acts “under color of law” for

purposes of 42 U.S.C. § 1983.

II

TABLE OF CONTENTS

Question Presented .............................................................. I

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 3

Reasons for Granting the Petition...................................... 4

I.

California has passed laws designed to

evade Janus ................................................................... 4

II. States and public-sector unions are in fact

evading Janus.............................................................. 11

III. A public-sector union acts under color of state

law when it employs state law and officials to

evade Janus ................................................................. 15

Conclusion ........................................................................... 22

III

TABLE OF AUTHORITIES

Pages(s)

Cases

Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977) ......................................... 1, 2, 20, 21

Belgau v. Inslee,

975 F.3d 940 (2020) ................................................... 8, 17

Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n,

531 U.S. 288 (2001) ................................................. 16, 19

Burton v. Wilmington Parking Auth.,

365 U.S. 715 (1961) ....................................................... 15

Caperton v. A.T. Massey Coal Co.,

556 U.S. 868 (2009) ......................................................... 9

Flagg Bros. v. Brooks,

436 U.S. 149 (1978) ................................................. 16, 17

Fuentes v. Shevin,

407 U.S. 67 (1972) ................................................... 18, 20

Fultz v. AFSCME, Council 13,

549 F. Supp. 3d 379 (M.D. Pa. 2021) ........................... 14

Harris v. Quinn,

573 U.S. 616 (2014) ............................................. 4, 11, 21

Int’l Ass’n of Machinists Dist. Ten & Loc.

Lodge 873 v. Allen,

904 F.3d 490 (7th Cir. 2018) ......................................... 14

Jackson v. Metro. Edison Co.,

419 U.S. 345 (1974) ....................................................... 16

Janus v. AFSCME, Council 31,

585 U.S. 878 (2018) ............ 1, 2, 3, 4, 5, 10, 11, 15, 18, 20

IV

Knox v. Serv. Emps. Int’l Union, Loc.

1000, 567 U.S. 298 (2012) ............................................. 21

Lehnert v. Ferris Fac. Ass’n,

500 U.S. 507 (1991) ....................................................... 19

Lindke v. Freed,

601 U.S. 187 (2024) ........................................... 15, 16, 19

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) ................................15, 16, 17, 18, 19

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) ....................................................... 21

Moose Lodge No. 107 v. Irvis,

407 U.S. 163 (1972) ....................................................... 19

N. Ga. Finishing, Inc. v. Di-Chem, Inc.,

419 U.S. 601 (1975) ....................................................... 18

Ohlendorf v. United Food & Com. Workers

Int’l Union, Loc. 876,

883 F.3d 636 (6th Cir. 2018) ................................... 7, 8, 9

Oklahoma v. Castro-Huerta,

597 U.S. 629 (2022) ......................................................... 6

Pac. Gas & Elec. Co. v. Pub. Utilities

Comm’n of Cal.,

475 U.S. 1 (1986) ............................................................. 4

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ......................................................... 4

Sniadach v. Fam. Fin. Corp. of Bay View,

395 U.S. 337 (1969) ....................................................... 18

United Auto., Aerospace & Agric.

Implement Workers of Am. Loc. 3047 v.

Hardin Cnty.,

842 F.3d 407 (6th Cir. 2016) ........................................... 5

V

Williams v. N.L.R.B.,

105 F.3d 787 (2d Cir. 1996) .......................................... 14

Wooley v. Maynard,

430 U.S. 705 (1977) ......................................................... 4

Statutes

42 U.S.C. § 1983 .............................................................. 2, 15

Cal. Bus. & Prof. Code § 17602 ......................................... 15

Cal. Educ. Code § 45060 .............................................. 7, 8, 9

Cal. Educ. Code § 45168 ........................................ 7, 8, 9, 10

Cal. Educ. Code § 87833 ........................................ 7, 8, 9, 10

Cal. Educ. Code § 88167 ........................................ 7, 8, 9, 10

Cal. Govt. Code § 1151 ......................................................... 6

Cal. Govt. Code § 1151.5 ...................................................... 6

Cal. Govt. Code § 1152 ......................................................... 6

Cal. Gov’t Code § 1153 ...............................1, 2, 6, 7, 8, 9, 10,

11, 16, 17, 18, 19, 20

Cal. Govt. Code § 1157.3 ...................................................... 8

Cal. Govt. Code § 1157.10 ........................................ 6, 7, 8, 9

Cal. Govt. Code § 1157.12 ............................................ 7, 8, 9

Cal. Gov’t Code § 3513 ....................................................... 19

Cal. Gov’t Code § 3515.5 .................................................... 19

Cal. Gov’t Code § 3515.6 .................................................... 19

Cal. Gov’t Code § 3550 ....................................................... 10

Cal. Gov’t Code § 3553 ....................................................... 10

VI

Other Authorities

AFSCME Loc. 3299 v. Regents of the Univ.

of Cal.,

PERB Dec. No. 2755-H, 40-42 (2021) .............. 5, 10, 18

Arthur Hartinger, Jon Holtzman, & Alex

Lemberg,

Janus v. AFSCME: What Public

Employers Need to Know,

RENNE PUBLIC LAW GROUP

(June 27, 2018),

https://tinyurl.com/23x3mmwj ...................................... 5

Beth Bolen Chun, et al.,

Auto-Renewal Laws: 2025 Round Up,

KELLEYDRYE.COM (Mar. 31, 2025),

https://tinyurl.com/y44864t9........................................ 15

Brian A. Powers & Andrew Kelser,

Dues-Checkoff Dreams Do Come True,

They Do, They Do,

29 ABA J. LAB. & EMP. L. 299 (2014) ........................... 8

Brian Olney,

Paycheck Protection or Paycheck

Deception? When Government

“Subsidies” Silence Political Speech,

4 UC Irvine L. Rev. 881 (2014) ..................................... 6

Br. of Amicus Curiae Mackinac Ctr. For

Pub. Pol’y in Supp. of Pet’r,

Janus v. AFSCME, Council 31, 585

U.S. 878 (2018) (No. 16-1466),

2017 WL 6311774 .......................................................... 20

VII

EAGLES,

HOTEL CALIFORNIA

(Asylum Records 1976) .................................................. 2

Edward Ring,

The Financial Power of California’s

Government Unions,

CALIFORNIA GLOBE (Aug. 5, 2020, 2:29

am), https://tinyurl.com/2cbp4zuy ................................ 5

GARNISHMENT,

BLACK’S LAW DICTIONARY

(12th ed. 2024) ............................................................... 19

Int’l Bhd. of Teamsters Loc. 385,

366 N.L.R.B. No. 96 (June 20, 2018) .......................... 14

Jason Fischbein and Joss Teal,

California Legislature Reacts to

Supreme Court’s Blow Against Unions,

SAN DIEGO BAR ASS’N (Aug. 2018),

https://tinyurl.com/35ftmn28 ......................................... 5

Laurel Rosenhall,

California unions planning next steps

if Janus ruling goes against them,

SAN FRANCISCO CHRONICLE

(Mar. 4, 2018, 1:41 pm),

https://tinyurl.com/yc8jyjm8 ......................................... 6

Steven Malanga,

A Cautionary Tale About Union

Power, CITY JOURNAL (Apr. 7, 2015),

https://tinyurl.com/ms9hupd8 ....................................... 3

S. Ct. Rule 37 ........................................................................ 1

INTRODUCTION AND INTERESTS

OF AMICI CURIAE*

For decades, States could authorize public employers

to sign agency-shop agreements that in turn licensed

unions to charge unwilling government employees for the

cost of “representing the[ir] interests.” Abood v. Detroit

Bd. of Educ., 431 U.S. 209, 221 (1977). Even back then,

the Court saw many reasons why a government employee

might object to funding union activities. Id. at 222. Yet

the Court reckoned that these obvious First Amendment

infringements were “constitutionally justified,” id., so

long as they respected minimal limits on “political”

activity, id. at 235-36.

This Court tried to set things straight in 2018, when it

declared that “Abood was wrongly decided” and held that

it had winked at a “procedure [that] violates the First

Amendment.” Janus v. AFSCME, Council 31, 585 U.S.

878, 930 (2018). After Janus, “[n]either an agency fee nor

any other payment to the union may be deducted from a

nonmember’s wages … unless the employee affirmatively

consents to pay.” Id.

But California and its public-employee unions saw

Janus coming and got ready. If they could no longer

extract fees from nonmembers, perhaps they could make

it harder for existing union members to quit paying dues.

So thanks to same-day legislation, 2018 Cal. Legis. Serv.

Ch. 53 (S.B. 866) (West), California said that publicemployee dues authorizations were no longer revocable at

will. Compare Cal. Gov’t Code § 1153(h) (eff. 2018) with

Cal. Gov’t Code § 1153(g) (enact. 1993). Authorizations

would “be revoked only pursuant to … terms” that the

Under Supreme Court Rule 37, amici timely notified counsel of

record of their intent to file this brief.

*

2

union dictated. Cal. Gov’t Code § 1153(h) (eff. 2018). S.B.

866 placed the union fully in charge of the revocation

process.

Petitioner Terry Klee became an unfortunate victim of

this state-driven regime. After he struggled for years to

escape his union, Petitioner sued IUOE, his state

employer, the California State Controller, and the

California Attorney General under 42 U.S.C. § 1983. Yet

the Ninth Circuit reasoned that Petitioner’s no-escape

problem stemmed from his “private agreement” with

IUOE, not some “state statute or policy.” App.3 (cleaned

up). And the party purportedly at fault—IUOE—“could

[not] be described in all fairness as a state actor.” App.4

(cleaned up). So Petitioner had no Ҥ 1983 claims against

the Union.” App.5.

Amici States urge this Court to intervene. Abood was

a grave constitutional error that allowed untold “billions

of dollars” to be “taken from nonmembers and transferred

to public-sector unions in violation of the First

Amendment.” Janus, 585 U.S. at 929. Janus was

supposed to halt that, yet the State of California and its

public-sector unions have conspired to keep the money

flowing. Together, they have turned public-sector union

membership into a sort of “Hotel California” where “[y]ou

can check out any time you like, but you can never leave,”

EAGLES, HOTEL CALIFORNIA (Asylum Records 1976)—at

least not without quitting your job or perhaps hiring a

lawyer to show you the way. Other States and unions have

done the same.

All amici States—with or without public-employee

unions—have a strong interest in seeing First

Amendment protections respected nationwide. They also

have an interest in opposing scratch-my-back

relationships that drive up state and local spending, see

3

Janus, 585 U.S. at 925, and skew federal tax burdens.

Public-sector unions may have a right to “elect [their] own

boss,” Steven Malanga, A Cautionary Tale About Union

Power,

CITY

JOURNAL

(Apr.

7,

2015),

https://tinyurl.com/ms9hupd8 (quoting Victor Gotbaum),

but not on someone else’s dime.

The Court should grant the Petition and reaffirm that

no “payment to the union may be deducted from a

nonmember’s wages” without the employee’s consent.

Janus, 585 U.S. at 930. And to give that requirement

meaning, it should likewise hold that a public-sector union

acts under color of state law when it uses state officials and

processes to extract money from unwilling employees.

SUMMARY OF ARGUMENT

I. Janus confirmed workers’ First Amendment right

to refuse funding for speech they disagree with. But the

State of California and its public-sector unions conspired

to limit its effect. S.B. 866 tries to transfer virtually

unfettered control over payroll deductions to unions,

setting them free to exploit unwilling public employees.

II. Petitioner’s experience shows that the State and its

unions succeeded. Oppressive terms, lack of information,

legal ambiguity, and IUOE stonewalling ensured that

Petitioner subsidized IUOE’s speech far longer than he

intended. Petitioner’s experience is common, even though

it conflicts with both consumer-protection trends and the

usual approach to waiver of a constitutional right.

III. The Ninth Circuit incorrectly said IUOE did not

act under color of state law. IUOE exploited a State

statutory scheme to access Petitioner’s wages, and it could

spend those wages only because the Controller handed

them over. This mutual effort made IUOE a joint actor

4

with the State. What’s more, substance matters most, and

a close look at facts (not labels) demonstrates that IUOE

acted under color of state law.

REASONS FOR GRANTING THE PETITION

I.

California passed laws designed to evade Janus.

Janus reaffirmed basic First Amendment principles

when it barred “States and public-sector unions” from

“extract[ing]

agency

fees

from

nonconsenting

employees.” 585 U.S. at 929.

The First Amendment protects “both the right to

speak freely and the right to refrain from speaking at all.”

Wooley v. Maynard, 430 U.S. 705, 714 (1977). And

because the Amendment guarantees our “freedom not to

associate” as much as our freedom to join, Roberts v. U.S.

Jaycees, 468 U.S. 609, 623 (1984), “forced associations that

burden protected speech are impermissible,” Pac. Gas &

Elec. Co. v. Pub. Utilities Comm’n of Cal., 475 U.S. 1, 12

(1986). Indeed, the notion that “no person in this country

may be compelled to subsidize speech by a third party that

he or she does not wish to support”—“except perhaps in

the rarest of circumstances”—was already a “bedrock

principle” of First Amendment law. Harris v. Quinn, 573

U.S. 616, 656 (2014).

Janus put to bed the notion that unions get some

special exemption from these basic rules. The concern for

“labor peace” and “free riders” cannot justify forcing

public employees to pay for union speech. Janus, 585 U.S.

at 895-901. Janus also made plain that compelled speech

subsidies violate the First Amendment, so any consent to

pay for such speech amounts to a “waiver” of

constitutional significance. Id. at 930. “[T]he obligation to

pay dues to a union is the practical equivalent of requiring

5

union membership.” United Auto., Aerospace & Agric.

Implement Workers of Am. Loc. 3047 v. Hardin Cnty., 842

F.3d 407, 421 (6th Cir. 2016)). These bedrock principles

are as true for union members (like Petitioner) who want

out as they are for public employees (like Mr. Janus) who

never joined a union.

A. California anticipated Janus and hurried to

undermine it. The very day Janus was handed down,

“Governor Jerry Brown signed … Senate Bill 866” “to

mitigate the effects of the … Court’s decision.” Jason

Fischbein and Joss Teal, California Legislature Reacts to

Supreme Court’s Blow Against Unions, SAN DIEGO BAR

ASS’N

(Aug.

2018),

https://tinyurl.com/35ftmn28.

Timelines like that don’t arise by chance. In fact, S.B. 866

capped a year’s worth of legislative efforts “to diminish

the effect of the Janus decision on unions and maximize

the likelihood that employees w[ould] agree to voluntary

dues deductions.” Arthur Hartinger, Jon Holtzman, &

Alex Lemberg, Janus v. AFSCME: What Public

Employers Need to Know, RENNE PUBLIC LAW GROUP

(June 27, 2018), https://tinyurl.com/23x3mmwj. S.B. 866

“t[ook] effect immediately.” Id. § 51.

California’s urgency is not difficult to understand given

the stranglehold unions have over California politics.

“California’s public sector unions collect and spend well

over $900 million per year,” and roughly “one-third of”

that goes to “explicitly political purposes such as campaign

contributions and lobbying.”

Edward Ring, The

Financial Power of California’s Government Unions,

CALIFORNIA GLOBE (Aug. 5, 2020, 2:29 am),

https://tinyurl.com/2cbp4zuy. So in explaining why antiJanus measures were necessary, unions said the quiet

part out loud: “If we have less money as labor, we’re going

to be spending less money on Democratic candidates.”

6

Laurel Rosenhall, California unions planning next steps

if Janus ruling goes against them, SAN FRANCISCO

CHRONICLE

(Mar.

4,

2018,

1:41

pm),

https://tinyurl.com/yc8jyjm8 (quoting a union official).

B. Really, one needn’t guess at the State’s intentions.

The surest way to gauge legislative intent is by examining

the text, see Oklahoma v. Castro-Huerta, 597 U.S. 629,

642 (2022), and S.B. 866 confirms the Legislature’s intent

to keep union payroll deductions flowing. “[P]ayroll

deductions” are, after all, how “[u]nions collect nearly all

of their funds.” Brian Olney, Paycheck Protection or

Paycheck Deception? When Government “Subsidies”

Silence Political Speech, 4 UC Irvine L. Rev. 881, 888

(2014).

Consider how S.B. 866 altered California Government

Code § 1153, which covers authorizations for union-dues

deductions. Section 1153 requires the Controller to

administer public-employee “payroll deductions” for a

variety of purposes, ranging from insurance and banking

to child support and union dues. Id. § 1153 (citing id.

§§ 1151, 1151.5, and 1152). Before S.B. 866, Section 1153

required “state agenc[ies], employee organization[s]”

(unions), and “business entit[ies]” to certify they “have”

written authorizations for the deductions they request.

Cal Gov’t Code § 1153(b) (enact. 1993). S.B. 866 added that

unions who make this certification can’t be compelled to

produce their (alleged) authorizations unless someone

challenges the authorizations’ “existence or terms.” Cal

Gov’t Code § 1153(b) (eff. 2018). Not even state agencies

qualify for this exemption. See id.; see also Cal. Gov’t

Code § 1157.10(b) (eff. 2018) (replicating this unions-only

exemption). So California has written a trust-but-don’tverify principle into its public-sector dues laws.

7

The Legislature seems to have been very keen to avoid

troubling unions with producing copies of authorizations.

See Cal. Educ. Code § 45060(f) (eff. 2018); id. § 45168(a)(7)

(eff. 2018); id. § 87833(f) (eff. 2018); id. § 88167(a)(7) (eff.

2018); Cal. Gov’t Code § 1157.10(b) (eff. 2018); id. §

1157.12(a) (eff. 2018). But perhaps sensing just how

exploitive this arrangement could be, the Legislature

added a duty to “indemnify the Controller for any claims

made by the employee for deductions made in reliance on

that notification.” Id. § 1153(g) (eff. 2018); see also, e.g.,

Cal. Educ. Code § 45060(e) (eff. 2018). Notice, though,

that this duty only extends to “claims … for deductions.”

Ids. “Pay it back if you get caught” is a paltry disincentive

for cheating.

Now look at Section 1153’s timing provisions for

beginning and ending deductions. Before S.B. 866, the

rule was simple: the Controller had to “[m]ake, cancel, or

change a deduction” by “the month subsequent to the

month in which the request is received.” Cal Gov’t Code

§ 1153(g) (enact. 1993). That month-long lag time is

hardly swift action, but at least the rule was symmetrical.

S.B. 866 eliminated this symmetry—but only for unions.

Now, when a union claims an authorization, the

Controller must begin deductions “the next pay period.”

Cal. Gov’t Code § 1153(g) (eff. 2018). The deadline for

revocations, though, remains the same—“the month

subsequent to the month.” Id. Thus, for unions, it’s

“heads I win, tails you wait.”

But the Legislature did more than introduce a bit of

delay; it also made authorizations uniquely sticky. Before

S.B. 866, all Section 1153 deductions were revocable at

will; the employee just had to wait a month to start

enjoying his full paycheck again. See Cal Gov’t Code

§ 1153(g) (enact. 1993). After S.B. 866, an employee’s

8

authorization to deduct union dues “may be revoked only

pursuant to [its] terms.” Cal. Gov’t Code § 1153(h) (eff.

2018). Other non-union-related authorizations remain

revocable at will. Id.

Despite what the Ninth Circuit may say about

“bargained-for agreements,” Belgau v. Inslee, 975 F.3d

940, 947 (2020), it’s safe to say that employees aren’t

drafting their own dues authorizations.

These

authorizations are “Here, sign this” propositions, and

nothing in Section 1153 suggests that any term is out of

bounds.

Indeed, shifting dues authorizations from

revocable-at-will to revocable-when-the-union-says-so

seems to have been a major priority for the Legislature.

Repeatedly, S.B. 866 hands the exit key to the union—and

never with any apparent limits on union discretion.

Compare Cal. Educ. Code § 45060 (enact. 1982) with id. §

45060(a), (c) (eff. 2018); compare id. § 45168(a) (enact.

1980) with id. § 45168(a)(1), (2) (eff. 2018); compare id. §

87833 (eff. 1990) with id. § 87833(a), (c) (eff. 2018);

compare id. § 88167(a) (enact. 1995) with id. § 88167(a)(1),

(2) (eff. 2018); compare Cal. Gov’t Code § 1157.10(g)

(enact. 1983) with id. § 1157.10(g) (eff. 2018). See also id.

§ 1157.3(b) (eff. 2018); id. § 1157.12(b) (eff. 2018).

Despite this lack of guardrails, S.B. 866 leaves no doubt

about the status of these potentially ham-handed

authorizations. Public employers “shall honor” them,

regardless of whatever “terms” the union may concoct.

Cal. Educ. Code §§ 45060(e) (eff. 2018), 45168(a)(6) (eff.

2018), 87833(e) (eff. 2018), 88167(a)(6) (eff. 2018); see also

Cal. Govt. Code § 1157.3(b) (eff. 2018). That mandate

leaves plenty of room for unions to throw up obstacles to

opting out. For instance, the authorizations might contain

only narrow time windows for members to opt out under a

“maintenance of dues” provision. See Brian A. Powers &

9

Andrew Kelser, Dues-Checkoff Dreams Do Come True,

They Do, They Do, 29 ABA J. LAB. & EMP. L. 299, 303 &

n.32 (2014). Or unions might require that revocations be

sent only by certified mail. See, e.g., Ohlendorf v. United

Food & Com. Workers Int’l Union, Loc. 876, 883 F.3d 636,

639 (6th Cir. 2018). Or they might write the authorizations

in confusing ways. The possibilities are endless.

Yet the Legislature did more than hand over the key;

it deputized unions to guard the door. After S.B. 866,

Section 1153 requires employees to address their

revocation “requests” to the union, not the Controller, and

tasks the union with “processing these requests.” Cal.

Gov’t Code § 1153(h) (eff. 2018). And despite (or perhaps

because of) what Madison had to say about “be[ing] a

judge in [one’s] own cause,” Caperton v. A.T. Massey Coal

Co., 556 U.S. 868, 876 (2009) (quoting The Federalist No.

10, p. 59 (J. Cooke ed. 1961)), S.B. 866 compels the

Controller to “rely on” the union’s determination that a

deduction has (or has not) been “properly canceled.” Cal.

Gov’t Code § 1153(h) (eff. 2018). If the Controller relies on

an erroneous determination, the union must “indemnify

the Controller for any claims made by the employee for

deductions.” Id. But here again, “pay it back if you get

caught” is no real guard against temptation. Yet S.B. 866

inserted take-the-union’s-word-for-it provisions in section

after section. See Cal. Educ. Code §§ 45060(e) (eff. 2018),

45168(a)(6) (eff. 2018), 87833(e) (eff. 2018), 88167(a)(6) (eff.

2018); Cal. Gov’t Code §§ 1157.10(g) (eff. 2018), 1157.12(b)

(eff. 2018).

These provisions aren’t the only features of S.B. 866

that tell the tale. S.B. 866, for example, eliminated

education employees’ express statutory right to refuse

further deductions upon an increase in dues. Compare

Cal. Educ. Code § 45060 (enact. 1982) with id. § 45060(c)

10

(eff. 2018); compare id. § 45168(a) (enact. 1980) with id.

§ 45168(a)(2) (eff. 2018); compare id. § 87833 (eff. 1990)

with id. § 87833(c) (eff. 2018); compare id. § 88167 (enact.

1995) with id. § 88167(a)(2) (eff. 2018). Now an employee

has no right to decline unless the authorization says so.

Ids. By eliminating at-will revocations under Section

1153, S.B. 866 implicitly imposed the same rule on

Petitioner.

S.B. 866 also plussed-up California Government Code

§ 3550, which governs communications between

employers and employees. Before S.B. 866, Section 3550

declared that “public employer[s] shall not deter or

discourage public employees … from becoming or

remaining members of an employee organization.” Cal.

Gov’t Code § 3550 (enact. 2017). S.B. 866 extended the gag

order to “authorizing dues or fee deductions.” Cal. Gov’t

Code § 3550 (eff. June 27, 2018) (emphasis added). One

detects a theme.

California takes these supersized Section-3550

protections very seriously—even talking about Janus

itself might create trouble for the public employer. See,

e.g., AFSCME Loc. 3299 v. Regents of the Univ. of Cal.,

PERB Dec. No. 2755-H, 40-42 (2021) (applying a

“tendency to influence” test and finding that truthful

communications about Janus made out a prima facie

violation). One can guess what the Board would say if a

public employer advised its employees to read dues

authorizations before signing them—that is, without

consulting the union first. See Cal. Gov’t Code § 3553 (eff.

2018).

C. In all, S.B. 866 hands the State’s payroll system

over to public-employee unions, empowering them to erect

adhesive-contract walls around employees who might

wish to reclaim their right not to fund things they disagree

11

with. The Court should grant the Petition and remind

California and its public-employee unions again that “no

person … may be compelled to subsidize speech by a third

party.” Harris, 573 U.S. at 656. Even for unions.

II.

States and public-sector unions are in fact

evading Janus.

Petitioner’s experience shows that the State and its

unions succeeded in their mission: escaping union dues

once and for all requires an unreasonable degree of

persistence and patience in California. Though Petitioner

got into IUOE with the stroke of a pen, getting out

required nearly two years of letters, emails, and dogged

efforts. And Petitioner’s experience is common even

outside California, reflecting a troubling exception to

States’ more recent concern for consumer protection.

A. Petitioner is no union buster. He reports that he

“joined IUOE” in fall 2010 and that he remained a

member for nine years. App.11. When he wanted out in

October 2019, IUOE obliged him, id., perhaps because the

union was operating on a dues authorization from 2010.

See Cal. Gov’t Code § 1153(g) (enact. 1993) (requiring the

Controller to “[m]ake, cancel, or change a deduction … not

later than the month subsequent to the month in which the

request is received”). But work difficulties soon brought

Petitioner back to IUOE; if he wanted help, the union

informed him, coming back to the union was “the only

way.” App.11. He joined again in late November 2019.

App.12.

As one might expect, IUOE’s membership application

instructed the “Controller to deduct … all union dues.”

App.12. But by that point IUOE was aware of what it

could do under S.B. 866. It drove a hard bargain,

requiring Petitioner to sign an authorization that was

12

“irrevocable for a period of one year and year-to-year

thereafter” unless Petitioner revoked within a specific 15day window. Id. After accepting the union’s terms,

Petitioner reports that the union ignored him. App.13. So

he asked out again. Id.

This time was different. Petitioner began his quest in

December 2019, with a certified letter to the union.

App.13. The letter informed IUOE that Petitioner was

“resigning [his] membership” and withdrawing “any

previous dues authorization.” Id. For good measure, the

letter added that if the union refused to let him out, then

he wanted IUOE to “hold” his letter until it could be

effective. Id. Petitioner added that, if the union refused

his request, he wanted to know “the reason … and the

date(s)” when he could “effectively resign,” plus “any

further steps that are necessary.” App.13, 14. “If there

[wa]s a ‘window’ period” for resignations, he wanted

“cop[ies] of all controlling documents.” App.14. No one

responded. Petitioner followed up by email about two

weeks later. Id. This follow-up elicited a one-sentence

response that the “request” would “be processed

accordingly.” Id.

Whatever “processed accordingly” means, it did not

mean that IUOE was done collecting dues; they kept on

flowing. App.14. So in August 2020, Petitioner e-mailed

the union to request “contact information [for] the

membership department” and ask “what time of year [he]

last submitted [his] membership enrollment.” Id. When

no one responded, Petitioner sent another email the next

month. Id. This communication prompted a three-word

response, “Here you go,” with an attached copy of his

membership application. Id. Still unclear about what to

do, Petitioner replied with a pointed follow-up question: “I

want to know if I signed my enrollment on 11/22/2019 what

13

time period is acceptable for me to opt out during the year

2020 and whom do I email a signed opt-out request to?”

Compl. ¶ 44, Klee v. IUOE, Loc. 501, No. 2:22-cv-00148

(C.D Cal. filed Jan. 7, 2022), ECF No. 1. No one answered

this email, so five days later, Petitioner tried again.

App.15. Still, no one answered, and Petitioner’s dues kept

getting taken. Id. With no guidance from IUOE,

Petitioner sent another certified letter on November 10,

2020. App.15. When no one responded to this letter,

Petitioner followed up with several emails. Id.

Petitioner finally got a response by email on December

10, 2020—almost a year after he first sought to revoke.

App.15. Blaming the pandemic for its delayed response,

IUOE advised that Petitioner’s November 10 letter was

too late. Id. Notice was due “between October 8th and

October 23rd.” Id. In short, it was fine for IUOE to blame

the pandemic for its tardiness, but Petitioner’s opt-out had

better be on time.

Petitioner sent a third certified letter in January 2021.

App.15.

This time the union replied right away:

Petitioner’s letter came too late and IUOE “consider[ed]

this matter closed.” App.16. Unhappy, Petitioner emailed another union official twice in February 2021. Id.

Those emails also went unanswered. Id. Petitioner got no

relief until he sent a fourth certified letter on October 20,

2021. Id. That finally shut off the tap—nearly two years

too late. Id.

B. Petitioner’s experience illustrates the sort of

unconstitutional labyrinth that S.B. 866 licensed unions to

create. To obtain union assistance (which allegedly never

came), IUOE forced Petitioner to agree to an

“irrevocable” and infinitely renewable agreement to pay

“all union dues,” regardless of how much the union cared

to charge. App.12. And once he was in, the only way out

14

was through a brief, fifteen-day window whose beginning

and end were only knowable if Petitioner had access to the

right documents. The union never warned Petitioner

when his escape hatch was approaching, and the

Legislature did not require it to tell him. If he wanted out,

it was on him to read the fine print, hang onto his

documents, and mark his calendar—or hire a skilled

lawyer to advise him. Failing that, his only options were

to keep paying IUOE or quit his job. The Legislature cast

Petitioner into this quagmire when it handed its payroll

system over to the union.

C. Petitioner is hardly the first employee to be

subjected to this sort of gamesmanship. Indeed, unions

have been in the escape-room business for decades.

Williams v. N.L.R.B., 105 F.3d 787, 789 (2d Cir. 1996) (10day window). More recent cases show unions have still

been using the same methods. See, e.g., Fultz v.

AFSCME, Council 13, 549 F. Supp. 3d 379, 384 (M.D. Pa.

2021) (15-day window); Int’l Bhd. of Teamsters Loc. 385,

366 N.L.R.B. No. 96 (June 20, 2018) (describing how a

union “failed time and again to respond to [employees’]

requests [to revoke their dues authorizations] or, if they

did respond, did so only after the employees’ window

periods closed or charges were filed”). That’s not

surprising, as “[i]t is in the union’s interest to procure the

maximum irrevocability period allowed under the law”—

or employ other means to retain its funds—“not to bargain

for the best interests of its members.” Int’l Ass’n of

Machinists Dist. Ten & Loc. Lodge 873 v. Allen, 904 F.3d

490, 513 (7th Cir. 2018) (Manion, J., dissenting).

Yet Petitioner’s experience is striking because it

results from the State’s naked intent to diminish

protections for public-sector employees, even as the State

has been cracking down on similar contracts elsewhere.

15

See Cal. Bus. & Prof. Code § 17602(b)(2), (c) (imposing a

30-day consumer notice requirement before renewal and

mandating efforts to facilitate termination). Leaving

public-sector employees on their own also cuts against the

nationwide “trend toward more prescriptive disclosure,

notice, and cancellation requirements” for consumers.

Beth Bolen Chun, et al., Auto-Renewal Laws: 2025 Round

Up,

KELLEYDRYE.COM

(Mar.

31,

2025),

https://tinyurl.com/y44864t9. And it seems particularly

wrong to allow this kind of gamesmanship when

constitutional issues are at stake. After all, it should be

harder to waive constitutional rights like the freedom of

association, not easier.

III.

A public-sector union acts under color of state

law when it employs state law and officials to

evade Janus.

Section 1983 suits might be one of the only ways to

stop the gamesmanship and give Janus force—but the

Ninth Circuit inappropriately shut the door on that option.

S.B. 866 furnished “the procedural scheme” that allowed

IUOE to extract dues from Petitioner, and IUOE could

only extract those dues with the Controller’s “joint

participation.” Lugar v. Edmondson Oil Co., 457 U.S. 922,

941 (1982). That’s enough for the Court to find action

under color of state law. State action is also clear from the

overall “facts” and “circumstances” that enabled IUOE to

reach into Petitioner’s wallet for nearly two extra years.

Burton v. Wilmington Parking Auth., 365 U.S. 715, 722

(1961).

A. Section 1983 provides a claim against “[e]very

person who” deprives another person of federal rights

“under color of [a] [State] statute.” 42 U.S.C. § 1983. It

only “protects against acts attributable to a State.”

Lindke v. Freed, 601 U.S. 187, 194 (2024). Yet, “[p]rivate

16

parties can”—and often do—“act with the authority of the

State.” Id. at 197. Indeed, “cozy situations, local politics

and the pressure of economic overlords” sometimes put “a

State[] … ‘in cahoots’ with a private group.” Jackson v.

Metro. Edison Co., 419 U.S. 345, 364 (1974) (Douglas, J.,

dissenting).

When that happens, respect for the

Constitution requires “the deed of an ostensibly private

organization … to be treated … as if a State had caused

it.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 295 (2001).

To decide when that is so, the Court generally applies

a “two-part” test. Lugar, 457 U.S. at 937. The first part

asks whether “the deprivation” stems from “the exercise

of some right or privilege created by the State.” Id. The

second part asks whether “the party charged with the

deprivation” is someone “who may fairly be said to be a

state actor.” Id. That party need not be “a state official.”

Id. Rather, it is enough for the party to have “acted

together with or [have] obtained significant aid from state

officials.” Id.

Both factors are present here.

First, IUOE “act[ed] with the knowledge of and

pursuant to” Section 1153 when it extracted Petitioner’s

union dues. Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978)

(quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 161

n.23 (1970)). Section 1153 establishes the Controller’s

duty to administer union payroll deductions. Cal. Gov’t

Code § 1153. Unions must only certify “that they have and

will maintain” signed authorizations from employees. Id.

§ 1153(b). Thanks to S.B. 866, those authorizations are

revocable “only pursuant to [their] terms.” Id. § 1153(h)

(eff. 2018). All these are rights and privileges created by

the State of California.

17

Second, the relevant state actors are obvious: a union

who works hand-in-hand with the State Controller.

Petitioner’s membership application “authorize[d] the

State Controller to deduct from [his] wages all union

dues,” and it stated that IUOE could “use this

authorization with the State Controller.” App.12. Then,

when Petitioner sought to leave the union, IUOE used the

terms of this authorization to reject his request. App.15.

Under Section 1153, IUOE had sole responsibility “for

processing” Petitioner’s request, and the Controller was

duty bound to “rely on” IUOE’s assessment about

whether Petitioner’s authorization was “properly

canceled.” Cal. Gov’t Code § 1153(h) (eff. 2018). IUOE

fully exploited this “procedural scheme,” and a

“procedural scheme created by the statute obviously is the

product of state action.” Lugar, 457 U.S. at 941. The

Ninth Circuit missed this fact when it dismissed

Petitioner’s case as a mere “dispute over the terms of

Union membership.” App.3. The Union membership was

baked right into the law itself.

IUOE also “obtained significant aid from” the

Controller. Lugar, 457 U.S. at 937. IUOE was able to

spend—and keep on spending—Petitioner’s wages only

because the Controller handed them over. Cf. Cal. Gov’t

Code § 1153(a) (requiring the Controller to “[m]ake”

deductions “at the request of the … organization

authorized to receive” them).

This payment collection wasn’t mere “ministerial

processing.” Belgau, 975 F.3d at 948. The Court has

“consistently held 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.” Lugar, 457

U.S. at 941; see also Flagg Bros. 436 U.S. at 160 n.10

18

(explaining that “constitutional protection attaches …

because as a result of [a] writ the property of the debtor

was seized and impounded by the affirmative command of

the law”); cf. N. Ga. Finishing, Inc. v. Di-Chem, Inc., 419

U.S. 601, 606 (1975) (applying the Fourteenth Amendment

to garnishment statute); Fuentes v. Shevin, 407 U.S. 67,

84 (1972) (applying Fourteenth Amendment to replevin

statutes); Sniadach v. Fam. Fin. Corp. of Bay View, 395

U.S. 337, 339-42 (1969) (applying Fourteenth Amendment

to garnishment statute).

California employed its coercive power as the State to

take money to which its employees would otherwise be

entitled. In Lugar, state law directed the sheriff to merely

sequester a debtor’s property based on “an ex parte

petition.” 457 U.S. at 924-25. Here, Section 1153 required

the Controller to pay Petitioner’s earnings to IUOE

(presumably to be spent as IUOE saw fit) based on little

more than a trust-me. See Cal. Gov’t Code § 1153(b). The

Seventh Circuit got it right when it found that this sort of

arrangement made “AFSCME … a joint participant with

the state.” Janus v. AFSCME, Council 31; AFL-CIO, 942

F.3d 352, 361 (7th Cir. 2019). The Court should say the

same here.

B. The Ninth Circuit incorrectly found no state action

on either a “joint action” or “governmental nexus” test.

App.4. Applying circuit precedent, the court found no

joint action because “the State [purportedly] did not

affirm, authorize, encourage, or facilitate unconstitutional

conduct by processing dues deductions.” App.4 (cleaned

up). It found no governmental nexus because Petitioner’s

allegations purportedly failed to show “the State ha[d]

exercised coercive power or ha[d] provided such

significant encouragement, either overt or covert, that

19

the” State could be charged with IUOE’s actions. Id.

(cleaned up).

These findings were error. First, we know joint action

occurred here because Lugar says so. Second, the Ninth

Circuit’s blinkered analysis ignores the Court’s teaching

that courts may “[o]nly” assess the State’s “involvement

… in private conduct” “by sifting facts and weighing

circumstances.” Moose Lodge No. 107 v. Irvis, 407 U.S.

163, 172 (1972) (quoting Burton, 365 U.S. at 722). Courts

must attend to the “winks and nods,” lest “the [stateaction] doctrine … vanish [due] to the ease and

inevitability of its evasion.” Brentwood, 531 U.S. at 301

n.4. What counts is the “substance, not labels,” Lindke,

601 U.S. at 197, and here the substance favors Petitioner.

IUOE is an exclusive bargaining agent. App.10; Cal.

Gov’t Code § 3513(b). This label means IUOE was “the

only organization that [could] represent [Petitioner’s] unit

in employment relations with the state.” Cal. Gov’t Code

§ 3515.5. Exclusivity is what formerly explained “the

state[’s] interest in compelling dues,” Lehnert v. Ferris

Fac. Ass’n, 500 U.S. 507, 552 (1991) (Scalia, J., concurring

in part and dissenting in part), and exclusivity has its

privileges. By law, IUOE was the only union with access

to Petitioner’s wages. See Cal. Gov’t Code § 3515.6.

Even before S.B. 866, IUOE had access to a process for

intercepting Petitioner’s wages and making sure it got

paid. See Cal. Gov’t Code § 1153(a) (enact. 1993)

(requiring the Controller to make payroll deductions).

This was essentially garnishment without a court, where

the State, as employer, volunteered to hand over the

money. See GARNISHMENT, BLACK’S LAW DICTIONARY

(12th ed. 2024). And such power is what distinguishes this

case from a private contract dispute. Without the State’s

involvement, IUOE might claim a right to sue Petitioner

20

for union dues—or pursue similar self-help avenues. See,

e.g., Br. of Amicus Curiae Mackinac Ctr. For Pub. Pol’y in

Supp. of Pet’r at 41, Janus v. AFSCME, Council 31, 585

U.S. 878 (2018) (No. 16-1466), 2017 WL 6311774

(describing how unions sent former members to

collections after they tried to leave the union and stop

paying dues following “right to work” reforms in

Michigan). But California laws and California state

officials ensure that IUOE need not even pursue those

formalities to get the money in hand.

This arrangement was fine for States and public-sector

unions (at least legally speaking) while Abood survived.

But Janus changed all that. Now the order of the day was

barring the door against union members who might wish

to leave and take their money with them. With the State’s

implicit blessing, IUOE made dues authorizations

infinitely renewable for one-year terms and “regardless of

… membership status,” subject only to a 15-day escape

hatch whose bounds were only knowable if Petitioner had

access to the right documents. App.12. To make matters

worse, S.B. 866 handed the revocation process over to

IUOE. Now, dues cancelations were to “be directed to”

IUOE, not “the Controller.” Cal. Gov’t Code § 1153(h)

(eff. 2018). Now IUOE was “responsible for processing

these requests.” Id. And now the Controller was duty

bound to “rely on” IUOE’s assessment about “whether” a

deduction was “properly canceled.” Id. What’s more, S.B.

866 disavowed—for IUOE and others like it—even a basic

duty to show copies of their authorizations, except in the

event of “a dispute … about the[ir] existence or terms.”

Cal. Gov’t Code § 1153(b) (eff. 2018).

In short, S.B. 866 “abdicate[d] effective state control

over [the] state[’s] power” to pay its employees, Fuentes,

407 U.S. at 93—all so those wages could keep flowing to

21

the State’s “most powerful political special interest,” Ring,

supra. And thanks to extraordinary foresight and

coordination, S.B. 866 arrived—and became effective—

before the ink had even dried on this Court’s opinion. The

Ninth Circuit ignored the obvious when it found an

absence of State “encouragement” on these facts. App.4.

C. The Ninth Circuit also missed the way this Court

has framed matters in the past. Abood, for instance,

referred to the “infringement” that happens when public

employees “are compelled to make … contributions for

political purposes.” 431 U.S. at 234. It held that unions

“cannot constitutionally spend [such] funds for the

expression of political views.” Id. at 235 (emphasis added).

Knox v. Service Employees International Union, Local

1000 recognized a “general rule” that “individuals should

not be compelled to subsidize private groups or private

speech.” 567 U.S. 298, 321 (2012). And Harris relied on

“the bedrock principle that,” with only “the rarest of”

exceptions, “no person … may be compelled to subsidize

speech by a third party that he or she does not wish to

support. 573 U.S. at 656.

These statements are telling. For one thing, “the Free

Speech Clause prohibits only governmental abridgment of

speech,” Manhattan Cmty. Access Corp. v. Halleck, 587

U.S. 802, 808 (2019), so the First Amendment could hardly

limit public-sector union spending if that spending weren’t

attributable to the state. For another thing, Harris’s

“bedrock principle” surely describes Petitioner. Harris,

573 U.S. at 656. He is, after all, a “person” who—thanks

to S.B. 866 and IUOE’s shrewdness—was “compelled to

subsidize speech” for months on end “that he … [did] not

wish to support.” Id. In short, there’s no need to move

tent pegs to find state action, here. IUOE’s conduct has

been state action since Abood.

22

CONCLUSION

The Court should grant the Petition.

Respectfully submitted.

JOHN B. MCCUSKEY

Attorney General

Office of the West Virginia

Attorney General

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

DAVID E. GILBERT

Deputy Attorney

General

Counsel for Amicus Curiae State of West Virginia

23

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

LIZ MURRILL

Attorney General

State of Louisiana

TIM GRIFFIN

Attorney General

State of Arkansas

AUSTIN KNUDSEN

Attorney General

State of Montana

JAMES UTHMEIER

Attorney General

State of Florida

MICHAEL T. HILGERS

Attorney General

State of Nebraska

RAÚL LABRADOR

Attorney General

State of Idaho

GENTNER DRUMMOND

Attorney General

State of Oklahoma

THEODORE E. ROKITA

Attorney General

State of Indiana

ALAN WILSON

Attorney General

State of South Carolina

BRENNA BIRD

Attorney General

State of Iowa

KEN PAXTON

Attorney General

State of Texas

KRIS KOBACH

Attorney General

State of Kansas

DEREK BROWN

Attorney General

State of Utah