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

No. 24-1305, 24-1306

IN THE

Supreme Court of the United States

_________

MARCUS TODD,

Petitioner,

v.

AMERICAN FEDERATION OF STATE, COUNTY, AND

MUNICIPAL EMPLOYEES, COUNCIL 5,

Respondent.

_________

TERRY KLEE,

Petitioner,

v.

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL 51, ET AL.

Respondents.

_________

ON PETITIONS FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH AND NINTH CIRCUITS

_________

BRIEF OF AMICUS CURIAE NATIONAL RIGHT TO

WORK LEGAL DEFENSE FOUNDATION, INC., AND

MACKINAC CENTER FOR PUBLIC POLICY IN SUPPORT

OF PETITIONERS

_________

WILLIAM L. MESSENGER

Counsel of Record

NATIONAL RIGHT TO WORK

FOUNDATION

8001 Braddock Rd., Ste. 600

Springfield, VA 22160

(703) 321-8510

wlm@nrtw.org

Counsel for Amicus Curiae

Patrick Wright

MACKINAC CENTER

140 West Main Street

Midland, MI 48640

(989) 631-0900

wright@mackinac.org

QUESTION PRESENTED

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.

(i)

TABLE OF CONTENTS

Page

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

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

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

SUMMARY OF THE ARGUMENT ........................... 3

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

I.

Employees’ First Amendment Right to Stop

Subsidizing Union Speech Is Being Severely

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

II.

Lower Courts Are Allowing States to Undermine Employees’ Rights under Janus ............. 7

A. Six Circuit Courts allow states and unions to

restrict when employees can stop paying for

union speech without requiring evidence

those employees waived their First Amendment rights ....................................................... 7

B. The Ninth Circuit has gutted Janus’ affirmative consent requirement................................ 11

C. Eighth and Ninth Circuit case law defies this

Court’s and the Seventh Circuit’s state action

jurisprudence .................................................. 14

III.

The Question Presented Is Exceptionally

Important ........................................................ 17

CONCLUSION .......................................................... 19

(ii)

TABLE OF AUTHORITIES

CASES

Page(s)

Abood v. Detroit Bd. of Educ.,

431 U.S. 209 (1977)................................................ 15

Allen v. Ohio Civ. Serv. Emps. Ass’n,

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

(S.D. Ohio Mar. 20, 2020) ........................................5

Barlow v. Serv. Emps. Int’l Union Loc. 668,

90 F.4th 607 (3d Cir. 2024) .....................................7

Belgau v. Inslee,

975 F.3d 940 (9th Cir. 2020) ............................. 8, 14

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

F. 4th 857 (8th Cir. 2023) .............................. 5, 7, 13

Chi. Teachers Union No. 1 v. Hudson,

475 U.S. 292 (1986).......................................... 14, 15

Coll. Sav. Bank v. Fla. Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666 (1999) .................8

Curtis Publ’g Co. v. Butts,

388 U.S. 130 (1967).............................................. 3, 8

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

405 U.S. 174 (1972)..................................................8

Fuentes v. Shevin,

407 U.S. 67 (1972).............................................. 8, 15

Harris v. Quinn,

573 U.S. 616 (2014)............................................ 1, 15

Hendrickson v. AFSCME Council 18,

992 F.3d 950 (10th Cir. 2021) ............................. 5, 8

Hudson v. Chi. Teachers Union Local No.1,

743 F.2d 1187 (7th Cir. 1984) ......................... 16, 17

(iii)

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Janus v. AFSCME, Council 31,

585 U.S. 878 (2018)............................... 1-4, 7-16, 18

Janus v. AFSCME, Council 31,

942 F.3d. 352 (7th Cir. 2019)........................... 16, 17

Johnson v. Zerbst,

304 U.S. 458 (1938)..................................................8

Knox v. SEIU Loc. 1000,

567 U.S. 298 (2012).............................................. 1, 9

Lindke v. Freed,

144 S.Ct. 756 (2024)............................................... 16

Littler v. Ohio Ass’n of Pub. Sch. Emps.,

88 F.4th 1176 (6th Cir. 2023) ................................ 13

Lugar v. Edmondson Oil Co., Inc.,

457 U.S. 922 (1982).......................................... 15, 16

Moran v. Burbine,

475 U.S. 412 (1986)..................................................9

North Georgia Finishing, Inc. v. Di-Chem, Inc.,

419 U.S. 601 (1975)................................................ 14

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

48 F. 4th 1102 (9th Cir. 2022) ............................... 13

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

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

Savas v. Cal. State Law Enf’t Agency,

No. 20-56045, 2022 WL 1262014

(9th Cir. Apr. 28, 2022)) .................................... 5, 10

v

TABLE OF AUTHORITIES—Continued

Page(s)

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

No. 20-35882, 2023 WL 4417279

(9th Cir. July 10, 2023).......................................... 12

Sniadach v. Fam. Fin. Corp.,

395 U.S. 337 (1969)................................................ 15

Todd v. AFSCME Council 5,

125 F.4th 1214 (8th Cir. 2025) .............................. 13

Town of Newton v. Rumery,

480 U.S. 386 (1987).............................................. 8, 9

United States v. Classic,

313 U.S. 299 (1941)................................................ 13

Weyandt v. Pg. State Corr. Officers Ass’ns,

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

(M.D. Pa. Oct. 15, 2019)) .........................................5

Wheatley v. New York State United Tchrs,

80 F.4th 386

(2d Cir. 2023) ...........................................................7

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

48 F. 4th 1112 (9th Cir. 2022) ................2, 11-14, 16

Statutes

Federal Statutes

42 U.S.C. § 1983 .............................................. (i), 12

State Statutes

Cal. Gov’t Code § 1157.12 ................................... 4, 6

Cal. Gov’t Code § 3513(i) ......................................... 5

Cal. Gov’t Code § 3540.1(i)(1).................................. 5

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Cal. Gov’t Code § 3583(a) ........................................ 5

Cal. Educ. Code § 45060.......................................... 4

Colo. Rev. Stat. § 24-50-1111(2).............................. 4

Conn. Publ. Act No. 21-25, §§ 1(a)(i–j) ................... 4

Del. Code Ann. tit. 19, § 1304 ................................. 4

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

5 Ill. Comp. Stat. § 315/6(f). .................................... 4

Mass. Gen. Laws ch.180 § 17A ............................... 4

Minn. Stat. § 179A.06 ............................................. 6

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

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

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

Or. Rev. Stat. § 243.806 ...................................... 5, 6

43 P.S. § 1101.301(8) ............................................... 5

Wash. Rev. Code § 41.80.100 .................................. 6

OTHER AUTHORITIES

A Bill for Establishing Religious Freedom, 2 Papers

of Thomas Jefferson 545 (J. Boyd ed. 1950) ......... 18

Affirming Lab. Rts. and Obligations in Pub. Workplaces, Cal. Att’y Gen. Op. (undated) .....................4

Affirming Lab. Rts. and Obligations in Pub. Workplaces, Mass. Att’y Gen. Op. (undated) ..................4

Affirming Lab. Rts. and Obligations in Pub. Workplaces, Or. Att’y Gen. Op. (undated) ......................4

Affirming Lab. Rts. and Obligations in Pub. Workplaces, Wash. Att’y Gen. Op. (undated)..................4

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Barry T. Hirsch & David A. Macpherson, Union

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

Rels. Rev. (2003) .............................................. 17, 18

Guidance for Pub. Emps., N.Y. Dep’t of Lab.

(undated)..................................................................4

Guidance on the Rts. and Responsibilities of Pub.

Emps. Following Janus, Pa. Att’y. Gen. Op.

(undated)..................................................................4

Guidance Regarding Rts. and Duties of Pub. Emps.

after Janus, Ill. Att’y Gen. Op. (July 19, 2018) ......4

Guidance Regarding the Rts. and Duties of Pub.

Emps. After Janus, Conn. Att’y Gen. Op.

(undated)..................................................................4

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

After Janus, Md. Att’y Gen. Op. (undated) ............4

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

Government’s Obligation to Ensure Informed

Waiver of Constitutional Rights,

55 Loyola L.A. L. Rev. 405 (Spring 2022) ............. 10

Pub. Lab. Rts. and Obligations Following Janus,

Vt. Att’y Gen. Op. (undated) ...................................4

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

(undated)..................................................................4

INTEREST OF THE AMICI CURIAE1

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

advocate for employee freedom to choose whether to

associate with unions. To this end, Foundation staff

attorneys have represented individuals before the Supreme Court in several major cases involving individuals’ First Amendment rights to refrain from subsidizing unions and their expressive activities. They include Janus v. AFSCME, Council 31, 585 U.S. 878

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

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

The Mackinac Center for Public Policy is a Michigan-based, nonpartisan research and educational institute advancing policies fostering free markets, limited government, personal responsibility, and respect

for private property. The Center is a 501(c)(3) organization founded in 1987.

The Foundation and Mackinac Center submit this

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

states are impeding employees’ ability to exercise

their First Amendment rights under Janus, and (2)

Circuit Courts have sanctioned these impediments by

reading Janus’ waiver requirement out of existence

and by holding unions are not state actors when they

have states seize union dues from employees. Amici

urge the Court to grant the petitions in both Todd and

Klee and to hear the cases together.

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

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

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

Fairness Center funded its preparation or filing.

(1)

2

SUMMARY OF ARGUMENT

The Court’s review is urgently needed because

states and unions are severely curtailing employees’

right to stop paying for union speech. The laws of at

least seventeen states require government employers

to enforce policies that prohibit employees from stopping government deductions of union dues except during short periods. Under Janus, these restrictions on

when employees can exercise their First Amendment

right to stop paying for union speech should be unconstitutional absent clear and compelling evidence the

employees waived their speech rights. See 585 U.S. at

930.

Yet, six Circuit Courts have now held that states

and unions can constitutionally seize payments for

union speech from dissenting employees without proof

they waived their constitutional rights. See infra at 7.

In the Ninth Circuit, such payments can be seized

without any actual proof of employee consent at all.

According to the Ninth Circuit, it is constitutional for

a state to deduct union payments from employees’

wages based on unverified and false union assertions

that the employees consented to the deductions. See

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

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

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

nonconsenting employees because unions are not

state actors subject to the First Amendment. Id. at

1123-24. The Ninth Circuit has effectively abrogated

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

any other payment to the union may be deducted from

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

3

made to collect such a payment, unless the employee

affirmatively consents to pay.” 585 U.S. at 930.

The Court should not allow states and lower courts

to hamstring the speech rights the Court recognized

in Janus. The Court should grant the petitions in

Todd and Klee to reestablish that it violates the First

Amendment for a union to have states seize payments

for union speech from employees, and to restrict employees’ right to stop those payments, unless the union can prove the employees waived their rights.

ARGUMENT

I.

Employees’ First Amendment Right to

Stop Subsidizing Union Speech Is Being

Severely Restricted in at Least Seventeen

States.

In 2018, the Court recognized in Janus that public

employees have a First Amendment right not to subsidize union speech. 585 U.S. at 930. The Court held

it unconstitutional for states and unions to deduct or

collect union payments from a nonmember employee

“unless the employee affirmatively consents to pay.”

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

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

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

First Amendment rights, and such a waiver cannot be

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

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

at 145).

Unfortunately, a number of states reacted to Janus by disavowing its waiver holding and by restricting the speech rights the Court recognized. Eleven

4

states that filed briefs in Janus opposing its ultimate

outcome issued strikingly similar guidance declaring

Janus inapplicable to government deductions of union

dues from employees who sign dues deduction authorization forms.2

A dozen states amended their dues deduction laws

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

deductions of union dues. These states include California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Massachusetts, Nevada, New Jersey, New York,

Oregon, and Washington.3 In the wake of Janus, government employers in at least four other states—New

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

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

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

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

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

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

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

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

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

Affirming

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

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

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

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

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

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

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

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

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

5

Mexico, Ohio, Minnesota, and Pennsylvania—have

enforced restrictions on stopping payroll deductions

under preexisting state laws.4

Some restrictions compel objecting employees to

pay for union speech for several years. California and

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

become union members to remain dues-paying union

members for the duration of a collective bargaining

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

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

§ 1101.301(18). Given that most collective bargaining

agreements last three years or more, maintenance of

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

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

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

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

(2023) (holding it constitutional for California and a

union to prohibit employees from stopping state dues

deductions for four years).

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

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

Rev. Code § 41.80.100(d).

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

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

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

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

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

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

6

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

union membership and oppose paying for union

speech. These nonmembers are compelled to continue

paying for union speech against their will, by means

of government deductions of union dues from their

wages, until they submit another objection during a

short revocation window. This compulsion is indistinguishable from a state and union requiring employees

who resign their union membership to pay agency fees

to that union for a time period. In fact, this compulsion

is worse because the dissenting nonmembers are

forced to pay full union dues that fund partisan political activities, not just reduced agency fees.

To make matters worse, several states allow unions to control when the government takes union dues

from employees’ wages. In Minnesota, public employers “must rely” on information from unions about

when to start and stop union dues deductions. Minn.

Stat. § 179A.06. The same is true in California, Oregon, and Washington—public employers must deduct

union dues from any employee whose name appears

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

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

Code § 41.80.100(2)(g). The laws mandate that “a public employer shall rely on the list to make the authorized deductions and to remit payment to the labor organization.” Or. Rev. Stat. § 243.806(7); see Cal. Gov’t

Code § 1157.12(a) (similar); Wash. Rev. Code

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

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

See Cal. Gov’t Code § 1157.12(b); Wash. Rev. Code

§§ 41.80.100(2)(e)-(f). In these states, government

7

payroll officers are the marionettes of union officials

when it comes to taking union dues from employees.

II.

Lower Courts Are Allowing States to Undermine Employees’ Rights under Janus.

A. Six Circuit Courts allow states and unions to restrict when employees can

stop paying for union speech without

requiring evidence those employees

waived their First Amendment rights.

After Janus, it should be unconstitutional for

states and unions to seize payments from employees

who become nonmembers of a union absent clear and

compelling evidence the employees earlier waived

their First Amendment right to stop paying for union

speech. 585 U.S. at 929. It also should be unconstitutional for states and unions to restrict when employees can exercise that First Amendment right absent

proof the employees knowingly waived it. Indeed, even

without Janus’ waiver holding, the latter proposition

is common sense.

Yet, six Circuit Courts have now held that states

and unions do not need evidence of a waiver to seize

union payments from employees who resign their

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

seizures are constitutional if there is a contract that

authorizes the seizures. See Barlow v. Serv. Emps.

Int’l Union Loc. 668, 90 F.4th 607, 615-16 (3d Cir.

2024); Wheatley v. New York State United Tchrs., 80

F.4th 386, 391 (2d Cir. Sept. 5, 2023); Burns v. Sch.

Serv. Emps. Union Loc. 284, 75 F.4th 857, 860-61 (8th

Cir. 2023); Ramon Baro v. Lake Cnty. Fed’n of Tchrs.

Loc. 504, 57 F.4th 582, 586 (7th Cir.), cert. denied, 143

8

S. Ct. 2614 (2023); Hendrickson v. AFSCME Council

18, 992 F.3d 950 (10th Cir. 2021), cert. denied, 142 S.

Ct. 423 (2021); Belgau v. Inslee, 975 F.3d 940, 950-52

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

The lower courts’ decisions to substitute a lesser

contract standard for the waiver requirement this

Court set forth in Janus matters because a waiver

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

‘clear and compelling’ evidence.” 585 U.S. at 930 (quoting Curtis Publ’g, 388 U.S. at 145). The Court then

cited three precedents holding that an effective waiver

requires proof of an “‘intentional relinquishment or

abandonment of a known right or privilege.’” Coll.

Sav. Bank v. Fla. Prepaid Postsecondary

Educ.

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

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

an alleged waiver of First Amendment rights). The

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

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

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

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

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

A significant difference between a waiver standard

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

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

9

a “waiver must have been made with a full awareness

of both the nature of the right being abandoned and

the consequences of the decision to abandon it.” Moran

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

standard, states and unions could not restrict when

employees can exercise their First Amendment rights

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

them.

Equally significant is that a purported waiver is

unenforceable “if the interest in its enforcement is outweighed in the circumstances by a public policy

harmed by enforcement of the agreement.” Rumery,

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

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

period—cannot satisfy this criterion. The policy

weighing against prohibiting employees from exercising their rights under Janus for 350 or 355 days of

each year is of the highest order: employees’ First

Amendment right not to subsidize speech they do not

wish to support. See Janus, 585 U.S. at 893–94.

“[C]ompelled subsidization of private speech seriously

impinges on First Amendment rights” and “cannot be

casually allowed.” Id. at 894. No sufficient countervailing interest exists. The Court held in Knox that

unions have no constitutional entitlement to monies

from dissenting employees. 567 U.S. at 313. Union financial self-interests in collecting monies from dissenting employees do not outweigh those employees’

First Amendment rights. Id. at 321.

The constitutional-waiver standard the Court

adopted in Janus would do much to curtail state and

10

union suppression of employees’ right to stop paying

for union speech they oppose. It also would have the

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

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

Miranda for Janus: The Government’s Obligation to

Ensure Informed Waiver of Constitutional Rights, 55

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

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

Janus leads to the opposite result. It allows unions to

easily restrict when employees can exercise their First

Amendment rights under Janus by simply writing restrictions into the fine print of dues deduction forms.

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

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

sign their First Amendment rights away for a year or

more without having any idea they are doing so. There

are few impediments to states and unions including

oppressive restrictions in the forms. According to the

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

years based on an oblique reference to a maintenance

of membership requirement in a dues deduction form.

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

the six Circuit Courts to not enforce Janus’ waiver requirement have given unions and their governmental

allies wide latitude to throttle employees’ ability to exercise their right to stop paying for objectionable union speech.

11

B. The Ninth Circuit has gutted Janus’

affirmative consent requirement.

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

Circuit has made matters even worse for employees.

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

deduct, and for unions to collect, union payments from

employees unless they have proof the employee affirmatively consented to pay. 585 U.S. at 929. According to the Ninth Circuit’s decision in Wright, the First

Amendment does not require that states or unions

have objective proof of employee consent to pay. 48

F.4th at 1123–25. Under Wright, states can rely on

unverified assertions that employees want to pay union dues from unions that, according to that court, are

not subject to First Amendment strictures at all. Id.

In Wright, an Oregon state employee (“Wright”)

sued a state agency and a union (“SEIU”) for seizing

union dues from her wages without her consent. Id. at

1116–17. Wright alleged SEIU caused the state

agency to take union dues from her wages based on a

forged authorization card, which the agency did not

receive or review. Id. When affirming a lower court’s

dismissal of the employee’s complaint, the Ninth Circuit issued two holdings that together eviscerate Janus’ consent requirement.

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

the State to ensure that the employees listed in

SEIU’s certification had duly authorized dues deducted from their salaries.” Id. at 1124-25. The lower

court held that “Janus does not require that Oregon

ensure the accuracy of SEIU’s certification of those

12

employees who have authorized dues deductions” and,

more generally, that “Janus imposes no affirmative

duty on government entities to ensure that membership agreements and dues deductions are genuine.”

Id. at 1125.

Second, the Ninth Circuit held the union, which

demanded the state agency seize payments from

Wright without her consent and accepted those payments, is not a state actor subject to the First Amendment. Id. at 1122–24. The union thus faced no liability

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

it wrongfully seized. Under Wright, unions in the

Ninth Circuit have no constitutional duty whatsoever

to ensure that employees consent to pay union dues

before seizing dues from those employees. As the

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

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

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

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

Ninth Circuit, unions are no longer subject to Janus’

affirmative consent holding at all.

Taken together, the Ninth Circuit’s holdings in

Wright make it permissible for states to deduct payments for nonconsenting employees’ wages, and for

unions to collect those payments, without any actual

proof the employees consented to pay. These holdings

are the exact opposite of what the Court held in Janus:

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

to the union may be deducted from a nonmember’s

wages, nor may any other attempt be made to collect

such a payment, unless the employee affirmatively

consents to pay.” 585 U.S. at 930.

13

2. Eighth Circuit precedents are little better. The

court held that unions are not state actors when they

have government employers seize money from employees under a dues deduction agreement, Burns, 75

F.4th at 860-61, or in the absence absent of a valid

dues deduction agreement, Todd v. AFSCME Council

5, 125 F.4th 1214, 1217 (8th Cir. 2025). See also Littler

v. Ohio Ass’n of Pub. Sch. Emps., 88 F.4th 1176, 1181

(6th Cir. 2023) (same). In the Eighth Circuit, no matter how a union seizes money for speech from public

employees, it cannot be held liable under Section 1983

for violating employees’ First Amendment rights.

3. This gutting of Janus’ affirmative consent requirement has real consequences. As discussed, in one

state in the Eighth Circuit (Minnesota) and in three

states in the Ninth Circuit (California, Oregon, and

Washington), government employers must blindly follow union orders when it comes to deducting union

dues from employees’ wages. See supra at 6. According

to the Eighth and Ninth Circuits, the First Amendment does not apply to unions when they exercise that

control. Unions thus control the states’ payroll deduction systems with no constitutional accountability to

employees. In the Eighth and Ninth Circuits, the foxes

are guarding the henhouse.

Shockingly, the Ninth Circuit held that it does not

violate due-process guarantees for a state to grant a

self-interested party (a union) the power to decide if

the state will seize monies from other parties (public

employees) for the union’s benefit. See Ochoa v. Pub.

Consulting Grp., Inc., 48 F.4th 1102, 1110–11 (9th

Cir. 2022), cert. denied, 143 S. Ct. 783 (2023). Turning

a vice into a virtue, the Ninth Circuit reasoned that a

state’s “‘mandatory indifference to the underlying

14

merits of the [employees’] authorization’” to pay

money to a union makes this process constitutional.

Id. at 1111 (quoting Belgau, 975 F.3d at 948).

Contrary to the Ninth Circuit’s conclusion, it violates Fourteenth Amendment procedural due process

guarantees for states to grant a non-neutral arbiter, a

union, the power to control whether employees will

have union payments seized from their wages. A fundamental aspect of due process is the right to an impartial maker—i.e., a decision maker that does not

have an interest in the property at issue. See Chicago

Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292,

310 (1986). This requirement applies to state procedures for garnishing wages or attaching property. See

North Georgia Finishing, Inc. v. Di–Chem, Inc., 419

U.S. 601, 606-608 (1975); Connecticut v. Doehr, 501

U.S. 1, 12 (1991). It violates the due process guarantees for a state to give a union the power to determine

if the government will transfer portions of employees’

wages to that union’s coffers.

C. Eighth and Ninth Circuit case law

defies this Court’s and the Seventh

Circuit’s state action jurisprudence.

1. Wright and the decisions at bar cannot be reconciled with Janus. The state action in these cases is the

same as in Janus: the government and a union, acting

jointly under a state law, deducting and collecting union payments from nonmembers’ wages. The Court

held that unions that engage in this action violate the

First Amendment. Janus, 585 U.S. at 929 (holding

“States and public-sector unions may no longer extract agency fees from nonconsenting employees”). Indeed, the Court has long held that unions can violate

15

individuals’ constitutional rights when working with

a state to seize union payments from those individuals. See Harris, 573 U.S. at 656; Hudson, 475 U.S. 292,

310 (1986); Abood v. Detroit Bd. of Educ., 431 U.S.

209, 235–37 (1977).

Post-Janus Eighth and Ninth Circuit opinions also

conflict with this Court’s state-action precedents that

concerned government mechanisms that allowed one

party to seize money or property from another party.

See, e.g., Lugar v. Edmondson Oil Co., Inc., 457 U.S.

922 (1982). The Court has often found state action to

be present in these circumstances. See Lugar, 457

U.S. at 941–42; id. at 932–34; Sniadach v. Fam. Fin.

Corp., 395 U.S. 337 (1969); Fuentes, 407 U.S. 67. In

Lugar, the Court held a statutory procedure permitting a private party to attach disputed property “obviously is the product of state action.” 457 U.S. at 941.

The Court further 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. at 937.

Both Klee and Todd involve state procedures that

allows one party (a union) to seize money from other

parties (public employees). Under Lugar, this system

“obviously is the product of state action.” 457 U.S. at

941; cf. Abood, 209 U.S. at 226 (finding “the actions of

public employers surely constitute ‘state action’” when

they requirement payment of union agency fees). The

respondent unions are state actors when they use this

system because they worked hand-in-glove with the

states to seize disputed monies from the petitioners.

The fact the state and union in Todd took union

dues from the employee’s wages without his consent

16

does not erase the state action inherent in this government taking. As this Court recently explained, “the

‘[m]isuse of power, possessed by virtue of state law,’

constitutes state action.” Lindke v. Freed, 144 S.Ct.

756, 768 (2024) (quoting United States v. Classic, 313

U.S. 299, 326 (1941)). The Court also found state action in Lugar even though the party that used the attachment procedure lacked a valid claim to the property that had attached. 457 U.S. at 925.

In Wright, the Ninth Circuit tried to justify its

state action holdings by labelling government deductions of union dues a “ministerial” action. 48 F.4th at

1122. This is no mere ministerial act. It is the very

state action the Court in Janus held violates employees’ First Amendment rights if the employees did not

affirmatively consent to dues deductions.

Under the Ninth Circuit’s holdings, there would

have been no state action in Janus if Illinois’ routine

deductions of agency fees from nonmembers’ wages

was mislabeled “ministerial.” There also would have

been no state action in Lugar because the attachment

proceedings at issue could be called the “ministerial”

processing of private claims. The Ninth Circuit’s

state-action holding in Wright is untenable in light of

Janus and Lugar.

2. Eighth and Ninth Circuit precedents also cannot

be squared with the Seventh Circuit’s decisions in Janus v. AFSCME Council 31, 942 F.3d 352, 361 (7th

Cir. 2019) and Hudson v. Chi. Teachers Union Local

No. 1, 743 F.2d 1187, 1191 (7th Cir. 1984). On remand

from this Court in Janus, the Seventh Circuit explained that it is “sufficient for the union’s conduct to

amount to state action” if a state agency “deducted fair

17

share fees from the employees’ paychecks and transferred that money to the union, which then spent it on

authorized labor-management activities pursuant to

the collective bargaining agreement.” 942 F.3d at 361.

The Seventh Circuit reached a similar conclusion decades earlier, holding:

when a public employer assists a union in coercing

public employees to finance political activities,

that is state action; and when a private entity such

as a union acts in concert with a public agency to

deprive people of their federal constitutional

rights, it is liable under section 1983 along with the

agency.

Hudson, 743 F.2d at 1191.The Seventh Circuit is correct on this matter and the Eighth and Ninth Circuits

are wrong. The Court should resolve this conflict.

III. The Question Presented Is Exceptionally

Important.

The restrictions on employees’ speech rights that

six Circuit Courts have now sanctioned impact millions of public employees. In 2022, approximately

6,090,600 state and local government employees were

union members.5 Of those employees, approximately

4,849,000 work in the seventeen states that require

government employers to enforce prohibitions on

when employees who resign their union membership

5

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

and Coverage Database from the Current Population Survey:

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

members in 2022).

18

can stop payroll deductions of union dues.6 It is thus

reasonable to estimate that well over four million public employees cannot exercise their First Amendment

rights under Janus except during a few days each

year.

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

in Janus recognized that, just as “[c]ompelling individuals to mouth support for views they find objectionable violates . . . [a] cardinal constitutional command,”

585 U.S. at 892, “[c]ompelling a person to subsidize

the speech of other private speakers raises similar

First Amendment concerns.” Id. at 893. “As Jefferson

famously put it, ‘to compel a man to furnish contributions of money for the propagation of opinions which

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

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

1950)). A restriction on when employees can stop paying for union speech compels nonconsenting employees to fund union speech they oppose.

Unless the Court grants review and breathes new

life into Janus’ requirements, unions and their governmental allies will continue severely restricting and

violating the First Amendment rights of millions of

employees who want to stop subsidizing union speech.

The Court should not tolerate such resistance to its

holding in Janus.

6

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

/state/htm/state_2022.htm.

19

CONCLUSION

The Court should grant the petitions for certiorari.

Respectfully submitted,

WILLIAM L. MESSENGER

Counsel of Record

c/o NATIONAL RIGHT TO

WORK LEGAL DEFENSE

FOUNDATION, INC.

8001 Braddock Rd., Ste. 600

Springfield, VA 22160

(703) 321-8510

wlm@nrtw.org

July 24, 2025