IN THE

Supreme Court of the United States

MARK JANUS, Petitioner,

v.

AMERICAN FEDERATION OF STATE, COUNTY, AND

MUNICIPAL EMPLOYEES, COUNCIL 31, Respondents.

 

 

QUESTION PRESENTED

Should Abood v. Detroit Board of Education (1977), be overruled and public sector agen­cy fee arrangements declared unconstitutional under the First Amendment?

BRIEF FOR THE PETITIONER

 

STATEMENT OF THE CASE A. Legal Background

It is a "bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third par­ty that he or she does not wish to support." Harris v. Quinn (2014). Yet, agency fee requirements are not rare. Approximately five mil­lion public employees are required, as a condition of their employment, to subsidize the speech of a third party that they may not support, namely a govern­ment-appointed exclusive representative.  

The legal sanction for these forced speech regimes is Abood v. Detroit Board of Education. Abood approved the government forcing its employees to pay an exclusive representative for bargaining with the government and administering the resulting contract, but not for activi­ties deemed political or ideological.

The Abood Court predicted that "there will, of course, be difficult problems in drawing lines be­tween collective bargaining activities, for which con­tributions may be compelled, and ideological activi­ties unrelated to collective bargaining, for which such compulsion is prohibited." Abood was pres­cient on that score. "In the years since Abood, the Court has struggled repeatedly with this issue."

In the years since Abood, the Court also has done something else: applied strict and exacting First Amendment scrutiny to instances of compelled speech and association outside of the agency fee con­text. In fact, the Court applied those levels of scrutiny to compelled speech and association prior to Abood as well. Abood, however, conspicuously failed to apply either level of scrutiny to agency fees.

In 2012, these lines of precedent intersected in Knox v. SEIU, Local 1000, (2012), which applied Abood's framework to a union assess­ment for opposing ballot initiatives. Knox held that agency fee provisions are subject to at least "exacting First Amendment scrutiny," which requires that the mandatory association "serve a 'compelling state interest ... that cannot be achieved through means significantly less restrictive of associational freedoms.'" Knox also recognized that Abood's "acceptance of the free-rider argument as a justification for com­pelling nonmembers to pay a portion of union dues represents something of an anomaly," given that "such free-rider arguments ... are generally insuf­ficient to overcome First Amendment objections."

Two years later, the Court in Harris applied exact­ing scrutiny to an agency fee requirement afflicting personal care attendants and found it "arguable" that even that "standard is too permissive." The Court also gave six reasons why "the Abood Court's analysis is questionable." Specifically, Abood: (1) "fundamentally misun­derstood" earlier cases concerning laws authorizing private sector compulsory fees; (2) failed to appreci­ate the difference between private and public sector bargaining; (3) failed to appreciate the difficulty in distinguishing between collective bargaining and pol­itics in the public sector; (4) did not foresee the diffi­culty in classifying union expenditures as "chargea­ble" or "nonchargeable"; (5) "did not foresee the prac­tical problems that would face objecting nonmem­bers"; and (6) wrongly assumed forced fees are neces­sary for exclusive representation. The Court stopped short of overruling Abood, however, because doing so was unnecessary to resolve the question presented in Harris.

B. Illinois' Agency Fee Requirement

1. On February 9, 2015, in the wake of Harris, Illi­nois Governor Bruce Rauner filed a lawsuit seeking to overrule Abood and have the agency fee require­ment found in the Illinois Public Labor Relations Act ("IPLRA") declared unconstitutional.

The IPLRA, like other labor laws, grants unions an extraordinary power: the authority to act as "the ex­clusive representative for the employees of a bar­gaining unit for the purpose of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment .... " This status vests a union with agency au­thority to speak and contract for all employees in the unit, including those who want nothing to do with the union and who oppose its advocacy. The status also vests a union with authority to com­pel policymakers to bargain in good faith with the union, and to change cer­tain policies only after first bargaining to impasse. These powers are "exclusive" in the sense that the State is precluded from dealing with individual employees or other associations.

The IPLRA empowers an exclusive representative not only to speak for non-consenting employees in their relations with the government, but also to force those employees to subsidize its advocacy. The Act does so by authorizing agency fee arrangements in which employees are required, as a condition of em­ployment, to "pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wag­es, hours and conditions of employment" to an exclu­sive representative.

The agency fee amount is calculated by the exclu­sive representative. Under Chicago Teachers Un­ion v. Hudson, a union calculates its mandatory fees based on an audit of its prior fiscal year and provides nonmembers with a financial notice explaining its fee calculation.

2. AFSCME Council 31 is the designated exclusive representative of over 35,000 employees who work in dozens of agencies, departments, and commissions under the authority of Illinois' governor. This includes Petitioner Mark Janus, a child support specialist. Janus is not an AFSCME member, but is forced to pay agency fees to that advocacy organi­zation.

In February 2015, AFSCME began bargaining with newly elected Governor Rauner, who acts through Illinois' Department of Central Management Ser­vices ("CMS"), over policies that affect state employ­ees. Illinois' dire budgetary and pension-deficit situation formed the negotiations' backdrop. The parties bargained over twelve disputed "packages" of issues: wages, health insur­ance, subcontracting, layoff policies, outstanding economic issues (mainly holiday pay, overtime, and retiree health care), scheduling, bumping rights, health and safety, mandatory overtime, filling of va­cancies, union dues deduction, and semi-automatic promotions.

Among other things, the Governor sought "contract changes that would provide  additional efficiency and flexibility," link pay increases to merit, and "ob­tain significant savings (in the proximity of $700 mil­lion) from the healthcare program." AFSCME balked, leading to a bargaining impasse.

The Governor has since been attempting to imple­ment, over AFSCME's objections, policies that in­clude "$1,000 merit pay for employees who missed less than 5% of assigned work days during the fiscal year; overtime after 40 hours; bereavement leave; the use of volunteers; the beginning of a merit raise system; and drug testing of employees suspected of working impaired." AFSCME, how­ever, has resorted to litigation to thwart the Gover­nor's desired reforms.

Regardless of their personal views concerning these policies and AFSCME's conduct, Janus and other employees subject to AFSCME's representation are required to subsidize the advocacy group's efforts to compel the State to bend to its will. Janus, for example, had $44.58 in compulsory fees seized from his paycheck each month as of July 2016. AFSCME's Hudson notice indicates that its agency fee is 78.06% of full union dues, and was cal­culated based on union expenditures made in calen­dar year 2009.

C. Proceedings Below

Shortly after Governor Rauner filed his lawsuit challenging Illinois' agency fee requirement, three Illinois state employees-Mark Janus, Brian Trygg, and Marie Quigley-moved either to intervene or file a complaint in intervention. The district court granted the employees' motion to file their complaint in intervention and, in the same order, dismissed Governor Rauner from the case on juris­dictional and standing grounds. This left the em­ployees as the only plaintiffs in the case.

Janus and Trygg-without Quigley, who withdrew from the case-filed a Second Amended Complaint alleging that forcing them to pay fees violates their First Amendment rights. Defendants moved to dismiss, arguing, among other things, that Abood precluded Plaintiffs' claim. On September 13, 2016, the district court granted the motion to dismiss based on Abood.

Janus and Trygg appealed to the United States Court of Appeals for the Seventh Circuit. On March 21, 2017, the Seventh Circuit, relying on Abood, af­firmed the dismissal of Janus' claim, but dismissed Trygg's claim on an alternative ground. Janus, but not Trygg, then petitioned this Court for certiorari.

SUMMARY OF ARGUMENT

The "'Court has not hesitated to overrule decisions offensive to the First Amendment.'" Abood is offensive to the First Amendment. It permits the government to compel employees to subsidize an advocacy group's political activity: namely, speaking to the government to in­fluence governmental policies.

Abood should be overruled for the reasons stated in Harris. Abood was wrongly decided because bargaining with the government is political speech indistinguishable from lobbying the government; Abood is inconsistent with this Court's precedents that subject instances of compelled speech and association to heightened constitutional scrutiny; Abood's framework is unworkable and does not protect employee rights; and no reliance interests justify retaining Abood. The Court should abandon Abood and instead follow its precedents that subject compelled speech and association to heightened First Amendment scrutiny.

Agency fee requirements cannot survive that scru­tiny because they are not the least restrictive means to achieve any compelling government interest. Even if the government had a compelling need to bargain with unions-which it does not-the government does not need to force employees to subsidize those unions to engage in that bargaining. The valuable powers, privileges, and membership-recruitment ad­vantages that come with exclusive representative status are more than sufficient to induce unions to seek and retain the exclusive representative mantle. This especially is true given that any unwanted obli­gations that come with that status are minimal. And far from being a least restrictive means, agency fees exacerbate the injury non-consenting employees suf­fer from being forced to accept an unwanted bargaining agent whose advocacy may be both contrary and harmful to the employees' interests.

Abood's "free rider" rationale for agency fees gets it backwards by presuming that exclusive representa­tion burdens unions and benefits nonmembers. The opposite is true. Consequently, Abood's rationale falls short of what the First Amendment demands. The Court should hold the First Amendment prohib­its the government from taking agency fees from public employees without their consent.

ARGUMENT

I. The Court Should Overrule Abood.

Stare decisis "is at its weakest when the Court in­terprets the Constitution." The Court will overturn a con­stitutional decision if it is badly reasoned and wrong­ly decided, conflicts with other precedents, has prov­en unworkable, or is not supported by valid reliance interests. Abood should be overruled for all of these reasons.

Abood Was Wrongly Decided Because There Is No Distinction Between Bargain­ing with the Government and Lobbying the Government: Both Are Political Speech.

1.Harris pinpointed the principal reason Abood was wrongly decided: bargaining with the govern­ment is political speech indistinguishable from lobbying the government. "In the public sector, both col­lective-bargaining and political advocacy and lobby­ing are directed at the government," and bargaining subjects, "such as wages, pensions, and benefits are important political issues."

The Court recognized even prior to Harris that "the dual roles of government as employer and poli­cymaker ... make the analogy between lobbying and collective bargaining in the public sector a close one." And there is no distinction. An exclusive repre­sentative's function under the IPLRA and other pub­lic sector labor statutes is quintessential lobbying: meeting and speaking with public officials, as an agent of parties, to influence public policies that af­fect those parties."

Agency fees thus inflict the same grievous First Amendment injury as would the government forcing individuals to support a mandatory lobbyist or politi­cal advocacy group. "Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, Š .. compulsory fees constitute a form of compelled speech and association that imposes a 'significant impingement on First Amendment rights.'"

2. AFSCME's negotiations with Governor Rauner illustrate the political nature of bargaining with the government. During the negotiations, "the State consistently indicated its need to save hundreds of millions of dollars in health insurance costs" and "that it could not afford to pay step increases or across the board wage increases and was opposed to increases that were unrelated to performance." AFSCME took opposite positions. For example, "the Union had, over two proposals, offered health insurance savings that es­sentially had a net savings of zero dollars due to the increased benefits it still sought." This dispute, among others. evinces that "unlike in a la­bor dispute between a private company and its un­ionized workforce, the issues being negotiated are matters of an inherently public and political nature."

AFSCME's conduct during bargaining illustrates the same point, as its advocacy extended to the legis­lature, the public, and the courts. AFSCME pro­posed, during bargaining, that the state executive branch commit to "jointly advocate for amending the pension code" and increasing state taxes. "AFSCME sponsored rallies in various regions of the state" that "were organized to educate the public and to put pressure on the Governor to change his position at the bargaining table." AF­SCME used similar tactics "during the course of the 2012-2013 negotiations," in which "the Union com­municated its displeasure in the State's proposals and bargaining positions in a very public manner." This included having union agents "appear at and disrupt former Governor Quinn's public speaking engagements, political events, and even his private birthday party/fundraiser." AFSCME is petitioning state courts to stop Governor Rauner from implementing his desired reforms, contending that the Governor failed to adequately bargain with the union.

The political nature of bargaining in Illinois is not unusual. In 2016, the nationwide cost of state and local workers' wages and benefits was over $1.4 tril­lion, which was more than half of state and local governments' $2.7 trillion in total expenditures." It is clear that "payments made to public-sector bargain­ing units may have massive implications for govern­ment spending" and "affect   statewide budgeting decisions."

Bargaining with the government over non-financial policies is equally political. Union demands for poli­cies that restrict how the government can retain, place, manage, promote, and discipline employees can affect the quality of services the government provides to the public."

3. Enforcement of a collective bargaining agree­ment, such as through the grievance process, is just as political an act as bargaining for that deal. There is no difference between petitioning the government to adopt a policy and petitioning the government to follow that policy. The actions are complementary aspects of the same expressive conduct.

A grievance resolution can also have a broad effect by setting a precedent applicable to other employees. If a union grievance establishes that one employee is contractually entitled to a particular benefit, then similarly situated employees will be entitled to that same benefit.

4. Abood itself recognized that "there can be no quarrel with the truism that because public employ­ee unions attempt to influence governmental policy­making, their activities ... may be properly termed political." Abood also acknowledged the unconstitutionality of forcing employees to subsi­dize advocacy that is political and ideological in na­ture. Taken together, these incontroverti­ble premises should have led the Abood Court to one conclusion: it is unconstitutional to force employees to subsidize bargaining with the government.

The Abood majority avoided that conclusion in two ways. First, the majority reasoned that, even though political in many ways, public sector bargaining also shares similarities with private sector bargaining. That is a non sequitur because, once it is recognized that bargaining with government is po­litical advocacy, it does not matter what similarities it may share with other types of speech. Agency fees have touched the third rail of the First Amendment.

Abood's heavy reliance on two cases addressing private sector union fees - Railway Employes' De­partment v. Hanson (1956), and Ma­chinists v. Street (1961). Hanson barely addressed the constitu­tional issue. Neither case concerned government imposed compulsory fees. Neither case applied heightened First Amendment scrutiny to a compul­sory fee. "The Abood Court seriously erred in treat­ing Hanson and Street as having all but decided the constitutionality of compulsory payments to a public­s ector union."

Second, the Abood majority asserted that the polit­ical nature of bargaining with the government is not dispositive because the First Amendment protects both political and non-political speech. That also is a non sequitur; if anything, it suggests compelled support for union speech should be subjected to First Amendment scrutiny irrespec­tive of whether it is political in nature. The assertion is also inconsistent with the next three pages of the decision, which expound on how freedom to associate for political purposes is "at the heart of the First Amendment" and conclude that it is unconstitutional to compel a teacher "to contrib­ute to the support of an ideological cause he may op­pose."

The political nature of bargaining with the gov­ernment is constitutionally significant. "'Speech on public issues occupies the highest rung of the hierar­chy of First Amendment values, and is entitled to special protection.'" The reason is that such speech constitutes "'more than self-expression; it is the es­sence of self-government.'" Compelling employees to subsidize union political expression not only impinges on their individual liberties, but also interferes with the polit­ical process that the First Amendment protects.

Mandatory advocacy groups that individuals are forced to subsidize, and that enjoy special privileges in dealing with the government enjoyed by no others, will have political influence far exceeding citizens' actual support for those groups and their agendas. Agency fees transform employee advocacy groups in­to artificially powerful factions, skewing the "mar­ketplace for the clash of different views and conflict­ing ideas" that the "Court has long viewed the First Amendment as protecting." This distorting effect is why "First Amendment val­ues are at serious risk when the government can compel a particular citizen, or a discrete group of cit­izens, to pay special subsidies for speech on the side that it favors."

Abood's lack of concern over the political nature of public sector bargaining is untenable, even under the opinion's own logic. The political nature of bargaining with the government dictates that compulsory fees to subsidize that speech should have been subjected to the highest form of First Amendment scrutiny.

CONCLUSION

Thomas Jefferson believed that to “compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” Jefferson was right. Abood was wrong. Abood should be overruled and public employees freed from compulsory union fee requirements.

The judgment below should be reversed.