Supreme Court of the United States
MARK JANUS, Petitioner,
AMERICAN FEDERATION OF STATE, COUNTY, AND
MUNICIPAL EMPLOYEES, COUNCIL 31, Respondents.
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.
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.
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.