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Janus files first brief in US Supreme Court case against AFSCME

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* Press release…

Today, attorneys for Illinois public servant Mark Janus filed the first merits brief in the Supreme Court case, Janus v. AFSCME. The brief asks the High Court to recognize that the First Amendment protects public workers from being required to make payments to union officials as a condition of working for their own government.

Plaintiff Mark Janus is an Illinois child support specialist who filed the challenge with free legal aid from the National Right to Work Legal Defense Foundation and the Liberty Justice Center. Janus is currently required to pay union fees to AFSCME union officials even though he opposes many of the positions union officials advocate using his money and feels he would be better off without the union’s so-called representation.

In the 1977 Abood v. Detroit Board of Education case, a divided High Court ruled that public employees could not be required to subsidize many political and ideological union activities; however the court left in place forced fees used to subsidize union monopoly bargaining with the government. In a series of cases in the last five years, the Supreme Court has begun to question the theory underpinning Abood.

In the National Right to Work Foundation-won Knox v. SEIU (2012) and Harris v. Quinn (2014) cases, the Supreme Court made clear that mandatory union payments invoke the highest level of First Amendment protection. In Janus, Mark Janus asks the Supreme Court to apply this heightened scrutiny to all mandatory union payments required of government employees.

If the High Court rules in Janus’ favor, over 5 million public school teachers, firefighters, police officers, and other government employees who currently are forced to pay money to union officials just to keep their jobs would be free to decide individually whether or not to make voluntary union payments. Oral arguments in the case are now expected to occur in late February.

“Forced union fees remain the largest regime of compelled speech in the nation,” said Mark Mix, President of the National Right to Work Legal Defense Foundation. “Forty years ago in Abood, the Supreme Court erroneously left forced fees in place citing the artificial distinction between union officials’ ideological activities and union bargaining with the government that inherently seeks to alter public policy.”

“Now that the Janus case is being briefed for argument at the High Court, we are hopeful that in the coming months the Supreme Court will correct this anomaly in First Amendment jurisprudence by striking down all mandatory union payments for public workers,” continued Mix. “Americans shouldn’t forfeit their First Amendment protections just to work for their own government.”

“Government workers like Mark Janus shouldn’t have to pay for union politics just to keep their jobs,” said Jacob Huebert, director of litigation at the Liberty Justice Center. “The First Amendment gives everyone the right to choose which political groups they will and won’t support with their money.”

The brief is here.

posted by Rich Miller
Wednesday, Nov 29, 17 @ 2:49 pm

Comments

It’s not like the union was sprung on these people. They knew what they were getting into when they applied.

Comment by JazzyJeff Wednesday, Nov 29, 17 @ 2:58 pm
From the very first paragraph of the “statement of the case,” the brief makes it clear that Janus’ complaint is based on his claim that he does not want the union to represent him, that is, to speak for him. His legal complaint is not about having to pay for something he receives, it is that he doesn’t want to receive it. If he is successful on this argument, the court will have to hold that the law cannot compel the union to bargain for him or represent him in any way, so he won’t have to pay for anything. But then when the next collective bargaining agreement says that union members have to be paid at least as much as nonunion members doing the same job, and nonunion members have to be laid off first, etc., we’ll see how many state employees opt out of the union.

Comment by Whatever Wednesday, Nov 29, 17 @ 3:00 pm
Unless you’re being forced to take a job I don’t see how anybody’s First Amendment rights are being violated.

And I really wish someone would ask him if he has the intestinal fortitude to give back all of the benefits he has received as a result of the union contracts he has worked under. If he wants to cut ties then he should cut ties and disavow himself of everything he has gained as a result of the union.

Comment by Demoralized Wednesday, Nov 29, 17 @ 3:00 pm
I know the odds are against this because of Gorsuch, but it would be hilarious if this backfired and the Court came up with something that got rid of freeriding.

Comment by Frank Grimes Wednesday, Nov 29, 17 @ 3:05 pm
The argument NRTWLDF presents is, unsurprisingly, aimed at undermining unions entirely, not merely public sector unions.

Phrases like “mandatory union payments” and “forced union fees” being “compelled speech” is designed to open the door to uniion busting nationwide.

Comment by thunderspirit Wednesday, Nov 29, 17 @ 3:06 pm
Taft-Hartley forces unions to represent all workers in the group. Abood vs. Detriot Board of Education was the Supreme Court’s way of making sure that unions didn’t get ripped off.

Comment by Da Big Bad Wolf Wednesday, Nov 29, 17 @ 3:06 pm
your coworkers voted to certify the union, blame them or vote to decertify

Comment by Rabid Wednesday, Nov 29, 17 @ 3:10 pm
Put a check box on the job application, want to be in the union? Yes or No

Comment by CrispyCritter Wednesday, Nov 29, 17 @ 3:10 pm
If Janus doesn’t want the union to represent him, then he should work to de-certify the union. Convert a majority of his co-workers over to his side and vote to leave the union.

Comment by Aimtomisbehave Wednesday, Nov 29, 17 @ 3:12 pm
JazzyJeff -
“It’s not like the union was sprung on these people. They knew what they were getting into when they applied.”

I think that is the point he is making. From the post, “The brief asks the High Court to recognize that the First Amendment protects public workers from being required to make payments to union officials as a condition of working for their own government.”

Comment by bothanspy Wednesday, Nov 29, 17 @ 3:16 pm
Here’s something fun though in the unintended consequences department.
If compelling an employee to pay an agency fee or fairshare is a violation of free speech as Janus argues. Because one cannot be compelled to pay for speech one does not agree with,
Then it follows that conversely paying for Union membership is also a political free speech act, like contributions to political campaigns cannot be restrained as affirmed by citizens United.
Would that not make the actions of a Union like striking, work slow down/stoppage, direct action also a political act and thus cannot be inhibited
As an expression
Of free speech?

Look I’m not a lawyer. I just read this argument in article. Any legal minds want to speculate. I’d appreciate it

Comment by Honeybear Wednesday, Nov 29, 17 @ 3:23 pm
Disclaimer: I did not go and read the brief yet.

I know the courts have been splitting hairs on this issue for years, but the argument here is ignoring one fact.

The actual political lobbying is done by a supposedly separate organization which is funded by voluntary contributions, not actual union deductions. If Janus’ argument is purely about union dues going to political advocacy, I think it fails on that particular split hair.

If the argument is that there is an insufficient “Chinese Wall” between the union itself and the union PAC, it might have merit. That argument was used successfully by some Dept. of Revenue state employees back in the 1970’s and more or less resulted in the current “fair share” practice.

It’s going to be an interesting case to follow …

Comment by RNUG Wednesday, Nov 29, 17 @ 3:24 pm
There are private agency child support worker vacancies out there. Janus can go for one of those. They pay 14 bucks an hour, have less benefits, and no job protections but they aren’t in some pesky union. His profession has non-union equivalents. He just wants to free ride off a good union contract.

Comment by Union proud Wednesday, Nov 29, 17 @ 3:30 pm
Maybe the Court will strike the part of Taft-Hartley that forces the union to represent everyone in the group.

Comment by Frank Grimes Wednesday, Nov 29, 17 @ 3:33 pm
I don’t agree with my taxes funding wars I don’t support so I should get to opt out of paying taxes.

Comment by Raccoon Mario Wednesday, Nov 29, 17 @ 3:42 pm
- “Government workers like Mark Janus shouldn’t have to pay for union politics just to keep their jobs,” said Jacob Huebert, director of litigation at the Liberty Justice Center.

This is a completely false and intentionally misleading statement. Fair share fees are for the costs of representation an employee. Fair share fees cannot be used in any political manner.

Comment by Chicago 20 Wednesday, Nov 29, 17 @ 3:59 pm
Why do unions engage in partisan political speech?

Seems a little out of their wheelhouse.

And, why do they just support one party?

It seems that unions have created their own little mess here.

(btw, the history of worker rights regarding safety, fair wage, etc has been a worthy exercise. But, the current situation, where unions seem to only support liberal politics, is ridiculous.)

Comment by cdog Wednesday, Nov 29, 17 @ 4:12 pm
Since I got in the Union, I have NOT been forced to be a campaign worker against my will by corrupt political appointees.

Comment by Anonymous Wednesday, Nov 29, 17 @ 4:13 pm
The roof leaks in my condo. The condo association voted to repair the roof and have a special assessment, of 1000 dollars. I voted against the roof repair. Now I feel like the condominium is violating my first amendment rights. So I don’t have to pay for the roof repair.

Comment by Da Big Bad Wolf Wednesday, Nov 29, 17 @ 4:16 pm
“He just wants to free ride off a good union contract. ”

Terrible for private tax payers though. You know, the vast majority of citizens.

Comment by Ron Wednesday, Nov 29, 17 @ 4:22 pm
It doesn’t matter if the unions have separate funds/PACs for political activity. The argument is that nearly all work done by government unions is political. Wages, benefits, even work rules affect public budgets, hence it’s political. That’s why this is only about forced dues within public/government unions.

Comment by Robert the 1st Wednesday, Nov 29, 17 @ 4:23 pm
The AFSCME Council 31 website does not explain to all the state workers that fund them which PACS are supported by their dues.

This link shows how partisan this spending has been.
https://www.publicintegrity.org/2012/12/21/11969/donor-profile-afscme

Comment by cdog Wednesday, Nov 29, 17 @ 4:30 pm
Ron:

There’s taxpayers. Period. This attempt to place people into some distinct taxpayer “group” based on their employer is absolute nonsense.

Comment by Demoralized Wednesday, Nov 29, 17 @ 4:31 pm
==where unions seem to only support liberal politics==

Like that broad brush do you? You aren’t very good at research if you think that.

Comment by Demoralized Wednesday, Nov 29, 17 @ 4:32 pm
==forced dues==

Nobody is forced to pay dues. Did I miss where we’re required to take a specific job?

Comment by Demoralized Wednesday, Nov 29, 17 @ 4:34 pm
- “It doesn’t matter if the unions have separate funds/PACs for political activity.“

It does matter.

It’s the law.

Comment by Chicago 20 Wednesday, Nov 29, 17 @ 4:37 pm
As a private workforce taxpayer, all I get is higher taxes due to unionized public employees.

Comment by Ron Wednesday, Nov 29, 17 @ 4:38 pm
It doesn’t matter in this case because that has nothing to do with the argument. Just like it doesn’t matter in this case if unions tend to support one political party over another. Those aren’t the activities in debate here.

Comment by Robert the 1st Wednesday, Nov 29, 17 @ 4:38 pm
==As a private workforce taxpayer, all I get is higher taxes==

Yeah, because tax rates are doled out between public and private sector workers. Enough with this baloney

Comment by Demoralized Wednesday, Nov 29, 17 @ 4:41 pm
- cdog
“The AFSCME Council 31 website does not explain to all the state workers that fund them which PACS are supported by their dues.”

The reason you can’t find that information is because it doesn’t exist.

No union PACS are supported by union dues.

Comment by Chicago 20 Wednesday, Nov 29, 17 @ 4:43 pm
“Janus is currently required to pay union fees to AFSCME union officials even though he opposes many of the positions union officials advocate using his money”

As RNUG and others have pointed out, not a dime of union dues — or fair share fees — goes toward political lobbying and activities. This is by federal law. The Janus case is based on a major misrepresentation of facts.

RNUG: ==The actual political lobbying is done by a supposedly separate organization which is funded by voluntary contributions, not actual union deductions. If Janus’ argument is purely about union dues going to political advocacy, I think it fails on that particular split hair.==

Correct. Union members have to file paperwork authorizing a deduction from their pay, over and above their dues (or fair share fees) to support political activity. Unless Janus filed this paperwork, he is not paying anything toward lobbying or other activity he does not agree with.

Gawd I hope the AFSCME lawyers are up to the task of pointing out this one very simple fact. Upon this, the whole Janus case crumbles.

Comment by Nick Name Wednesday, Nov 29, 17 @ 4:57 pm
AfSCME members voluntarily make payments into our People PAC. All voluntary and unrelated to what our dues pay for. Our dues pay for conferences, legal fees, contract negotiation costs and contract maintenance expense.

Comment by Anonymous Wednesday, Nov 29, 17 @ 5:00 pm
Private sector taxpayers get shafted by paying way too much tax for so little public service. Of course public employees are the beneficiary of the higher taxes.

Comment by Ron Wednesday, Nov 29, 17 @ 5:05 pm
- Ron

“Private sector employees get shafted….”

Complete unsubstantiated nonsense.

Comment by Chicago 20 Wednesday, Nov 29, 17 @ 5:16 pm
Started reading the brief. Bit of irony there. One of the law firms is the one Jim Thompson is associated with.

If you don’t get then irony, Big Jim is the former Governor most responsible for unions in Illinois State government. And now that law firm is helping to try to destroy unions.

Comment by RNUG Wednesday, Nov 29, 17 @ 5:25 pm
Interesting how they drag in Abood, Harris, Citizen’s United, even Rutan … although they are often citing the minority opinion in those decisions, re-arguing the cases.

They also re-argue the whole AFSCME contract impasse, which reminds us this case started as just another Rauner union attack … until it became obvious that Rauner had no legal standing to bring the case, since he wasn’t employed in a covered union position.

Comment by RNUG Wednesday, Nov 29, 17 @ 5:46 pm
==Big Jim is the former Governor most responsible for unions in Illinois State government.==

Don’t forget the lobbyists with deep pockets. Per the EIU’s paper PUBLIC SECTOR COLLECTIVE BARGAINING IN ILLINOIS:

The primary author of the legislation introduced in 1983 was the Illinois AFL-CIO. As the Illinois Federation of Teachers and the Illinois Education Association represented the vast majority of members in the public education sector, they had a
major voice in the drafting of legislation as well.

Comment by City Zen Wednesday, Nov 29, 17 @ 6:58 pm
Da Big Bad Wolf - many condo and homeowners associations contribute to CAI, a lobbying organization, and they fund their contributions through homeowner dues. Condo and HOA members can’t opt out of these contributions, they don’t even have a “fair share” option to only pay non political costs. No billionaires are funding challenges against condo/homeowners associations under the guise of “free speech”. I wonder why? CAI has been tremendously successful as a lobbying organization, most new detached homes are in HOAs. I’m sure unions wish most new jobs were union jobs.

Comment by AC Wednesday, Nov 29, 17 @ 7:36 pm
AC because LRTWLDF and Liberty Justice Center don’t care about first amendment rights. They care about sabotaging unions. If I, as a condo owner, were to call Libery Justice Center today and ask them to spend enough money so I could take my roof assessment conflict to the Supreme Court what do you think they would say?

Comment by Da Big Bad Wolf Thursday, Nov 30, 17 @ 6:40 am
==Of course public employees are the beneficiary of the higher taxes.==

Yep. They don’t pay any of those higher taxes. /s/

Your arguments are utter hogwash.

Comment by Demoralized Thursday, Nov 30, 17 @ 7:51 am
==for so little public service==

And that’s just a ludicrous argument. You let your hate for public employees cloud any reasonable thoughts.

Comment by Demoralized Thursday, Nov 30, 17 @ 7:53 am
Many open minded people (and by that I merely mean ones of us who are not directly and personally involved in the issues of this particular case) do see aspects of merit in both sides of the main arguments. If this were an obvious “slam dunk” for either side and not a complex legal and Constitutional matter it would likely not have reached the Supreme Court. I’ll leave it at that.

Comment by Responsa Thursday, Nov 30, 17 @ 8:11 am
==Yep. They don’t pay any of those higher taxes.==

Yes, but they also receive a direct monetary benefit from a tax hike. If we raised taxes and that money went to buy software my company develops, I’d be paying higher taxes too, but my compensation (raise) and employment status (less chance of layoff due to budget cut) would directly benefit.

====for so little public service==

Comment by City Zen Thursday, Nov 30, 17 @ 8:26 am
==for so little public service==

I hate this argument. Please stop insulting the work ethic of government workers.

Comment by City Zen Thursday, Nov 30, 17 @ 8:28 am
It’s easy to find the unions financial filing on a .gov, that shows they spend significant dollars on political activities.

Comment by cdog Thursday, Nov 30, 17 @ 8:45 am
I have tried to post a longer explanation but have been moderated.

The undeniable fact is Councel 31 spends nearly $2m of its revenue on political activities, and I am unable to find a transparent itemization of what has been supported with those funds.

Comment by cdog Thursday, Nov 30, 17 @ 8:50 am
The report is called a LM2 and its on the dol.gov, file number 511-506.

It’s on Schedule 16, Political Activities and Lobbying, $1.8m.

Comment by cdog Thursday, Nov 30, 17 @ 8:58 am
@cdog - You’re on the right track. “SCHEDULE 17 - CONTRIBUTIONS, GIFTS & GRANTS” will give you a window into political leanings. For example, there you’ll see financial support for frequent capitolfax content/comment provider “Illinois Working Together.

Among other things, scroll further to see $123,000 spent on a convention in Las Vegas.

Comment by City Zen Thursday, Nov 30, 17 @ 9:27 am
I sure wish normal posts, filled with objective facts, made it on the blog, consistently. I have a response to cz not showing.

Comment by cdog Thursday, Nov 30, 17 @ 9:47 am
I will try again. That schedule you cite, has lots of detail. The previous schedule I cited does not, just one big check, to themselves.

Comment by cdog Thursday, Nov 30, 17 @ 9:49 am
-cdog-

One of mine went off somewhere also.

Comment by RNUG Thursday, Nov 30, 17 @ 12:50 pm
cdog, so what? This is voluntary money, not dues. Citizens have that right, you know? Did you think they would donate to someone who would govern against their interests?

Comment by Radio Flyer Friday, Dec 1, 17 @ 8:01 am