Why AFSCME, public sector unions lost landmark Janus case

WASHINGTON — The Supreme Court — delivering a win to Gov. Bruce Rauner and a blow to organized labor in the landmark Illinois case Janus v. AFSCME Council 31 — ruled Wednesday that non-union member government employees’ First Amendment rights shield them from having to pay fees to a union to cover costs to represent them.

The 5-4 decision, with the court breaking along conservative/liberal ideological lines, overturned the 1977 precedent set in Abood v. Detroit Board of Education.

Justice Samuel Alito, writing for the majority, said in his opinion, “States and public-sector unions may no longer extract agency fees from nonconsenting employees. … This procedure violates the First Amendment and cannot continue.”

The ruling comes in the wake of various lawsuits financed by conservative activists — in Illinois and other states — challenging the law allowing government unions to collect fees from non-members.

Justice Elena Kagan lamented in her dissent, “Today, the Court succeeds in its 6-year campaign to reverse Abood.”

The Janus decision comes as Rauner, a Republican, is battling Democrat J.B. Pritzker for a second term. Rauner has crusaded against the Democrat-allied Illinois government employee unions since taking office.

Pritzker in a statement said he was “appalled” by ruling.

“…This is just another example of Rauner partnering with anti-worker special interest groups like the Illinois Policy Institute and the National Right to Work Foundation to pursue his own agenda over the best interests of working families.”

The case went up to the Supreme Court after Rauner filed a lawsuit Feb. 9, 2015 — shortly after taking office — challenging the fees. A few weeks later, a lower court ruled he did not have standing and dismissed him from the case. The amended lawsuit that was filed included as a plaintiff Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Services in Springfield; that’s why the case is Janus v. AFSCME.

With Rauner off the case, the Janus legal team steered it to the Supreme Court, led by attorneys Jacob Huebert, the director of litigation at the Liberty Justice Center in Chicago and William Messenger, a staff attorney at the National Right to Work Legal Defense Foundation based in Virginia. The Liberty Justice Center is affiliated with the Illinois Policy Institute, a conservative group with political and policy influence in the state.

Huebert told the Chicago Sun-Times that under the ruling, government unions are still bound by state law to represent workers whether or not they opt to join the union.

Illinois Attorney General Lisa Madigan, a Democrat, intervened on behalf of AFSCME.

The case, framed as a fight for free speech rights, has the practical impact of weakening organized labor, influential players in local Illinois and national Democratic politics, supplying money and foot soldiers to back candidates and causes. Unions are braced for a loss of revenues and members.

President Donald Trump immediately tweeted about the decision, writing, “Big loss for the coffers of the Democrats!”

Rauner acted within hours of the decision to sock Illinois state unions in the pocketbook.

Camped in Washington since Sunday night to be in the courtroom when the opinion was announced — and maximize media exposure — Rauner, in a letter to state employees, said the state “effectively immediately,” will stop deducting “fair share fees” state workers who are not union members pay to cover costs associated with representing them.

In 22 states, including Illinois, government workers can opt out of joining a union. However, they must pay a “fair share” fee to cover costs for representing them, excluding union political or lobbying expenses.

Though the Abood case cited the risk of “free riders” to justify those fees, the court noted Wednesday that Janus rejected that label.

“He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage,” the court wrote.”

The opinion came on the last day of the court’s term — and hours before the announcement of the July retirement of Justice Anthony Kennedy, which will return the court to a potential 4-4 deadlock until his replacement is confirmed by the Senate.

The Supreme Court usually follows its own precedents. Alito wrote that “we recognize the importance of following precedent unless there are strong reasons for not doing so.”

“But there are very strong reasons in this case,” the court continued. “Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse.”

And on the free speech issue, a crucial legal underpinning to the case, the court majority in striking down the current payment system said, “We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

Kagan warned of “black-robed rulers” and a majority choosing winners “by turning the First Amendment into a sword.”

The Alito opinion took note of the debate between Rauner and the state unions over how to deal with the state of Illinois’ massive unfunded pension liabilities and billions in unpaid bills.

Moody’s, the financial ratings firm, said the decision could potentially upgrade its assessment of Illinois finances.

Emily Raimes, Vice President & Senior Credit Officer at Moody’s, said in a statement, “We expect the Supreme Court decision may lower public union revenues, membership, and bargaining power in the 22 states that can no longer allow mandatory fees. These developments could change how state and local governments set employee wages and pensions, resulting in a positive long-term impact on government finances.”

Lee Saunders, president of the American Federation of State County and Municipal Employees said in a conference call with reporters, “Today’s Supreme Court decision makes it perfectly clear working people can’t get a fair hearing before today’s corporate controlled Supreme Court. But let me be perfectly clear, we are not defeated. We are emboldened, emboldened to organize and mobilize to build power and take collective action.”

The justices reached their decision on ideological lines.

Joining in the majority were Chief Justice John Roberts and Justices Kennedy, Clarence Thomas, Alito and Neil Gorsuch, all appointed by Republican presidents.

Joining in the minority were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Kagan, all nominated by Democratic presidents.

Gorsuch, on the Supreme Court since April 2017, provided the deciding vote.

The justices faced the question of whether to overturn the 1977 Supreme Court opinion, Abood v. Detroit Board of Education, that found public employee unions could collect “fair share” or “agency fees” because the unions have a legal obligation to represent all workers, whether or not they chose to join the union.

Rauner and Janus were in the courtroom when the Justices delivered the opinion

Kagan insisted in her dissent the majority had little basis to overturn the precedent, writing that “there is no sugarcoating today’s opinion.” She said it will prevent people from making important choices about workplace governance through state and local officials.

Wrote Kagan, “And it does so by weaponizing the First Amendment.”

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OPINION

• Janus case is part of continuing attack on workers

• Union ‘fair share’ fees protect all workers without infringing on free speech

DISCLOSURE NOTE: Some unions have ownership stakes in Sun-Times Media, including the Chicago Federation of Labor; Operating Engineers Local 150; SEIU Healthcare Illinois-Indiana and SEIU Local 1.