Janus vs. AFSCME Janus vs. AFSCME Asked the Supreme Court to Declare it Unconstitutional for the Government to Force Public Employees to Pay Compulsory Union Fees. And, the U.S. Supreme Court Agreed on June 27, 2018.

Mark Janus (left) with his attorney William L. Messenger after finishing U.S. Supreme Court oral arguments.

National Right to Work Legal Defense Staff Attorney William L. Messenger made the oral arguments on behalf of Mark Janus.

Mark Janus faces press and answers questions after hearing the Opinion.


Big Labor and Freedom Supporters rally at the U.S. Supreme Court steps on the morning National Right Work Attorney William L. Messenger made Mark Janus' oral arguments before the nine Justices.

The Mark Janus' victory frees public employees from forced unionism schemes.

In 1977, the Supreme Court in Abood v. Detroit Board of Education created a doctrine under which unwilling employees can be forced to pay for union speech notwithstanding the First Amendment’s free speech guarantees.

In two recent cases brought by the National Right To Work Legal Defense Foundation — Harris v. Quinn and Knox v. SEIU — the Supreme Court questioned the propriety of Abood’s holding and the constitutionality of compulsory union fee requirements. And in 2016, the Supreme Court in Friedrichs v. California Teachers Association came within one vote of overruling Abood.

Janus v. AFSCME is the case that ended the ‘anomaly’ Abood created and finally ends compulsory union fee requirements throughout the public sector.

What many casual observers may not know is that it has taken a forty-year legal road to get to this point. ...

The Long Road

Janus v. AFSCME is not an isolated case. Rather, Janus is part of a continuum of cases litigated by the National Right to Work Foundation in its tireless 50-year legal war against compulsory unionism.

Since its founding in 1968, National Right To Work Legal Defense Foundation attorneys have represented tens of thousands of employees in several thousand cases challenging forced union fee requirements.

Read on to learn more about the long road to Janus v. AFSCME. ...

Strategic Litigation

Successful Strategic Litigation Program

Reversing Abood

Since 1968, the National Right To Work Legal Defense has mostly worked alone on the arduous task of establishing legal precedents to undo compulsory unionism.

Abood v. Detroit Board of Education was its first challenge to public-sector compulsory unionism to reach the Supreme Court. While Abood advanced the law a few short steps, by holding it unconstitutional for the government to force public employees to pay for union political expenses, Abood wrongly permitted unions to seize employees’ monies for many other activities.

To correct the wrongs of Abood, the National Right to Work Legal Defense Foundation embarked on a sustained, long-term legal strategy to establish that the Abood scheme is faulty and unworkable. That 40-year effort has culminated in Janus v. AFSCME, which may be the case to end compulsory unionism in the public sector.

Abood v. Detroit Board of Education (1977)

Pictured are three of the many Abood plaintiffs on the steps of the Supreme Court of the United States. (left tp right: Anne B. Parks, Bob Johnson, and Alberta Keyes)

Abood was the first Foundation case challenging public-sector union fees to reach the U.S. Supreme Court. Foundation attorneys argued that forcing unwilling public employees to pay for unwanted union advocacy violated the employees’ First Amendment right to choose which speech is worthy of their support.

Unfortunately, the Abood Court chose to 'split the baby' by holding it unconstitutional to force employees to pay for union political activities, but constitutional to force employees to pay a union for bargaining with the government.

As the dissenting Supreme Court Justices realized, this new distinction made little sense because bargaining with the government is a political activity. It is speech directed to the government indistinguishable from political lobbying. And, if the First Amendment prohibits anything, it should prohibit the government from dictating who speaks for citizens in their relations with the government.

Yet, this was untenable distinction between union political activities and union bargaining activities was the constitutional line the Abood majority settled upon.

The Intervening Years: 1977-2012

The Foundation did not give up in the wake of the Supreme Court’s disappointing decision in Abood. Rather, the Foundation continued to bring case after case to expand employee free choice and undermine the dubious pillars of the Abood regime.”

The National Right to Work Legal Defense legal challenges include the following familiar Supreme Court cases ...

Ellis v. Railway Clerks, 466 U. S. 435 (1984), which held that unions could not force employees to pay for union organizing activities.

Chicago Teachers Union v. Hudson, 475 U. S. 292 (1986), which held that unions must provide nonmember employees with audited financial disclosures before taking their money.

This case resulted in what many now call "Hudson Notices," demands by public sector employees to have the union verify their agency fee charges through independent accounting. (An example of a Hudson request appears behind this text.)

Communication Workers v. Beck, 487 U.S. 735 (1988), which held that private sector employees cannot be forced to pay for union political activities.

The court opted to apply the Abood and Hudson reasoning to the private sector as well.

Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991), which held that unions could not force employees to pay for most union lobbying expenses.

As the Washington Post reported, "The court ruled 8 to 1 that the use of the money for political lobbying and public relations, except those needed to ratify a contract and obtain the funds to pay for it, violated the free speech rights of the employees who were forced to pay the union for it."

Abood plaintiffs at the U.S. Supreme Court in 1977.

The previous list of post-Abood U.S. Supreme Court decisions, coupled with numerous National Right To Work Legal Defense Foundation-won decisions from appellate courts, district courts, and administrative agencies, chipped away at Abood by demonstrating that Abood’s framework was unworkable and could not fully protect employee rights.

Then, beginning in 2012, the Supreme Court signaled that it might be interested in revisiting Abood in a trio of cases: Knox v. SEIU, Harris v. Quinn, and Friedrichs v. California Teachers Association.

Knox v. SEIU (2012)

In Knox, a Foundation case challenging a union’s seizure of compulsory fees from employees for a ballot initiative campaign, the Supreme Court called Abood an “anomaly,” criticized Abood’s so-called “free-rider" rationale, and made clear that compulsory fee requirements are subject to at least “exacting First Amendment scrutiny."

Harris v. Quinn (2014)

In Harris, a Foundation case alleging it unconstitutional for unions to seize compulsory fees from Medicaid providers, the Court went even further, and gave several reasons why Abood was wrongly decided, stating that:

  1. Abood “fundamentally misunderstood” earlier cases concerning laws authorizing private sector compulsory fees;
  2. Abood failed to appreciate the difference between private and public sector bargaining;
  3. Abood failed to appreciate the difficulty in distinguishing between collective bargaining and politics in the public sector;
  4. Abood did not foresee the difficulty in classifying union expenditures as “chargeable” or “nonchargeable”;
  5. Abood “did not foresee the practical problems that would face objecting nonmembers”; and
  6. Abood wrongly assumed forced fees are necessary for exclusive representation.

The Harris Court stopped short of overruling Abood, however, because doing so was unnecessary to resolve the question of whether individuals who were not public employees could be forced to pay compulsory union fees.

Plaintiff Rebecca Friedrichs' case ended in a 4-4 tie vote at the US. Supreme after Justice Scalia's untimely death left a Supreme Court Justice seat vacant until 2017.

Friedrichs v. CTA FACTS

In Friedrichs, a case by public school teachers challenging Abood and California’s compulsory union fee law, the Supreme Court came within one vote of potentially overruling Abood. The Court deadlocked, however, due to Justice Scalia passing away approximately one month after oral argument.

Then, it was Mark Janus' turn to try to break the deadlock.

One last note about the history of the Janus v. AFSCME case ...

Rauner v. AFSCME

Janus v. AFSCME was not always called Janus v. AFSCME.

Illinois Governor Bruce Rauner, an advocate for individual rights in the workplace, sought to free Illinois government employees from forced unionism. In 2015, based on the Foundation’s victory in Harris, which held it unconstitutional for Illinois to force independent homecare providers to pay compulsory union fees, the newly-elected Governor filed a lawsuit that sought to overrule Abood and have Illinois’s public-sector agency fee law declared unconstitutional. Soon thereafter, Mark Janus and two other Illinois state employees represented by National Right to Work Foundation attorneys and other counsel moved to become parties to Governor Rauner’s case.

The district court granted the employees’ motion to become intervenors in the case and, at the same, dismissed Governor Rauner from the case on technical procedural grounds. This left the employees as the only plaintiffs in the case. And, the case of Rauner v. AFSCME 31 became Janus v. AFSCME 31.

Pictured at the right is Governor Bruce Rauner following U.S. Supreme Court oral arguments in the Janus v. AFSCME case.

Abood's last day came this summer.

The Supreme Court overruled Abood and finally put an end to compulsory unionism in the public sector. However, the National Right To Work's Strategic Litigation Program continues to target other injustices foisted onto employees by Big Labor Bosses and their political allies and will ensure that Janus rights are enforced.

Because of the National Right To Work Legal Defense Foundation's Strategic Litigation Program, Foundation attorneys are typically involved in almost 200 ongoing cases at any given time. Some similar cases are on hold by courts pending a decision in Janus. But many more cases continue to edge closer Supreme Court review.

This includes cases meant to invalidate union “opt-out” requirements; which the Supreme Court agreed with Janus' argument to make union membership an opt-in. In most states that allow compulsory-unionism, unions force employees to affirmatively opt-out of paying fees that are not constitutionally chargeable to them. In other words, instead of obtaining employees’ consent before taking their money for political and other nonchargeable purposes, unions will take the employees unless they jump through procedural hoops created by the union. The National Right To Work Foundation has several cases heading towards the U.S. Supreme Court to challenge this unconstitutional arrangement. So, this part of the Janus victory is very significant as well.

There remain numerous private sector cases challenging these Big Labor compulsory unionism schemes that your National Right To Work Legal Defense Foundation is fighting thanks to the generous support from people like you. Please consider helping us keep the steam in the Strategic Litigation engine as we continue defending hardworking Americans from Big Labor Bosses' new schemes and advancing the cause of freedom from compulsory-unionism.

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