The Supreme Court Need Not “Ignore Pleading Rules” to Decide the Constitutionality of Forced Union Dues Imposed on Public Employees

The petition for certiorari filed in Janus v. American Federation of State, County, & Municipal Employees, Council 31, asks the U.S. Supreme Court to decide whether the First Amendment allows a government to force its employees to pay “agency fees” to a labor organization that is their “exclusive representative” for purposes of “collective bargaining” with the government.[1] This is the precise issue that the Court considered last term in Friedrichs v. California Teachers Ass’n, but did not decide after oral argument due to the untimely death of Justice Scalia.[2]^,[3]

 In a September 7 posting on the blog “On Labor,” Andrew Strom, Associate General Counsel of Service Employees International Union, Local 32BJ, argues that to grant review in and decide Janus the Court “would need to ignore a series of recent cases requiring plaintiffs to plead facts rather than conclusory assertions,” because Janus’ complaint “does not identify where he specifically disagrees with actions taken by AFSCME in its capacity as his collective bargaining representative.”[4]

Mr. Strom ignores the fact that the Court has previously considered the constitutionality of forced fees without requiring the plaintiffs who object to that forced speech and association to identify the specific union activities they find objectionable. For example, in Harris v. Quinn the Court decided the constitutionality of forced fees for homecare providers who receive state funding on a complaint that merely alleged generally that the Illinois statute imposing those fees “violates the First Amendment insofar as it requires personal assistants to pay a fee to a union that they do not wish to support.”[5] And, in Friedrichs, the Court took the case on a complaint that alleged as to each plaintiff only that “[b]ut for California’s ‘agency shop’ arrangement, [he or she] would not pay fees to or otherwise subsidize the teachers’ union,” and that he or she “objects to many of the unions’ public policy positions, including positions taken in collective bargaining.”[6]

Moreover, Mr. Strom ignores the “pleading rules” established by the very case that the Janus petition asks the Court to overrule on its merits, Abood v. Detroit Board of Education.[7] The Abood plaintiffs’ complaint, as amended, alleged that they were unwilling or had refused to pay dues and that they opposed collective bargaining in the public sector. The amended complaint further alleged that . . . the Union is engaged “in a number and variety of activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve…”[8]

Despite the conclusory nature of those allegations, the Court decided the constitutionality of forced fees required of public employees and specifically held that “the general allegations in the complaints, if proved, establish a cause of action under the First and Fourteenth Amendments.”[9] Moreover, the Court held that the Michigan Court of Appeals erred “in holding that as a prerequisite to any relief each appellant must indicate to the Union the specific expenditures to which he objects,” that it was sufficient that “the employees here indicated in their pleadings that they opposed ideological expenditures of any sort that are unrelated to collective bargaining.”

Like the complaints in Abood, Harris, and Friedrichs, the Janus plaintiffs’ complaint alleges that, “[b]ut for Illinois law requiring compulsory fees, [they] would not pay any fees or otherwise subsidize” defendant unions, and that they object “to many of [their bargaining agent’s] public policy positions, including the positions that it advocates for in collective bargaining.”[10] That is all that is necessary for the Court to take and decide the issue Janus presents.

Click here to listen to or download a recent Federalist Society podcast on Janus in the Court.