Courthouse Steps: Janus v. AFSCME
Labor & Employment Law Practice Group Teleforum
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Janus v. American Federation of State, County, and Municipal Employees (AFSCME) is scheduled for oral argument in the Supreme Court on February 26. This important case will determine whether it is constitutional for public sector unions to require all employees to pay union fees regardless of their membership under the First Amendment. The ruling in Janus will also clarify whether the Court’s decision in Abood v. Detroit Board of Education to uphold these requirements will remain good law.
Ray J. LaJeunesse of the National Right to Work Legal Defense Foundation joins us to discuss his impressions of oral argument.
Raymond J. LaJeunesse, Jr., Vice President and Legal Director, National Right to Work Legal Defense and Education Foundation, Inc.
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Dean Reuter: Welcome to The Federalist Society's Practice Group podcast. The following podcast, hosted by The Federalist Society's Labor and Employment Law Practice Group was recorded on Monday, February 26th, 2018 during a live Teleforum conference call held exclusively for Federalist Society members.
Dean Reuter: Welcome to the Practice Group's Teleforum conference call as today we discuss the oral argument in this morning's Supreme Court Janus case. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups here at The Federalist Society. Please note that all expressions of opinion are those of the expert on today's call. Also this call is being recorded for use as a podcast in the future and will likely be transcribed as well.
Dean Reuter: We're very pleased to welcome back to Teleforum a repeat return guest, Raymond LaJeunesse, Jr. He's the Vice President and Legal Director at the National Right to Work Legal Defense and Education Foundation Incorporated right here in the greater Washington DC area. He went to oral argument this morning at the courthouse. He is going to give us opening remarks of about thirty minutes or so.
Dean Reuter: This case has a complicated procedural and historical background as well, so he's going to cover that background and then go on to discuss oral argument. But as always we'll be moving towards an audience question and answer period, so please have your questions ready for when we get to that portion of the program. With that, Ray LaJeunesse, the floor is yours.
Raymond L.: Thanks, Dean. Well, what's the issue in Janus versus American Federation of State, County and Municipal Employees? The question presented is whether the first amendment permits government to require public employees to also ... And they are deprived of their right to make their own contracts by what is called exclusive representation to also subsidize their state-imposed monopoly bargaining representative.
Raymond L.: I want to say to begin with that, obviously I have a bias in this case because the foundation provided representation for the plaintiff, Mark Janus. But I'll try to be as fair in describing the argument as I can. For us to win the case it requires overruling Abood versus Detroit Board of Education, which was decided by the court in 1977, the case which as a very young lawyer I worked on myself.
Raymond L.: In Abood, the court unanimously held that a union cannot constitutionally compel nonmember public employees to subsidize its, quote, "Expression of political views on behalf of political candidates or toward the advancement of other ideological causes, not germane to its duties as collective bargaining representative," unquote.
Raymond L.: However, fortunately from our standpoint, 6-3 relying on private sector cases, the court also held that public employees can be compelled to subsidize the union's collective bargaining and contract administration with a governed employer. I would contend that really was only a 5-4 decision because Justice Rehnquist concurred only because he had descended in Elrod v. Burns, which had held earlier the political patronage that violates the First Amendment.
Raymond L.: And he said, quote, “Had I joined the plurality opinion in Elrod, I would find it virtually impossible to join the court’s opinion in this case,” unquote. Justice Powell in his essentially dissent like incurred him the judgment because of the finding with regard to political speech, but Justice Powell identified two flaws in the majority opinion, which really are the core of the argument that the plaintiff is making in Janus.
Raymond L.: First he said there is no basis for distinguishing collective-bargaining, activities from political activities so far as the First Amendment is concerned because both the public-sector union is indistinguishable from the traditional political party,” unquote. That is its decisions reached through collective bargaining directly impact the level of public services, priorities within state and municipal budgets, creation of [inaudible 00:03:57] and then this impacts right.
Raymond L.: Secondly, he said by relying on private sector cases the majority failed to acquire the proponents of force fees for bargaining purposes to demonstrate that the purported state interest but exacting First Amendment scrutiny. Following Abood there were numerous cases, all of which were expensive, complex and protracted over drawing the line between chargeable and non-chargeable activities, bargaining on one side, politics on the other, and/or what procedures are required to protect employee’s right not to subsidize union, political and other non-bargaining activities.
Raymond L.: One of those cases is called Chicago Teachers Union versus Hudson, which was decided by the court in 1986, and you’ll see when I get to the next case why that case was important. And in Hudson and the court held first amendment due process requires that before compulsory union fees can be collected from public employees they must be given adequate, the employees must be given adequate advance notice of the fee spaces, including an independent audit, an opportunity for a reasonably prompt impartial review of the challenges to that union’s calculation and escrow of the disputed fees while those challenges are pending.
Raymond L.: Well, in our Knox case that was decided by the court in 2012, what happened was that after Service Employees International Union Local in California, a statewide local had set out its annual Hudson notice. It imposed a special assessment on all unit employees to propose two ballot propositions without giving non-members notices they could opt out of paying the assessment.
Raymond L.: And the Supreme Court held 7-2 that an additional Hudson notice was required, but and here’s the key, the court held 5-4 that when a public sector union imposes a special assessment or due to increase, it must not only provide an additional notice, quote, “May not exact any funds from non-members without their affirmative consent,” unquote.
Raymond L.: And the importance of that is that the majority held that that opt-in procedure was required because compulsory subsidies for private speech are subject to exacting for scrutiny, making them very clear that heightened First Amendment scrutiny applies. And that they have to serve with whatever the scheme is that deserve a compelling state interest, that cannot be achieved through means less restrictive of free speech and association.
Raymond L.: And that majority also said, and this is important in Janus, quote, “Free rider arguments are generally insufficient to overcome First Amendment objections,” unquote. The acceptance of such an argument in Abood was as Justice Alito wrote something of an anomaly. That brings us to Harris v. Quinn in 2014 actually involved the same stature that at issue in Janus except in Harris the state of Illinois imposed the mandatory union fee requirement not on public employees, but on nonmember Homecare personal assistants who receives state funds. Those were folks who helped disabled individuals, usually their family members, but they are not actually public employees.
Raymond L.: The Supreme Court 5-4 in Harris held that this scheme violated the First Amendment because it did not serve a compelling state interest that could not be achieved through means significantly less restrictive associational freedoms, in other words applying exacting First Amendment scrutiny. The majority refused to extend Abood because it found Abood’s analysis questionable on several grounds, actually six, all of which apply equally to public employees we contend.
Raymond L.: First, the court said, the majority in Harris said that Abood seriously erred in relying on private sector cases because the First Amendment analysis in those cases was either thin or nonexistent. In other words it wasn’t exacting scrutiny. Second, Abood failed to appreciate the judicially noticeable fact that in the public sector, but not the private sector, quote, “Core issues such as wages, pension and benefits are important political issues,” unquote.
Raymond L.: Third, the majority said, “Abood failed to appreciate the conceptual difficulty of distinguishing in public sector cases between union expenditures that are made for collective bargaining purposes, and those that are made to achieve political ends,” unquote. Four, Abood did not anticipate the practical administrative problems that would result in attempting to classify public sector union expenditures as either chargeable or not. Problems with the court itself had encountered in cases since Abood, including one I argued called Leonard.
Raymond L.: Five, Abood did not foresee the heavy burden of expensive litigation that objecting nonmembers would face in challenging a union’s categorization of expenses. And six, “Abood’s,” quote, “unsupported empirical assumption that the principle of exclusive representation in the public sector is dependent on union or agency shop fees is unwarranted, unquote.” Because why, exclusive bargaining agents operate without force fees and federal agencies in the U.S. Postal Service, and I would add in the 27 right-to-work states.
Raymond L.: Harris did not overrule Abood only because the personal assistants in Harris were not full-fledged public employees, but the court was given an opportunity to do that. The case called Friedrichs versus California Teachers Association, which was argued in January of 2016, the Friedrichs plaintiffs were California public school teachers, so directly presented the question as to whether Abood should be overruled. And the court granted to resolve that question.
Raymond L.: Oral argument as I say was held in January of 2016 and legal observers and the popular press expected that Abood would be overruled based upon the questioning, but Justice Scalia unfortunately died before decision for the issue. And in March of 2016 an equally divided court affirmed the Ninth Circuit’s decision following Abood and also later denied the plaintiff’s motion for reconsideration, again 4-4. All of this, of course, was before Justice Gorsuch came on for the court.
Raymond L.: The Janus case was filed actually originally by Governor Rauner of Illinois who became governor in February 2015. Relying on the Harris decision he issued an executive order prohibiting state agencies from enforcing force fees, and filed a lawsuit for declarative judgment the force fees for public employees were unconstitutional. Obviously the union’s moved to dismiss the case of and the attorney general, who is a Democrat and a first opponent of the Governor Rauner’s, it intervened and also moved to dismiss.
Raymond L.: We realized that the foundation attorneys were handling the case with attorneys from the Illinois Liberty Justice Center who realized that the governor’s case was going to be dismissed because he doesn’t have standing. He is not paying agency fees, force fees himself. So we moved successfully to intervene on behalf of three Illinois state employees, the lead plaintiffs is Mark Janus who is a child support specialist for the state and is required to pay approximately $45 each month to the AFSCME union, even though he is not a member that re-voted on union representation and opposed to the policies for which the union advocates.
Raymond L.: Obviously the District Court and then the Seventh Circuit had to follow Abood and we petitioned for cert to the Supreme Court. We lost the other two plaintiffs on the way to the Supreme Court. One of them dropped out in the District Court, and the other was dismissed by the Seventh Circuit because he was a religious objector, and had failed to raise the First Amendment freedom of speech claim in the suit he has filed, involving his religious objection. That left us with Mr. Janus. And the Supreme Court granted cert in September 28th, identical question that was presented in Friedrichs.
Raymond L.: And this case is attracting a lot of attention. There were 24 amicus briefs in support of Janus, including an amicus brief from the Solicitor General of the United States, Noel Francisco. And there was a switch from what the Obama administration had done in Friedrichs, and on the other side 39 in support of the respondents, plus three that said they were from neither party but actually the argument is really support for respondents.
Raymond L.: Of course, one of the issues in Janus is as always when you are asking to overrule prior precedent whether stare decisis applies. Our argument is that the stare decisis doesn’t apply here, just as it did not in Citizens United versus FEC where the court said that it had not, has not hesitated to overrule the decisions offensive to the First Amendment. And, of course, we argue that Abood is offensive in the First Amendment because it permits the government to compel its employees to subsidize in adversary groups, political activity, in other words speaking to the government to influence public policies.
Raymond L.: And obviously we’ve argued in the briefs that the Abood should be overruled for the reason stated in Harris, the six I had spelled out, two of which Justice Powell identified as early as Abood. First, the failure to recognize that bargaining with the government is core political speech, indistinguishable from lobbying; and second, that the Abood’s failure to follow the court’s precedents in subject instances of compelled speech and association to writing First Amendment scrutiny.
Raymond L.: And the argument that our counsel made that court is a public-sector force fees cannot survive that scrutiny or not [inaudible 00:14:49] he has argued that they are both not the least restrictive means to achieve any compelling governmental interest of selling the monopoly bargaining is a governmental interest. It can and is accomplished without force fees in the federal agencies, the post office and the [inaudible 00:15:05] right-to-work states that do not prohibit public sector bargaining.
Raymond L.: And he argued during the argument today that that’s because exclusive representation is a very valuable power that unions covet and voluntarily assume they are the only interest group at the bargaining table. Respondents was in their briefs and today at the oral argument did not attempt to show that the fees are least restrictive means for public sector collective bargaining.
Raymond L.: Instead they argued that force fees are subject to lesser scrutiny of what they call the Pickering or Garcetti Test because the fees subsidize employee speech as part of the official duties required by the government as an employer. That’s a justification that was not used by the Abood court, which cuts again stare decisis as our journey Bill Messenger argued.
Raymond L.: And, of course, the union is a state’s adversary at the bargaining table, so its speech is not government speech expressed through employees, its advocacy by an independent interest group. So it’s not managerial in nature, its coercion infringing on First Amendment speech rights. And obviously that requires strict scrutiny which fails for the reasons that Harris gave which is an argument.
Raymond L.: Interesting today at oral argument the case obviously is a very important one. There were competing demonstrations outside the courthouse, one obviously sponsored by unions, the other by group supporting Mr. Janus. Bill Messenger got into his argument 42 seconds before Justice Ginsburg asked the first question, which was, well, and I’m paraphrasing, what about mandatory student fees, and what about barred mandatory bar dues, and what about the private sector? A three part question.
Raymond L.: Bill Messenger responded to that by pointing out that the court in Harris had distinguished all of those other scenarios, student fees are imposed for a governmental interest that the University’s interest in creating a neutral forum for the exchange of ideas. The bar dues support a governmental regulation of the practice of law and in the private sector obviously bargaining with the employer is not political like it is in the public sector.
Raymond L.: Another three-part question came from Justice Breyer, he was long and confusing, but essentially he was asking whether, well, you’re basing your arguments on recent Supreme Court First Amendment cases like Knox and Harris, how far that do you have to go before a case will be upheld on stare decisis, that was the first part. And the second part was returning to the question of private sector bargaining whether force fees for private sector bargaining a constitution, is there a distinction between the public and private sector?
Raymond L.: And the third was based on an amicus brief filed by Professor Charles Fried who is a former Solicitor General in the Reagan administration. Actually who then proposed the quote-unquote “compromise” that’s what Justice Breyer called it that you use a different test for what is chargeable in public sector instead of the vague Abood line between collective bargaining in politics, you allow unions to charge for whatever the statutory duties are then that imposed on them by the state.
Raymond L.: Justice Alito pointed out later that that was not a solution to the problem because the legislature could simply make the union that monopoly bargaining representative for purposes of lobbying which wasn’t mentioned at all argument California has already done. Bill Messenger was followed by Noel Francisco, the Solicitor General had ten minutes of Bill’s argument time.
Raymond L.: The Solicitor General made the point about bargaining monopoly, bargaining working without force fees in the federal government and then the Postal Service. And he also distinguished the Pickering line of cases because there the, it’s just the balancing test, number one; and number two in the Pickering and Garcetti line of cases the state is clearly restricting employee speech, not compelling them to support someone else’s speech.
Raymond L.: He got a question, not really a question but a rejoinder from Justice Kagan who asked him how many times he, the government, the Trump administration has switched their position in litigation before the court. He was followed by David Franklin, the Solicitor General for the state of Illinois obviously representing the state’s position in conjunction with the union. He was questioned very, very closely by Justice Alito and Justice Kennedy, both of whom were very clearly still on board with what they had signed on to in Harris, that is that that Abood was wrongly decided.
Raymond L.: A very key question was asked of Solicitor General, Franklin, by Chief Justice Roberts who has asked whether it would not make the unions more responsive if they had to attract voluntary support. Of course, he had joined in the majority in Harris, so that would indicate he is still on board with that position. There were [Mark Breyer 00:21:39] again brought up the potential compromise. He seemed actually, I talked to some of the folks who were in the oral argument and they felt that the two most active shall I say justices were Breyer on one side and Kennedy on the other. In fact I was told that Justice Breyer seemed to be angry about the case even being there.
Raymond L.: Solicitor General, Franklin, is followed by David Frederick, the appellate lawyer who had been retained by the union, his experience, he has done about 40 Supreme Court arguments, he had not represented to the Union below. Again, he was questioned very closely by Justice Alito and Justice Kennedy, and made it what I thought was a very damning confession. Kennedy asked him, “Does this case if we rule for Mr. Janus, will it affect the political influence of unions?”
Raymond L.: And Frederick answered, “Yes.” Kennedy then said, “Is that the end of the case?” And then Justice Alito pressed him, he says, “Where do you want us to draw the line on when free speech applies to public employees?” “Where you want us to go with the claim that public employees have no free speech right?" And he said he was surprised to see that argument made in the union’s brief.
Raymond L.: Chief Justice Roberts had a key question from him, and that is, “How do union negotiations over the collective bargaining agreement not affect the state budget?” And, of course, the union’s attorney had no answer. They had to invent, they affect the state budget. And finally Justice Alito said, “Wouldn’t it be a matter of public concern if union negotiations for higher wages or greater benefits put a public employer on the brink of bankruptcy?” And the union lawyer had no answer for that one.
Raymond L.: And then the final comment that Mr. Frederick made in answer to a question from Justice Alito, he said, well, there’s real reliance here because unions and state employers and local governments when they enter into these bargaining agreements that include force fees, there’s a trade-off. And what’s the trade-off? He said the trade-off is that the union agrees not to strike. Well, that was a perfect opening for Bill Messenger in rebuttal. He said that in other words the scheme is a racket protection. You are paying off the union to keep them from engaging in violence against the government.
Raymond L.: And the only other point he addressed them in rebuttal was that grievance processing to enforce public policy, the union bargaining agreement is just as much advocacy as negotiating over, the making of the agreement. So with that I’d be glad to answer questions, Dean.
Dean Reuter: Very good. Thank you so much. If you joined us late, we are speaking to Raymond LaJeunesse about the Janus oral argument earlier today. Let’s open it to questions, in a moment we’ll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have question, push the star button and then the pound button on your telephone. So once again if you have a question for expert, push the star button and then the pound button on your telephone. We’ve got just one question on the line so far.
Dean Reuter: Let me ask if I could just start things off, a clarifying question. You mentioned that Justice Kagan asked a question about how often the government had switched its position.
Raymond L.: Right.
Dean Reuter: I assume she was talking about within this case.
Raymond L.: No, no, no, in briefs filed with the court in this and other cases.
Dean Reuter: So if I’m reading this right, she is asking about the Trump’s administration government in particular, how often, how many times it had switched its government positions since the election results.
Raymond L.: Right, in cases before the Supreme Court.
Dean Reuter: Yeah, interesting. Did anybody react to that? I mean, was there an answer to that question, does the …?
Raymond L.: I think he said three times, I didn’t quite catch it, but I think he said three times. He apparently had faced that same gigging in an earlier argument.
Dean Reuter: Yeah, it’s …
Raymond L.: As he was prepared for it.
Dean Reuter: Oh, interesting. Once again if you are in the audience, if you have a question push the star button and then the pound button. We’ve got just one question pending in our line.
Raymond L.: Yeah, before you take that question, one other thing that I meant to mention at the start of my description of what was going on at the court today, the line of attorneys to get in to hear the oral argument is the most that I have ever seen, the longest that I’ve ever seen.
Dean Reuter: Interesting.
Raymond L.: There must have been a hundred others in the overflow room, I was number 77 in the overflow room.
Dean Reuter: Number 77. Okay, well, that’s good information. We’ve got two questions pending now, but three questions now. Let me just quickly ask about the mood after the argument, what were you picking up from the crowd in general? Were you sort of milling with your colleagues on one side of the case or were you hearing from the other side?
Raymond L.: Well, I was hearing from the other side the sense that the union crowd demonstrating outside had at least one bullhorn if not more, and they were making a lot of noise. There was a large crowd supporting Mark Janus, which also was making noise in terms of talking to folks who had heard the argument. I was only talking to those people who are on our side, and all seemed very happy with the way it went.
Dean Reuter: Once again …. Go ahead.
Raymond L.: Yeah, the conclusion that everyone made is that there is certainly, although Gorsuch and Thomas as he usually does asked no questions, but obviously Thomas had already voted on the same side as Justice Alito in Knox and Harris and was presumably one of the four who voted to reverse the Ninth Circuit in Friedrich, who Knows which way Gorsuch is gonna go but with his reputation one would think he would end up with Justice Alito.
Dean Reuter: Are you disappointed he didn’t ask a telling question or?
Raymond L.: One of the arguments that we thought the other side would make or that someone from the liberal side on the bench would raise the issue of originalism in the sense that that when the founders started the country, political patronage had existed for a long time before it was overruled and struck down in Elrod, but that question was never directly presented, Breyer sort of alluded to it but it was not. And that was, we figured that argument was gonna be one being directed toward convincing Gorsuch to go with the liberals.
Dean Reuter: Right.
Raymond L.: Of course, the answer that we were prepared to give is that that the First Amendment cases just didn’t really wasn’t much First Amendment litigation until the 20th century. And that the founding fathers would have been aghast that requiring public employees to support a faction, Hamilton, Madison etc., Jefferson all wrote that they did like factions.
Dean Reuter: Interesting. We do have three questions pending, Ray, so let’s turn now to the audience if we could.
Raymond L.: Sure.
Dean Reuter: Go ahead, caller.
Arthur Hillman: [inaudible 00:29:59] this is Arthur Hillman at the University of Pittsburgh, I read through the transcript very quickly that come online very fast this morning, and what struck me was the way the liberal justices were pushing the Pickering-Garcetti line of cases, and of course Garcetti was written by Justice Kennedy. Do you think that if the court does reverse here that some of the justices who have joined the majority opinion in particularly that case will start rethinking their view of the ordinary employer, employee free-speech case where a single employee is discipline for speech?
Raymond L.: No, I don’t think so. I’ll start with the court distinguished the Pickering line in, I believe it was Harris, it was either Harris or Knox. I’m pretty sure it was Harris, and because that have been made by the union attorneys and in that case. And I heard from the question there, I don't know the caucus as you were reading the transcript, which I haven’t had time to do yet because I had to go to a luncheon and then come home to make this call.
Raymond L.: But the distinctions that I heard from the questioning I think probably Alito, one, that line of cases deals with restricting employee speech, not compelling employees to subsidize somebody else’s speech. And secondly, that the grievance or a dispute involving a single employee, the scale of it is such that it’s not going to affect the public fisc, and therefore it’s not as core political.
Arthur Hillman: That’s all right. I have to say I didn’t find that second distinction terribly convincing that the constitutionality and their First Amendment depends on whether you have one person being disadvantaged or many. The distinction between coerced speech and a restriction on speech does have some [crosstalk 00:32:11] in the foundational case on coerced speech, Barnette, Justice Jackson said that in some ways being coerced to silence or in this case being coerced to contribute is actually worse than being restricted in what you can say. So the first distinction has some basis and precedent.
Raymond L.: Well, the second distinction the court majority made in Harris, so they’ve already accepted it.
Arthur Hillman: It’d be interesting to see whether Justice Gorsuch does. I have to say I was very disappointed that he didn’t ask a single question of either side. It’s baffling to me since he is so active in questioning in so many other cases.
Raymond L.: Yeah, I know it is surprising.
Dean Reuter: Thank you. Once again if you have a question in the audience, push the star button, then the pound button on your telephone. We’ve got two questions pending and then our lines will be once again opened. Go ahead, caller.
Jon Coupal: Yeah, hi, this is Jon Coupal, Howard Jarvis Taxpayers Association in California, obviously we’ve been looking at this very carefully. I have not read the transcript but I was a little concerned about some of the discussion relating to a potential compromise discussion from Justice Breyer. That doesn’t sound like it’s gonna get any legs I hope because I …
Raymond L.: I don’t think so because I don’t think you’re going to get Alito, Kennedy, Thomas to go along with that, and I don’t think you’re going to get Ginsburg and Kagan and Sotomayor to go along with that. I think Breyer’s out there on a limb by himself.
Jon Coupal: That’s good to hear.
Raymond L.: Yeah, I mean, it might be attractive to Roberts, but I don’t think they can put together a majority.
Jon Coupal: Thank you.
Dean Reuter: Let me ask you maybe the same question in a different way, Ray LaJeunesse. And that’s, the court, well, sometimes seems to be able to dodge some of the bigger questions presented by high-profile cases. Is there a way maybe that people haven’t thought a lot about or haven’t been, the court has been briefed a lot about that you could get to six, one side or the other could get something bigger than a five justice majority here? And is that attractive to the court?
Raymond L.: I just don’t see it besides [crosstalk 00:34:37] so drawn after Harris that I just can’t see that.
Dean Reuter: Fair enough. We’ve got two questions pending from the audience, so let’s continue to roll through those. If you’d like to join the queue, push the star button then the pound button on your telephone. Go right ahead, caller.
Doug Seaton: Thank you. This is Doug Seaton in Minneapolis, I’m a lawyer representing personal care attendants in the aftermath of Harris in an effort to decertify the SEIU as their current representative. And those PCAs, of course, under Harris are operating under what we could say is the post Janus environment already assuming Janus will be decided the way we were all predicting it maybe.
Doug Seaton: I’m wondering if there was any discussion of the mechanics of how a decision is overturn Abood would be, would be implemented. What exactly the mechanics would be of employees opting-in or opting-out? We’ve seen in our …
Raymond L.: No.
Doug Seaton: No. The answer is no.
Raymond L.: That there are argument, there was no discussion of that. We addressed that in our brief and there are amicus briefs addressing that.
Doug Seaton: Yes.
Raymond L.: Arguing that it should be, you have to opt-in, you can’t be required to opt-out.
Doug Seaton: I just thought I should note that we are facing in this battle in Minnesota, and of course in other 10 or 11 states that were similarly affected with some significant misconduct. I would call it in connection with dues deduction, authorization agreements that are supposedly voluntary, but that have very limited, in some cases no exit procedures for the so-called employees to terminate the dues deduction authorization. So it’s very serious question for us here.
Raymond L.: Oh yeah. Yeah, that’s a serious question there, it’s a serious question in Washington State where there’s been a lot of hanky-panky involving the governor in the state legislature in terms of authorizing unions to make it difficult for people, for the providers to get out anticipatorily, making it difficult for public employees to get out if we win Janus. So we actually are involved in some of that litigation.
Doug Seaton: Thank you.
Dean Reuter: I repeat, if you’d like to join a queue for questions, push the star button then the pound button on your telephone. We’ve got just one question pending, then our lines are wide-open. Go right ahead, caller.
Speaker 1: Thanks. So I’m actually, I’m fairly sympathetic to I think having the employee unions, I guess these fee structures overruled, but I think the strongest argument I’ve heard against my position and obviously your position, and one that I haven’t really [inaudible 00:37:25] find a great way to address so far is the idea that we already subsidized this in a way because we pay for the salaries to the people on the other end of the negotiation table from the unions.
Speaker 1: So I’m wondering if, I don't know if it came up in argument or if you have anyways that can help me sort of when they might pay in on this on how sort of subsidizing the negotiators on the union end is substantially different from obviously my taxes are subsidizing the other end of the spectrum and reducing government spending by lowering the salaries. I’m just curious if you have any good responses that I can use or if you have anything on it.
Raymond L.: Well, the process of collective bargaining is an adversarial process. It makes sense for the taxpayer to pay its representative at the bargaining table. It doesn’t make sense for the taxpayer to have to pay for someone on the other side who is advocating policies that would result in the poor taxpayer having to pay more in taxes.
Speaker 1: But I’m a little confused because I thought the argument behind this was I just didn’t have to subsidize a position that we’ll need to raise in government spending because of my political thoughts, but if someone on the other end, right, might want to raise government spending and increase salaries and benefits, but the person that they’re subsidizing is actually advocating for lowering the benefit slash lowering the government spending. I’m just confused in how that substantially differ? That’s, I guess, the main problem I’m having is …
Raymond L.: Well, the person, I mean the public employee who wants to pay more taxes because he wants to say have his salary raised or some benefit that currently isn’t being provided by the state, he can join the union and pay dues.
Speaker 1: Yes, I understand [inaudible 00:39:15] because hypothetically right, the argument is the dues are being, when I pay my dues, I’m forced to pay the dues, and that’s subsidizing, increasing government spending, and I politically don’t believe in that, and that doesn’t infringe my First Amendment right. I’m confused why they reverses and so, even though I understand it could have benefit myself [crosstalk 00:39:32].
Raymond L.: Well, you don’t have a …
Speaker 1: The average taxpayer has to subsidize the other end or the argument.
Raymond L.: Well, the average taxpayer doesn’t have standing to challenge government speech. The First Amendment doesn’t prohibit government from advocating its own position.
Speaker 1: So then could they instead, so let’s say we destroy the [inaudible 00:39:56] union restructured, could governments pass laws where I’d, so taxpayers generally subsidize union negotiators and the government negotiators evenly, not every, not the members of the union [inaudible 00:40:08] all the taxpayers, would that be hypothetical [crosstalk 00:40:10] we could see?
Raymond L.: Well, that would not present a First Amendment problem, it might present some kind of problem under state constitutions with regard to what the state can do in taxation. I just haven’t looked into that.
Speaker 1: Interesting. Well, thank you very much for helping me.
Raymond L.: That would change from state to state.
Speaker 1: Yeah.
Raymond L.: I mean, in the federal government and in many states you have what’s called release time, and union officials who are also government employees are paid to work for the union.
Speaker 1: Got you. Got you. Interesting.
Raymond L.: So your scenario actually exists in some places already.
Dean Reuter: Interesting questions. Ray, this is Dean by the way. And you can layer on top of that, not just the release time or official time as it’s known in some places, but isn’t it the case that union dues are tax deductible, so to that extent the government subsidizing union membership?
Raymond L.: Yeah. If they, only the part that you use for collective-bargaining and contract administration is taxable. And then only if it, I think it exceeds 2% of your gross adjusted income.
Dean Reuter: Including your other business related expenses, so if you have other work-related expenses?
Raymond L.: Yeah, yeah, if you have other work-related.
Dean Reuter: Yeah. That is so interesting.
Speaker 1: It’s pretty interesting.
Dean Reuter: You are welcome, caller. Two questions pending, so let’s see if we are heading in a new direction with a new caller.
Jed Brinton: Hi, this is Jed Brinton. It sounds like in terms of the outcome it sounds like extremely likely that there will be a fight for majority in favor of Janus. I guess my question is what would you say is the most likely alternative outcome if you were forced to predict the opposite outcome that we applied for majority into the direction, which of the five justices, of course, [inaudible 00:42:19] the four who have already voted in favor of Janus’ position do you think is most likely to …?
Raymond L.: Boy, that’s, I mean, you’ve got four justices, Chief Justice Alito, Kennedy and Thomas who have twice and Knox and Harris criticized Abood essentially saying it was wrongly decided. So I can’t see any of them changing. Certainly I got no indication of any change of mind in any of them today. If anything Kennedy and Alito were stronger in expressing that position and all the questions that Roberts asked were consistent with the Knox and Harris opinions. So that leaves only Gorsuch who was a blank slate as far as we are concerned, other than that he is generally considered to be a conservative.
Jed Brinton: Do you have any sense of what the most likely argument on any other side is that that might potentially persuade Justice Gorsuch if he were to decide to vote on the other side?
Raymond L.: Well, like I said earlier, we thought in preparing for oral argument and dealing with questions that move court that there would be an argument made from originalism because I think there was one, at least one amicus brief on the other side that made that argument, but it sure wasn’t presented at oral argument today.
Dean Reuter: We’ve got one question pending now if you’d like to join the queue, we’ve got about 15 minutes left. Push the star button, then the pound button on your telephone. Go ahead, caller.
Arthur Hillman: Hi, this is Arthur Hillman again. You mentioned, this really follows up on the previous question. One of the striking things about the amicus briefs was the amicus brief filed by Eugene Volokh, who was a very prominent First Amendment scholar generally thought to be conservative making the argument that this is really government speech, and so that Abood should be reaffirmed on that ground.
Arthur Hillman: A quick reading of the transcript did not show any reference to that. It was a little surprising to me because the most recent government speech case was Justice Breyer’s, and I would’ve thought that the Liberals might’ve jumped on this.
Raymond L.: Yeah.
Arthur Hillman: As a way of capturing just a score search, but am I right that nobody brought that up at all?
Raymond L.: No, that wasn’t brought up today.
Arthur Hillman: Were you prepared for it?
Raymond L.: Oh yeah, we were prepared for that. I mean it’s, well, it’s not government speech, it’s employee speech, or it’s the employee’s money I should say that is being used by the union for the union speech. And that’s exact- if you go back to Davenport which Scalia wrote was decided in 2007.
Raymond L.: That was the case which upheld a Wisconsin ballot proposition that required public employee unions and Washington State to get affirmative consent to collect the part of the fee that goes to political purposes. And the court upheld that ballot proposition wouldn’t have passed in the state legislature the way its setup today, but it was done on the ballot by the general electorate. So the union there argued that it was the union’s money, and Justice Scalia [inaudible 00:45:49] said, “No, no, no, this is other people’s money that government is giving to the union.” So and that was I think 7-2.
Arthur Hillman: I think that's right. So do you think Professor Volokh’s argument is inconsistent with …?
Raymond L.: Oh yeah.
Arthur Hillman: Is that what you were prepared to say if the question, if one of the justices had [crosstalk 00:46:11]?
Raymond L.: Yeah. I mean, that was part of the answer. The other answer is then if Volokh is correct, then the Supreme Court’s decision is going back to Elrod striking down patronage are also wrong.
Arthur Hillman: Yeah, I had to say I do think that Volokh did some very good work, I was just astonished at the end.
Raymond L.: Yeah, it was very surprising to us. Well, it wasn’t surprising to us because he had expressed a similar opinion when the Friedrichs case was in the Supreme Court.
Dean Reuter: So those in the audience who haven’t read the Volokh briefs and this might be too much detail to ask of you, Ray. Can you just give a quick recap? I think we are all key to the idea that this, his argument this is government speech, but how does this become government speech?
Raymond L.: Well, that’s a good question. The closest I can think is actually that argument in a sense was made by the state and/or the union in the briefs in this case. And to some degree at oral argument been saying that, well, if the state paying the union to make speech as part of their official, the employee’s official duties. The only problem with that argument is it’s adversarial speech, the union position is adversarial to the government so how does it become the employee’s official duty speech. Like what the union, the government can regulate in the Garcetti line of cases.
Dean Reuter: Once again, we’ve got one question pending now. We’ve got about 10 minutes left, push the star button then the pound button if you’d like to ask a question. Let’s turn to another caller. Go ahead, caller.
Keith: Good afternoon everybody. This is Keith out in Seattle, it’s just noon here. I’d like to thank Ray for putting on this great presentation and The Federalist Society for offering this service, first of all.
Raymond L.: Thank you.
Keith: But let me say this, I’d like to ask you, Ray, to go back to the initial part of your opening presentation where you described the exchange that ended in one of the party saying that the unions had agreed not to strike as part of the deal. We see teachers’ strikes every year. Now the Chicago school district paralyzes like every other year by teachers’ strike. And so, I’m not sure how any union has never agreed not to strike as part of any deal, any public employees union anyway? So would you just kind of review that line of [crosstalk 00:48:49] the argument?
Raymond L.: Well, yeah, the attorney, that was the attorney for the union actually was suggesting, I haven’t seen the contract myself that that particular contract with the state of Illinois that covers Mr. Janus includes not only the agency fee requirement, but includes a, we will not strike clause, and that there was a tradeoff.
Keith: Got you. But, of course, thanks very much.
Raymond L.: There are many public sector laws, bargaining laws that prohibit public employee strikes and the union strike anyway.
Keith: Thanks very much.
Dean Reuter: It looks like Ray LaJeunesse that might be the final audience question. We still got a couple of minutes left. I’ll give you a chance to wrap-up.
Raymond L.: Yeah.
Dean Reuter: See if you have a final thought that you want to express, but as you do that maybe give us a sense of the timetable. This is another one of those unknowable questions, but a lot of times based on experience some of the larger, the higher profile cases wait to the very end of the term to be decided, but as you are suggesting we’ve got four firm on each side here. How quickly are we gonna get to a decision? Do you have a sense of that [crosstalk 00:50:06]?
Raymond L.: Yeah. After luncheon I went to after the oral argument, Bill Messenger, our attorney who argued the case has asked that very question.
Dean Reuter: Yeah.
Raymond L.: And I agree with his comment which was, well, remember Harris came down the last week of that term. I think Knox also came down the last week of the term that was argued in. So it’s most likely it will be 5-4 and be in the last week but he said it’s also possible since they basically had, there may have been a draft written in Friedrichs that had already been circulated that they would start with. And so it could come down earlier.
Dean Reuter: Fascinating. Any other final thoughts before we wrap-up?
Raymond L.: I guess my final thought is that, well, in addition to thanking The Federalist Society for putting on this Teleforum and at least I think to in advance of the oral argument about Janus. My final thought is that I certainly agree with all of the observers in the public press and in the legal press that this is one of the most important cases of the term. And if we win, Janus, it will free some 5 million public employees from the requirement that they pay union fees and give them the choice of joining or not joining voluntarily.
Dean Reuter: Very good. Well, let me thank you, Raymond LaJeunesse, on behalf of The Federalist Society the outset, before actually the call began I asked you to try and play this down the middle to the extent you could and give us both sides of the argument. I think you’ve done a great job in recapping that.
Raymond L.: It’s hard.
Dean Reuter: Yes, it is.
Raymond L.: [crosstalk 00:51:58].
Dean Reuter: It’s a lot to ask of an advocate, but I appreciate you doing that, I think it benefits our audience, and I thank you for that. I do want to thank the audience as well for dialing in and for your thoughtful questions. Reminder to check your emails and our website for upcoming Teleforum conference calls. The next scheduled call is tomorrow 3 p.m. Eastern Time at this same number we’ll be talking about the Microsoft warrants case, which is set for oral argument tomorrow, the court marches on. But until that next argument, until that next Teleforum we are adjourned. Thank you very much everyone.
Dean Reuter: Thank you for listening. We hope you enjoy this Practice Group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society website at fedsoc.org/multimedia.