Friedrichs 2.0: New Lawsuit and Trump SCOTUS Justice Could End Compulsory Union Fees

On Monday, two government workers and their attorneys filed a legal brief in Chicago with the Seventh Circuit Federal Court of Appeals amid little fanfare. While arcane legal filings like this don’t tend to produce much publicity, the case it argues could prove to be the biggest single setback for public sector unions, including teachers unions, in their history.

First, a little background. Currently 24-states, including California, New York, Illinois, Massachusetts, Washington, Pennsylvania and New Jersey, require certain public workers to pay fees to labor unions. Twenty-six other states forbid these arrangements under what are collectively known as right-to-work laws.

Earlier this year, on January 11, 2016, a case known as Friedrichs v. California Teachers Association went before the U.S. Supreme Court (SCOTUS), challenging the teachers unions’ power to charge fees to public school teachers who don’t want to be members. Based on the questions from justices posed during oral arguments, Rebecca Friedrichs and the other plaintiffs were widely predicted to prevail.

Rebecca Friedrichs, Lead plaintiff in Friedrichs v. California Teachers Association
Rebecca Friedrichs, Lead Plaintiff in Friedrichs v. California Teachers Association

But on February 13, Justice Antonin Scalia died. His sudden passing created a 4-4 split in the court, leaving in place the earlier decision by the United States Ninth Circuit Court of Appeals that allows teacher unions to continue to extract fees from teachers who want no affiliation. The debate seemed over. Especially since a predicted win by the Hillary Clinton Presidential campaign meant that any crop of new justices would likely tilt in a liberal direction, keeping compulsory union fees in place for years to come.

Then, as unexpectedly as the death of Scalia, the election happened. Both the Trump victory and the continued Republican control of the U.S. Senate, which advises and consents on new SCOTUS appointments, suddenly re-wrote the prospects for a new hearing on the subject of coerced union fees from unwilling public workers.

Enter Illinois plaintiffs Mark Janus and Brian Trygg and a case called Janus v. AFSCME. With the legal counsel of Jacob Huebert of the Liberty Justice Center, they are suing Illinois public sector unions for the same reason as the Friedrichs plaintiffs — forced union fees. The plaintiffs are employees of the state of Illinois; Mark Janus is a child support services worker at the Illinois Department of Healthcare and Family Services, and Brian Trygg is a transportation engineer. Attorney Huebert told Choice Media that if they win their case, the precedent would apply to public school teachers as well.

“If the court were to rule in their favor [Janus and Trygg’s], it would extend to all government workers who’ve been forced to pay union fees as a condition of employment,” Huebert said. “That’s really the issue at the heart of the case: Can the government force its employees to pay union fees as a condition of employment? If it can’t force Illinois state workers to do that, it’s not clear how it can force any other kind of government worker to do that.”

Mark Janus, Lead Plaintiff in Janus v. AFSCME

The current precedent under which public sector workers are forced to pay union agency fees comes from a rather strange 1977 decision, Abood v. Detroit Board of Education. In Abood, the court sought to balance the interests of reluctant workers and unions by dividing union expenses into political and apolitical checkbooks. The precedent meant that when public workers quit a union today in one of the 24-states without right-to-work laws, they are still required to pay so-called “agency fees,” which allegedly represent the purely apolitical union costs, such as collective bargaining. (This includes, for example, salaries paid to lawyers or negotiators who go back-and-forth with school district officials to determine teacher pay.) The Friedrichs and Janus plaintiffs argue, by contrast, that all union activities are inherently political, and Abood’s attempted distinction between the categories of union expenses is artificial.

According to Huebert, “Whether you’re paying for electioneering or not, if you’re giving money to a public sector union, you are being forced to pay for political activity. You’re being forced to pay for lobbying about how much the government will spend on its employees and how it will operate in certain respects. And of course, when anybody else does that it’s called political speech; it’s called lobbying.”

Mark Janus’ agency fees currently go to the AFSCME union, and Brian Trygg’s are paid to the Teamsters. Janus made his views clear in a Chicago Tribune commentary last January.

“I don’t see my union working totally for the good of Illinois government. For years it supported candidates who put Illinois into its current budget and pension crisis. Government unions have pushed for government spending that made the state’s fiscal situation worse.

“How is that good for the people of the state? Or, for that matter, my fellow union members who face the threat of layoffs or their pension funds someday running dry?”

Like the Friedrichs case before it, the Janus case is asking for a reversal of the existing high court precedent of Abood. That means Janus is virtually assured to lose lower court rulings until a newly composed U.S. Supreme Court agrees to hear it. Legal analysts say the fall of 2017 would be the earliest that could happen, plenty of time for a new Trump-nominated justice to be fitted for a black robe.

In addition to the prospect of a new justice, there’s another reason Janus plaintiffs are optimistic that Abood could be overturned: The wording of a 2014 SCOTUS decision, Harris v. Quinn, which opened the door to a legal challenge of Abood by directly citing flaws in its reasoning.

“[Abood] failed to appreciate the distinction between core union speech in the public sector and core union speech in the private sector, as well as the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.”

While legal analysts have for years referred to a Roe v. Wade test for potential Supreme Court nominees, a new kind of test, the Friedrichs test, could be on the minds of some Trump advisors. Especially Betsy DeVos, Trump’s nominee for Secretary of Education.

The biggest recent catalysts in reforming education had wonky names like Common Core State Standards and the Every Student Succeeds Act. But before long, it may prove to be the election of Donald Trump.

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