HCBA Lawyer Magazine Vol. 29, No. 1 | Page 46

sCotus deAls BloW to puBliC unions in ideologiCAl split
labor & employment law section
Chairs: Cynthia Sass – Law Offices of Cynthia Sass, P.A. & Jason Pill – Phelps & Dunbar, LLC
O
ver 20 states have
enacted laws that
require “fair share”
fees in the public
sector. With the not-so-unexpected
ruling in Janus v. American Federation
of State, County and Municipal
Employees, 138 S. Ct. 2448 (2018),
the United States Supreme Court
struck down the imposition of
mandatory fair share fees for public
unions, delivering yet another
victory for employers. Although the
Florida Constitution has prohibited
such laws since 1944, the Janus
decision’s treatment of stare decisis
will impact future cases before the
Supreme Court and any other court
examining the precedential value of
prior decisions.
Janus, a child support specialist
for the State of Illinois, joined a
lawsuit initially filed by Illinois
Governor Bruce Rauner, arguing
that fair share fees in the public
sector violated the First Amendment
right of free speech and freedom of
assembly. The case quickly made its
way to the High Court, after the
district court dismissed the
complaint and the Seventh Circuit
affirmed, with Janus conceding all
along that the U.S. Supreme Court
decision in Abood v. Detroit Board of
Education, 431 U.S. 209 (1977)
mandated dismissal.
concerns, and
In Abood, a
neither interest
fractured Court
set forth in Abood
held that public
employees may
— promoting
be required to
“labor peace”
pay fees to the
or avoiding
local union even
“free riders” —
if they have
justifies impinging
opted not to join.
non-members’
The Court struck
First Amendment
a balance
rights.
between a public
Perhaps more
the court will not
employee’s First
striking than the
Amendment
holding was the
proliferate “wrong”
right to opt out
juxtaposition of
decisions on the basis
of joining a
the ideological
union that does
wings of the
of stare decisis alone.
not align with his
Court regarding
or her political
the principle of
views, and the
stare decisis. The
union’s interest in obtaining the
liberal dissent boldly proclaimed:
“fair share” of costs incurred when
“Respecting stare decisis means
bargaining on the employee’s
sticking to some wrong decisions.”
behalf. To ensure the money paid
The majority, however, easily
by the non-member employee did
overturned a decision that
not support the union’s political
conflicted with its conservative
agenda, no portion of the fee
view, noting that stare decisis is
could be used to further the union’s
weakest when interpreting the
political or ideological activities.
Constitution, and particularly the
The Supreme Court sided with
First Amendment. The majority
Janus and overruled Abood. Not
considered several factors in its
surprisingly, the Justices aligned on
stare decisis analysis: 1) the strength
ideological lines with Republican
of the Court’s reasoning; 2) the
appointees Chief Justice Roberts
holding’s workability; 3) subsequent
and Justices Kennedy, Thomas,
developments; and 4) reliance on
Alito, and Gorsuch joining in the
the decision. All weighed against
majority opinion, and Democratic
Abood, demonstrating that the
appointees Justices Ginsburg,
Court will not
Breyer, Sotomayor, and Kagan
proliferate
dissenting. The Court held that
“wrong”
fair share fees in the public-sector
decisions on the
context forced individuals to
basis of stare
subsidize the speech of others
decisis alone.
and endorse ideas they may find
objectionable. According to the
Author: Amanda
majority, the practice raises
L. Biondolino -
“serious” First Amendment
Sass Law Firm
© Can Stock Photo / slickspics
Pl