Public-sector unions are already preparing for a potential exodus of members and a loss of revenue. Can they survive without charging mandatory fees?
From the abstract:
Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of compelled speech and association and may soon invalidate them entirely. The Court – and the scholarship on agency fees – proceeds from the assumption that such fees are employees’ money that employees’ pay to a union. This article argues, however, that this is the wrong way to understand agency fees and for two sets of reasons. One, the Court treats agency fees as employees’ money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysis. Instead, under the First Amendment, agency fees are – and must be treated as – payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated – under the Court’s own cases – as the property of the union that secured them. The article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees.
Janus, Agency Fees and the First Amendment
Source: Benjamin Sachs, On Labor blog, October 5, 2017
Source: Lynn Adelman, Dissent, Fall 2017
It is a little-known and disturbing fact that the Supreme Court is in the process of gutting what may be the most important civil rights statute Congress has ever passed. It is particularly distressing that the harm is being done by a largely unanimous court—and that, other than a few legal scholars, no one seems to be paying any attention.
The statute in question is Section 1983 of the United States Code, which was enacted in 1871 as part of Reconstruction. Section 1983 enables people to bring suits in federal court to enforce the rights created by the Fourteenth Amendment—which, among other things, prohibits state officials from depriving persons of due process and equal protection of the law. The law was designed to provide a federal remedy against officials who violated the rights of the newly freed slaves or who stood by while others, like the Ku Klux Klan, did so. Specifically, it authorizes individuals to sue in federal court “any person who under color of law” violates their constitutional rights. The purposes of the law are to compensate persons whose constitutional rights have been violated and to deter future violations. Actions brought under Section 1983 are known as constitutional tort suits.
After Congress enacted Section 1983, the law lay largely dormant for some ninety years. In 1961, however, in Monroe v. Pape, the Warren Court breathed life into the statute. The plaintiff in Monroe alleged that thirteen Chicago police officers broke into his home in the early morning without a warrant, made his family stand naked, and interrogated him under physical threat. The Supreme Court upheld the plaintiff’s claim for damages under Section 1983 and interpreted the “under color of law” requirement to include actions by government officials taken under the badge of their authority even if the actions exceeded what they were permitted to do under state law. A police officer who used excessive force—as in the Monroe case—would be a prime example.
As the result of Monroe, Section 1983 became the primary vehicle for enforcing constitutional rights in the United States, and that remains true to this day. As Professor Lynda Dodd of the City University of New York (CUNY) has shown, although the statute has never received as much attention as some of the 1960s-era statutes such as the Civil Rights Act of 1964, Section 1983 has served as a central pillar of civil rights work for more than half a century. It is the means by which plaintiffs challenge the use of excessive force by police officers, race-based patterns of stop and frisk, unconstitutional conditions of confinement, wrongful convictions, and other kinds of official misconduct…..
The Supreme Court decided yesterday to hear Janus v. AFSCME. The Court seems poised to hold that agency-fee agreements for public sector workers are unconstitutional. Since the order, reports and commentaries have analyzed Janus‘s threat to public sector workers, and its stakes for U.S. organized labor.
The Chicago Tribune explains that the case began when Illinois’ Republican Governor Bruce Rauner, a former private equity executive, attempted to stop the state from dispensing agency fees to unions, clashing with the state’s Attorney General. The Governor eventually filed the suit that would become Janus, asking a federal court to rule that his actions were valid and that fair-share agreements are unconstitutional. When Gov. Rauner was dropped from the case, Mark Janus and other state employees took over as plaintiffs. The Tribune also has an editorial that supports the union’s argument only on the “narrow” point that “[s]omeone who benefits from a union’s contract negotiations should pay for collective bargaining activities, if not for the union’s political activities.” It notes that an AFSCME loss in Janus would lead to a decline in union membership, like the decline seen “in Wisconsin, with Gov. Scott Walker leading the charge.” ….
Janus and the Private Sector
Source: Benjamin Sachs, On Labor blog, September 29, 2017
Maddy’s excellent wrap-up of yesterday’s Janus news includes a clip from Slate’s piece “Solidarity’s End.” There, Mark Joseph Stern provides a very useful synopsis of agency fees law, but he also suggests that a Janus decision finding agency fees unconstitutional could easily be exported to the private sector. Here’s how he puts it:
One last point: Janus involves only public-sector unions, or unions composed of state employees. But there is no obvious reason why its logic should not apply to private-sector unions as well.
But of course there is a very obvious reason why the logic of a public-sector holding would not apply to private-sector unions: that logic is the state action doctrine, which limits constitutional restrictions to state actors….
A Primer on the Supreme Court Case That Teachers’ Unions Have Been Fearing
Source: Liana Loewus, Ed Week blog, September 28, 2017
Today, the U.S. Supreme Court officially agreed to review a case on public-employee union fees that could potentially deliver a harsh blow to the nation’s teachers’ unions. You may find yourself asking: Wait, haven’t we been through this? Wasn’t someone named Friedrichs involved? And why is this coming up again? All good questions. Let’s take a look at what’s at stake, and how we got here. ….
Janus v. American Federation of State, County, and Municipal Employees, Council 31
Source: SCOTUSblog, 2017
Issue: Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment…..
Judgment Day for Public Unions
Source: Matt Ford, The Atlantic, September 28, 2017
The U.S. Supreme Court has agreed to hear a case that could deal a serious blow to American organized labor.
Neil Gorsuch Has Web of Ties to Secretive Billionaire
Source: Charlie Savage, Julie Turkewitz, New York Times, March 14, 2017
….With the Senate Judiciary Committee set to take up Judge Gorsuch’s nomination next week, Democrats have based much of their criticism of him on the argument that his judicial and economic philosophy unduly favors corporations and the wealthy. But his relationship with Mr. Anschutz, 77, whose fortune is estimated by Forbes to be $12.6 billion, has received scant attention. The Federalist Society and the Heritage Foundation, which developed the list of potential Supreme Court nominees from which Mr. Trump selected Judge Gorsuch, receive funding from Mr. Anschutz. ….
Bradley Foundation Bankrolls Attacks on Unions
Source: Mary Bottari, Center for Media and Democracy, May 8, 2017
Documents examined by the Center for Media and Democracy (CMD) expose a national effort by the Milwaukee-based Lynde and Harry Bradley Foundation to defund and dismantle unions, the most significant force for higher wages and better working conditions in America. Publicly, the Bradley Foundation spins this agenda as “employee rights.” Behind the scenes, newly disclosed Bradley documents detail an aggressive political agenda….
Gorsuch speech at Trump hotel attracts protests
Source: Josh Gerstein, Politico, September 28, 2017
….Gorsuch spoke as part of a 50th anniversary celebration for the Fund for American Studies, a charitable group that sponsors scholarships and study programs. The organization’s goal, according to its website, is “to win over each new generation to the ideas of liberty, limited government and free markets.” The fund is supported by a wide array of foundations, most of them with a conservative or libertarian bent, including the Lynde and Harry Bradley Foundation and the Charles Koch Foundation…..
The Supreme Court’s Anti-Democratic Feedback Loop
Source: Scott Lemieux, The Atlantic, September 29, 2017
The GOP installs Supreme Court justices over the will of voters. The Supreme Court helps the GOP remain in power. Rinse, repeat.
Many Court watchers think it is a foregone conclusion that the Supreme Court will grant the cert petition in Janus v. AFSCME, and then overturn the forty-year old decision in Abood v. Detroit Board of Education. While I’m not willing to bet against that, it’s worth noting that to reach that result the Court would need to ignore a series of recent cases requiring plaintiffs to plead facts rather than conclusory assertions….
….In recent years, the Supreme Court has made it easier for defendants in lawsuits to file motions to dismiss. In two cases, Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal, the Court has stated that to survive a motion to dismiss “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” The Court has further explained that “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” When workers have sued their employers, lower courts have often relied on Twombly and Iqbal to dismiss the workers’ claims without allowing any discovery….
….When public employees have sued their employers, the Supreme Court has been quick to assert that it does not want to “constitutionalize the employee grievance.” Yet this seems to be exactly what Janus is asking the Court to do. Janus complains that he does not want to fund AFSCME’s actions as the bargaining agent for him and his fellow employees. But, undoubtedly the great bulk of any agency fees he objects to are spent on those very same employee grievances that the Court has said it does not want to “constitutionalize.” At a minimum, the Court should not allow conclusory pleadings in a bare-bones complaint to form the basis for a decision overturning long-settled law…..
From the abstract:
This article, the author’s longstanding annual review of the Supreme Court’s work in the employment area, examines in detail every decision of the 2016-2017 term relating to employment and labor law, with commentary on each case and additional observations about the Court’s work in this term and the upcoming one. In particular, the author uses the latest term’s decisions as a lens for examining broader aspects of the Court’s jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself
Source: Free Law Project, 2017
CourtListener is a free legal research website containing millions of legal opinions from federal and state courts. With CourtListener, lawyers, journalists, academics, and the public can research an important case, stay up to date with new opinions as they are filed, or do deep analysis using our raw data.
At Free Law Project, we have gathered millions of court documents over the years, but it’s with distinct pride that we announce that we have now completed our biggest crawl ever. After nearly a year of work, and with support from the U.S. Department of Labor and Georgia State University, we have collected every free written order and opinion that is available in PACER. To accomplish this we used PACER’s “Written Opinion Report,” which provides many opinions for free.
This collection contains approximately 3.4 million orders and opinions from approximately 1.5 million federal district and bankruptcy court cases dating back to 1960. More than four hundred thousand of these documents were scanned and required OCR, amounting to nearly two million pages of text extraction that we completed for this project.
All of the documents amassed are available for search in the RECAP Archive of PACER documents and via our APIs. New opinions will be downloaded every night to keep the collection up to date.
Free Law Project and Princeton/Columbia Researchers Launch First-of-its-Kind Judicial Database
Source: Free Law Project, Press Release, April 19, 2016
Today we’re extremely proud and excited to be launching a comprehensive database of judges and the judiciary, to be linked to Courtlistener’s corpus of legal opinions authored by those judges. We hope that this database, its APIs, and its bulk data will become a valuable tool for attorneys and researchers across the country. This new database has been developed with support from the National Science Foundation and the John S. and James L. Knight Foundation, in conjunction with Elliott Ash of Princeton University and Bentley MacLeod of Columbia University.
At launch, the database has nearly 8,500 judges from federal and state courts, all of which are available via our APIs, in bulk data, and via a new judicial search interface that we’ve created.
The database is aimed to be comprehensive, including as many facts about as many judges as possible. At the outset, we are collecting the following kinds of information about the judges:
• Biographical information including their full name, race, gender, birth and death dates and locations, and any aliases or nicknames that a judge may have.
• Their educational information including which schools they went to, when they went, and what degrees they were awarded.
• The judicial positions they have held. The core of this data is a list of courts and dates for each judge, but it also includes details about their specific position, how they were nominated or elected, what the voting outcome was, who appointed them, the clerks they supervised, and nearly a dozen dates about the timing of their nomination process.
• The non-judicial positions they have held. The database aims to include comprehensive timelines of a judge’s full career both before before and after being a judge. This includes work in other branches of government, in private practice, and in academia.
• Any ratings that a judge has been given by the American Bar Association.
• Finally, we are gathering the political affiliation of judges. This information is coming from a few sources such as ballots (for elected judges) and appointers (for appointed judges).
We have collected all available public datasets and added a large amount of data ourselves. But there are many actors in the U.S. legal system and the database is far from complete. We hope that interested researchers will collaborate with us in contributing more data. Our goal is to put down a foundation of solid data that can be built on by the community and that can grow into the future.
In conjunction with this database, we’re also launching a project to gather and curate judicial portraits. At launch, we have gathered about 250 judicial portraits, mostly of federal judges. This is a small fraction of the number of judges in the database, and we’re looking for help gathering many more portraits. We’re hopeful that with community support we’ll be able to build a comprehensive database of judicial portraits. If you’re interested in helping or have ideas for where we might get more images of judges, please get in touch.
Source: Measures for Justice (MFJ), 2017
Measuring justice, one county at a time.
Assessing and comparing the performance of the entire U.S. criminal justice system.
No one really knows how well our entire criminal justice system is working on the county level.
Measures for Justice gathers criminal justice data at the county level and uses them to populate performance Measures that address:
Public Safety, Fair Process, Fiscal Responsibility
The Measures track how criminal cases are being handled at the county level from arrest to post-conviction. They are designed to increase the transparency of local justice systems and enable more informed discussions.
All of our Measures and analyses present data at the county level and are available for free to the public on a web-based Data Portal. The Portal is searchable and can be configured to break down performance data across multiple factors including race/ethnicity, sex, indigent status, age, offense type, offense severity, court type, and attorney type. The Portal also allows for county-to-county comparison within and across states.
The Right’s assault on public-sector workers is an assault on the public sector itself.
Within the next year, the Supreme Court is likely to rule on the latest existential threat to workers and their unions: Janus v. AFSCME. Like last year’s Friedrichs v. CTA—a bullet dodged with Justice Antonin Scalia’s unexpected death—the Janus case is a blatant attack on working people by right-wing, moneyed special interests who want to take away workers’ freedom to come together and negotiate for a better life.
For years, the Right has been hammering through state-level “right-to-work” laws in an effort to kill public sector unionism; it would see victory in the Janus case as the coup de grace. ….
As we prepare for the upcoming round of 2020 redistricting, the opinions in Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris make clear that what constitutes unlawful racial gerrymandering will prove critical. Although states and localities can act intentionally to preserve and create majority-minority districts, they must do so in a way that complies with the Constitution. First, and put simply, race cannot predominate over every other consideration. And, second, unlawful racial gerrymandering cannot be justified as an attempt to achieve partisan ends.
The decisions provide a workable approach for addressing allegations of unconstitutional racial gerrymanders, while at the same time rejecting the proposition that the intentional creation of a majority-minority election district automatically triggers strict scrutiny. This is clear from the sum and substance of the majority opinions, and from the explicit language in the separate opinions of Justices Samuel Alito and Clarence Thomas in Bethune-Hill and that of Thomas in Cooper. A contrary result would have imperiled legitimate attempts by state legislatures to create majority-minority districts….