It’s sooner rather than later that the U.S. Supreme Court is getting another crack at overruling a major decision on public-employee union fees for non-members—should it choose to do so.
Two groups planned to file an appeal Tuesday on behalf of an Illinois state government employee who objects to paying so-called agency fees to his collective-bargaining agent, the American Federation of State, County, and Municipal Employees. The appeal is much farther along than a separate challenge to such fees filed by a group of California teachers earlier this year.
Last term, in Friedrichs v. California Teachers Association, the justices deadlocked 4-4 in a case in which nonunion teachers asked it to overrule Abood v. Detroit Board of Education, the 1977 Supreme Court cast that authorized public employee unions to charge service fees to employees in the bargaining unit who refuse to join.
“This case presents the same question presented in Friedrichs: should Abood be overruled and public-sector agency fee arrangements declared unconstitutional under the First Amendment?” says the appeal filed by the Liberty Justice Center, based in Chicago, and the National Right to Work Legal Defense Foundation, based in Springfield. Va.
The plaintiff in the case is Mark Janus, an employee of the Illinois Department of Healthcare and Family Services, who has $44.58 deducted from his paycheck every month to cover the collective-bargaining fees of AFSCME.
Janus and two other state employees who object to the union fees had intervened in a lawsuit brought by Gov. Bruce Rauner, a Republican who has sought by legislative and legal means to upend the status quo in public employment in the state, as has occurred in nearby states such as Michigan and Wisconsin. The suit seeks to overrule Abood and have Illinois’ public-sector agency law declared unconstitutional.
The governor was dismissed from the suit for lack of standing, and some of the other plaintiffs fell by the wayside because of other issues. Both a federal district court and the U.S. Court of Appeals for the 7th Circuit, in Chicago, dismissed the lawsuit.
Judge Richard A. Posner of the 7th Circuit said that “neither the district court nor this court can overrule Abood, and it is Abood that stands in the way of [Janus’s] claim.”
In their appeal to the Supreme Court in Janus v. American Federation of State, County, and Municipal Employees Council 31, the two groups backing the case argue that it would make a good vehicle for the Supreme Court to use to finally put Abood to rest.
The conventional wisdom after the arguments in Friedrichs was that the court was prepared to overrule Abood. But Justice Antonin Scalia died soon after those arguments, leading to the 4-4 deadlock which allowed court rulings upholding California’s agency-fee law to remain in place. The anti-union groups are essentially betting that new Justice Neil M. Gorsuch would be likely to side with them.
The new challenge to California’s law was filed in February by a group of teachers who object to paying agency fees. But the Illinois case involving state employees has beaten that case to the Supreme Court, and the court’s decision would likely apply to all public-employee unions.
It is virtually certain that the justices won’t decide until next term whether to grant review of the Illinois case.
A version of this news article first appeared in The School Law Blog.