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States With Mandatory Agency-Fee Laws in Public Employment Have Abridged Fundamental Free Speech Rights, Supreme Court Holds; Dissent Says Public Unions Lose "Secure Source of Financial Support"

© Krantz News Service, June 27, 2018


Public employees have a First Amendment right not to pay what is known as an "agency fee" for collective bargaining to a union they do not belong to, the Supreme Court has held in a 5-4 decision authored by Justice Samuel Alito.

It remains to be seen how states and localities affected by the decision in Janus v. AFSCME will respond.

Petitioner Mark Janus, an Illiniois public employee, refused to join the union because he opposes many of its positions, including those taken in collective bargaining. For the state to then require an automatic "agency fee" deduction from his pay violated his First Amendment rights, the Court held.

"As Jefferson famously put it, 'to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical,'" Alito wrote.

"Neither an agency fee nor any other payment to the union may be deducted from a nonmember's wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed."

In a 28-page dissent, Justice Elena Kagan warned that the Court's decision has significantly undermined collective bargaining resources for public employees.

"Its decision will have large-scale consequences," Kagan wrote. "Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways."

But the majority sided with Janus, and noted his disagreement with the union's collective bargaining position in the context of the ongoing budget battles in Illinois. "Janus believes that the Union's behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interest or the interests of Illinois citizens."

According to the Chicago Sun-Times, the state has a $6.6 billion backlog of unpaid bills and $130 billion in unfunded pension liabilities.

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