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Union scheme currently being challenged at Ninth Circuit blocks government workers from exercising First Amendment rights outside brief 10-day period
San Francisco, CA (Oct 13, 2020) – Mark Janus, the lead plaintiff in the landmark 2018 Janus v. AFSCME Supreme Court decision, has just submitted an amicus brief in Belgau v. Inslee. This is a class-action case in which a group of Washington State employees are challenging a union boss-created arrangement that limits employees’ ability to exercise their First Amendment Janus right to refrain from subsidizing a union to only 10 days per year.
The brief was submitted for Janus by staff attorneys with the National Right to Work Legal Defense Foundation and the Liberty Justice Center. Janus, a former Illinois child support specialist, was represented at the Supreme Court by attorneys from both organizations, with Foundation attorney Bill Messenger presenting oral argument.
In Janus, the Supreme Court ruled that compelling public workers to pay union dues as a condition of employment violates their First Amendment rights. The Court also held that union dues can only be taken from the paychecks of public workers if they clearly and affirmatively waive their right not to pay, with Justice Samuel Alito writing in the Court’s decision that “such a waiver cannot be presumed.”
In the Belgau case, lead plaintiff Melissa Belgau and six other Washington State employees have sued Washington Governor Jay Inslee and the Washington Federation of State Employees (WFSE) union for enforcing an unconstitutional “escape period” scheme. The plaintiffs all resigned their memberships and requested to cut off dues just a couple months after Janus was decided, but dues continued to be seized from their paychecks afterwards under the restrictive policy.
Their lawsuit demands that the state and union officials cease blocking workers from exercising their First Amendment right not to financially support the union, and that the union refund all dues seized from any worker who sought to end dues deductions after the Janus decision, but was denied under the policy. A three-judge panel of the Ninth Circuit Court of Appeals ruled against the workers in September, but their attorneys have since petitioned for an en banc rehearing of the case before the Ninth Circuit Court of Appeals.
Janus’ amicus brief emphasizes that an en banc hearing is necessary because the three-judge panel “gut[ted] the Supreme Court’s holding” by finding that it is “constitutional for a state and a union” to keep seizing payments “for union speech from objecting, nonmember employees” until an arbitrary 10-day period. The brief contends that the Constitution does not allow “states and public-sector unions” to “prohibit employees from exercising their First Amendment right to not subsidize union speech for 355-56 days of every year.”
Staff attorneys from the National Right to Work Foundation and Liberty Justice Center are currently litigating more than thirty Janus-related cases, including seven jointly. That includes the continuation of Mark Janus’ own case which is seeking its second writ of certiorari from the Supreme Court. In his case Janus is now pursuing a ruling that will make AFSCME union bosses refund forced fees seized from him in violation of the First Amendment, which would create a precedent that could require union officials to refund hundreds of millions of dollars from nonmember public employees across the country.
“It is shocking that despite the U.S. Supreme Court’s ruling in Janus, government employers and private political organizations, unions, continue to place limitations on Americans’ constitutional rights,” said Jeffrey Schwab, senior attorney at the Liberty Justice Center. “All government workers must be able to exercise their First Amendment right not to pay a union.”
“Mark Janus and his attorneys defended the First Amendment rights of public employees at the US Supreme Court and are now protecting those same freedoms by helping to challenge this egregious limitation on workers’ Janus rights,” added National Right to Work Foundation President Mark Mix. “It is outrageous to claim any government or public sector union boss policy can limit a worker’s constitutional rights to just 10 days each year.”
The amicus brief is available here: Belgau v. Inslee
Amicus Brief, Oct 12, 2020