The Ninth Circuit Court of Appeals’ Sept. 16 decision in Belgau v. Inslee was a bitter pill for the Washington state employees who challenged a law under which their right to opt out of union participation can be limited to only a few days a year.
But these employees hope it is not the Ninth Circuit’s final word.
In issuing its decision in favor of the state and the Washington Federation of State Employees (WFSE), the court’s three-judge panel did not hold that Melissa Belgau and her fellow employees had waived their First Amendment right not to subsidize union speech by having previously joined WFSE in the past. Rather, surprisingly, the judges concluded the First Amendment does not apply at all to any employee who at any point joins a union.
Such a decision effectively nullifies the First Amendment and leaves public employees completely at the whim of unions and their government allies who are now free to concoct schemes limiting when and how workers will be permitted to stop paying union dues, even if they were never informed of their rights.
Not giving up, Belgau and her fellow employees on Sept. 20 filed a petition for rehearing, requesting that the case be reheard before the full Ninth Circuit rather than simply a three-judge panel.
Fortunately, these employees are not the only ones who understand the danger implicit in the panel’s decision.
Supporters of the employees’ petition filed three amicus (“friend of the court”) briefs yesterday in the hope that the full Ninth Circuit will rehear the case. The supporters include Mark Janus, the state of Alaska and Americans for Fair Treatment.
Janus, notably, was the plaintiff in Janus v. AFSCME, the landmark 2018 case in which the U.S. Supreme Court recognized that the First Amendment protects public employees from government and union schemes that compel them to subsidize union speech.
The ruling, which overturned Abood v. Detroit Board of Education (1977), also requires clear and compelling evidence that employees have knowingly and voluntarily waived their right not to subsidize union speech prior to a state’s deduction of union dues from their wages.
In his amicus brief, Janus argues that the state of Washington and WFSE subjected employees to just the sort of unconstitutional scheme the Supreme Court prohibited in his case.
Janus explains that the Belgau “panel opinion undermines the important First Amendment freedoms the Supreme Court recognized” in his case because it “guts the Supreme Court’s holding and sanctions onerous restrictions on when employees can exercise their constitutional rights.”
Janus correctly observes that the “panel’s holding that states and unions do not need proof of (a) waiver even to take union dues from objecting, nonmember employees effectively erases Janus’ waiver requirement.”
Alaska is one of at least three states (the others including Indiana and Texas) that have so far taken affirmative steps to implement the employee protections required by Janus, recognizing that its own pre-Janus process of deducting union dues from its employees’ wages “was constitutionally untenable under Janus.”
After implementing Janus’ requirement that states have clear and compelling evidence that employees waived their right not to subsidize union speech before union dues are deducted from their wages, unions in Alaska challenged the state’s policy.
Alaska is currently in litigation defending the measures it imposed to protect its own employees’ First Amendment rights and is bound by the Ninth Circuit’s panel decision in Belgau. Alaska’s brief claims the panel’s decision “undermines Alaska’s efforts to protect its employees’ First Amendment rights” and argues that the First Amendment protects all public employees, both union members and nonmembers.
Americans for Fair Treatment also filed a brief on behalf of itself and the public employees it assists by helping them understand what their rights are in the face of compelled unionization. The group’s brief challenged the Belgau panel’s holding that WFSE, and unions generally, are not susceptible to constitutional scrutiny when they jointly participate with government employers in seizing union dues from public employees’ wages (because such participation is supposedly not “state action”).
The brief highlights that the panel’s opinion conflicts with both Janus and long-standing precedent holding unions — along with governments — accountable when they compel employees to subsidize unions through payroll deductions.
What all three briefs agree on is that the panel’s decision guts Janus and the First Amendment of any practical application at all, creating a workplace environment in which unions and their government allies can continue to compel union subsidization through schemes that suppress public employees’ First Amendment rights.
The Belgau panel’s opinion restricts the First Amendment rights of 2.6 million public employees in the western states comprising the Ninth Circuit. It also controls dozens of cases involving the same issue currently before lower courts in the Ninth Circuit.
The employees in Belgau hope the full Ninth Circuit will rehear this case due to its widespread impact and erroneous holdings that strip public employees of their First Amendment rights.