Summary of Janus amici

Janus v. AFSCME Council 31

AMICUS BRIEFS SUPPORTING RESPONDENT, AFSCME COUNCIL 31

Many sister unions, employees, professors, state and local governments and their leaders as well as many other individuals and organizations have filed amicus briefs supporting the Union’s position in Janus v. AFSCME Council 31.  Below is a brief description of, and hyperlink to, each of these 38 briefs on the Court’s docket.

1.            The AFL-CIO, filed by Lynn Rhinehart, Craig Becker and Jim Coppess.  This brief tackles Janus’ incorrect premise that collective bargaining is indistinguishable from lobbying, and details the Court’s long doctrinal history of distinguishing between compelled speech and compelled subsidies, and the very different level of scrutiny applied to each.

2.            Mayors Garcetti, Emanuel, De Blasio, Kenney and Durkan and County Executive Constantine, filed by Donald Verrilli.  This brief is submitted in the interest of the executives of the nation’s largest population centers, and argues that to fulfil their obligation to keep their citizens safe and provide diverse public services to millions of people, they must continue to have wide latitude in managing their own affairs as is permitted under established precedent.  Overruling Abood on the basis offered by Janus would substantially undermine this precedent and their discretion over matters of local concern and personnel management.

3.            Senators Whitehouse and Blumenthal, filed by Peter Karanjia of Davis, White & Tremain. These Senators, who serve on the Judiciary Committee, describe the unusual procedural posture, funding and politics behind Janus’ and his allies’ attack on workers’ unions; stare decisis now more than ever counsels against overturning Abood should the Court desire to retain its integrity as a non-partisan institution.

4.            The United States Conference of Catholic Bishops, filed by Anthony R. Picarello, Jr.  The official body of the Catholic Church in the United States catalogs its long history of opposing “right-to-work laws” and the papal encyclicals affirming the need to support worker self-organizing on which that position was founded, and counsels the Court not to use the Constitution to remove from local control and political debate an issue of pronounced importance to the Church.

5.            Economists and Professors of Law and Economics, filed by Dan Jackson, Keker, Van Nest & Peters.  Thirty-six leading economists, including three Nobel laureates, explain the origins, development and application of public goods theory and the concept of the free rider, as a vital, integral and established economic principle.

6.            Professors Eugene Volokh and William Baude, filed by Gregory Silbert of Weil, Gotshal & Manges, show that a conservative and originalist application of the First Amendment requires affirming Abood, and that had Abood applied “first principles” of the Founding Framers, the Abood court would have found no infringement of speech with respect to fees that support even the union’s ideological and political activity.

7.            Faith in Public Life and over twenty other religious organizations and 120 leaders of religious institutions, filed by Eric Alan Isaacson.  Beginning with Dr. Martin Luther King, Jr.’s involvement in the Memphis sanitation workers strike, the brief describes the long history of faith leaders and church support of organized labor, opposition to right to work, and the racist origins of the right to work movement. 

8.            Child Protective Service Workers, filed by J. Carl Cecere.  These workers who serve at-risk, abused and abandoned children describe the role of labor-management cooperation in improving the lives of children, the paramount interest of the state and unions in protecting children, and the efforts and successes their unions, working with government employers, have accomplished to improve the lives of children in New Jersey, Massachusetts and California.

9.            Human Rights Campaign, Lambda Legal Defense Fund, National Center for Lesbian Rights, National LGBTQ Task Force, and PFLAG, filed by Steven E. Fineman and Laura Heiman.  Discrimination faced by LGBTQ workers as -- and continues to be -- prevalent and unaddressed by state or federal law (remains so in in many jurisdictions), unions were the first institutions to meaningfully combat workplace discrimination, negotiate protections for LGBTQ workers, and create accepting and open work environments, and continue to play this important role.

10.        The American Civil Liberties Union, filed by David Cole. Noting its status as the primary defender of First Amendment freedoms, ACLU argues that Abood does not present any first amendment concerns as Abood properly balanced speech considerations with the associational rights of individuals who choose to join together in labor unions, and with the government’s vital interests in promoting democratic governance and labor peace in the workplace.

11.        The International Brotherhood of Teamsters, filed by Scott Kronland, Altshuler Berzon.  This brief details the effect of “right to work” policies, the cost of the free rider problem, and explains how Janus’ and his amici’s contentions that exclusive representation is an adequate quid pro quo for unions’ representational obligations is misplaced, using the federal sector as an example.

12.        The Laborers International Union of North America, filed by Laurence Gold, Ted Green and Lisa Pau. LiUNA details the “nuts and bolts” of collective bargaining and makes clear the distinction between a union’s efforts in collective bargaining and its lobbying and political efforts, describing the different regulatory frameworks circumscribing each distinct activity.

13.        Governor Tom Wolf, State and Local Officials and Local Governments, filed by Prof. Sam Bagenstos, University of Michigan.  State and local governments argue that overturning Abood would threaten important joint labor-management projects that enhance delivery of governmental services and would upset significant reliance interests of public employers on long-established labor relationships. 

14.        Republican Current and Former State and Local Officeholders, filed by Brianne J. Gorod of the Constitutional Accountability Center.  Several dozen current and former Republican officeholders request the Court to stay its hand under principles of Federalism and preserve the rights of the states to weigh the competing interests of public employers, employees, unions and the public to devise labor relations systems.

15.        States of New York, Alaska, Connecticut, Delaware, Hawaii, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and the District of Columbia, filed by Barbara Underwood, NY Solicitor General.  These states detail the labor peace basis for adopting fair share fee systems, how the systems have worked, and how that are administered in conformance with constitutional requirements.  The brief reveals the Janus’ error in distinguishing between collective bargaining and lobbying and for placing the blame of municipal bankruptcies on unions.

16.        The State of California, filed by Attorney General Becerra and Solicitor General DuMont.  California asserts its sovereign interests and explains the history, enactment and refining of its numerous public employee collective bargaining statutes, and the important role fair share fees play in these systems, including alleviation of labor unrest.

17.        Professor Benjamin I. Sachs, filed by Joseph M. Sellers of Cohen Milstein Sellers & Toll. Professor Sachs explains how agency fees are completely compatible with the First Amendment when properly understood, as they are identical to any number of instances where governmental entities compel citizens to pay fees to private organizations that perform quasi-regulatory functions or must purchase mandated services as a condition of employment within a profession.

18.        National Women's Law Center, The Leadership Conference on Civil and Human Rights, and 85 Additional Organizations Committed to Civil Rights and Economic Opportunity, filed by Matthew S. Hellman, Sarah Heydemann and Vanita Gupta.  This brief emphasizes the ameliorative social and economic benefits of strong unions supported by agency fees for women, people of color, LGBTQ and other historically oppressed workers.

19.        Los Angeles County’s Department of Health Services, New York City Health and Hospitals, and SEIU, filed by Mary Wikham and Nicole Berner.  Hospitals and their bargaining partner SEIU argue for preserving their discretion to manage their operations to achieve productivity and efficiency goals through labor management cooperation, and details the labor relations continuum public employers experience in union and non-union settings, and the positive accomplishments and outcomes that a mature agency-fee funded relationship can bring in the health sector. 

20.        National Education Association and American Association of University Professionals, Alice O’Brien and Risa Lieberwitz.  This brief reviews the strong interest of employers in adopting effective labor relations policies, the variety of approaches pursued by states as reflected in varying state labor relations statutes, and describes the minimal level of scrutiny applied under the Constitution in matters involving a government’s management of its own operations.

21.        American Federation of Teachers, filed by Kevin K. Russell of Goldstein & Russell and Rhonda Weingarten.  AFT describes the inaptness of Janus’ analogy between public sector collective bargaining and political lobbying, explaining collective bargaining is part of state governments’ internal decision-making process as to how they structure and run their public agencies, often involving mundane matters, as distinct from lobbying which involves persuasion external to the workplace.

22.        Rasheedah Gray and 27 Other Agency Fee Payers, filed by Catherine K. Ruckelshaus, National Employment Law Project.  Submitted by 28 home health care workers who were agency fee payers, they describe the substantial benefits their unions provide despite their non-member status and the reasons they had not joined their union.

23.        The American Federation of Government Employees, filed by Jeffrey Lamken and David Borer.  AFGE argues that the government has long been permitted to burden employee speech in the service of its role as an employer, and traces this historical fact from the days of the founding fathers under patronage systems.  In recent decades the Supreme Court has departed from this originalist view of the First Amendment, but even applying modern precedent, the government’s strong interest in regulating its relationship with and among its employees is more than sufficient to overcome modern sensitivities to the First Amendment.

24.        The New York City Sergeants Benevolent Association (“SBA”), filed by Stephen Younger of Patterson, Belknap.  This brief establishes the necessity of agency fees systems from the perspective of New York’s first responders, and details how Janus and his amici supporters fail to understand the range of duties and functions take on, and the difference between these costly and significant representational duties and lobbying, and further details other advocacy of a non-political nature the unions engages in involving training, equipment and health care for 9/11 first responders. 

25.        The International Association of Fire Fighters, filed by Thomas Woodley.  The IAFF provides evidence of the value that collective bargaining and union representation provides to governments that are interested in providing safe and effective fire protection and rescue services to the people, and how fair share fee systems serve the vital interest of attracting, training and retaining firefighters, providing high quality public services and protecting the health and safety of firefighters and the public.

26.        Professors Estlund, Estreicher, Getman, Gould, Harper, and St. Antoine, filed by Prof. Samuel Estreicher and Richard Brean.  These six labor law professors explain that public employers have only a few viable options with respect to personnel management and the realities of setting the terms and conditions of employment of their workforces, and the benefits and necessity of agency-fee supported personnel management.

27.        The National Conference on Public Employee Retirement Systems, filed by Arthur Liou of Leonard Carder. NCPERS’ brief rebuts the contention made by Janus and certain of his amici that there is a causal link between fair share fees and municipal bankruptcies and/or pension underfunding.  Through historical and empirical evidence, NCPERS proves there is no link, and also notes that problems of public pension underfunding were a political issue when Abood was decided and so does not present a changed circumstance warranting revisiting Abood.

28.        Crown Building Maintenance and Northern Indiana Independent Contractors Group, filed by Michael Abate of Kaplan, Johnson, Abate & Bird.  Private sector employers operating in states that both permit and prohibit fair share fees detail their experience and conclude that where their employees have elected a union to represent them, an obligation by the entire workforce to support their elected union is preferable because it results in more harmonious and productive labor relations.

29.        Public Citizen, Inc., filed by Scott L. Nelson.  Public Citizen argues that public employee unions interact with governments in their proprietary role as employers and market participants, not in their capacities as sovereigns for purposes of changing policy, and therefore agency fees do not implicate first amendment insofar as the fair share fees fund matters involving the workplace. 

30.        Governor Steve Bullock (Montana), filed by Deepak Gupta and Matthew Wessler. Governor Bullock describes Montana’s labor history and argues forcefully for the principle that states’ separate and independent existence must be safeguarded, including their authority to structure labor relations with their employees through an agency fee system supporting a robust and independent exclusive representative, an approach that Montana’s experience commends.

31.        The City of New York, filed by Zachary Carter and Richard Dearing, corporation counsel.  The City describes the events and circumstances leading to its adoption of a comprehensive labor relations ordinance and eventual adoption of a fair share fee system, detailing the need to ensure an enduring labor peace and the compelling interests of the City with respect to providing services to the densely populated and heavily unionized population.

32.        Labor Law & Labor Relations Professors, filed by Charlotte Garden and Matthew Bodie.  Forty-four distinguished professors offer a human-resources perspective of the utility of public sector collective bargaining under a fair share fees system, and show that these systems have been proven to improve the delivery of public services and offer an efficient method of setting compensation and other terms of employment while providing a positive channel for workers to be heard and to resolve their differences.

33.        Constitutional Law Scholars, filed by Andrew Pincus of Mayer Brown.  Five professors of constitutional law explain the application of the principles of stare decisis, and why each principle requires affirming Abood, and how overturning Abood would significantly disrupt settled legal rules in related areas of law and commerce. 

34.        The International Association of Machinists, filed by Mark Schneider, dismantle the contention stated in dicta in Harris v. Quinn, and now offered by Janus and his amici, that Abood erred by relying on two Railway Labor Act cases, Hanson and Street, as having settled First Amendment concerns relted to agency shop provisions, showing in its brief that those cases were indeed decided on First Amendment grounds and were properly relied upon for that point in Abood.

35.        Chabot Las-Positas Faculty Association and Eight Other Community College Faculty Associations, filed by Robert J. Bezemek.  These small, independent, unaffiliated unions offer their perspective of labor relations, and how agency fees are necessary to perform their representative duties on the small scale they operate, including the development of shared governance and broad-based union-management partnerships within the largest system of higher education in the country (and with the lowest published tuition).

36.        Fifteen Unions and Umbrella Organizations that Provide Services to Half a Million Public Safety Employees, filed by Pamela Karlan, Gary Messing and Gregg Adam.  Public sector safety unions demonstrate the essential public purposes they serve, and the improved safety, training and unit cohesion that agency fees provide from which the public benefits, and the danger free riding poses to the effectiveness of unions.

37.        Twenty-four Past Presidents of the D.C. Bar Association, filed by John W. Nields of Covington & Burling.  These attorneys, who served as elected presidents of the D.C. Bar association, argue that principles of stare decisis requires affirming Abood, particularly because of Abood’s seminal role in the development of subsequent precedent affirming the payment of mandatory bar association fees as a requirement to practice law and other related areas of law.

38.        The National Fraternal Order of Police filed by Larry H. James and Joel A. D’Alba.  The FOP reveals petitioner’s challenge to Abood as an ideological attack on public sector unions disguised as a First Amendment challenge, one that seeks a rigid rule with vast, negative consequences to law enforcement and public safety.  Noting public safety employees are prohibited from striking, many collective bargaining activities within public safety unions are focused on promoting officer and public safety, not politics. 

39.        The New York City Municipal Labor Committee, filed by Adam Klinger, Harry Klinger and Robin Roach. This committee of public employee unions representing New York City employees situates Janus’ arguments in political terms and offers a wide-ranging defense of collective bargaining supported by agency fees.