(PORTLAND, Ore.) — “After listening to all the arguments this morning, it appears to me that AFSCME Council 31, back in the Janus case, should have just forged Mark Janus’ signature,” Freedom Foundation attorney Rebekah Millard observed.
“They would have gotten more money that way,” she said. “And better still for the union, had they done so — and, of course, followed the reasoning we’ve heard today — there would be no constitutional issues. The state could just shrug off its constitutional responsibilities altogether.”
Millard made the point on Feb. 8 during a marathon session before the 9th Circuit Court of Appeals in Portland during which the three-member panel heard nine consecutive cases detailing how government employee unions systematically abridge the First Amendment rights of public employees to opt out of union membership and dues affirmed by the U.S. Supreme Court in Janus v. AFSCME.
In four of the cases — Wagner v. University of Washington, Ochoa v. SEIU 775, Zielinski v. SEIU 503, and Wright v. SEIU 503 — the appeal was made directly by a Freedom Foundation attorney.
Three other appeals — Savas v. California Statewide Law Enforcement Agency, Quirarte v. United Domestic Workers/AFSCME Local 3930 and Polk v. Betty Yee — were argued by the National Right to Work Legal Defense Foundation attorney Bill Messenger on behalf of clients represented jointly with the Freedom Foundation.
“From the court’s point of view, it makes sense to hear cases like these concurrently because they deal with similar issues,” said Freedom Foundation Chief Litigation Counsel Eric Stahlfeld. “We think it benefits us, too, because the judges get a sense that none of these are isolated incidents. There’s a clear pattern by the unions of trying to avoid complying with Janus.”
Millard’s comments came during her argument in Zielinski, one of three cases in which unions clearly forged the signature of a public worker, hoping to continue deducting dues despite his clearly stated request to opt out.
Meanwhile, attorneys representing the states of Washington and Oregon point the finger of blame at the unions, arguing states rely on unions to give them accurate information about who is and isn’t a member.
Millard said the first issue is whether these employees had taken any steps that would permit the union to demand the states take union dues out of their paychecks, just as Mark Janus had not. Secondly, the states had not instituted adequate safeguards to ensure dues can’t be fraudulently collected.
“When it comes to states taking public employees’ lawfully earned wages for union dues,” she said, “the (U.S.) Supreme Court has always held that the employee must consent before the state can take that money.”
Plaintiffs Christopher Zielinski and Jodee Wright, both Oregon public employees, never became union members, Millard explained. They never consented to the state taking their wages.
Millard showed the judges a copy of the membership form SEIU 503 used to justify deducting dues from Zielinski’s wages.
“As you can see, the signature is just a series of connecting M’s,” she said, noting that not even the union itself stood behind its authenticity.
Freedom Foundation attorney Sydney Phillips had earlier argued that a similar case, Ochoa v. SEIU 775, also came down to inadequate procedures and safeguards on the part of both the union and the state of Washington.
A Spokane homecare provider, Ochoa contacted the Freedom Foundation in 2017 when she discovered the union was siphoning dues from her paycheck even though she had never been a member and was one of the first in the state not to have to pay so-called “agency fees” to SEIU 775 when the Supreme Court in 2014 classified Medicaid-compensated individual providers as “partial-public employees,” freeing them from all mandatory union dues and fees.
After investigating, Ochoa, too, discovered her signature had been forged on a membership application. The union temporarily stopped taking her dues, but then — unbelievably — started taking full dues immediately after Janus prohibited that practice for all non-consenting state employees.
“If there had been a simple procedure in place, such as an email notifying her that she had signed a new dues-authorization form, this couldn’t have happened,” Phillips said. “It’s completely inappropriate for the state to rely on the assurances of a self-interested party like the union as to who is and who isn’t a dues-paying member.”
In the day’s first case, Wagner v. SEIU 925 and UW, Freedom Foundation litigation counsel James Abernathy argued on behalf of Charlene Wagner, a former UW employee, that dues were seized under a law that gives her union, SEIU 925, sole discretion over who the university — a state actor — is and isn’t authorized to deduct dues from.
Wagner started working at the university in 1999, when all public employees were required either join the union and pay dues or opt out but still pay a so-called “agency fee.” In 2018, anticipating it would lose the Janus decision, SEIU 925 informed her she needed to renew her membership, describing it as a routine administrative matter.
When SCOTUS subsequently issued its ruling, Wagner attempted to opt out of the union but was told the new membership agreement included a provision limiting opt-outs to a two-week annual window.
The whole point of Janus is to protect the First Amendment rights of public employees to not support a labor union, Abernathy argued. State laws that try to limit those rights are unconstitutional regardless of whether they were passed before or after Janus.
“It isn’t a question of material damages,” he explained. “It’s a procedural case. There need to be procedures in place to determine whether she actually did consent to have dues deducted from her check.”