Mark Janus et al v. AFSCME et al (7th Cir.) (Docket No. 16-3638)
Last year everyone’s attention was focused on the Supreme Court’s opinion in the Friedrichs v. California Teachers Association (Friedrichs) case. At issue was the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education which sanctioned the collection of mandatory agency fees in the public sector. After oral argument in January 2016, almost all commentators agreed that the Supreme Court was likely to overturn its precedent in Abood. That all changed with the passing of Justice Scalia which resulted in the Supreme Court affirming the Friedrich’s decision on a tie 4-4 vote.
With the election of President Trump, I think it’s a safe bet to assume that any new Justice is more likely than not to side with the four Justices willing to overturn Abood. So the question is how soon another case can be brought before the Supreme Court? The answer is that another case is already in waiting: Janus v. AFSCME (Janus).
The Janus case comes out of Illinois, which like California, requires public employees who choose not to join a union to instead pay a fee to the union. The case is currently pending in the 7th Circuit Court of Appeals and appears to be almost fully briefed. Indeed, the appellants’ reply briefs were just filed on January 4, 2017. Many articles on Janus have noted that the appellants have practically invited the lower courts to rule against them in order to get to the Supreme Court quickly. (See Sacbee article here.) That certainly appears to be the case. For example, the opening paragraph in the appellants’ reply brief states:
The parties agree that Abood v. Detroit Board of Education, 431 U.S. 209 (1977) requires that this Court affirm the district court’s dismissal of Appellants Mark Janus and Bryan Tryggs’ Second Amended Complaint. Consequently, there is no need for Janus and Trygg to rebut the State and Unions’ [footnote omitted] argument that Abood was correctly decided. [citation omitted]. Whether correctly decided or not, Abood is controlling in this forum and requires affirmance of the decision below.
Because the parties appear to agree that Abood is controlling on the lower courts, a decision from the 7th circuit could come relatively quickly. At that point the appellants can seek review before the Supreme Court.
- Could Janus get up to the Supreme Court by the start of the Court’s Fall term? I think it’s a real possibility. But if not this year then certainly by the next year. Either way, the issue presented in Friedrichs seems likely to return to the Supreme Court.
- What effect will this have in California? For one, expect to see another version of AB 2835—mandatory employee orientations—introduced this year. AB 2835 was a direct response from unions to the prospect of Abood being overturned. The bill was held by the author at the end of last year’s session but expect to see it return this year.
- UPDATE: I checked and another version of AB 2835 has already been introduced for the 2017-2018 legislative session. It’s AB 52 by Assembly Member Cooper.