Janus Decision Still at Risk, Say Mark Janus and Bill Messenger

By Ian Henderson
Ian Henderson
Ian Henderson
Ian Henderson is a contributor to Shield Society, former director of outreach for The Millennial Review, and former development coordinator for PragerU.
July 1, 2019 Updated: July 2, 2019

LOS ANGELES—The 2018 Supreme Court decision that found government employees cannot be forced to pay a government union as a condition of working in public service could still be at risk, say the plaintiff and an attorney from the case.

Mark Janus, plaintiff in the Supreme Court case Janus v. AFSCME, and Bill Messenger, staff attorney at the National Right to Work Legal Defense Foundation, shared their insight as to whether the case would someday be brought back to the Supreme Court for a challenge.

“I think at some point, yes, it may get back to the court for clarification purposes. That has yet to be seen. It may take another 2-3 years,” Janus told The Epoch Times.

“There are probably over 40 cases right now going on this issue and we would hope at the end of the day the appellate courts interpret Janus correctly and hold the first amendment waiver as required. If they do, Supreme Court review isn’t required. However, if the circuit courts misinterpret Janus to not require a first amendment waiver, then ultimately the high court may have to make clear that it meant what it said in Janus,” Messenger said.

In the eight months following the Janus decision in June, 48,598 California government employees stopped paying their union dues, according to a California Public Records request. These numbers are likely higher now that a year has passed since the decision. However, any challenge that unions would take to the federal courts have to go through the circuit courts before being accepted for review by the Supreme Court.

Last June’s landmark supreme court decision, Janus v. AFSCME, which allowed public sector employees to leave their unions, overturned the 1977 decision in Abood v. Detroit Board of Education.

The Abood case mandated the following: Every employee represented by a union, even if that employee was not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues. This was valid insofar as the service charges were used to finance expenditures by the union for collective bargaining, contract administration, and grievance adjustment purposes.

In 2018, the Supreme Court struck the Abood case down with the Janus decision, which mandated the following: No public-sector employee, having refused membership in a trade union, may be compelled to pay union dues to said union because of the benefits he may receive from their collective bargaining. “Fair share” agreements, when applied to public sector workers, violate the First Amendment protections of free association and freedom of speech.

The move was seen as a blow to unions and a win for “right to work laws,” which advocate for employees in any job sector to have the option to be a part of a union or not.

The California Policy Center recently held an event in Los Angeles hosting Janus and Messenger, as well as other notable speakers, such as Rebecca Friedrichs, the lead plaintiff in the Friedrichs v. California Teachers Association and former governor of California Pete Wilson, among others.

The Epoch Times had the opportunity to discuss the effects of the Janus decision with Mark Janus and Bill Messenger, one year later.

Janus said that the case went back to the 2014 Harris v. Quinn Supreme Court decision.

“You really have to go back to the Pam Harris case [in Illinois]. Pam Harris was just a mom taking care of her disabled son that said ‘I don’t want to have to pay dues and have this amount skimmed off the top of my child’s benefits that I receive from the state just to take care of my son.’ She filed her case and won. To have the union skim the money off the top of her benefits just to take care of her son was about as egregious as I could think of,” he said.

Rebecca Friedrich’s case followed in 2016, which attempted to overrule Abood v. Detroit Board of Education. Justice Antonin Scalia died shortly after the case was argued in the Supreme Court, leaving only eight members to decide the case. Since it was a 4-4 split, the court upheld the lower court’s decision in what was seen as a victory for unions.

“The Friedrichs case [made] almost the identical arguments that our case made, that unions are inherently political and why should anyone that works in the public sector be forced to pay dues just to have their job?” said Janus.

Bill Messenger explained the importance of the effect of the Janus decision and why he believes right to work laws are essential to the nation.

“Right to work is a very simple concept. It’s that each individual employee has the right to choose whether or not to support a union and that’s really it. If an employee wants to pay union dues, that’s their choice, but if an employee doesn’t want to pay union dues toward a union, that is also their choice. The contrary to the right to work principle is the forced unionism idea, that all employees should be forced to support a union whether they want to or not. Right to work stands in contrast to that and say ‘no, each worker should choose.’ So ultimately it’s about worker freedom.”

Prior to the Janus decision, 27 states and Guam had right to work laws in place that allowed workers to choose whether to pay union dues or not. Messenger says that Janus effectively makes the US a right to work nation for public sector employees, but state right to work laws still play a role.

“In the public sector, Janus makes the entire county ‘right to work’ as far as government employees are concerned. Whether or not that applies to the private sector is still unresolved. So, state right to work laws are still very important for private sector employees. If you worked in a factory, whether or not you have the right to work depends on the state you work in. Also, even in a right to work state a public-sector employee would have two protections, both under state law and under the Constitution [via Janus].”

In regards to whether there was still work to be done, both Messenger and Janus seemed content with the results of the Supreme Court decision.

“What we were looking for initially was just the right of public sector employees to make their own decision, but when we actually got the ruling, we actually got more than what we wanted. In essence, it said that as of June 27th of last year, everybody is out of the union. They have no members at all and that you have to declare ‘I want to be a member [of the union]. [It would be] an opt in versus an opt out,” Janus said.

“Unfortunately, unions look at it totally different. In the decision, it said that you in essence have to waive your first amendment rights to the unions, and of course the unions are pushing back on that violently. In that respect, we think it was a much bigger victory than what we initially asked for,” he added.

Ian Henderson
Ian Henderson is a contributor to Shield Society, former director of outreach for The Millennial Review, and former development coordinator for PragerU.