SCOTUS won’t hear two public-sector union cases

Supreme Court says it won’t hear two cases related to public-sector union policy

The U.S. Supreme Court recently rejected petitions in two cases related to public-sector union policy. The last such case the court heard was Janus v. AFSCME in 2018. 

Woods v. ASEA

On Feb. 22, the Supreme Court declined to hear an appeal in Woods v. Alaska State Employees Association, AFSCME Local 52, a joint petition with the parallel case Creed v. Alaska State Employees Association, AFSCME Local 52. The plaintiffs said that because they had withdrawn consent for union dues deductions after the Janus ruling, the fact that the dues continued to be deducted based on an agreement signed before Janus violated their First Amendment rights. Attorneys from the Liberty Justice Center and the National Right to Work Legal Defense Foundation represented the petitioners.

Judge H. Russel Holland of the U.S. District Court for the District of Alaska dismissed both complaints. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit—Senior Judge Mary Schroeder, Senior Judge Atsushi Wallace Tashima, and Judge Andrew Hurwitz—upheld Holland’s decisions in both cases in August 2021. President Ronald Reagan (R) appointed Holland, President Jimmy Carter (D) appointed Schroeder, President Bill Clinton (D) appointed Tashima, and President Barack Obama (D) appointed Hurwitz. 

The plaintiffs’ petition to the Supreme Court, which was filed on Oct. 25, 2021, said:

“If Janus’ waiver requirement is not enforced, states and unions will continue to severely restrict when public employees can stop paying for union speech. The Court should not allow the fundamental speech rights it recognized in Janus to be hamstrung in this way. … 

“Woods and Creed thus squarely present the question: which of two competing interpretations of Janus is correct? Does Janus require clear and compelling evidence of a waiver[?] … Or is Janus’ waiver language inapplicable to employees who sign dues deduction contracts[?] … 

“It is important that the Court make clear that it meant what it said in Janus: that states and unions cannot seize payments for union speech from employees unless they waive their right not to subsidize that speech. … Otherwise, a number of states and unions, with the blessing of three appellate courts, will continue to hamstring the First Amendment right the Court recognized in Janus.”

The petition was considered during the Supreme Court’s conference on Feb. 18. 

Hamidi v. SEIU

On Feb. 28, the Supreme Court declined to hear an appeal in Hamidi v. Service Employees International Union, Local 1000. The class action suit, filed in 2014, alleged the SEIU 1000’s opt-out system for collecting union fees violated plaintiffs’ First Amendment rights. Attorneys from the National Right to Work Legal Defense Foundation represented the petitioners.

Judge William B. Shubb of the U.S. District Court for the Eastern District of California ruled in favor of the defendant in 2017. In 2019, a Ninth Circuit panel overturned Shubb’s decision and sent the case back to the lower court for consideration in light of the Janus ruling. Shubb dismissed the suit in 2019. In 2021, a three-judge panel—Circuit Judges Bridget S. Bade and Patrick Bumatay, and U.S. District Judge for the District of Vermont William K. Sessions—upheld Shubb’s ruling, agreeing the union had acted in good faith under the law at the time. President George H.W. Bush (R) appointed Shubb, President Donald Trump (R) appointed Bade and Bumatay, and Clinton appointed Sessions.    

The plaintiffs’ petition was filed with the Supreme Court on Jan. 24, 2022. It said:

“This case is among many in which employees who had agency fees seized from them in violation of their First Amendment rights seek damages for their injuries. Nevertheless, a number of lower courts have now denied victims of unconstitutional agency fees seizures relief for their injuries on the grounds that there exists a general good faith defense to liability for Federal civil rights violations.

“This ‘good faith’ defense to Section 1983 has never been recognized by this Court. However, three times this Court has discussed, and declined to decide, whether such a defense exists. … The Court should finally resolve this important question to disabuse the lower courts of the rapidly spreading notion that a defendant acting under color of a statute before it is held unconstitutional and/or prior judicial decision overtaken by controlling authority is a defense to § 1983, contrary to its explicit creation of remedies for Federal civil rights violations.”

The petition was considered during the Supreme Court’s conference on Feb. 25. 

About the Supreme Court

The Supreme Court consists of nine justices who are nominated by the president and confirmed by the United States Senate. 

George H.W. Bush appointed Justice Clarence Thomas to the court, Clinton appointed Justice Stephen Breyer, and President George W. Bush (R) appointed Chief Justice John Roberts and Justice Samuel Alito. Obama appointed Justices Elena Kagan and Sonia Sotomayor, and Trump appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. 

On Jan. 27, 2022, Justice Breyer officially announced he would retire at the start of the court’s summer recess. On Feb. 25, President Joe Biden (D) announced he would nominate Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to fil the vacancy. 

The Supreme Court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court receives around 7,000 to 8,000 petitions every year. During its past five terms, the court has agreed to hear an average of 71 cases per term. The court generally releases the majority of its decisions in mid-June.   

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What we’re reading

• The Sacramento Bee, “State worker union moves to suspend controversial president,” March 1, 2022 
• The Olympian, “House lawmakers introduce new collective bargaining proposal for legislative assistants,” Feb. 25, 2022 
• The Hill, “Labor leaders praise Biden SCOTUS pick as win for workers,” Feb. 25, 2022
• Chalkbeat, “Colorado’s fight over collective bargaining rights could hinge on education,” Feb. 25, 2022  

The big picture

Number of relevant bills by state

We are currently tracking 123 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

• California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
  • Democratic sponsorship. 
  • Referred to Senate Labor, Public Employment, and Retirement Committee and Senate Judiciary Committee on March 2. 
• Connecticut SB00209: This bill would recognize probate court employees as state employees for collective bargaining purposes. 
  • Introduced by the Senate Labor and Public Employees Committee.
  • Joint Labor and Public Employees Committee public hearing held March 3. 
• Florida H1197: This bill would require certain public employees to sign an authorization form before joining a union acknowledging that union membership is not a condition for employment and that membership and dues are voluntary. It would require unions to allow certain public employees to end their membership by a written request. The bill would also prevent employers from deducting dues from certain employees’ paychecks. It would also amend requirements for bargaining agent recertification and union registration renewal. 
  • Republican sponsorship. 
  • Reported out of House State Affairs Committee, released to House Calendar, added to Second Reading Calendar and Special Order Calendar Feb. 28. 
• Indiana SB0297: This bill would amend the language of the authorization form school employees must sign before union dues may be deducted from their pay.
  • Republican sponsorship. 
  • Senate President Pro Tempore and Speaker of the House signed March 1.
• Kansas HB2354: This bill would establish that public employees may revoke authorization for employers to withhold union dues from their wages by submitting a written or emailed request to the employer, and employers must immediately cease withholding dues. The bill requires public employers to provide an annual written notification of rights and a request form to employees. The bill also requires public employees to annually renew their dues withholding authorization by signing a form with language stipulated by the bill. Employers must confirm the authorization by email before withholding dues. 
  • Sponsored by K-12 Education Budget Committee.
  • Withdrawn from House Appropriations Committee and sent back to House Commerce, Labor, and Economic Development Committee March 1. 
• Maryland HB1225: This bill would extend collective bargaining rights to certain Harford County Public Library employees. It would prohibit employees from striking. 
  •  Democratic sponsorship.
  •  House Appropriations Committee hearing scheduled for March 8.
• Minnesota HF603: This bill would require public employers to provide certain personnel data to unions. It would require public employers to give unions access to employees, including through worksite meetings, new employee orientations, and email. It would also stipulate that unions are not liable for fees collected under state law before Janus.
  • Democratic sponsorship. 
  • House Labor, Industry, Veterans and Military Affairs Finance and Policy Committee hearing held March 1. 
• Minnesota HF2005: This bill would require public employers to provide certain personnel data to unions. It would require public employers to give unions access to employees, including through worksite meetings, new employee orientations, and email. It would require public employers to rely on information from unions about authorization and cancellation of deductions rather than requests from individual employees. It would also stipulate that unions are not liable for fees collected under state law before Janus.
  • Democratic sponsorship. 
  • House Labor, Industry, Veterans and Military Affairs Finance and Policy Committee hearing held March 1.
• Oklahoma HB3955: This bill would allow sheriff’s department employees to bargain collectively with their county. Employees would not be allowed to strike. 
  • Republican sponsorship. 
  • House Judiciary – Civil Committee recommends “do pass” committee substitute March 1. 
• Oklahoma SB1579: This bill would allow school boards to grant unpaid leaves of absence for employees to hold office in an employee association if certain criteria are met. An employee organization would be required to comply with this law in order to be recognized as the representative of a bargaining unit.     
  • Republican sponsorship. 
  • Senate Education Committee recommends “do pass” as amended March 1. 
• Virginia HB790: This bill would prevent localities from entering collective bargaining agreements with law enforcement employee associations if the agreements do not meet certain criteria.
  • Republican sponsorship. 
  • Died in Senate Commerce and Labor Committee on Feb. 28. 
• Washington HB2124: This bill, which would give state legislative branch employees the right to bargain collectively, would create an office of state legislative labor relations to “[e]xamine issues related to collective bargaining for employees of the house of representatives, the senate, and legislative agencies” and to “develop best practices and options for the legislature to consider in implementing and administering collective bargaining.” A final report would be due to the legislature by October 1, 2023. No collective bargaining agreement could take effect until July 1, 2025. Employees would not be allowed to strike. 
  • Democratic sponsorship. 
  • House Appropriations Committee reports “do pass” substitute bill on Feb. 28. Passed by House on March 1.

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