Union Station: Checking in on public-sector union cases appealed to the Supreme Court

Checking in on public-sector union cases appealed to the Supreme Court 

Note: In observance of the Thanksgiving holiday, we will not be publishing Union Station on Nov. 25. The next edition of Union Station will arrive on Dec. 2.

So far this month, the Supreme Court has rejected three petitions in public-sector union cases we’ve been tracking and requested responses in three other cases. We’ll outline the details of both sets of cases below. 

But first, an update on our last edition. Illinois voters approved Amendment 1 on Nov. 8, establishing the right to collective bargaining in the state constitution and making Illinois the first state to ban right-to-work laws in its constitution. The measure passed 58.4% to 41.6%. 

Now, back to the Supreme Court: 

Denied petitions

The Supreme Court receives 7,000 to 8,000 petitions every year. In order for a petition to be granted, at least four of the nine justices must vote to hear the case. Between 2007 and 2021, the court issued opinions in an average of 75 cases per year. 

Since the Supreme Court’s 2018 ruling in Janus v. AFSCME, Ballotpedia has tracked close to 200 public-sector union lawsuits in federal and state courts, over 60 of which have been appealed to the Supreme Court since the 2018-2019 term. Earlier this term, the court agreed to hear a case challenging the Federal Labor Relations Authority’s jurisdiction to regulate a collective bargaining dispute between the Ohio National Guard and the American Federation of Government Employees. Aside from that case, none of the petitions we’ve tracked since Janus have been granted. 

The Supreme Court denied the following petitions in public-sector union cases on Nov. 7 and Nov. 14: 

Cooley v. California Statewide Law Enforcement Association

• Appealed from the Ninth Circuit. 
  • Original complaint: Nov. 13, 2018
  • District court ruling: July 9, 2019 
  • Ninth Circuit ruling: April 28, 2022
  • Ninth Circuit en banc rehearing denied: June 8, 2022
• Appeal docketed Sept. 9, 2022. Respondents waived the right to respond. Distributed for conference on Nov. 4, 2022.
• Question presented in the petition: “Does the Constitution allow a public-sector union to enter into a contract with a state employer that restricts a public employee’s constitutional right to resign his union membership?”
• Petition denied Nov. 7. 

Polk v. Yee (And Quirarte v. United Domestic Workers AFSCME Local 3930, consolidated in the appellate court)

• Appealed from the Ninth Circuit. 
  • Original complaints: Nov. 1, 2018 (Polk); July 11, 2019 (Quirarte)
  • District court rulings: Oct. 14, 2020 (Polk); Feb. 10, 2020 (Quirarte)
  • Ninth Circuit ruling: June 8, 2022
• Appeal docketed Sept. 8, 2022. Respondents waived the right to respond. Distributed for conference on Nov. 4, 2022. 
• Questions presented in the petition: 
  • “Do states and unions need clear and compelling evidence that nonmembers of a union waived their First Amendment right to refrain from subsidizing union speech in order to constitutionally seize payments for union speech from those individuals?” 
  • “When a union acts jointly with a state to seize union payments from nonmembers’ wages, is that union a state actor participating in a state action under 42 U.S.C. § 1983?”
• Petition denied Nov. 7. 

Schaszberger v. AFSCME Council 13

• Appealed from the Third Circuit. 
  • Original complaint: Nov. 7, 2019
  • District court ruling: May 20, 2021
  • Third Circuit ruling: July 20, 2022
• Appeal docketed Oct. 20, 2022. Respondents waived the right to respond. Distributed for conference on Nov. 10, 2022. 
• Question presented in the petition: “Is there a ‘good faith’ defense under 42 U.S.C. § 1983 that shields a defendant from damages liability for depriving citizens of their constitutional rights if the defendant acted under color of a state law before this Court held the law was unconstitutional?” 
• Petition denied Nov. 14. 

Response requested

According to the clerk of the Supreme Court’s office, “The Court will sometimes schedule a case for conference, but then request a response from the respondent(s) before the petition is actually considered at conference. Such a request will be noted on the docket, and will generally give the respondent 30 days to submit the response. Once the response is received, the Clerk’s Office will place the case on the next relevant conference list that is at least 14 days after the date that the last response is filed.”

The court requested responses in the following cases: 

File v. Hickey (formerly File v. Brost)

• Appealed from the Seventh Circuit.
  • Original complaint: July 25, 2019
  • District court ruling: June 29, 2020
  • Seventh Circuit ruling: April 29, 2022
• Appeal docketed Aug. 1, 2022. Distributed for conference on Nov. 4, 2022.
• Question presented in the petition: “Whether membership in a mandatory state bar is subject to heightened scrutiny under the First Amendment.”
  • Amici curiae: Mackinac Center for Public Policy, Alliance Defending Freedom, Goldwater Institute, Americans for Prosperity Foundation, National Right to Work Legal Defense Foundation, Pelican Institute for Public Policy, First Liberty Institute. 
• Respondents’ brief filed Sept. 29, 2022. Question presented: “Petitioner has chosen to limit the question presented to the applicable standard of review, rather than the ultimate question of whether a mandatory bar is constitutional. The decision below did not break new ground on the standard of review, but merely held that Petitioner’s free speech claim was foreclosed by this Court’s precedent. As a result, the only question presented by the petition is as follows: Whether membership in a mandatory state bar is subject to heightened scrutiny under the First Amendment.” 
• Petitioner’s reply filed Oct. 13, 2022. 
• The court requested a response on Oct. 28 and granted the respondents’ request to extend the deadline to Dec. 28. 

O’Callaghan v. Drake

• Appealed from the Ninth Circuit. 
  • Original complaint: March 27, 2019
  • District court ruling: Sept. 30, 2019
  • Ninth Circuit ruling: April 28, 2022
  • Ninth Circuit panel and en banc rehearings denied: June 6, 2022 
• Appeal docketed Sept. 9, 2022. Respondents waived the right to respond. Distributed for conference on Nov. 4, 2022. 
• Question presented in the petition: “Whether a union can trap a government worker into paying dues for longer than a year under Janus[.]” 
• The court requested a response on Nov. 2 and granted the respondents’ request to extend the deadline to Jan. 3, 2023. 

Savas v. California State Law Enforcement Agency

• Appealed from the Ninth Circuit. 
  • Original complaint: Jan. 6, 2020
  • District court ruling: Sept. 8, 2020 
  • Appellate ruling: April 28, 2022
  • Ninth Circuit en banc rehearing denied: June 8, 2022
• Appeal docketed Sept. 8, 2022. Respondents waived the right to respond. Distributed for conference on Nov. 4, 2022. 
• Questions presented in the petition: 
  • “Does it violate the First Amendment for a state and union to compel objecting employees to remain union members and to subsidize the union and its speech?”
  • “To constitutionally compel objecting employees to remain union members and to subsidize the union and its speech, do states and unions need clear and compelling evidence the objecting employees waived their First Amendment rights?” 
  • Amici curiae: Goldwater Institute, Americans for Fair Treatment, Alaska, et al.
• The court requested a response on Nov. 2 and granted the respondents’ requests to extend the deadline to Jan. 3, 2023. 

What we’re reading

• Chicago Tribune, “‘Fundamental right’ of workers to organize being added to Illinois constitution,” Nov. 15, 2022
• The Washington Post, “Michigan Democrats can reignite their state’s vaunted labor tradition,” Nov. 17, 2022
• The Center Square, “Advocate warns about consequences of repealing Michigan’s Right to Work law,” Nov. 15, 2022 
• Virginia Mercury, “Labor organizers push for stronger collective bargaining in Prince William,” Nov. 16, 2022 
• Americans for Fair Treatment, “SCOTUS should rein in rogue federal labor board in Ohio National Guard case,” Nov. 16, 2022
• The New York Times, “U.C. Workers Strike on All 10 Campuses,” Nov. 15, 2022 

The big picture

Number of relevant bills by state

We are currently tracking 150 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

No public-sector union bills saw activity this week.

---

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.

Learn More