WASHINGTON – A deeply divided U.S. Supreme Court heard oral arguments in a labor union dues case Monday that organized labor advocates said could undercut existing contacts with states, cities and school districts around the nation.

“When have we ever done something like that?” Justice Sonia Sotomayor asked during a pointed exchange with an attorney representing Mark Janus, an Illinois state employee seeking to abolish a requirement that he must pay so-called agency fees to his union.

Janus, a child care support specialist who has worked for the state of Illinois for about 11 years, objects to paying his so-called Hudson Notice fees which are equivalent to about 78% of union dues. Full union dues include money spent on political advocacy.

Mark Janus is an Illinois state employee who is the lead plaintiff in the union agency fees case heard by the U.S. Supreme Court in February.
Mark Janus is an Illinois state employee who is the lead plaintiff in the union agency fees case heard by the U.S. Supreme Court in February. Brian Tumulty, The Bond Buyer

“I had to pay the fee,” Janus told reporters outside the court. “Nobody asked me. I wasn’t given the opportunity to say yes, which is also ultimately the ability to say no.”

Asked why he waited until 2011 to join in the lawsuit, Janus said, “It amounted to just the fact that I saw the money keep coming out and I just kept getting more and more frustrated with the funds and where they were going and what they were being used for.”

Council 31 of the American Federation of State County and Municipal Employees, the defendant in the case, argued that not allowing it to collect fees from non-members would make the cost of representation higher for members.

Attorney David Federick represented the American Federation of State, County and Municipal Employees Council 31 in oral arguments before the U.S. Supreme Court
Attorney David Federick represented the American Federation of State, County and Municipal Employees Council 31 in oral arguments before the U.S. Supreme Court Brian Tumulty, The Bond Buyer

David Frederick, who represented AFSCME in court, said the question is whether “states, as part of our sovereign system, have the authority and the prerogative to set up a collective bargaining system in which they mandate that the union is going to represent minority interests on pain of being subject to any fair labor practice.”

Frederick said that overturning state laws could invalidate union contracts for millions of workers.

Sotomayor and other members of the high court’s liberal wing generally agreed, characterizing the case as an effort to invalidate decades of earlier rulings that allowed labor unions to collect mandatory agency fees.

“Twenty-three states, the District of Columbia, Puerto Rico, all would have their statutes declared unconstitutional at once,” said Justice Elena Kagan, another member of the liberal wing of the court. “Thousands of municipalities would have contracts invalidated. Those contracts probably cover millions, maybe up to over 10 million, workers."

In 1977 the Supreme Court ruled unanimously in Abood v. Detroit Board of Education that a labor union can collect agency fees for the cost of contract negotiations and grievance representation while non-members can opt out of fees for political purposes.

“The prevalence of these compulsory unionism provisions isn't reason for retaining Abood,” argued William Messenger, the attorney representing Janus. “It's reason for reversing Abood. You have wide-scale First Amendment violations, as you said, in 23 states affected.”

Agency fees infringed on Janus’s First Amendment rights, Messenger said. “To the degree to which the union resources are diminished by individuals exercising their First Amendment right not to subsidize that union, I submit that's a perfectly acceptable result,” he said.

Conservative justices Samuel Alito and Anthony Kennedy questioned the basis for the agency fees during the oral presentation.

The court split 4-4 in an earlier, similar case decided after the death of conservative justice Antonin Scalia.

Justice Neil Gorsuch, who joined the court last year and is considered a key vote in the decision which is expected in June, did not ask any questions during the oral arguments.

Illinois Gov. Bruce Raunder attended Monday's oral arguments at the U.S. Supreme Court in Janus v. AFSCME Council 31.
Illinois Gov. Bruce Raunder attended Monday's oral arguments at the U.S. Supreme Court in Janus v. AFSCME Council 31. Brian Tumulty, The Bond Buyer

Frederick told reporters afterward that Gorsuch appeared attentive during his oral argument and took notes, which he considers a good sign.

Illinois Gov. Bruce Rauner, who attended Monday’s oral arguments, said he disagreed with the liberal member of the court on the impact of a ruling in favor of Janus.

“Most contracts with governments and school districts will not have to be automatically renegotiated,” Rauner told The Bond Buyer. “Some might have to, but most will not. What’s at issue here is whether any of the government unions can force employees to continue to pay dues if they don’t want to.”

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