As expected, the U.S. Court of Appeals for the 7th Circuit has affirmed a lower court decision dismissing an Illinois lawsuit that right-to-work experts assert could be the next Friedrichs v. California Teachers Association.
But the appeals court ruling means the case may soon be heading to the U.S. Supreme Court, where a restored conservative majority could put an end to compulsory union dues.
“The court’s ruling is no surprise but simply allows the next step forward in the journey to end forced unionism for public employees across the country,” said Mark Mix, president of the National Right to Work Foundation. “No one should be forced to pay union dues or fees just for the privilege of working for their own government and this decision means the case can now move up to the United States Supreme Court.”
The ruling comes nearly three weeks after the Chicago-based appeals court heard oral arguments in Janus v. AFSCME, which specifically deals with the First Amendment rights of public employees who wish to opt out of their unions, and the fairness of a union’s “monopoly” right to speak for individuals.
The Illinois employee plaintiffs are being represented, free of cost, by the Right to Work Foundation and the Illinois Policy Institute’s Liberty Justice Center, free-market organizations that oppose compulsory union dues and membership.
Under a 1977 Supreme Court decision, unions are not allowed to use membership fees to pay for “explicitly political” activities, but they can demand “fair share” fees connected to collective bargaining.
The lawsuit notes some 6,600 of the state’s 46,000-plus employees are forced to make so-called “fair share” payments to unions rather than pay union dues. Fair Share deductions are to go only to essential union representation activities, not political purposes.
The plaintiffs argue that everything a union does, not just overt political activity, involves government redress.
“They [unions] are in a unique position in between taxpayers and elected officials to help to determine how tax money is spent, how government sets priorities, how school districts are run, lots of things that involve ‘necessary government services,’” Mix told Wisconsin Watchdog earlier this month.
“So the notion that somehow their speech is elevated, no matter what it is … that speech is political by nature because it’s redressing the government,” he said.
Big labor’s latest win could ultimately end in defeat at the high court.
Lee Saunders, president of the American Federation of State, County and Municipal Employees earlier said the lawsuit represents a “renewed effort by corporate and special interest groups to upend the longstanding rights of people who work in public service … to come together.”
“It would be shameful to see the Circuit Court of Appeals decide the case in favor of wealthy special interests and put the working families and communities at risk,” Saunders said in a statement.
AFSCME and the Teamsters are defendants in the lawsuit.
Some observers say Janus v. AFSCME is the “new Friedrichs case.”
Friedrichs v. California Teachers Association took on the broader issues of mandatory union dues, political speech and association. Following oral arguments in January 2016, it appeared clear that the U.S. Supreme Court would narrowly side with right-to-work advocates in updating the 1977 Abood v. Detroit Board of Education.
A few weeks later, conservative Justice Antonin Scalia died. Scalia had been a deciding vote against unions in previous similar cases. His passing resulted in a 4-4 tie, with the automatic affirmation of the 9th U.S. Circuit Court of Appeals upholding unions’ right to take fees. The famously liberal court made headlines recently for blocking President Donald Trump’s immigration ban executive order.
Seventh Circuit Judge Richard Posner, a member of the court’s three-member panel that affirmed the lower court ruling, wrote that Abood remains the guiding force that the appeals court was bound by.
“Of course, only the Supreme Court has the power, if it so chooses, to overrule Abood,” Posner wrote.
That’s what right-to-work advocates are betting on.