March 18, 2021
By Jacob Huebert

Can a union forge your signature on a membership agreement and then have the state take dues out of your paycheck? Federal courts on the West Coast have been letting unions get away with exactly that. And they’ll keep getting away with that and more—unless the Supreme Court stops them in a case the Goldwater Institute is urging it to hear.

In Janus v. AFSCME, the Supreme Court declared that the First Amendment forbids governments from forcing their employees who aren’t union members to pay union fees. The Court said that a government can’t give an employee’s money to a public sector union unless it has “clear and compelling” evidence that the employee “affirmatively consent[ed]” to pay—that is, that the employee knowingly, voluntarily waived his or her First Amendment right not to pay.

After Janus, state employees in California, Oregon, and Washington brought First Amendment lawsuits against state officials and unions, alleging that the state was wrongfully taking union dues out of their paychecks because the union had forged their signatures on membership agreements. 

That sounds like a clear violation of Janus’s rule that nonmembers can’t be forced to pay a union—yet in each case, a federal district court ruled that the dues deductions based on union forgery didn’t implicate Janus or the First Amendment at all. The courts said these cases only involved “private” disagreements over membership agreements; there was no “state action” that could support a constitutional claim because state officials’ only role was to automatically collect dues on behalf of people whom the union had reported were members, as state law requires. If the employees wanted to sue the union, the courts ruled, they had to bring common law claims in state court, not constitutional claims in federal court.

Nonsense. Janus wouldn’t mean much if unions could entirely escape it by falsely claiming people as members. And these decisions overlook the government’s complicity in the scheme, as the state simply takes a union’s word for it that a person is a member—turning a blind eye to unions’ coercion, fraud, and forgery—instead of directly obtaining clear and compelling evidence that the person freely chose to pay.

In fairness to the courts that issued these decisions, they were just applying recent Ninth Circuit precedent. In September 2020, in Belgau v. Inslee, the U.S. Court of Appeals for the Ninth Circuit dismissed First Amendment claims brought by state employees who signed union membership agreements before Janus, who want to stop paying dues now that Janus has recognized their right not to pay. The Ninth Circuit ruled that the employees couldn’t pursue their claims because the state’s collection of dues from them wasn’t “state action” but was just the result of private agreements the employees had made with the unions. Never mind that the “agreements” were coerced because state law before Janus forced the employees to choose between paying union dues, paying a slightly lower nonmember “agency fee” (while facing potential union hassling for not joining and paying full dues), and quitting their jobs.

Soon after the Ninth Circuit decided Belgau, district courts began concluding that the ruling required them to dismiss the First Amendment claims based on union forgery. If there’s no “state action” in taking union dues from someone based on a membership agreement signed before Janus, they reasoned, then there’s no state action in taking money based on a forged signature on an agreement. In either situation, they said, the dispute pertains to a (supposed) private agreement, and the state’s role is the same.

Now the Belgau plaintiffs are asking the U.S. Supreme Court to hear their case, and the Goldwater Institute has filed a brief supporting their petition, joined by the National Taxpayers Union. Our brief points out how lower courts are already citing the Ninth Circuit’s decision to allow unions to get away with forgery. It will also allow unions to get away with pressuring people into signing membership agreements when neither the state nor the union has informed them of their right not to join or pay dues.

Our brief also explains how the Ninth Circuit’s decision can effectively eliminate an individual’s Janus rights: A union’s mere assertion that someone was a member at some point in the past takes that person from having strong First Amendment protection against forced union payments—as he or she would, under Janus, if the union did not claim him or her as a member, and the state characterized its deductions as an agency fee—to having no constitutional remedy against the union for forced subsidies.

We also explain why the option of going to state court isn’t good enough for people wrongfully made to pay a union: Under the Civil Rights Act of 1871, people are entitled to seek protection for their federal constitutional rights in federal court. That’s in part because plaintiffs shouldn’t have to seek relief in state courts that are part of the very government that they say is violating their rights. And federal law allows plaintiffs who prevail on federal constitutional claims to recover their attorneys’ fees, which makes it easier to bring those claims and discourages governments from violating rights in the first place. State courts, on the other hand, typically don’t allow successful plaintiffs to recover their attorneys’ fees.

To ensure that individuals can exercise their First Amendment right not to join or pay a union, the Supreme Court should hear the Belgau case and reverse the Ninth Circuit’s decision.

Jacob Huebert is a Senior Attorney at the Goldwater Institute.

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