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Tuesday, March 09, 2021

Cascading Fed Courts issues

I have not given enough thought to how one SCOTUS decision on one issue produces a cascade of other issues. Janus provides a nice case in point.

SCOTUS held that mandatory non-member agency fees violate the First Amendment. That triggered a wave of actions against unions by non-members to recoup fees paid prior to Janus, which courts of appeals have uniformly and all-but-unanimously rejected via a defense of good-faith immunity (the Fourth Circuit joined the chorus yesterday).

The Seventh Circuit on Monday considered a different downstream effect: A union sued the state attorney general challenging state law requiring unions to represent free-riders, claiming that mandatory representation violates the union's First Amendment rights against compelled expression and association. The court of appeals held that the union lacked standing.* No freeriding nonmember had grieved the union for failing to represent it. The attorney general (the defendant in the action) had not initiated or threatened an action against the union for unfair (or non-) representation. And the union had not alleged an intent to not represent freeriders to set-up a pre-enforcement challenge. So while the court acknowledged the issue was unavoidable post-Janus and would eventually require resolution, there was no live case or controversy teed up.

[*] While acknowledging that it also could have been unripe. But wouldn't it all be so much easier to say that nothing had (yet) caused a violation of the union's constitutional rights?

That leads to a further downstream effect: If a freerider files a grievance or the state brings a failure-to-represent action, would a federal court abstain under Younger from the union's action? It may depend on the state laws and procedures governing state labor proceedings. I think abstention would be required in the AG action, because the action sounds comparable to an attorney-grievance proceeding. The freerider grievance may be a bit more open after Sprint, since the state would not be a party.

This is far from played out, as the Seventh Circuit recognized. I wonder if the Janus majority anticipated this three years ago.

Posted by Howard Wasserman on March 9, 2021 at 10:57 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink


My comment has disappeared here. So again:

Important case indeed. Worth noting, that not only the Attorney General, but also, the Executive Director of the Illinois Labor Relation Board (as defendants). The district court, had asserted by the way, that it is ripe indeed, I quote from the seventh:

"The district court disagreed, concluding that, after Janus, Local 150 faced imminent injury to its rights and obligations under Illinois law. An injury of this sort, the district court reasoned, sufficed to create a viable preenforcement challenge to the union’s duty of fair representation."

More on merits, the district court, suggested, that, I quote:

"Because Janus in no way altered the system of exclusive and fair representation outlined in Illinois law, the
district court determined that it remained bound by other Supreme Court precedent rejecting a union’s First Amendment challenge to a state law mandating exclusive representation. See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271 (1984). Because Janus, by its own terms, purports to affect only the constitutionality of fair share fees and because Knight remains good law, the district court entered summary judgment for the defendants."

End of quotation:

Yet, we need yet to understand, whether compelling free speech is an issue here. On one hand, in terms of content, it seems that not. For, the same representation would be granted for those freeriders, and those paying their fees or"fair share" as called by them. Yet, to represent, whatsoever, notwithstanding the content, is also compelling free speech. For, they are forced to do it, against their free will or alike let's say.

Here to the ruling of the Seventh Circuit:



Posted by: El roam | Mar 9, 2021 12:39:34 PM

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