2d Circuit Holds Union Speech Can Be Protected By The First Amendment

Montero v. City of Yonkers, ___F.3d___(2d Cir. May 16, 2018), is an important First Amendment decision. http://www.ca2.uscourts.gov/decisions The Court held that certain speech made at a union meeting can be protected by the First Amendment. The Court did not go as far as several other circuits which held that speech made at a union meetings is per se speech made by a private citizen. Specifically, the 2d Circuit stated:

While we therefore decline to decide categorically that when a person
speaks in his capacity as a union member, he speaks as a private citizen, we conclude that, under the facts of this case as set out in the amended complaint, when Montero spoke in his capacity as a union member, he spoke as a private citizen. This was because, taking the amended complaintʹs allegations as true, Montero spoke in his role as a union officer, and his union speech was not composed of statements made as a ʺmeans to fulfillʺ or ʺundertaken in the course of performingʺ his responsibilities as a police officer. Weintraub, 593 F.3d at 203 (quotation marks omitted). Consequently, he engaged in citizen speech for purposes of the First Amendment.

This decision is lengthly and it spans about 45 pages. The decision reviews the history of First Amendment jurisprudence in this Circuit and is a primer on First Amendment protections for public employees or the lack thereof which readers should be aware of.

Petition For Cert Filed In Agency Fee Case

On June 7, 2017, a cert petition was filed in Janus v. AFSME, ____F.3d____(7th Cir. March 21, 2017)(Posner, J.). This case squarely addresses whether agency fees violate the First Amendment and whether Abood v. Detroit Board of Education, 431 U.S. 209 (1977), remains good law. SCOTUS blog contains a good summary of the law and provides in part:

It is settled law that public employees who do not belong to the union that represents them cannot be required to pay fees that the union would use for political activity like union organizing. But in 1977, the Supreme Court ruled that public employees who do not belong to a union can be required to pay a fee – often known as a “fair share” or “agency” fee – to cover the union’s costs to negotiate a contract that applies to all public employees, including those who are not union members. That decision, in Abood v. Detroit Board of Education, turned 40 last month. But if an Illinois state employee, Mark Janus, has his way, Abood may not survive to see 41. Yesterday Janus asked the Supreme Court to overrule that decision and hold that requiring an unwilling employee to pay even this more limited fee violates the First Amendment. If the court agrees to weigh in, as it is likely to do, its ruling could affect not only the financial health of public-employee unions, but possibly even politics more broadly. And its decision could also be one of the first tangible and significant signs of the impact of the 2016 presidential election on the Supreme Court.

7th Circuit Decides Agency Fee Case That May Wind Up In Supreme Court

In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Supreme Court upheld a state law which required public sector employees to pay an amount equal to union dues, but not join the union. This landmark First Amendment decision compromised the right of objectors (by recognizing that they do not have to join the union) as well as the right of unions (by allowing them to collect what are essentially dues because they have the obligation to represent non members).

In a series of cases, the concept of Agency Fee has been under attack. The Supreme Court granted cert and last term, split 4-4 after the death of Justice Scalia.

On March 21, 2017, the 7th Circuit-in an opinion by Judge Posner-decided a case that just may make it to the Supreme Court. Janus v. ASFME, ____F.3d____(7th Cir. March 21, 2017). The outcome of this case was never in doubt because the 7th Circuit was bound to follow Abood.

Will the Supremes grant cert in this case. I think they will. Why? First, Judge Posner is probably one of the most respected circuit judges. Additionally, the case was decided on a motion to dismiss and it presents purely a legal question. Third, the Supremes just split 4-4 on this very issue which by definition illustrates that this case involves an important legal issue.

What will the Supremes do? That is anyone's guess. Though I heard that our new Justice has never ruled on an agency fee issue, he is known to be conservative and he was appointed by let's say, not the most liberal President. So, some public sector unions are in for the fight of their life.