Coercion? Or free choice?

Coercion? Or free choice?

An Illinois case has the potential to change the legal landscape for public employees.

Another big step in the making — or perhaps re-making — of American constitutional law occurred Tuesday when lawyers for state employee Mark Janus asked the U.S. Supreme Court to decide whether Janus should be forced to pay dues to a union he does not wish to join.

If the high court ultimately decides in Janus' favor, its ruling will affect public employees in all 50 states. The decision also could have a significant political impact because public-employee labor unions make generous campaign donations. An adverse ruling has the potential to have a negative impact on union membership and, as a consequence, the size of union campaign funds.

Lawyers for Janus argue that being forced to contribute "fair share" dues to AFSCME violates Janus' First Amendment rights because it requires him to subsidize union political and policy positions he does not share. The union's defense is that fair share dues, which are less than the dues paid by members, help cover the union's cost of representing non-members in employment-related matters, including negotiations for pay and benefits.

As a general rule, the Supreme Court accepts only a small number of the cases it is asked to review. But the odds of the court accepting the Janus v. AFSCME case are extremely high because the court split 4-4 on an identical issue presented in its March 2016 ruling in Friedrichs v. the California Teachers Association. Because of the tie vote, an appeals court ruling upholding fair share dues was affirmed.

The February 2016 death of Justice Antonin Scalia cost the court its ninth member. Now that Justice Neil Gorsuch has replaced Scalia, the nine-member court is up to full strength.

Although it is unknown which direction the court is leaning, there is no question that recent cases challenging compulsory union dues payments have gone against the unions.

In another Illinois case, in 2014, the high court ruled that the Service Employees International Union could not force home health care workers to pay fees to the union if they did not wish to join.

One significant distinction in the 2014 case is that the plaintiff — Pam Harris, a mother caring for her disabled son — was not considered to be a state employee.

Justice Samuel Alito signaled in his majority opinion in the Harris case that he was willing to extend the ban on fair share dues further.

"Except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he nor she does not wish to support," he wrote.

The Illinois case was initiated in February 2015 by Gov. Bruce Rauner, who both issued an executive order prohibiting the practice and filed a lawsuit challenging it in Chicago federal court.

The judge hearing the case ultimately dismissed Rauner's lawsuit, ruling that the governor had no legal standing to sue. But the judge allowed Janus to join the litigation.

Janus lost at both the trial and appellate court levels because the two courts were required to uphold a 1977 Supreme Court ruling in Abood v. Detroit Board of Education that allows fair share payments.

Critics believe a ruling against mandatory payments by non-members will weaken unions because many current members will opt out if they are not compelled to contribute.

That need not be the case because unions have a strong argument to make that they provide valuable representation in the workplace, that dues payments represent money well spent.

It is true, however, that a ruling that goes against union leaders will require them to make more of an effort than they currently do to explain their value to workers.

If public employee unions do that, they have no reason to worry about a ruling that allows employees to decide for themselves if financially supporting a union is in their best interests.

All that, of course, depends on the high court giving an affirmative response to the request for review. If it does, court watchers can expect oral arguments to be held during the fall 2017 term and a ruling during the spring or early summer of 2018.

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