Supreme Court Misses an Opportunity to Protect Workers from Public-Sector Unions

T he Supreme Court decided today that it will not grant certiorari in the case Wright v. SEIU Local 503, one of several union-forgery cases currently working their way through the court system. By not hearing the case, the Court is allowing confusion about public-sector workers’ constitutional rights to persist.

The Supreme Court cases Harris v. Quinn (2014) and Janus v. AFSCME (2018) restricted public-sector unions’ ability to collect money from workers who do not want to join the union. In both cases, the Court held that state laws requiring public employees to give money to unions, even if they did not want to join, violated the First Amendment by, as the Court held in Janus, “compelling them to subsidize private speech on matters of substantial public concern.” Public-sector unions take the money they receive from workers and use it for political activity, so workers should not be forced by state law to give their money to political causes they may not support.

After Harris, which applied to state health-care workers who were paid through Medicaid, Washington care provider Cindy Ochoa opted out of her union, the SEIU. Nonetheless, the state withheld union dues from her paycheck two separate times. When Ochoa questioned why that happened, the union told her that she had signed a document authorizing the withholding. She demanded to see the document and discovered that the signature on it was forged.

Ochoa is not alone. Jodee Wright, a public-sector worker in Oregon, never joined the SEIU, but had dues withheld from her paycheck. She asked to see the document allegedly authorizing the withholding and found that her signature was forged. Christopher Zielinski, another public-sector worker in Oregon, found the same thing.

The Freedom Foundation, a conservative union-watchdog group, has found about a dozen cases where unions allegedly forged someone’s signature in order to keep taking money from their paycheck. Though it may seem like a simple question, lower-court rulings have failed to address the issue head-on.

Freedom Foundation chief litigation counsel Eric Stahlfeld told National Review that, “What we’re complaining about is that the government is taking money from workers and giving it to unions for political speech.” Under Harris and Janus, that is a First Amendment issue, because it amounts to compelled political speech. The 14th Amendment is also implicated, Stahlfeld said, because the workers in these cases had the money, which is their property, taken from them without due process.

That the withholding happened through forgery makes it especially unsavory, but in cases where it happened without forgery, such as Janus, the constitutional issue is identical, Stahlfeld argued. “Analytically, I don’t see how it’s any different from Mark Janus,” he said. The Court held in Janus that, “Unless employees clearly and affirmatively consent before any money is taken from them,” withholding that money is not permitted. Neither Ochoa, Wright, nor Zielinski provided consent, and the only consent the union could point to was not genuine.

But the Ninth Circuit Court of Appeals has said that the state was not allowed to consider whether the consent was genuine. In Ochoa’s case, it ruled that under the relevant state law, “Neither the State nor the private defendants to whom it delegated its duties had the authority to question whether the representations from SEIU were accurate; they were simply directed to make the withholdings based on the information the union provided.” In Wright’s case, it ruled that the state only plays a “ministerial role in processing dues deductions” and properly deducts dues from all workers on a union-provided list.

The Freedom Foundation appealed Ochoa v. Inslee and Wright v. SEIU Local 503 (which was combined with Zielinski’s case) to the Supreme Court. “In essence, the 9th Circuit is encouraging the unions to go right on forging people’s signatures and confiscating their money under false pretenses,” said Rebekah Millard, the attorney who argued those cases before the Ninth Circuit.

“I’m disappointed the Court did not use this opportunity to protect their rights,” said Stahlfeld in response to the Court’s decision today to not hear Wright. But it could still decide to hear Ochoa in the future, in addition to other cases not involving forgery that Freedom Foundation is pursuing on similar constitutional grounds, such as Kurk v. LRCEA.

The Freedom Foundation has also filed RICO suits against unions in Oregon and Washington. The Racketeer Influenced and Corrupt Organizations Act was passed in 1970 primarily to fight the mafia, but “It covers those activities that Congress felt characterized the conduct of organized crime, no matter who actually engages in them,” according to the Congressional Research Service. Forgery for the purpose of extracting money is one such activity.

Regardless of the RICO suits, and even regardless of the forgery, the constitutional issue is primary. Public-sector workers have the freedom, protected by the First Amendment, to choose whether part of their paychecks will go to unions. Unions don’t get to make that decision for them. The Supreme Court must correct the Ninth Circuit’s errors.