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Are Public-Sector Compulsory Union Fees Doomed?

Raymond J. LaJeunesse, Jr June 20, 2017
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Twice in the past five years the United States Supreme Court has questioned its holding in Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (6-3 decision on this issue), that the First Amendment allows a government to force its employees to pay “agency fees” to a labor organization that is their “exclusive representative” for purposes of “collective bargaining” with the government. See Harris v. Quinn, 134 S. Ct. 2618, 2632-34 (2014); Knox v. SEIU, Local 1000, 132 S. Ct.  2277, 2289 (2012). Last term the Court agreed to revisit the issue in Friedrichs v. California Teachers Ass’n, and many legal observers of the oral argument in that case speculated that the Court would overrule Abood. However, the Court deadlocked 4 to 4 in Friedrichs due to the untimely death after oral argument of Justice Antonin Scalia. 136 S. Ct. 1083 (2016). On June 6, 2017, Attorneys from the National Right to Work Legal Defense Foundation and the Illinois Liberty Justice Center filed a petition for writ of certiorari with the Court for Mark Janus, a nonmember Illinois state employee, that presents the same question that Friedrichs presented: “should Abood be overruled and public-sector agency fee arrangements be declared unconstitutional under the First Amendment?” Janus v. American Fed’n of State, Cty, & Mun. Employees, Council 31, No. 16-1466 (U.S. docketed June 8, 2017). The case has already generated a lot of media attention.

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Raymond J. LaJeunesse, Jr. is Vice President & Legal Director at the National Right to Work Legal Defense Foundation, Inc.

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More on the ABA’s Threat to Free Speech

John J. Park, Jr. June 19, 2017
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In my post of May 9, 2017 regarding the ABA’s new Model Rule 8.4(g), I noted the breadth of the new rule. It would make it professional misconduct for a lawyer to, among other things, “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Proposed new Comment 4 illustrates the broad reach of the new rule. It explains that the range of activities related to the practice of law includes, but is not limited to, “participating in bar association, business or social activities undertaken in connection with the practice of law.” [Read More]

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Supreme Court Building at dusk
Photo Credit: Shutterstock | Sean Pavone (link)

SCOTUS Opinions & Orders Update

Timothy Courtney June 19, 2017
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Today the Supreme Court issued six opinions and a new Order List.

OPINIONS

(1)  Ziglar v. Abbasi (with Ashcroft v. Abbasi and Hasty v. Abbasi):  By a vote of 4-2, the judgment of the U.S. Court of Appeals for the Second Circuit is reversed in part and vacated and remanded in part.  Per Justice Kennedy's opinion for the Court:  "After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens who had been detained filed suit, leading to the cases now before the Court. The complaint named as defendants three high executive officers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. §1980, 42 U. S. C. §1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws.... The first question to be discussed is whether petitioners can be sued for damages under Bivens and the ensuing cases in this Court defining the reach and the limits of that precedent.... If Bivens liability were to be imposed, high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And, as already noted, the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office. On the other side of the balance, the very fact that some executive actions have the sweeping potential to affect the liberty of so many is a reason to consider proper means to impose restraint and to provide some redress from injury. There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril.... The proper balance is one for the Congress, not the Judiciary, to undertake. For all of these reasons, the Court of Appeals erred by allowing respondents’ detention policy claims to proceed under Bivens.... One of respondents’ claims under Bivens requires a different analysis: the prisoner abuse claim against the MDC’s warden, Dennis Hasty. The allegation is that Warden Hasty violated the Fifth Amendment by allowing prison guards to abuse respondents.... [B]efore allowing this claim to proceed under Bivens, the Court of Appeals should have performed a special factors analysis. It should have analyzed whether there were alternative remedies available or other 'sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy' in a suit like this one.... One issue remains to be addressed: the claim that petitioners are subject to liability for civil conspiracy under 42 U. S. C. §1985(3).... [T]he Court has held that qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law.' Malley v. Briggs, 475 U. S. 335, 341 (1986).... Under these principles, it must be concluded that reasonable officials in petitioners’ positions would not have known, and could not have predicted, that §1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.... The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings." [Read More]

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Old Law, New Technology, and the Congressional Need To Update ECPA

Viet Dinh June 08, 2017
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Last week, witnesses before the Senate Judiciary Committee faced much more amicable questions than then-Judge Gorsuch. In a rare moment of bipartisan consensus, Senators on both sides of the aisle agreed to pass legislation by year end. The subject: law enforcement’s ability to collect email evidence under the Electronic Communications Privacy Act (“ECPA”). While electronic communications have changed rapidly, the law protecting consumers’ private data has stood still. ECPA was written when Facebook founder Mark Zuckerberg was two years old. Back then, emails were an up-and-coming technology with no international implications, and storing an email was a costly affair. As the hearing last week underscored, it is time for Congress to take ECPA out of storage and fix it. [Read More]

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Bauer v. Becerra

Joseph Greenlee June 06, 2017
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In Bauer v. Becerra, the Ninth Circuit Court of Appeals upheld a $5.00 fee on all firearms transfers intended to fund a program that disarms prohibited persons who possess firearms.  

California requires every transfer of a firearm to go through a licensed dealer. California further requires every transferee to pay a fee of $19.00. This fee pays for the $14.00 it costs to run a background check on the transferee—which is directly related to the transfer of the firearm to the transferee—and the fee pays $5.00 towards a program preventing persons who have become prohibited persons from continuing to possess firearms—which is not directly related to the transfer of the firearm to the transferee. [Read More]

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Supreme Court Building at dusk
Photo Credit: Shutterstock | Sean Pavone (link)

SCOTUS Opinions and Orders Update

Timothy Courtney May 31, 2017
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OPINIONS

(1)  County of Los Angeles v. Mendez:  By a vote of 8-0 the judgment of the U.S. Court of Appeals for the Ninth Circuit is vacated and the case remanded.  Per Justice Alito's opinion for the Court:  "If law enforcement officers make a 'seizure' of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use forceThe Ninth Circuit has adopted a 'provocation rule' that imposes liability in such a situationWe hold that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure." [Read More]

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Supreme Court Building at dusk
Photo Credit: Shutterstock | Sean Pavone (link)

SCOTUS Opinions & Orders

Timothy Courtney May 22, 2017
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OPINIONS

(1)  Cooper v. Harris:  By a vote of 5-3 the judgment of the three-judge panel in the United States District Court for the Middle District of North Carolina is affirmed.  Per Justice Kagan's opinion for the Court:  "The Constitution entrusts States with the job of designing congressional districts. But it also imposes an important constraint: A State may not use race as the predominant factor in drawing district lines unless it has a compelling reasonIn this case, a three-judge District Court ruled that North Carolina officials violated that bar when they created two districts whose voting-age populations were majority blackApplying a deferential standard of review to the factual findings underlying that decision, we affirm." [Read More]

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