OC Lifeguards Push for Rehearing of First Amendment Challenge to Union Membership Trapping Scheme

Orange County California lifeguard Jonathan Savas and 22 colleagues have filed an application for a rehearing of their federal civil rights lawsuit before an en banc (all judges) panel of judges of the U.S. Ninth Circuit Court of Appeals. They are suing the State of California and the California Statewide Law Enforcement Association (CSLEA) union for violating their First Amendment right to abstain from forced union membership and compelled financial support.

The Globe talked with National Right to Work Foundation President Mark Mix about the case which appears to be an extraordinarily wrong decision by a three-judge panel of the Ninth Circuit. Mix said the panel not only ignored the 2018 U.S. Supreme Court decision Janus v. AFSCME, but also the 1977 Abood v. Detroit Board of Education.

“The conditions have been illegal for decades,” Mix explained. “This case with fact patterns going back past Abood saying they must maintain membership in the union and pay dues, is really extraordinary: Janus didn’t matter, and Abood didn’t matter” to the Ninth Circuit three judge panel.

The National Right to Work Foundation explains Savas and the other lifeguards are asserting their rights under their Foundation-won 2018 Janus v. AFSCME U.S. Supreme Court decision, in which the Court declared that no public sector worker can be forced to bankroll a union without voluntarily waiving their First Amendment right to abstain from union payments.

“A so-called ‘maintenance of membership’ requirement enforced by CSLEA union bosses and the State of California is forcing the lifeguards to both remain union members and supply full dues payments to the CSLEA union against their will,” the NRTW explains. “Savas and the other plaintiffs sent messages resigning their union memberships and ending dues authorizations on or around September 2019, but union officials denied their requests, alleging they have to remain full members until 2023. Despite Janus, a three-judge panel of the Ninth Circuit ruled that this requirement does not violate the First Amendment.”

Lifeguards’ Attorneys: ‘Maintenance of Membership’ Requirements Have Been Unconstitutional for Decades

Savas’ attorneys criticize the Ninth Circuit panel’s giving a pass to “maintenance of membership” requirements as contradicting Janus, and note that forcing dissenting employees to pay full union dues was unconstitutional even under Abood, the 1977 Supreme Court decision which Janus overruled.

“The Supreme Court recognized decades prior to Janus, in Abood, that it violates the First Amendment for government employers and unions to require dissenting employees pay full union dues…If maintenance of membership requirements could not survive constitutional scrutiny under Abood,” Savas’ attorneys argue, the requirements are definitely foreclosed by the higher level of First Amendment protection applied in Janus.”

“Savas’ en banc request also refutes the Ninth Circuit panel’s claim that the lifeguards somehow ‘contractually consented to the maintenance of membership requirement,'” the NRTW explains. “Savas’ attorneys say in the application for rehearing (below) that the dues deduction authorization form that the lifeguards signed only vaguely alluded to the presence of the ‘maintenance of membership’ requirement in the union contract with their state employer, and never explicitly informed the lifeguards what that requirement was.”

“Savas’ attorneys point out that ‘the panel’s contract-law analysis is wrongheaded because Janus requires a constitutional-waiver analysis.’ Janus requires that employees voluntarily waive their First Amendment right not to make dues payments before such payments are extracted. Savas’ attorneys state ‘[t]here is no evidence the Lifeguards knew of their First Amendment rights under Janus or intelligently chose to waive those rights.’ Indeed, many of the lifeguards could not have known about those rights because they signed the dues deduction authorization forms before the Supreme Court decided Janus.”

“Even if such evidence existed, any purported waiver would be unenforceable…because a four-year prohibition on employees’ exercising their First Amendment rights under Janus is unconscionable,” Savas’ attorneys added.

Ninth Circuit Panel Ruling Completely Inconsistent with Janus, Rehearing Required

“So-called ‘maintenance of membership’ requirements have been unconstitutional for decades, and it’s outrageous that courts have looked the other way and allowed CSLEA union bosses to infringe Savas’ and his fellow lifeguards’ First Amendment rights under the guise of such restrictions for so long,” said NRTW President Mark Mix. “A rehearing of Savas’ case is necessary so the plain meaning of Janus can be applied. Otherwise the Ninth Circuit will not only have ignored Janus, but turned back the clock over half a century on workers’ right to refrain from union membership.”

The lifeguards are receiving free legal representation from staff attorneys with the National Right to Work Legal Defense Foundation and the Freedom Foundation, along with Mariah Gondeiro of Tyler Bursh, LLP.