MacIver News Service | June 27, 2018
By M.D. Kittle
MADISON, Wis. – Janus grabbed all of the headlines Wednesday, but the U.S. Supreme Court decision ending forced union dues for public-sector employees is merely the latest in a string of constitutional wins for free-market conservatives in recent days – nationally and in Wisconsin.
But the biggest news of the day was the announced retirement of Justice Anthony Kennedy, who is stepping down after 30 years on the Supreme Court bench. The court’s so-called “swing vote” has most recently sided with the bench’s four conservative justices in significant rulings, but he has perplexed the right in agreeing with the court’s left wing in recent years on decisions involving same-sex marriage and the constitutionality of Obamacare subsidies.
Kennedy’s departure at the end of next month clears the way for President Donald Trump to nominate another conservative in the mold of his other nominee, Justice Neil Gorsuch. Gorsuch has turned out to be about all that conservatives had hoped for, interpreting the law through the prism of federalism.
Kennedy joined conservatives in Wednesday’s ruling in Janus v. American Federation of State County and Municipal Employees, tossing out a 41-year-old decision that allowed organized labor to collect dues from non-union government workers. The decision overturns Abood v. Detroit Board of Education, which established that public sector workers could be forced to pay portions of dues to pay for collective-bargaining services. Compelling workers to support unions they may disagree with is a violation of the First Amendment, the Janus ruling found.
The narrow 5-4 decision comes more than seven years after Wisconsin did away with compulsory union dues for public employees through Republican Gov. Scott Walker’s public-sector collective-bargaining reforms known as Act 10.
“SCOTUS today affirms what we did years ago – gives public servants the freedom to choose whether they want to be in a union or not. Pro-worker & pro-taxpayer! Great day!” Walker tweeted following the Janus ruling.
The decision delivers worker freedom to all government employees, including Wisconsin police officers, firefighters and other emergency services personnel left out of 2011’s Act 10. In a compromise at the time, Republican lawmakers exempted most public safety workers from the collective-bargaining reforms, including the ability to opt out of union dues.
Assembly Speaker Robin Vos (R-Rochester) said the Republican-controlled Legislature wanted to be supportive of public safety officers during the Act 10 battles of early 2011, when tens of thousands of union members marched on the Capitol in opposition to the reform bill.
“I ultimately believe it’s the right decision to say that everybody, no matter what union, what sector of public service you are working in, everyone should have a right to [choose whether to be in a union or not],” Vos told MacIver News Service. He said the Janus ruling will ultimately be a win for not only workers but for unions.
“In the long run, they will have to convince their members that the investment is actually worth it,” the speaker said. “We see it in Wisconsin. Quite a few people still belong to a union even though we’re a right-to-work state and we had Act 10.”
Wisconsin became the 25th right-to-work state in 2015, giving private sector employees the same protections afforded to public employees in the Janus decision.
Big labor, however, has lost big in the Badger State in the wake of Act 10 and Right to Work.
For example, WEAC, the state’s largest teachers union, had 36,000 members in 2016, down from about 98,000 in 2010 — a 58 percent dropoff in membership. Its revenue has also declined to $8 million in 2016, down from $23.5 million before Act 10.
Law enforcement unions nationally have painted a bleak picture of life after Janus.
“When individuals begin to forgo their union membership, this problem continues to compound itself,” the National Fraternal Order of Police, the nation’s largest law enforcement union, declared in a brief filed in the Supreme Court case. “Less members means the union must continue to make up the difference by imposing higher dues and providing reduced services… (O)nce union membership enters this tailspin, unions themselves may begin to fold.”
Justice Samuel Alito took aim at big labor’s predictions of doom, noting the federal employment experience.
“Under federal law, a union chosen by majority vote is designated as the exclusive representative of all the employees, but federal law does not permit agency fees,” the justice wrote. “Nevertheless, nearly a million federal employees – about 27 percent of the federal work force – are union members … Likewise, millions of public employees in the 28 States that have laws generally prohibiting agency fees are represented by unions that serve as the exclusive representatives of all the employees.”
Michael Crivello, president of the Milwaukee Police Association, IUPA Local 21, expressed confidence that the union’s membership will “continue to realize the value of their association.”
“The MPA believes SCOTUS would have best served the nation by ruling the issue as an individual state concern,” Crivello said.
Big labor’s argument has long been that public employees who opt out of union membership still receive the full benefit of union-negotiated collective-bargaining agreements. Therefore, they should be made to pay at least a portion of the dues, so-called “fair share fees” that go toward worker representation.
But right-to-work proponents say labor groups continue to funnel union dues, including from workers forced to pay, into political campaigns and causes that some of their members don’t support.
Crivello says MPA member dues have “never been utilized for political means.”
The plaintiff in Janus v. AFSCME, Mark Janus, is a child-support specialist for the state of Illinois who took his battle against compulsory union dues all the way to the U.S. Supreme Court.
Wisconsin free-market rulings
The Wisconsin Supreme Court this week, in a huge rebuke of the encroachment of the bureaucratic state, ended its “practice of deferring to administrative agencies’ conclusions of laws. In other words, no more passive acceptance of the wisdom of bureaucrats who promulgate rules and regulations with the effect of law, rules that may or may not be constitutional.
The court did rule in Tetra Tech EC, Inc. and Lower Fox River Remediation LLC v. Wisconsin Department of Revenue – a case challenging the agency’s imposition of a tax – that it will give “due weight” to the “experience, technical competence, and specialized knowledge of an administrative agency as we consider its arguments.”
And in a case reaffirming the legislative branch’s rights, the Wisconsin Supreme court on Wednesday upheld the state’s cap on noneconomic medical damages. The 5-2 decision checks a lower court ruling awarding $15 million to a woman who had to have her arms and legs amputated after developing an infection.
In doing so, the court upheld Wisconsin’s $750,000 damage cap, reversing its 2005 decision, Ferdon v. Wisconsin Patients Compensation Fund. The ruling declared unconstitutional Wisconsin’s previous limit on noneconomic damages.
The issue, according to the majority opinion, came down to policy preferences, the prerogative of the Legislature.
“Were we to construe the cap based on emotional response to (the plaintiff’s) injury, we would be substituting our policy choice for that of the Legislature,” wrote Chief Justice Patience Roggensack.
The decision was cheered by members of the medical community and free-market advocates.
“The Court’s decision is a victory for the rule of law and reconfirms that the legislature, not the judiciary, is the proper branch of government to determine public policy,” Bill G. Smith, president of the Wisconsin Civil Justice Council and Wisconsin Director for the National Federation of Independent Business, said in a Civil Justice Council press release.
Plaintiffs will still be compensated for injuries. The law limits the amount of noneconomic damages, such as pain and suffering. There is no cap on awards for physical injuries.
“The importance of this decision cannot be overemphasized. Gone are the days of the Supreme Court of Wisconsin setting public policy and overriding laws enacted by the legislative branch,” Smith said. “We applaud the Court for correcting its erroneous decision in Ferdon and upholding the law.”