|Justice Elena Kagan|
Elena Kagan: “And at every stop are black-robed rulers overriding citizens’ choices.”
Likely, the most nightmarish legal scenario for an Illinois public employee receiving a pension after May 15, 2015, would have been the successful appeal by Attorney General Lisa Madigan to the United States Supreme Court to hear the case before the Trump Court, including the recently added Justice Neil Gorsuch.
Why? Stare Decisis.
In her blistering dissent of the majority’s opinion in the recent JANUS Case, Justice Elena Kagan invokes the term Stare Decisis on multiple occasions to emphasize her incredulity at what the majority ignored while coming to a decision rendering “fair share” void regardless of over 40 years of precedent in dealing with First Amendment rights when it comes to dissatisfied public employees in a collective bargaining unit.
Stare Decisis is the long held legal principle of determining points in litigation according to precedent. When lawyers DeVito, Fitzgerald, O’Brien, & Rothstein of We Are One representing the IRTA’s complaint in Heaton v. Quinn entered the courtroom in Springfield, they relied upon the foundations of previous findings: Kraus v. Bd. of Trustees of Police Pension Fund of Village of Niles, 72 Ill. App. 3d 833, 850-51 (1979); Felt v. Bd. of Trustees of Judges Ret. Sys., 107 III. 2d 158 (1985; as well as decisions at the state Supreme Court levels in Arizona and New York. And, of course, Article XIII, section 5.
In the legal arena, what is past is indeed prologue. But, according to Justice Kagan, not when it comes to this new “majority” and the Janus decision: “But the worst part of today’s opinion is where the majority subverts all known principles of stare decisis” (¶III p.19).
What Justice Kagan contends is that the “majority” had little if any respect for precedent, and has instead used the First Amendment as a cudgel to apply a fatal blow to public employee unions, thereby refuting the flexibility of the four-decade legal arrangement in Abood v. Detroit Bd. of Ed.,431 U.S. 209 (1977)to fashion an intractable structure designed to undermine collective bargaining units in the public sector; indeed, a goal which the majority has attempted for the last six years.
Back in 2015, the Illinois Supreme Court looked carefully at the “affirmative defense” of sovereign powers argument put forth by AG Lisa Madigan (the need to sacrifice those Constitutionally promised for the betterment of the state’s financial situation) and said no. The Illinois Supreme Court regarded the historical choices made by the state to short the funding of those contractual arrangements they had made with them and said no. The Justices in Illinois agreed 7-0 that the state had foreseen the dilemma and ignored the growing predicament; furthermore, they suggested that there were opportunities left to still raise the amount needed to fulfill the contractual promise.
In Abood, the decision by the court provided some latitude in the regulation of an employee’s free speech – specifically in regards to terms of employment – in the interest of operating workplaces effectively and without conflict. In short, those who wished to withhold the fees for union membership based upon a refusal to represented by a bargaining unit with whom they disagreed in the political arena would be required to pay a “fair share” for the costs of collective bargaining and legal supports in case of employer conflicts.
By identifying “fair share” as a workable arrangement, Abood avoided the confusion of different agreements or contracts for those not participating in a “same” condition of employment or the dissension/disagreement caused by competing labor organizations. For forty years, Abood provided stability in the balance between those who wanted membership and those who did not. It likewise understood the costs borne by the union in legal fees and litigation when it came to supporting those who did retain full membership as well as those who paid a “fair share” to be protected. And finally, of course, the sensible realization that some will “free ride” in an understandable financial selfishness that – if allowable – would undermine the ability of the collective bargaining unit to serve and protect the workers’ needs and best interests.
Not anymore. Not with this court. Not with Gorsuch.
Kagan warns us all: “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law – and in its economic life – for over forty years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in regulatory and economic policy… And it threatens not to be the last. Speech is everywhere – a part of human activity (employment, health care, securities trading, you name it). For that reason, almost all regulatory or economic policy affects or touches speech. So, the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was made for better things. It was meant not to undermine but to protect democratic governance – including over the role of public sector unions” (¶IV, p.26).