Department of Law
OFFICE OF THE ATTORNEY GENERAL
1031 West Fourth Avenue, Suite 200
Anchorage, Alaska 99501
Main: (907) 269-5100
Fax: (907) 269-5110

August 27, 2019

The Honorable Michael J. Dunleavy
Governor
State of Alaska
P.O. Box 110001
Juneau, AK 99811-0001
Re:

First Amendment rights and union due deductions and fees

Dear Governor Dunleavy:
You have asked for a legal opinion on proposed changes to the State’s current
process for deducting union-related dues and fees from employee paychecks in light of
the United States Supreme Court’s decision in Janus v. American Federation of State,
County, and Municipal Employees, Council 31.1 As explained further below, I have
concluded that Janus requires a significant change to the State’s current practice in order
to protect state employees’ First Amendment rights.
I.

The U.S. Supreme Court’s decision in Janus v. American Federation of State,
County, and Municipal Employees, Council 31 significantly limits the manner
by which the State can deduct union dues and fees from its employees’ wages.

Alaska’s Public Employee Relations Act (PERA) assigns public employers the
task of deducting from their employees’ wages any union dues, fees, or other benefits and
transmitting these funds to the union, if the employee provides written authorization to do
so.2 The Act does not provide any details on how an employee’s authorization must be
procured or provide any safeguards to ensure that the employee’s authorization for the
employer to withhold those funds is freely executed with full awareness of the
1

138 S. Ct. 2448 (2018).

2

AS 23.40.220.

 The Honorable Michael J. Dunleavy, Governor
Re: First Amendment rights and union due deductions and fees

August 27, 2019
Page 2 of 12

employee’s rights.3 But the U.S. Supreme Court’s recent decision in Janus v. American
Federation of State, County, and Municipal Employees, Council 31 places important
limitations on a public employer’s ability to deduct union dues and fees from employee
wages under AS 23.40.220.
In Janus, the U.S. Supreme Court held that the First Amendment prohibits public
employers from forcing their employees to subsidize a union.4 The Janus decision thus
invalidated a provision of PERA, AS 23.40.110(b)(2), which previously authorized
public employers to enter into agreements with unions that require every employee in a
bargaining unit—whether a member of the union or not—to pay an “agency fee” to the
union as a condition of employment. This agency fee, that even non-members were
required to pay, was calculated by the union to compensate it for the cost of union
activities ostensibly taken on the employees’ behalves. But Janus ruled that requiring
public employees to pay an agency fee to a union violates employees’ First Amendment
right against compelled speech, thereby invalidating laws like AS 23.40.110(b)(2).5 The
Court further warned that going forward, public employers may not deduct “an agency
fee nor any other payment to the union” from an employee’s wages “unless the employee
affirmatively consents to pay.”6
In response to the Janus decision, the State, under the administration of thenGovernor Bill Walker, began discussions with state employee unions to address the
effects of the decision. For example, the State immediately ceased deducting agency fees
from non-member’s paychecks and executed letters of agreement with a number of
unions modifying the terms of the collective bargaining agreements to account for Janus.
But the letters of agreement left largely unchanged collective bargaining agreement
provisions regarding employees’ consent for automatic payroll deduction of union dues,
fees, or other benefits. Generally speaking, these provisions leave to the unions the power
to elicit employees to authorize the State to deduct union dues and fees from their
paychecks and transmit those monies to the unions.
The State’s payroll deduction process is constitutionally untenable under Janus,
and the prior administration’s preliminary steps did not go far enough to implement the
Court’s mandate. The Court announced in Janus that a public employer such as the State
3

The full text of AS 23.40.220 provides: “Upon written authorization of a public
employee within a bargaining unit, the public employer shall deduct from the payroll of
the public employee the monthly amount of dues, fees, and other employee benefits as
certified by the secretary of the exclusive bargaining representative and shall deliver it to
the chief fiscal officer of the exclusive bargaining representative.”
4

138 S. Ct. at 2460.

5

Id. at 2486.

6

Id. (emphasis added).

 The Honorable Michael J. Dunleavy, Governor
Re: First Amendment rights and union due deductions and fees

August 27, 2019
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cannot deduct from an employee’s wages “any . . . payment to the union” unless it has
“clear and compelling evidence” that an employee has “freely given” his or her consent
to subsidize the union’s speech.7 By ceding to the unions themselves the process of
eliciting public employee’s consent to payroll deductions of union dues and fees, and
unquestioningly accepting union-procured consent forms, the State has no way of
ascertaining—let alone by “clear and compelling evidence”—that those consents are
knowing, intelligent, and voluntary. The State has thus put itself at risk of unwittingly
burdening the First Amendment rights of its own employees.
A course correction is required. To protect the First Amendment rights of its
employees, the State must revamp its payroll deduction process for union dues and fees
to ensure that it does not deduct funds from an employee’s paycheck unless it has “clear
and compelling evidence” of the employee’s consent.
II.

The Janus decision prohibits a public employer from deducting union dues or
fees from a public employee’s wages unless the employer has “clear and
compelling evidence” that the employee has freely waived his or her First
Amendment rights against compelled speech.

The Court’s decision in Janus recognizes that forcing individuals to subsidize the
speech of any other private speaker, including a union, burdens those individuals’ First
Amendment rights. The Supreme Court has “held time and again that freedom of speech
includes both the right to speak freely and the right to refrain from speaking at all.” 8
“Compelling individuals to mouth support for views they find objectionable violates that
cardinal constitutional command” and burdens the rights secured by the First
Amendment.9 Indeed, when the government compels speech (as opposed to merely
limiting speech) it inflicts unique damage: it coerces individuals “into betraying their
convictions.”10
“Compelling a person to subsidize the speech of other private speakers raises
similar First Amendment concerns.”11 Thus “a significant impingement on First
Amendment rights occurs when public employees are required to provide financial
support for a union that takes many positions during collective bargaining that have

7

Id. at 2486.

8

Id. at 2463 (internal quotation marks omitted).

9

Id.

10

Id. at 2464.

11

Id. (emphasis in original).

 The Honorable Michael J. Dunleavy, Governor
Re: First Amendment rights and union due deductions and fees

August 27, 2019
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powerful political and civic consequences.”12 The Court acknowledged that an
employee’s financial support of a union will effectively subsidize union speech not just
on budgetary issues, but on a range of significant and often controversial matters in
collective bargaining and related activities that can include healthcare, education, climate
change, sexual orientation, and child welfare.13
With these principles in mind, Janus considered an Illinois law requiring even
public employees who declined to join the union that represented their bargaining unit to
pay the union an “agency fee”—a sum of money, deducted from the employee’s
paycheck, to compensate the union for the costs of collective bargaining.14 Because “the
compelled subsidization of private speech seriously impinges on First Amendment
rights,” the Supreme Court applied “exacting scrutiny” to its review of the law.15 Under
exacting scrutiny, “a compelled subsidy must ‘serve a compelling state interest that
cannot be achieved through means significantly less restrictive’ of First Amendment
freedoms.”16 The Court concluded that neither of the justifications proffered in support of
the agency fee requirement—promoting “labor peace” and making non-members pay for
the fruits of the union’s efforts on their behalf to avoid “the risk of free riders”—satisfied
this standard.17 The Court therefore struck down Illinois’ agency fee statute, holding that
“States and public-sector unions may no longer extract agency fees from nonconsenting
employees.”18
The effect of Janus was, in part, to invalidate Alaska’s agency-fee provision,
AS 23.40.110(b)(2). That provision authorized the State to enter into agreements with the
state-employee unions and require all employees in a bargaining unit—even non-union
members—to pay an agency fee as a condition of employment with the State. The
Id. (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 310-11
(2012)).
12

Id. at 2475 (“[U]nions express views on a wide range of subjects—education,
child welfare, healthcare, and minority rights, to name a few.”); id. at 2476 (“Unions can
also speak out in collective bargaining on controversial subjects such as climate change,
the Confederacy, sexual orientation and gender identity, evolution, and minority
religions. These are sensitive political topics, and they are undoubtedly matters of
profound value and concern to the public.” (internal footnotes and quotation marks
omitted)).
13

14

Id. at 2464.

15

Id. at 2464, 2477.

16

Id. at 2465 (quoting Knox, 567 U.S at 310).

17

Id. at 2465-69 (internal quotation omitted).

18

Id. at 2486.

 The Honorable Michael J. Dunleavy, Governor
Re: First Amendment rights and union due deductions and fees

August 27, 2019
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collective bargaining agreement provisions that implemented the agency-fee requirement
were invalidated too.
The principle of the Court’s ruling, however, goes well beyond agency fees and
non-members. The Court stated that “[n]either an agency fee nor any other payment to
the union may be deducted from a nonmember’s wages . . . unless the employee
affirmatively consents to pay.”19 Members of a union have the same First Amendment
rights against compelled speech that non-members have, and may object to having a
portion of their wages deducted from their paychecks to subsidize particular speech by
the union (even if they had previously consented). Thus the State has no more authority
to deduct union dues from one employee’s paycheck than it has to deduct some lesser fee
or voluntary non-dues payment from another’s. In either case, the State can only deduct
monies from an employee’s wages if the employee provides affirmative consent. Thus,
the Court in Janus did not distinguish between members and non-members of a union
when holding that “[u]nless employees clearly and affirmatively consent before any
money is taken from them, this standard cannot be met.”20
Accordingly, before a public employer may lawfully deduct union dues or fees
from any employee’s paycheck, the employee must waive his or her First Amendment
rights against compelled speech.21 And because a waiver of First Amendment rights will
not be presumed, the employer must have “clear and compelling evidence” that waiver of
this right was “freely given” by the employee.22
Janus therefore significantly limits the State’s power under AS 23.40.220 to make
any union-related deduction from its employees’ paychecks. The statute provides that
“[u]pon written authorization of a public employee within a bargaining unit, the public
employer shall deduct from the payroll of the public employee the monthly amount of
dues, fees, and other employee benefits” certified by the union representing that
bargaining unit and shall transmit those funds to the union. But in the wake of Janus, the
State needs “clear and compelling evidence” that this written authorization was “freely
given.” Without such consent, the State is unwittingly burdening its employees’ First
Amendment rights by deducting union dues from any number of employees who have not
“clearly and affirmatively” consented.23 The standard announced in Janus for
19

Id. (emphasis added).

20

Id. (emphasis added).

21

Id.

Id. (citing Curtis Publ’g Co. v. Butts, 388 U.S. 130, 145 (1967) (plurality opinion);
College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
680-82 (1999)).
22

23

Id. at 2486.

 The Honorable Michael J. Dunleavy, Governor
Re: First Amendment rights and union due deductions and fees

August 27, 2019
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ascertaining that consent mandates changes to the way the State processes payroll
deductions.
III.

The State’s existing system for payroll deductions of union dues and fees does
not ensure “clear and compelling evidence” that every employee has “freely
given” consent to the State to withhold those funds.

Alaska Statute 23.40.220 requires the State, as a public employer, to deduct union
dues, fees, and other benefits from an employee’s paycheck and transmit those funds to
the union “[u]pon written authorization of the employee.” The statute does not describe in
any detail the process for executing this authorization, and up until now the State has
largely deferred and defaulted to a union-sponsored system of obtaining employee
consent.
But the Janus decision requires the State to have “clear and compelling evidence”
that the authorization to deduct dues and fees—which represents a waiver of the
employee’s rights against compelled speech—is “freely given.”24 And because the
system of payroll deductions for union dues and fees is a state law-created, Statefacilitated process—a process that has the potential to violate employees’ First
Amendment rights—the process must survive exacting constitutional scrutiny.25 The
State must therefore strive for a payroll deduction system that creates the least possible
risk of deducting union dues or fees from an employee who does not truly consent to
subsidizing the union’s speech.
A.

For an employee’s consent to be valid, it must be reasonably
contemporaneous, free from coercion, and be accompanied by a clear
explanation of the rights an employee is waiving.

In articulating the “clear and compelling evidence” standard, the Court in Janus
cited to a long line of decisions fleshing out what is required for a valid waiver of
constitutional rights.26 These decisions dictate the contours of a system of payroll
deductions for union dues and fees that can pass constitutional muster.

24

Id.

25

Id. at 2465.

Id. at 2486 (citing Knox, 567 U.S. at 312-13; College Sav. Bank, 527 U.S. at 682;
Curtis Publ’g Co., 388 U.S. at 145; Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
26

 The Honorable Michael J. Dunleavy, Governor
Re: First Amendment rights and union due deductions and fees

August 27, 2019
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At the outset, it must be recognized that a waiver of the First Amendment right
against compelled speech “cannot be presumed.”27 To the contrary, courts “indulge every
reasonable presumption against waiver of fundamental constitutional rights.”28
For a waiver of a constitutional right to be valid, it must first be voluntary. 29 A
waiver of constitutional rights is voluntary if “it was the product of a free and deliberate
choice rather than coercion or improper inducement.”30 In the context of payroll
deductions for union-related dues and fees, an employee’s waiver is voluntary if the
employee is free from coercion or improper inducement in deciding whether to authorize
the deduction.
A valid waiver of First Amendment rights must also be a “knowing, intelligent
act[] done with sufficient awareness of the relevant circumstances and likely
consequences.”31 An individual’s waiver is knowing and intelligent when the individual
has “a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.”32 In the context of a payroll deduction for
union dues and fees, a knowing and intelligent waiver requires the employee be aware of
the nature of the right—to elect to retain one’s First Amendment rights, or to financially
support a union and thereby affiliate with and promote a union’s speech and platform. In
other words, the employee must be aware that there is a choice presented, and that
consenting to having the employee’s wages reduced to pay union dues is not a condition
of state employment. The employee would also have to be aware of the consequences of
waiving that right—i.e. that the union could use his money to fund union speech on a
broad swath of politically significant issues, from state fiscal issues to civil rights and
environmental issues, including speech with which the employee disagrees.
It is not enough that some individuals might be generally aware of the scope of
their First Amendment rights and the kinds of speech a union might undertake with the
use of their wages. The U.S. Supreme Court has declined to find a waiver of First
Amendment rights based on extra-record information about the “special legal
Janus, 138 S. Ct. at 2486 (citing Zerbst, 304 U.S. at 464); accord Knox, 567 U.S.
at 312 (“Courts ‘do not presume acquiescence in the loss of fundamental rights.’”)
(quoting College Sav. Bank, 527 U.S. at 682).
27

28

Zerbst, 304 U.S. at 464.

See Janus, 138 S. Ct. at 2486 (“the waiver must be freely given”); Boykin v.
Alabama, 395 U.S. 238, 242 (1969).
29

30

Comer v. Schriro, 480 F.3d 960, 965 (9th Cir. 2007).

31

Brady v. United States, 397 U.S. 742, 748 (1970).

Patterson v. Illinois, 487 U.S. 285, 292 (1988) (quoting Moran v. Burbine, 475
U.S. 412, 421 (1986)).
32

 The Honorable Michael J. Dunleavy, Governor
Re: First Amendment rights and union due deductions and fees

August 27, 2019
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knowledge” of particular individuals.33 Because the First Amendment is “the matrix, the
indispensable condition, of nearly every other form of freedom,” a purported waiver of
that right is not effective “in circumstances which fall short of being clear and
compelling.”34 And without actual evidence that a waiver of First Amendment rights was
knowing and voluntary, a purported waiver cannot be credited.
To be truly voluntary, an individual’s consent to waive their rights must also be
reasonably contemporaneous. This is because circumstances change over time, and
waivers of constitutional rights may eventually grow stale. Courts have thus recognized
that timeliness is an important consideration in determining whether a waiver of
fundamental rights is valid. For example, in Knox v Service Employees International
Union, Local 1000, the U.S. Supreme Court ruled that a public employee union could not
levy a special assessment for election-related speech without giving non-members a new
opportunity to opt out of subsidizing that effort.35 While acknowledging that nonmembers
were given a choice once per year about whether to subsidize the union’s political
speech, the Court reasoned that nonmembers “cannot make an informed choice about a
special assessment or dues increase that is unknown when the annual notice is sent.”36
And because “the factors influencing a nonmember’s choice may change” with the
passage of time and changes in the content of the union’s speech, the First Amendment
requires that nonmembers be given an opportunity to opt out of subsidizing this speech.37
The Supreme Court also recognized that the invocation or waiver of a
constitutional right has temporal limits in Maryland v. Shatzer.38 In that case a suspect
invoked his right to have an attorney present during an investigatory interview. 39 The
government honored that right and terminated the interview. The government later
reinitiated the investigation, but this time, the suspect waived his Miranda rights and
consented to a polygraph test, after which he made several inculpatory statements.40
Upon being charged with the crime he confessed to, the defendant then sought to exclude
33

Curtis Publ’g Co., 388 U.S. at 144.

34

Id. at 145.

35

567 U.S. at 314-17.

36

Id. at 315.

Id. at 315-16 (“There were undoubtedly nonmembers who, for one reason or
another, chose not to opt out . . . when the standard Hudson notice was sent but who took
strong exception to the [union’s] political objectives and did not want to subsidize those
efforts”).
37

38

559 U.S. 98 (2010).

39

Id. at 100-01.

40

Id. at 101-02.

 The Honorable Michael J. Dunleavy, Governor
Re: First Amendment rights and union due deductions and fees

August 27, 2019
Page 9 of 12

the statements, arguing that his original invocation of the right to counsel should have
prevented investigators from later approaching him. The Court rejected his defense and
the implicit assumption that the invocation of a constitutional right might exist in
perpetuity despite any change in circumstances. Writing for the Court, Justice Scalia
determined that a fourteen-day break in custody was sufficient for the defendant’s prior
invocation of his right to counsel to have expired.41 If the invocation of a constitutional
right can expire with time, so can the waiver of a constitutional right.
Indeed, courts have recognized that a waiver of one’s Miranda rights may expire
with the passage of time. In Miranda v. Arizona, the Supreme Court imposed a set of
prophylactic rules designed to protect an individual’s Fifth Amendment right against selfincrimination.42 Decisions applying Miranda recognize that the passage of time can be an
important factor in evaluating whether an initial waiver of those rights has become stale,
requiring the government to re-advise suspects of their rights.43

41

Id. at 110.

42

384 U.S. 436, 467-72 (1966).

See, e.g., United States v. Garcia-Haro, 2000 WL 1471750, *2 (9th Cir. 2000)
(unpublished) (holding that “[r]epeat Miranda warnings are not required . . . unless an
‘appreciable time’ elapses between interrogations” (quoting United States v. Nordling,
804 F.2d 1466, 1471 (9th Cir. 1986))); Nordling, 804 F.2d at 1471 (inquiring into totality
of circumstances and concluding additional Miranda warnings not required where “[n]o
appreciable time” elapsed between interrogations); State v. Ransom, 207 P.3d 208, 217
(Kan. 2009) (explaining that whether waiver of Miranda rights has expired requires
considering totality of circumstances, including the passage of time); Commonwealth v.
Dixon, 380 A.2d 765, 767-68 (Pa. 1977) (concluding police were required to re-advise
individual of his rights because enough time had passed and circumstances had changed
since suspect’s waiver) (citation omitted); State v. DuPont, 659 So. 2d 405, 407-08 (Fla.
Dist. Ct. App. 1995) (determining renewed warning required where polygraph exam
conducted more than 12 hours after suspect first read Miranda); United States v. Jones,
147 F. Supp. 2d 752, 761-62 (E.D. Mich. 2001) (concluding where circumstances
changed over time, warnings became “stale” and suspect entitled to receive new warnings
and reconsider earlier decision to waive Miranda rights); cf. Cruise Lines Int'l Ass'n
Alaska v. City & Borough of Juneau, Alaska, 356 F. Supp. 3d 831, 849 (D. Alaska 2018)
(noting that constitutional rights may only be waived if clear and convincing evidence
establishes that waiver was “voluntary, knowing, and intelligent” and finding no evidence
that, despite allegations of waiver, plaintiffs in that case “voluntarily waived for all time
in the future any possible constitutional or legal challenge” to city’s assessment of fees
(emphasis added)).
43

 The Honorable Michael J. Dunleavy, Governor
Re: First Amendment rights and union due deductions and fees

August 27, 2019
Page 10 of 12

This makes sense because as the Supreme Court recognized in Knox, the
circumstances that lead an individual to waive a fundamental right may change, as may
an individual’s beliefs or opinions, and cause the individual to rethink that waiver.44
Because the right to be free from compelled speech is a “fixed star in our constitutional
constellation,”45 Janus’s requirement of clear and compelling evidence of a waiver thus
demands some periodic inquiry into whether a public employee wishes to continue to
waive—or reclaim—his or her First Amendment rights.
B.

The State’s current payroll deduction system fails to satisfy
constitutional standards.

The State’s current system for employee payroll deductions cannot ensure that
these constitutional standards are met. Through its collective bargaining agreements, the
State has effectively ceded to the unions widespread power to elicit employees’ consent
to payroll deductions of dues and fees. After Janus, this arrangement is no longer tenable.
The union-directed process utilized to date fails to yield “clear and compelling evidence”
that state employees have “freely given” their consent to deducting union dues and fees
from their wages. And yet without that consent, the State is constitutionally barred from
making those deductions.
First, having ceded the power to collect payroll deduction authorizations to the
unions themselves, the State has no way to ensure that its employees are being told
exactly what their First Amendment rights are before being asked to waive them. The
current system allows the unions to design the form by which an employee gives written
authorization for payroll deductions. But there is no guarantee that the unions’ forms
clearly identify—let alone explain—the employee’s First Amendment right not to
authorize any payroll deductions to subsidize the unions’ speech. The same is true for
information about the consequences of the employee’s decision to waive his or her First
Amendment rights. And there is no guarantee that the employee will be told what kinds
of speech a particular union will engage in—what positions the union will take—with the
benefit of his or her wages. Without that knowledge, a waiver of the employee’s rights
against compelled speech can hardly be considered knowing and intelligent.
Second, because the unions control the environment in which the employee is
asked to authorize a payroll deduction, there is no guarantee that an employee’s
authorization is “freely given.” For example, some collective bargaining agreements
See Knox, 567 U.S. at 315 (noting that a non-union member’s choice to support a
union’s political activities, through electing to pay dues or a special assessment, may
change “as a result of unexpected developments” in the union’s political advocacy).
44

Janus, 138 S. Ct. at 2463 (citing West Virginia Bd. of Educ. v. Barnette, 319 U.S.
624, 642 (1943)).
45

 The Honorable Michael J. Dunleavy, Governor
Re: First Amendment rights and union due deductions and fees

August 27, 2019
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require new employees to report to the union office within a certain period of time, where
a union representative presents the new hire with the payroll deduction form. The State
thus has no awareness of what information is (or is not) conveyed to an employee at the
critical moment the employee is confronted with the decision whether to waive his or her
First Amendment rights. Because this process is essentially a black box the State cannot
peer inside of to see what occurs at a venue the State is not invited to, the State has no
way of knowing whether the signed form is “the product of a free and deliberate choice
rather than coercion or improper inducement.”46 And without knowing that, the State
lacks “clear and compelling evidence” that the employee’s consent to have union dues
and fees deducted from his or her paycheck was “freely given.”47
The importance of assuring that an employee gives knowing consent, and the risk
of obtaining uninformed waivers under the current state payroll deduction system, is all
the more apparent when unions add specific terms to an employee’s payroll deduction
authorization, like making the payroll deduction irrevocable for up to twelve months. A
new employee might not have any idea what the union is going to say with his or her
money or what platform or candidates a union might promote during that time. But if he
or she becomes unhappy with the union’s message, they are powerless to revoke the
waiver of their right against compelled speech, forced instead to see their wages docked
each pay period for the rest of the year to subsidize a message they do not support. A
system that permits unions to set the terms by which a public employee waives his or her
First Amendment rights and to control the environment in which that waiver is elicited
does not satisfy the standards announced in Janus. Instead it induces the State to
unknowingly burden the First Amendment rights of untold numbers of its own
employees. This situation is untenable and must be rectified.
IV.

The State must implement a new process for ensuring that an employee’s
consent to payroll deductions for union dues and fees is knowing, intelligent,
and voluntary.

A system of payroll deductions for union dues and fees that comports with the
standards articulated in Janus must have certain essential features informed by the
preceding analysis. In order to implement Janus’s requirements, the Governor may
determine to exercise his executive authority under Article III, Sections 1 and 24 of the
Alaska Constitution and issue an administrative order to establish a procedure to ensure
the State honors the First Amendment rights of its employees.
This procedure will implement the constitutional directives set forth in the Janus
decision. To ensure that the State does not deduct union dues or fees from an employee
without “clear and compelling evidence” that the employee freely consents to the
46

Comer, 480 F.3d at 965.

47

Janus, 138 S. Ct. at 2486.

 The Honorable Michael J. Dunleavy, Governor
Re: First Amendment rights and union due deductions and fees

August 27, 2019
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deduction, the State must require that the employee provide that consent directly to the
State. Rather than permitting the union to control the conditions in which the employee
provides consent to a payroll deduction from their state-paid wages, the State may
implement and maintain an online system and new written consent forms through which
employees wishing to authorize payroll deductions for union dues and fees may provide
consent. This process allows the State to ensure that all waivers are knowing, intelligent,
and voluntary.
And to ensure that an employee’s consent is up-to-date, as required for it to be a
valid waiver of the employee’s First Amendment rights, the State should require that an
employee regularly has the opportunity to (1) opt-in to the dues check-off system and
provide their consent to waive their First Amendment rights by providing funds to
support union speech; and (2) opt-out of the dues check-off system where the employee
determines, for example, that he or she no longer supports the speech being promoted or
shares the views of the speaker. When such a procedure is implemented, employees
would be asked to “opt-in” to payroll deductions for union dues or fees. Were it
otherwise, the risk of error—in this case, unwitting violation of an employee’s First
Amendment right—would be shifted onto the State, at the expense of the individual
employee. Indeed, the Supreme Court already acknowledged in Knox v. Service
Employees International Union, Local 1000 that there are real risks inherent to any optout system and that “the difference between opt-out and opt-in schemes is important.”48
In order to secure clear and compelling evidence of a knowing waiver, the State
should also provide for a regular “opt-in” period, during which time all employees will be
permitted to decide whether or not they want to waive their First Amendment rights by
authorizing future deductions from their wages. By Administrative Order the Governor
may identify a period of one year as the appropriate amount of time for an employee’s
waiver of his or her First Amendment rights to remain in effect. Requiring consent to be
renewed on an annual basis would ensure that consents do not become stale (due to
intervening events, including developments in the union’s speech that may cause
employees to reassess their desire to subsidize that speech) and promotes administrative
and employee convenience by integrating the payroll deduction process with other
benefits-elections employees are asked to make at the end of every calendar year.
Sincerely,
Kevin G. Clarkson
Attorney General
Knox, 567 U.S. at 312 (recognizing that in the context of agency shop dues, “[a]n
opt-out system creates a risk that the fees paid by nonmembers will be used to further
political and ideological ends with which they do not agree”).
48