Susan Fischer, et al. v. Phil Murphy, Governor of New Jersey, et al.

In 2018, the Court in Janus v. AFSCME, Council 31 held that public employees have a First Amendment right not to subsidize union speech. 138 S. Ct. 2448, 2486 (2018). The Court also held that governments and unions violate that right by seizing union dues or fees from employees unless there is clear and compelling evidence the employees waived that constitutional right. Id. New Jersey and many other states are resisting Janus’ holding by prohibiting employees who signed dues deduction forms from exercising their right to stop subsidizing union speech except during short escape periods—generally only ten to thirty days each year. The Third Circuit below, as well as the Seventh, Ninth, and Tenth Circuits, have upheld these restrictions, finding the government does not need proof of a waiver to restrict when employees can exercise their First Amendment rights under Janus, but that proof of employee contractual consent is enough to allow the government to seize union dues from employees over their objections. The questions presented are:

1. Under the First Amendment, to seize payments for union speech from employees who provide notice they are nonmembers and object to supporting the union, do governments and unions need clear and compelling evidence those employees knowingly, intelligently, and voluntarily waived their First Amendment rights and that enforcement of that waiver is not against public policy?

2. Do Petitioners have standing to challenge New Jersey Statutes Annotated Section 52:14-15.9e?