Mark R. Smith v. Kate Bieker, et al.

In Janus v. AFSCME, Council 31, this Court held that public employees have a right to refuse to subsidize union speech, that “States and public-sector unions may no longer extract agency fees from nonconsenting employees,” that “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed,” and that “the waiver must be freely given and shown by ‘clear and compelling’ evidence.” 138 S.Ct. 2448, 2486 (2018) (citations omitted), overruling Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). Furthermore, while “most personal constitutional rights may be waived,” Class v. U.S., 138 S.Ct. 798, 808 (2018) (Alito, J., dissenting), this Court “indulge[s] every reasonable presumption against waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal quotation marks omitted). Thus, “To establish a valid waiver, the State must show that the waiver was knowing, intelligent, and voluntary under the ‘high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson....’” Maryland v. Shatzer, 559 U.S. 98, 104 (2010) (Scalia, J.), citing Miranda v. Arizona, 384 U.S. 436, 475 (1966). California, like many other states, resists Janus’s holding by enforcing “waivers” obtained prior to Janus’s restoration of public employees’ full First Amendment rights, and by vesting sole authority to