Delores Polk, et al. v. Betty Yee, in Her Official Capacity as State Controller of California, et al.

The Court in Janus v. AFSCME, Council 31 held that it violates the First Amendment for a state and union to seize payments for union speech from nonmembers of that union, unless there is clear and compelling evidence the individuals waived their constitutional rights. 138 S. Ct. 2448, 2486 (2018). The United States Court of Appeals for the Ninth Circuit, however, has held that states and union do not need proof of a waiver to seize payments for union speech from individuals who become nonmembers and object to supporting the union financially. The court also held that unions that act jointly with states to deduct and collect union dues from these nonmembers’ wages are not state actors. The questions presented are:

1. Do states and unions need clear and compelling evidence that nonmembers of a union waived their First Amendment right to refrain from subsidizing union speech in order to constitutionally seize payments for union speech from those individuals?

2. When a union acts jointly with a state to seize union payments from nonmembers’ wages, is that union a state actor participating in a state action under 42 U.S.C. § 1983? (i)