Making a Federal Case Out of It: How Mark Janus Got to the Supreme Court

Mark Janus, child support specialist in the Illinois state family services agency, is challenging the state’s collective bargaining laws in a case that’s now before the U.S. Supreme Court. This case has potentially far-reaching implications, and oral arguments are scheduled for the end of this month.

When I was in law school, there were so many moments that I thought: “Why am I only learning this here, now, in law school? Everyone should know this stuff!” Civil procedure — the rules that govern the movement of a lawsuit through the courts — is one of those things. So let me outline the things you need to know to understand how Janus got to the Supreme Court. (Like any good lawyer, I’ll add that the answer to just about every legal question is actually “it depends…,” but for the sake of clarity, I’ve taken some liberties to simplify.)

The case started when Illinois’ governor Bruce Rauner sued to challenge his own state’s union agency fee statute, the law permitting collective bargaining units to charge all represented workers for the cost of representation even if they opt out of the union. The district court determined that his office hadn’t been harmed by the law and therefore lacked what’s called standing to sue. But the case was preserved by Mark Janus, whose lawyers had filed papers to be included as an intervener, an additional party who claims they have rights and/or injuries that are about to be adjudicated in an existing case. So when the court dismissed the Governor’s complaint, it opted to recognize Janus’s complaint as the operative one, meaning the one that’s current or pending before the court.

Despite what might have heard, you really can’t make a federal case out of, well, most things. Federal courts have limited jurisdiction, and the U.S. Supreme Court only hears cases arising from lower federal courts. If the issue is solely a matter of state law and the trial happened in a state court, the highest it can go is that state’s supreme court. State supreme courts have the final word on state law matters — both legislative and constitutional. The federal courts are divided up by geography into 13 circuits, and they hear only cases in which they have jurisdiction: mostly matters that cross state lines, raise questions under federal statutes, or implicate the U.S. constitution. The first stop in federal court is filing a complaint (the specific term for the first legal brief filed by a plaintiff) in a district court and having a trial.

Mark Janus has a constitutional question about the First Amendment but he didn’t actually have a trial. After the district court accepted his intervener complaint as the operative one (because as someone who has paid agency fees, he could show he was personally harmed), the court then reviewed the substance of his complaint and dismissed it.

So what is Mark Janus’s problem? In order to be a state employee, Mark Janus must be part of the bargaining unit that represents him and all similarly situated workers in his agency in collective bargaining negotiations and grievance processes. It’s a condition of his employment — even if he doesn’t want to join the union as a member, he has to pay those agency fees to cover the costs of this representation.

Janus contends that this arrangement is unconstitutional under the First Amendment because his employer is the government and it is compelling him to support speech that he does not agree with — in this case, the union negotiations. (At the same time,  it’s notable that Janus doesn’t point to any specific union issue or position that he disagrees with, and there is no evidence that he made any effort to engage in the internal representative process of his collective bargaining unit in order to argue for his position.)

Janus’s case was dismissed because there is already a Supreme Court holding on exactly this question, Abood v. Detroit Board of Education. Decided in 1977, the court in Abood held that so long as the collective bargaining unit didn’t charge people like Janus for its political activities, there was no First Amendment injury. Under the decision in Abood, Mark Janus’s freedom to speak (or not to speak) wasn’t meaningfully infringed by his obligation to support the representative from his bargaining unit as a condition of his employment.

Because there is controlling case law — a prior decision from a higher court that unambiguously resolves the question — Janus’s case was dismissed.

A dismissal before trial is an appealable order, meaning that Mark Janus, as the losing party in that decision, could now take his case up to a court of appeal for review. In federal court, that’s the circuit court. Circuit courts of appeal have a large staff of judges, but individual hearings are staffed with rotating, randomly constituted panels of three.

In the Seventh Circuit Court of Appeal, Mark Janus was now the petitioner, not the plaintiff. In civil court, either side — plaintiff or defendant — can appeal if they lose and they then become the petitioner. The other side is now known as the respondent. Janus lost in the Seventh Circuit too: The court of appeal affirmed the district court’s dismissal of his complaint. (If you lose your three-judge hearing, you can generally ask for a rehearing en banc, which means all of the circuit’s judges preside. En banc rehearings aren’t often granted, and even when they are, they rarely change the decision.)

Now that Mark Janus lost in the Seventh Circuit Court of Appeal, he was eligible to ask the Supreme Court to hear his case. A request for review by the U.S. Supreme Court is made by submitting a legal brief known as a petition for a writ of certiorari. The U.S. Supreme Court exercises what is known as discretionary review, which just means they get to choose which cases to consider. While the Supreme Court reviews a far greater number of cases now than they did earlier in our country’s history, the proportion of cases selected out of those submitted is quite small. If a case is not heard by the Supreme Court, the decision of the court of appeal stands. The same is true if the Supreme Court case results in a 4-4 decision.

There are lots of reasons that the Supreme Court might accept a case for review. Sometimes there is a novel question of law presented, sometimes they are compelled to resolve a circuit split (contradictory decisions from two different circuit courts of appeal), and sometimes it’s because there is an issue that they want to resolve but haven’t yet had the right case for. Janus offered them the third.

The case prior to Janus was Friederichs, which resulted in a 4-4 decision with no written opinion after the unexpected death of Justice Scalia. The court made clear before Friederichs that they were interested in reviewing the question of agency fees, and it was obvious to most observers that the question was still on the table.

That question, in legal terms, is “Should Abood v. Detroit Board of Education be overruled and public sector agency fee arrangements be declared unconstitutional under the First Amendment?” That’s the question the Supreme Court accepted when it granted Janus’s petition for certiorari and will take up in oral arguments on February 26. More Supreme Court reporting, including credible commentary on this case and copies of all the court documents, can be found on SCOTUSblog and @SCOTUSblog.