Fischer v. Governor of N.J.

SUSAN G. FISCHER; JEANETTE SPECK,on behalf of themselves and others similarly situated,Appellants in Case No. 19-3914 v. GOVERNOR OF NEW JERSEY; NEW JERSEY EDUCATION ASSOCIATION;

TOWNSHIP OF OCEAN EDUCATION ASSOCIATION

ANN SMITH; KARL HEDENBERG; MELISSA POULSON;

MICHAEL SANDBERG; LEONARDO SANTIAGO; and RACHEL CURCIO,on behalf of themselves and others similarly situated, Appellants in Case No. 19-3995 v. NEW JERSEY EDUCATION ASSOCIATION;

CLEARVIEW EDUCATION ASSOCIATION; HARRISON TOWNSHIP EDUCATION ASSOCIATION;

KINGSWAY EDUCATION ASSOCIATION,

as representatives of the class of all chapters and affiliates

of the New Jersey Education Association;

NATIONAL EDUCATION ASSOCIATION;

CLEARVIEW REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION;

HARRISON TOWNSHIP BOARD OF EDUCATION;

KINGSWAY REGIONAL SCHOOL DISTRICT BOARD OF EDUCATION,

as representatives of the class of all school boards in New Jersey;

GOVERNOR OF NEW JERSEY;

JOEL M. WEISBLATT; PAUL BOUDREAU; PAULA B. VOOS; JOHN BONANNI;

DAVID JONES, in their official capacities as chairman and members

of the New Jersey Public Employment Relations Commission

No. 19-3914

No. 19-3995

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued September 30, 2020

January 15, 2021

NOT PRECEDENTIAL

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

(D.C. Nos.: 1-18-cv-10381 and 1-18-cv-15628)

District Judge: Hon. Renee M. Bumb

Before: SHWARTZ, PHIPPS, and FISHER, Circuit Judges.

Michael P. Laffey

2nd Floor

222 Highway 35

Red Bank, NJ 07733

William L. Messenger [ARGUED]

Aaron B. Solem

National Right to Work Legal Defense Foundation

8001 Braddock Road

Suite 600

Springfield, VA 22151

Counsel for Appellants Susan G. Fischer and Jeanette Speck

Jonathan F. Mitchell [ARGUED]

Suite 400

111 Congress Avenue

Austin, TX 78701

Walter S. Zimolong, III

Suite 300

353 West Lancaster Avenue

Wayne, PA 19087

Counsel for Appellants Ann Smith, Karl Hedenberg, Melissa Poulson, Michael Sandberg, Leonardo Santiago, and Rachel Curcio

Eric Apar [ARGUED]

Jana R. DiCosmo

Jeremy Feigenbaum

Lauren A. Jensen

Donna S. Arons

Office of Attorney General of New Jersey

Richard J. Hughes Justice Complex

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellee Governor of New Jersey

Raymond Baldino

Robert A. Fagella

Jason E. Sokolowski

Zazzali Fagella Nowak Kleinbaum & Friedman

570 Broad Street

Suite 1402

Newark, NJ 07102

Counsel for Appellees New Jersey Education Association, Clearview Education Association, Harrison Township Education Association, Kingsway Education Association, and National Education Association

Leon Dayan

Ramya Ravindran [ARGUED]

Bredhoff & Kaiser

805 15th Street, N.W.

Suite 1000

Washington, DC 20005

Counsel for Appellees New Jersey Education Association, Township of Ocean Education Association, Clearview Education Association, Harrison Township Education Association, Kingsway Education Association, and National Education Association

Jeffrey R. Caccese

Comegno Law Group

521 Pleasant Valley Avenue

Moorestown, NJ 08057

Counsel for Appellees Kingsway Education Association and Kingsway Regional School District Board of Education

Frank P. Cavallo

Andrew W. Li

Brett E.J. Gorman

Parker McCay

9000 Midlantic Drive

Suite 300

Mount Laurel, NJ 08054

Counsel for Appellees Clearview Regional High School District Board of Education and Harrison Township Board of Education

Don Horowitz

Frank C. Kanther

Public Employment Relations Commission

495 West State Street

P.O. Box 429

Trenton, NJ 08625

Counsel for Appellees Joel M. Weisblatt, Paul Boudreau, Paula B. Voos, John Bonanni, and David Jones

OPINION^*

SHWARTZ, Circuit Judge.

Plaintiffs are New Jersey public school teachers who paid dues and other fees to the state teachers' union, the New Jersey Education Association ("NJEA").¹ Most Plaintiffs notified NJEA that they wished to disaffiliate from the union and terminate all payments to it. NJEA allowed Plaintiffs to disaffiliate and to opt out of the payments, but only after the lapse of waiting periods set forth in a state statute and/or in Plaintiffs'union-membership agreements. Plaintiffs assert that the waiting periods are unconstitutional under Janus v. American Federation of State, County, and Municipal Employees, 138 S. Ct. 2448, 2486 (2018). The District Court disagreed and granted summary judgment to all Defendants.

Because the District Court correctly concluded that Plaintiffs lack standing to challenge the statute and because Janus does not impact their contractual obligations to the union, we will affirm.

I

A

NJEA represents more than 200,000 public sector educational institution employees in New Jersey. Before Janus, these employees were required either to (1) join NJEA and pay full union dues or (2) abstain from union membership but still pay a compulsory agency fee equal to 85 percent of union dues. If an employee wished to become an NJEA member, he had to sign NJEA's Active Membership Application, which required the prospective member to elect whether to pay the dues in cash or through automatic payroll deductions. If the member elected to pay through automatic payroll deductions—as most members did—he had to agree that (1) he could revoke his authorization for the payroll deduction only through written notice and (2) the revocation would be effective only as of the January 1 or July 1 following the revocation notice, whichever was earlier.

In May 2018, while Janus was pending before the Supreme Court but before it was decided, New Jersey enacted the Workplace Democracy Enhancement Act ("WDEA"),N.J. Stat. Ann. § 52:14-15.9e. See 2018 N.J. Sess. L. Serv., ch. 15 § 6 (May 18, 2018) (amending N.J. Stat. Ann. § 52:14-15.9e). As relevant here, the WDEA contains two components. First, it provides that "[e]mployees who have authorized the payroll deduction of fees to employee organizations," such as NJEA, "may revoke such authorization by providing written notice to [their] public employer during the 10 days following each anniversary date of their employment." N.J. Stat. Ann. § 52:14-15.9e. Second, it provides that "[a]n employee's notice of revocation of authorization for the payroll deduction of employee organization fees shall be effective on the 30th day after the anniversary date of [the employee's] employment." Id. The WDEA does not specify how its ten-day notice period and its thirty-day waiting period interact with the revocation period set forth in NJEA's membership application (which, as discussed, sets the earlier of January 1 and July 1 as the effective date for the revocation of payroll-deduction authorization).

On June 27, 2018, following passage of the WDEA, the Supreme Court decided Janus. 138 S. Ct. at 2448. Janus struck down a state statute that had required public-sector employees either to join a union or, if they did not wish to join the union, to pay the union an agency fee. Id. at 2486. The Court held that the statute violated the First Amendment by compelling the nonmember employees to subsidize the union's speech without their consent. Id. In the Court's view, "[n]either 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," that is, unless the nonmember provides a "freely given" waiver of his FirstAmendment rights. Id. Plaintiffs contend that Janus renders the WDEA and the effective-date provisions of their membership agreements unconstitutional.

B

Plaintiffs in the Fischer action, Susan Fischer and Jeanette Speck ("Fischer Plaintiffs"), joined NJEA on August 27, 1999 and August 30, 2001, respectively. Upon joining, they signed their NJEA membership applications, electing to pay union dues through automatic payroll deductions. As discussed above, by signing the applications, the Fischer Plaintiffs agreed that they could revoke their authorization for automatic payroll deductions only in writing and only with an effective date of the earlier of January 1 or July 1 following their revocation notice. Following Janus, the Fischer Plaintiffs resigned their union membership in written notices dated July 17 and 23, 2018, that stated that they wished to terminate their membership "immediately" and that they "no longer wish[ed] to pay dues or fees to the union." Fischer App. 67-68, 83-84.

The Fischer Plaintiffs contend that their employer, the Township of Ocean Board of Education ("TOBOE"), informed them that they could not yet terminate the deductions of dues payments from their paychecks because the WDEA permitted them to give notice of their termination only within a ten-day window following the anniversary date of their employment. WDEA, N.J. Stat. Ann. § 52:14-15.9e. NJEA, however, accepted the Fischer Plaintiffs' July 2018 resignation notices, consistent with NJEA's policy at that time of "accept[ing] revocation requests at any time during the year" without "reject[ing] or refus[ing] to honor those requests because they were not submitted during the 10 days following the employee's anniversary date of hire." Fischer App. 119 ¶ 16, 156 ¶ 10, 157¶ 11. NJEA continued to withdraw dues from the Fischer Plaintiffs' paychecks until September 30, 2018, or approximately thirty days following the anniversary dates of their employment.

C

Plaintiffs in the Smith action, Melissa Poulson, Michael Sandberg, Leonardo Santiago, and Rachel Curcio ("Smith Plaintiffs"),² were also NJEA members.³ Like the Fischer Plaintiffs, the Smith Plaintiffs signed membership applications authorizing the automatic deduction of union dues from their paychecks and agreed that the deductions could be terminated only by written notice and only on the earlier of January 1 or July 1 following such notice.

Following Janus, Poulson, Sandberg, and Santiago each resigned their memberships with NJEA and demanded NJEA halt the deduction of union dues. Poulson was treated as having resigned from NJEA on July 24, 2018.⁴ Sandberg and Santiago emailed notice of their resignations on June 28 and August 8, 2018...