Union Station: Pennsylvania judge says state fair share fees law is unconstitutional

 Judge Leonard G. Brown III of the Lancaster County Court of Common Pleas said in an order issued on May 23 that Pennsylvania’s Fair Share Fee Law is unconstitutional under the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME. Brown’s order does not overturn the Pennsylvania law. 

About the case

The plaintiffs, public school teachers Jane Ladley and Christopher Meier, filed a lawsuit in the Lancaster County Court of Common Pleas on Sept. 18, 2014, against the Pennsylvania State Education Association (PSEA). The Fairness Center, which represents the plaintiffs, said, “Ladley and Meier initially objected to paying the PSEA on religious grounds. Before the Janus ruling, PSEA officials could force teachers to pay union fees, but state law allowed religious objectors to send money to a charity of their choosing in lieu of paying fees to a union. But for years, PSEA officials rejected Ladley’s and Meier’s chosen charities and demanded that the money go to charities approved by the union.” 

After Janus, the union returned the money to the plaintiffs. 

On Oct. 29, 2018,  Judge Leonard G. Brown III dismissed the suit, writing, “While the change in law at the United States Supreme Court level did not automatically render the legal issue at hand moot, PSEA’s voluntary actions—its good-faith cessation of fair share fee collections and the steps it has taken to refund fair share fees and prevent their future collection—have created a change in facts sufficient to moot this case.”

Brown was elected to the court in November 2011 and retained in November 2021. Although Pennsylvania holds partisan judicial elections, Court of Common Pleas candidates may cross-file to run in the Democratic and Republican primaries, which Brown did in 2011. According to LNP’s Tom Murse, Brown is a registered Republican. 

The plaintiffs appealed to the Commonwealth Court of Pennsylvania on Nov. 28, 2018, asking it to declare Pennsylvania’s Fair Share Fee Law (Pennsylvania Statutes Title 71, Section 575) unconstitutional in light of Janus. The Fairness Center’s president, Nathan McGrath, said in January 2022, “The Supreme Court made clear in 2018 that public employee unions cannot force nonmembers to pay a union. … But Pennsylvania law still says unions can do just that. And almost four years after Janus, PSEA and its affiliates have continued to write illegal fair share fee provisions into teachers’ collective bargaining agreements. Our clients want to force PSEA to respect the Supreme Court’s ruling.”

The union replied in its brief to the court:

“The Brief of the Appellant religious objectors has it backwards: The Court cannot examine the vestigial remainder of Pennsylvania’s fair share fee statute to decide if it should be explicitly stricken down as an unconstitutional unless it has jurisdiction to do so conferred by a pending case that raises the issue as a justiciable controversy. Courts exist to settle disputes and declare rights. There is no dispute here. There is no need for a judicial declaration of rights. All parties acknowledge that the Pennsylvania fair share fee statute is unenforceable. No one is suggesting or trying to act otherwise. PSEA did not abandon fair share fee collection voluntarily to avoid the consequences of this litigation; it abandoned fair share because the United States Supreme Court declared it unconstitutional.” 

On Jan. 4, 2022, a seven-judge panel overturned Brown’s decision and sent it back, telling the lower court to determine whether the plaintiffs’ constitutional claims had merit. Judge Patricia McCullough wrote:

“Naturally, in determining whether Teachers were a ‘prevailing party’ for purposes of attorney’s fees and costs under 42 U.S.C. §1988, the trial court would have to examine the merits of Teachers’ underlying constitutional claims and/or the impact that the likelihood of success of such a claim had on PSEA and its decision to voluntarily discontinue collecting fair share fees. After the trial court makes that ruling, in the event of a subsequent appeal to this Court, our appellate review would entail a de novo evaluation of the trial court’s conclusions of law underlying its decision to grant or deny attorney’s fees. Therefore, this Court remands for the trial court to decide the issue of attorney’s fees and, in conjunction therewith, to render a determination regarding the merits of the Teachers’ constitutional claim.”  

McCullough was first elected to the Pennsylvania Commonwealth Court in 2009 as a Republican. Voters retained McCullough in 2019. 

On May 21, 2022, both parties filed an agreement for a consent order. On May 23, Brown wrote, “Judgment is entered in favor of Plaintiffs and against Defendant in that Defendant is enjoined from any application of Pennsylvania’s Fair Share Fee Law, 71 P.S. § 575, against Plaintiffs as said law is unconstitutional under the Supreme Court’s decision in Janus v. AFSCME, Council 31. … Defendant shall pay to Plaintiffs’ counsel $20,000.00 in full satisfaction of any claim to attorney’s fees and costs.” 

According to The Center Square’s Anthony Hennen, “The judgment doesn’t repeal Pennsylvania’s fair share fee law, but it establishes a warning of sorts.”

The case name and number are Ladley v. Pennsylvania State Education Association (CI-14-08552).

Two federal cases in the U.S. District Court for the Middle District of Pennsylvania, Misja v. Pennsylvania State Education Association (filed in 2015) and Williams v. Pennsylvania State Education Association (filed in 2016), had been on hold pending the outcome of Ladley since 2017. The plaintiffs in both cases filed dismissal agreements on May 23.  

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 144 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

  • California AB1714: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.
    • Democratic sponsorship.
    • Read third time in Assembly, passed, ordered to Senate May 26. Read first time in Senate, referred to Rules Committee May 27. 
  • California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and sets civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership. 
    • Democratic sponsorship.
    • Referred to Assembly Public Employment and Retirement Committee and Judiciary Committee May 27. 
  • California SB1313: This bill would prohibit Los Angeles County from discriminating against union members by limiting employee health benefits.
    • Democratic sponsorship.
    • Referred to Assembly Public Employment and Retirement Committee May 27.
  • Colorado SB230: This bill would give certain county employees the right to organize and bargain collectively beginning in 2023. 
    • Democratic sponsorship.
    • Governor signed May 27. 
  • Maryland HB172: This bill would allow the amount of union dues paid in a year to be subtracted from taxable state income. 
    • Democratic sponsorship. 
    • Governor vetoed May 27. 



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