Union Station: Alaska Supreme Court hears arguments on whether Janus requires annual opt-ins for union membership

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Alaska Supreme Court hears arguments on whether Janus requires annual opt-ins for union membership

The Alaska Supreme Court heard oral arguments last week in a case where the state of Alaska claims that the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME requires annual opt-ins for union membership.


Alaska Gov. Mike Dunleavy (R) issued an administrative order on Sept. 26, 2019, instructing the Department of Administration and Department of Law to require state employees to submit an authorization form to affirmatively opt-in or opt-out of paying union dues or fees. In the order, Dunleavy cited an opinion former Alaska Attorney General Kevin Clarkson (R) issued on Aug. 27, 2019. Dunleavy wrote: “The Opinion explained that under Janus, the State of Alaska may no longer automatically deduct union dues and fees from an employee’s wages unless the employee affirmatively consents to waive his or her First Amendment rights. The Opinion also made clear that the State’s previous steps to implement the Janus decision did not go far enough.” 

State attorneys filed a lawsuit in the Alaska Superior Court asking the court to decide if Clarkson’s opinion was correct, and the union filed counterclaims. On Oct. 3, 2019, Anchorage Superior Court Judge Gregory Miller issued a temporary restraining order blocking Dunleavy’s order. 

On Feb. 8, 2021, Miller ruled in favor of the union, writing, “ASEA is entitled to a declaratory judgment that the First Amendment to the U.S. Constitution does not require the State to alter the union dues deduction practices in place prior to August 27, 2019, and does not require the steps set forth in Attorney General Clarkson’s August 27, 2019 legal opinion or the steps mandated in Administrative Order 312.” The court entered the final judgment in favor of the union in September 2021. 

Supreme Court appeal

Attorneys for the state of Alaska filed an appeal to the Alaska Supreme Court on Sept. 2, 2021. In their brief to the court, the state’s attorneys wrote

Janus was a landmark decision protecting the First Amendment rights of public union members and nonmembers alike. It requires the State to ensure that it does not continue to take dues from employees’ wages over their objection and without evidence that the employees waived their First Amendment rights. The superior court misread Janus and incorrectly granted summary judgment in favor of ASEA on all claims. …

“In denying the State’s requests for declaratory judgment, the superior court ignored the Supreme Court’s clear instruction to public-sector unions and states: No employee can be forced to subsidize union speech—through ‘an agency fee [or] any other payment’—unless the employee has waived his or her First Amendment rights. This Court should reverse the superior court’s decision because it leaves state employees powerless to timely stop subsidizing speech with which they disagree.” 

Attorneys from Altshuler Berzon LLP represent the Alaska State Employees Association. The union’s attorneys wrote

“The State’s current executive branch officials seek to justify their blatant violations of the State’s contract with ASEA and Alaska state law by asserting a radical misinterpretation of Janus. They contend that Janus voided all state employee union membership agreements and requires the State to impose a special heightened ‘waiver’ analysis before processing public employees’ voluntary affirmative dues deduction authorizations. … That contention has been unanimously and correctly rejected by every court to consider it. The Superior Court correctly rejected the State’s central argument, and the Superior Court’s other rulings regarding the State’s violation of its contract with ASEA and multiple state laws were all also correct. … 

“As a threshold matter, the State is barred by collateral estoppel from relitigating its

Janus-based arguments here. … The State already litigated and lost the same Janus issues in two federal lawsuits (Creed and Woods), based on the same underlying facts, against the same party (ASEA). These issues were ‘actually … determined’ in Creed and Woods ‘by a valid and final judgment,’ and the rejection of the State’s arguments regarding Janus was ‘essential to the judgment’ in both cases. Thus, collateral estoppel applies, and this Court should affirm the Superior Court’s ruling on the First Amendment issue on that threshold ground.” 

On Oct. 13, the Alaska Supreme Court heard oral arguments in the case. According to KINY’s James Brooks, Chief Justice Daniel Winfree asked Alaska solicitor general for civil appeals Jessica Alloway, “Not a single case has agreed with you, as far as I know. Is that correct?” Alloway answered affirmatively. According to Brooks, “Winfree told attorneys that the case will be taken under advisement, with a written decision to be issued at a later date.” 

The case name and number are State of Alaska v. Alaska State Employees Association/AFSCME Local 52, AFL-CIO (S-18172).

There are five justices on the Alaska Supreme Court. Republican governors appointed four of the current justices, and an independent governor appointed one. Three of the current justices were on the court in 2020 when we published our “Ballotpedia Courts: State Partisanship” report, which evaluated justices’ partisan affiliations through their behavior before joining the court. In that report, we assigned a score of “Mild Republican” to one of the current justices, and two current justices received an “Indeterminate” score. In 2020, the Alaska Supreme Court heard 138 cases and decided 92% of them unanimously.

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 150 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

No public-sector union bills saw activity this week.

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