BRETT HENDRICKSON, Plaintiff - Appellant, v. AFSCME COUNCIL 18; MICHELLE LUJAN GRISHAM, in her official capacity as Governor of New Mexico; HECTOR BALDERAS, in his official capacity as Attorney General of New Mexico, Defendants - Appellees. NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, INC., Amicus Curiae.
No. 20-2018
United States Court of Appeals for the Tenth Circuit
March 26, 2021
PUBLISH
Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:18-CV-01119-RB-LF)
Brian K. Kelsey (Reilly Stephens, with him on the briefs), Liberty Justice Center, Chicago, Illinois, for the Plaintiff - Appellant.
Eileen B. Goldsmith, Altshuler Berzon LLP, San Francisco, California (Scott A. Kronland, and Stefanie L. Wilson, Altshuler Berzon LLP, San Francisco, California; Shane C. Youtz, and Stephen Curtice, Youtz & Valdez, P.C., with her on the brief), Albuquerque, New Mexico, for the Defendant - Appellee AFSCME Council 18.
Lawrence M. Marcus (Alfred A. Park, with him on the brief), Park & Associates, L.L.C., Albuquerque, New Mexico, for the Defendants - Appellees Michelle Lujan Grisham and Hector Balderas.
Raymond J. LaJeunesse, Jr., National Right to Work Legal Defense Foundation, Inc., Springfield, Virginia, filed an amicus brief in support of Defendants - Appellees.
Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and McHUGH, Circuit Judge.
Brett Hendrickson worked for the New Mexico Human Services Department (“HSD“) and was a dues-paying member of the American Federation of State County and Municipal Employees Council 18 (“AFSCME” or “Union“). He resigned his membership in 2018 after the Supreme Court decided Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448 (2018).
In Janus, the Court said the First Amendment right against compelled speech protects non-members of public sector unions from having to pay “agency” or “fair share” fees—fees that compensate the union for collective bargaining but not for partisan activity. Mr. Hendrickson contends that, under Janus, the Union cannot (1) retain dues that had been deducted from his paycheck, or (2) serve as his exclusive bargaining representative. The district court dismissed these claims.
Exercising jurisdiction under
I. BACKGROUND
A. Factual Background1
Mr. Hendrickson signed membership agreements that permitted union dues to be deducted from his paycheck. After Janus, he terminated his membership. His dues deductions stopped shortly thereafter.
1. Union Membership and Dues-Deduction Authorizations
This timeline lists Mr. Hendrickson’s actions regarding union membership and dues-deduction authorizations:
- 2001 - Began working for the HSD. HSD employees are part of the bargaining unit represented by the Union.
- 2004 - Signed an agreement to join the Union and authorized the deduction of union dues from his paycheck.
- 2006 - Took a position outside the bargaining unit. As a result, his union membership and dues payments ended.
- 2007 - Returned to the bargaining unit. He signed another membership agreement and dues-deduction authorization.
- 2017 - Signed a membership agreement and dues-deduction authorization for the third time.
The 2017 member agreement stated:
Effective 4/7/17, I authorize AFSCME Council 18 as my exclusive bargaining representative, and I accept membership in AFSCME Council 18. I request and authorize the State of New Mexico to deduct union dues from my pay and transmit them to AFSCME Council 18. The amount of dues deduction shall be the amount approved by AFSCME’s membership as set forth in the AFSCME constitution and certified in writing to my employer.
Suppl. App. at 18-19, 50.2
The agreement also created an “opt-out window.” It limited the time period during which Mr. Hendrickson could terminate his dues deductions:
This authorization shall be revocable only during the first two weeks of every December, or such other time as provided in the applicable collective-bargaining agreement.
Id. at 19, 50.
3. Membership and Dues-Deduction Termination - 2018
On June 27, 2018, the Supreme Court decided Janus. On August 9, Mr. Hendrickson emailed the State Personnel Office (“SPO“), asking, “Are we able to withdraw as full members now or do we have to wait for a certain amount of time?” Id. at 110; see also id. at 20.3 The SPO responded that “to cease payroll deductions for
Membership dues, you must refer to the [collective bargaining agreement] regarding the request to cease payroll deductions.” Id. at 110; see also id. at 20.4
On November 30, Mr. Hendrickson filed this suit. On December 6, the Union wrote to Mr. Hendrickson:
It has come to our attention through the filing of a lawsuit that you wish to resign your union membership and cancel your authorization for the deduction of membership dues. We have no prior record that you made any such request to the union. Nevertheless, we have processed your resignation from membership. Additionally, your dues authorization provides that it is revocable during the first two weeks of December each year. Accordingly, we are notifying your employer to stop further membership dues deductions.
Id. at 20-21, 58.
On December 8, the Union received a faxed letter from Mr. Hendrickson stating he would like to “opt out of being a member.” Id. at 61; see also id. at 21.
4. Refund - 2019
Despite this correspondence, dues continued to be deducted from Mr. Hendrickson’s paycheck. On January 7, 2019, he emailed the SPO to request the deductions be stopped, attaching the Union’s December 6 letter. The SPO responded that because it had not received his request during the opt-out window in the first two weeks of December, it would not stop deductions. Mr. Hendrickson then sent a request to the HSD to cease dues deductions.
On January 9, the SPO notified the Union that it had no record of Mr. Hendrickson’s requesting termination of his dues
Mr. Hendrickson’s deductions stopped starting “with the second pay period in January.” See id. at 22. In February, the Union refunded Mr. Hendrickson the dues deducted from his paychecks following the closure of the 2018 cancellation window.5
B. Procedural Background
In addition to suing the Union, Mr. Hendrickson also named as defendants, in their official capacities, New Mexico Governor Michelle Lujan Grisham and New Mexico Attorney General Hector Balderas (the “New Mexico Defendants“).
On March 15, 2019, Mr. Hendrickson filed a First Amended Complaint. He alleged two counts:
- “By refusing to allow [him] to withdraw from the Union and continuing to deduct his dues, Defendants violated his First Amendment rights to free speech and freedom of association” (Count 1); and
- “The state law forcing [him] to continue to associate with the Union without his affirmative consent violates [his] First Amendment rights to free speech and freedom of association and
42 U.S.C. § 1983 ” (Count 2).
Suppl. App. at 8, 11 (emphasis omitted).
On Count 1, Mr. Hendrickson sought a declaration stating that “the Union and [the Governor] cannot force public employees to wait for an opt-out window to resign their union membership and to stop the deduction of dues from their paychecks.” Id. at 10. He also sought a declaration that the New Mexico statute authorizing deductions and allowing an opt-out window “constitutes an unconstitutional violation of his First Amendment rights to free speech and freedom of association.” See id.6 He further sought “damages in the amount of all dues deducted and remitted to the Union since he became a member [in 2004],” id., or in the alternative, “since the Janus ruling [in 2018],” id. at 11.7
On Count 2, Mr. Hendrickson sought a declaration that the New Mexico statute providing for exclusive representation “constitute[s] an unconstitutional violation of his First Amendment rights to free speech and freedom of association.” See id. at 12.8
The district court granted the Union’s motion for summary judgment and the New Mexico Defendants’ motion to dismiss. It denied Mr. Hendrickson’s motion for summary judgment. The court dismissed the suit in its entirety. Mr. Hendrickson appeals.
II. DISCUSSION
We affirm the district court’s dismissal of Count 1 because Mr. Hendrickson’s request for prospective relief is moot, and his request for retrospective damages relief
fails on the merits. We affirm the district court’s dismissal of Count 2 because the Eleventh Amendment bars his claim against the New Mexico Defendants, and the claim against the Union fails on the merits.
“We review de novo the district court’s Rule 12(b)(6) dismissal.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Doe v. City of Albuquerque, 667 F.3d 1111, 1118 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“We review a district court’s grant of summary judgment de novo, applying the same standard as the district court.” Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
A. Count 1 – Union Dues
Mr. Hendrickson objects to the deduction of union dues from his paycheck. We address below his requests for prospective and retrospective relief.
1. Prospective Relief
Mr. Hendrickson’s request for prospective relief declaring that the opt-out window in the membership agreement violates the First Amendment is moot.
a. Mootness
“We have no subject-matter jurisdiction if a case is moot.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010). Mootness is “standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Brown v. Buhman, 822 F.3d 1151, 1164 (10th Cir. 2016) (quotation omitted).
An action becomes moot “[i]f an intervening circumstance deprives the plaintiff of a personal stake . . . at any point.” Id. at 1165 (quotation omitted). An action is not moot if a plaintiff has “a concrete interest, however small, in the
A court must decide mootness as to “each form of relief sought.” See Collins v. Daniels, 916 F.3d 1302, 1314 (10th Cir. 2019) (quotation omitted). A request for declaratory relief is moot when it fails to “seek[] more than a retrospective opinion that [the plaintiff] was wrongly harmed by the defendant,” Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011), and thus does not “settl[e] . . . some dispute which affects the
behavior of the defendant toward the plaintiff,” Rio Grande Silvery Minnow, 601 F.3d at 1110 (quotation omitted).
b. Analysis
When Mr. Hendrickson filed his initial complaint, he was a union member and dues were being deducted from his paycheck. Shortly thereafter, he resigned from the Union, and dues deductions stopped.9 Thus, he no longer has a personal stake in receiving a declaration addressing the constitutionality of the Union’s opt-out window as applied to him. See Brown, 822 F.3d at 1165.
A declaration regarding the opt-out window would not affect the defendants’ behavior toward Mr. Hendrickson. See id. at 1165-66; Rio Grande Silvery Minnow, 601 F.3d at 1110. It would serve only to announce that the defendants had harmed him, see Jordan, 654 F.3d at 1025, but would have no real-world effect. We thus hold that Mr. Hendrickson’s request for prospective relief on Count 1 is moot.10
benefit, see Aplt. Reply Br. at 13, “our cases prevent us from applying the mootness exception based on a risk to others,” Marks v. Colo. Dep’t of Corr., 976 F.3d 1087, 1095 (10th Cir. 2020). Because we resolve this issue on mootness grounds, we need not address whether Eleventh Amendment immunity bars this claim against the New Mexico Defendants. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” (quotation omitted)).
2. Retrospective Relief
Mr. Hendrickson’s request for retrospective damages relief for his back dues fails on the merits under basic contract principles. This part of Count 1 was brought against the Union only.
a. New Mexico law and basic contract principles11
“It is well settled that the relationship existing between a trade union
“A contract which contravenes a rule of law is unenforceable.” State v. Bankert, 875 P.2d 370, 376 (N.M. 1994). But “the rights of the parties must necessarily be determined by the law as it was when the contract was made.” Town of Koshkonong v. Burton, 104 U.S. 668, 679 (1881) (emphasis added); see also Memphis & L. R. R. Co. v. Berry, 112 U.S. 609, 623 (1884) (“It is, of course, the law in force at the time the transaction is consummated and made effectual, that must be looked to as determining its validity and effect.“). This is so because “a contract incorporates the relevant law in force at the time of its creation.” Townsend v. State ex rel. State Highway Dep’t, 871 P.2d 958, 960 (N.M. 1994); see Crow v. Capitol Bankers Life Ins. Co., 891 P.2d 1206, 1211 (N.M. 1995) (“Under traditional contract theory, state laws are incorporated into and form a part of every contract whether or not they are specifically mentioned in the instrument.“).12
Thus, “a subsequent change in the law cannot retrospectively alter the parties’ agreement.” Fla. E. Coast Ry. Co. v. CSX Transp., Inc., 42 F.3d 1125, 1130 (7th Cir. 1994); see also id. (“Whereas the law in effect at the time of execution sheds light on the parties’ intent, subsequent changes in the law that are not anticipated in the contract generally have no bearing on the terms of their agreement.“); 5 Corbin on Contracts § 24.26 (2020) (“[S]tatutes enacted subsequent to the making of a contract are not incorporated in the contract[,] and . . . when a statute is amended subsequent to formation of the contract, the amended version is not incorporated.“).
As a result, “[c]hanges in decisional law, even constitutional law, do not relieve parties from their pre-existing contractual obligations.” Fischer v. Governor of N.J., 2021 WL 141609, at *7 (3d Cir. Jan. 13, 2021) (unpublished); see also Jones v. Ferguson Pontiac Buick GMC, Inc., 374 F. App’x 787, 788 (10th Cir. 2010) (unpublished) (holding that a “change in the law was not grounds for relief” from a settlement agreement (citing Collins v. City of Wichita, 254 F.2d 837, 839 (10th Cir. 1958))).13 These basic principles doom Mr. Hendrickson’s claim.14
b. Analysis
Mr. Hendrickson requested recovery of all dues paid since 2004, or at least since Janus was decided in June 2018. His arguments that Janus retroactively voids his membership agreements have no merit because he entered valid contracts when he joined the Union.15
i. Valid contracts
Mr. Hendrickson entered valid contracts with the Union in 2004, 2007, and 2017. They contained clear language and were the product of an offer, an acceptance, consideration, and mutual assent. See Garcia, 918 P.2d at 10.16
Mr. Hendrickson does not allege the membership agreements contravened the law in effect when the contracts were created. See Bankert, 875 P.2d at 376. When he signed his agreements, Abood v. Detroit Board of Education, 431 U.S. 209 (1977), was the
governing law. And in Abood, the Supreme Court upheld a requirement for public-sector non-union members to pay agency fees for non-partisan union activity. See id. at 211, 215, 232, 235-36. Mr. Hendrickson does not allege that his contracts with the Union violated Abood or any other law in force when he signed them.
In June 2018, Janus overruled Abood. The Supreme Court held that requiring non-members to pay agency fees to public-sector unions violated the First Amendment. See 138 S. Ct. at 2459-60. Doing so “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” 138 S. Ct. at 2460.
Janus thus changed the choices a public employee faces in deciding whether to join a union. Under Abood, the decision was
But Janus does not support his request for back dues. A change in law that alters the original considerations for entering an agreement does not allow retroactive invalidation of that agreement. See Town of Koshkonong, 104 U.S. at 679; Townsend, 871 P.2d at 960; Fla. E. Coast Ry. Co., 42 F.3d at 1130; Jones, 374 F. App’x at 788. Indeed, in Fischer, the Third Circuit considered this exact question—whether Janus “abrogat[ed] the commitments set forth in the [plaintiffs’ union] agreements.” See
Fischer, 2021 WL 141609, at *7. The court noted that the “[p]laintiffs chose to enter into membership agreements with [the union] . . . in exchange for valuable consideration.” Id. at *8. And “[b]y signing the agreements, [p]laintiffs assumed the risk that subsequent changes in the law could alter the cost-benefit balance of their bargain.” Id. Janus thus did not permit the plaintiffs to renege on their contractual obligations. See id. We agree with this reasoning.
Mr. Hendrickson thrice signed agreements to become a union member and to have dues deducted from his paycheck. Each agreement was a valid, enforceable contract. A change in the law does not retroactively render the agreements void or voidable. Janus thus provides no basis for Mr. Hendrickson to recover the dues he previously paid.17
In reaching this conclusion, “[w]e join the swelling chorus of courts recognizing that Janus does not extend a First Amendment right to avoid paying union dues.” Belgau v. Inslee, 975 F.3d 940, 951 (9th Cir. 2020), petition for cert. filed, No. 20-1120 (U.S. Feb. 11, 2021); see id. at 951 n.5 (collecting cases); see also Oliver v. Serv. Emps. Int’l Union Local 668, 830 F. App’x 76, 80 (3d Cir. 2020) (unpublished) (“By choosing to become a Union member, [the plaintiff] affirmatively consented to paying union dues,” and thus “was not entitled to a refund based on Janus.“); Bennett v. Council 31 of AFSCME, AFL-CIO, 991 F.3d 724, 2021 WL 939194, at *4-6 (7th Cir. Mar. 12, 2021).
ii. Mr. Hendrickson’s arguments
Mr. Hendrickson’s arguments are all variations on his contention that he can apply Janus retroactively to void his membership agreements. Each argument fails because Janus does not change that he entered valid contracts.
1) Affirmative consent
Mr. Hendrickson argues his agreements should now be invalid under Janus because he did not provide “affirmative consent . . . to deduct union dues.” See Aplt. Br. at 10 (emphasis omitted). But he did provide affirmative consent by agreeing to the dues-authorization provision. And Janus concerned the consent of non-members, not union members like Mr. Hendrickson. His argument thus lacks a factual or legal basis.
The Janus Court concluded its opinion with the following direction regarding affirmative consent:
Neither 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. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.
138 S. Ct. at 2486 (citations omitted).
This passage shows that Janus addressed only whether non-union members could be required to pay agency fees. See Belgau, 975 F.3d at 952. Applying its holding to members like Mr. Hendrickson “misconstrues Janus.” See id. Janus “in no way created a new First Amendment waiver requirement for union members before dues are deducted pursuant to a voluntary agreement.” Id.18 Mr. Hendrickson, a union member, had signed agreements with the Union authorizing the deduction of dues. Unlike non-union members, who had not signed any agreement to pay agency fees, he affirmatively consented to pay dues. Janus’s affirmative consent analysis provides no basis for Mr. Hendrickson to recover damages.
2) Compulsion
Similarly, Mr. Hendrickson contends that in light of Janus, he was “compelled” to join the Union because he faced a “false dichotomy” of paying union dues or agency fees. See Suppl. App. at 9. This repackaged version of his “affirmative consent” argument fares no better. Mr. Hendrickson was not compelled. He was free to join the Union or not. See
less as agency fees pre-Janus, or that Janus made that lesser amount zero by invalidating agency fees, does not establish coercion.” Belgau, 975 F.3d at 950.
3) Mutual mistake
Mr. Hendrickson relatedly argues his membership agreements should be void because they were based on “mutual mistake.” See Aplt. Br. at 12. He asserts that he “discovered the mistake that agency fees were constitutional when the Supreme Court ruled otherwise in Janus,” id. at 13, and that his agreement should be voided as a result of this mutual mistake. This argument again relies on a retroactive application of Janus. But Janus does not support mutual mistake.
Under New Mexico law, a party can challenge a contract “on the basis of mistake” when “there is a mutual mistake; that is, where there has been a meeting of minds, an agreement actually entered into, but the contract . . . , in its written form, does not express what was really intended by the parties thereto.” See Morris v. Merchant, 423 P.2d 606, 608 (N.M. 1967) (quotation omitted). A party can also contest a contract when “there has been a mistake of one party, accompanied by fraud or other inequitable conduct of the remaining parties.” See id. (quotation omitted). But “[i]t is not a proper function of the courts to relieve either party to a
Mutual mistake thus does not apply when “subsequent events” show an agreement “to have been unwise or unfortunate.” See id.; see also State ex rel. State Highway &
Transp. Dep‘t v. Garley, 806 P.2d 32, 36 (N.M. 1991) (“[T]he erroneous belief must relate to the facts as they exist at the time of the making of the contract.” (quoting Restatement (Second) of Contracts § 151 (Am. L. Inst. 1979))); Restatement (Second) of Contracts § 151 (Am. L. Inst. 1981, Oct. 2020 update) (“The word ‘mistake’ is not used [in the Restatement], as it is sometimes used in common speech, to refer to an improvident act . . . .”).
Mr. Hendrickson does not suggest the membership agreements failed to express his intent when he signed. See Morris, 423 P.2d at 608. Nor does he suggest that the Union deceived him as to the Supreme Court’s holding in Abood. See In re Tocci, 112 P.2d at 521. Rather, he argues that if had he known when he entered the contract that the Supreme Court was going to overrule Abood in Janus, his intent would have been different. But what he describes is buyer’s remorse, not mutual mistake. See id. The doctrine of mutual mistake does not apply here.
4) Plea bargaining case law
In discussing mutual mistake, Mr. Hendrickson argues that Janus supports voiding his contract under plea bargaining case law. His reliance on United States v. Bunner, 134 F.3d 1000 (10th Cir. 1998), is misplaced.
Bunner addressed whether the obligations under a plea agreement should be dischargeable following a Supreme Court decision holding that the conduct underlying the defendant’s offense was no longer a crime. See id. at 1002-05. The opinion explained that “[s]ubsequent to entering the agreement, an intervening change in the lawdestroyed the factual basis supporting Defendant’s conviction.” Id. at 1005. This court applied the “doctrine of frustration of purpose,” which allows a party to a contract to be “discharged from performing” when a “supervening event does not render performance impossible” but makes “one party’s performance . . . virtually worthless to the other.” Id. at 1004. We held that “the plea agreement no longer bound the parties.” Id. at 1005.
Bunner does not help Mr. Hendrickson. There, after the change in law, the defendant could no longer be guilty, and thus the plea agreement had no purpose. By contrast, even after Janus changed the law, Mr. Hendrickson could still be a member of the Union, and his membership agreement continued to have a purpose. Again, Janus concerned non-member agency fees and has nothing to do with Mr. Hendrickson’s agreeing to pay dues for his union membership.
Brady v. United States, 397 U.S. 742 (1970), is a more pertinent plea bargaining case. In Brady, the Supreme Court asked whether its recent decision changing the law to eliminate the death penalty from an offense also “invalidat[ed] . . . every plea of guilty entered [for that offense], at least when the fear of death is shown to have been a factor in the plea.” Id. at 746. “Although [the defendant’s] plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty,” the Court found that the change in law did not invalidate the defendant’s plea agreement. See id. at 758. “A defendant
Brady dealt with a change in law that altered a defendant’s incentives to enter an agreement. If the change had been known at the time of the plea, the deal may have been less attractive, which is the scenario we have here. Had Mr. Hendrickson known that Janus would overturn Abood, his decision to join the Union may have been less appealing because the alternative would not have required him to pay agency fees.
But Brady shows that even when a “later judicial decision[]” changes the “calculus” motivating an agreement, the agreement does not become void or voidable. See id. Indeed, we have stated that “Supreme Court precedent is quite explicit that as part of a plea agreement, criminal defendants may waive both rights in existence and those that result from unanticipated later judicial determinations.” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005); see also Bailey v. Cowley, 914 F.2d 1438, 1441 (10th Cir. 1990) (“One of the risks a defendant assumes when he pleads guilty is that the consequences he seeks to avoid will not be later nullified by a change in the law.”). The cases on plea bargaining thus fail to provide a basis for Mr. Hendrickson to recover damages.
5) Opt-out window
Finally, Mr. Hendrickson suggests that Janus should retroactively invalidate the membership opt-out window because limiting his ability to terminate his dues paymentsto two weeks a year violates the
In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), the Supreme Court held that when “[t]he parties themselves . . . determine[d] the scope of their legal obligations, and any restrictions that” the parties placed on their constitutional rights were “self-imposed,” then “requir[ing] those making promises to keep them” does not offend the
* * * *
We hold Mr. Hendrickson’s claim against the Union for retrospective relief on Count 1 fails on the merits because his dues were deducted under valid contractual agreements. His claim for prospective relief is moot. We therefore affirm the district court’s decision on Count 1.
B. Count 2 - Exclusive Representation
Mr. Hendrickson objects to the Union’s serving as his exclusive representative. This claim fails against (1) the New Mexico Defendants because they have
1. New Mexico Defendants
The New Mexico Defendants are not proper parties under Ex parte Young, 209 U.S. 123 (1908), and thus have
a. Eleventh Amendment and Ex parte Young
The
To satisfy this exception, the named state official “must have some connection with the enforcement” of the challenged statute. Ex parte Young, 209 U.S. at 157. Otherwise, the suit is “merely making [the official] a party as a representative of the state” and therefore impermissibly “attempting to make the state a party.” Id.
“The fact that the state officer, by virtue of his office, has some connection with the enforcement of the act, is the important and material fact.” Id. Ex parte Young does not require that the state official “have a ‘special connection’ to the unconstitutional act or conduct.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007). But it does require that the state official “have a particular duty to ‘enforce’ the statute in question and a demonstrated willingness to exercise that duty.” Id. (quoting Ex parte Young, 209 U.S. at 157); see also 13 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3524.3 (3d ed., Oct. 2020 update) (“[T]he duty must be more than a mere general duty to enforce the law.”).
b. Analysis
Mr. Hendrickson sued the Governor and Attorney General of New Mexico in their official capacities. But these officeholders do not enforce the exclusive representation statute. Rather, members of the Public Employee Labor Relations Board (“PELRB”) do. The Governor and Attorney General therefore do not fall within the Ex parte Young exception and thus have
The
The PELRB “consists of three members appointed by the governor.” See
The New Mexico Supreme Court has held the governor cannot remove these PELRB members at will. See AFSCME v. Martinez, 257 P.3d 952, 953 (N.M. 2011). The court observed that “[b]ecause the PELRB is empowered to make decisions that may adversely affect the executive branch, the PELRB must remain free from the executive’s control . . . or coercive influence.” Id. at 956.
ii. Application of Ex parte Young
The
Our decision in Chamber of Commerce of the United States of America v. Edmondson, 594 F.3d 742 (10th Cir. 2010), supports this conclusion. There, we considered whether the attorney general of Oklahoma had
Similarly, in Cressman v. Thompson, 719 F.3d 1139 (10th Cir. 2013), we considered whether a motor vehicle clerk, who allegedly had responsibility for interpreting the policies of the Oklahoma Department of Public Safety, had immunity to a suit that challenged a statute regulating
Here, as in Edmondson and Cressman, neither the Governor nor the Attorney General has a particular duty to enforce the challenged statute. Rather, their connection to the exclusive representation statute stems from their general enforcement power. But this does not suffice for Ex parte Young. They therefore are not proper parties, and they have
Bishop v. Oklahoma, 333 F. App’x 361 (10th Cir. 2009) (unpublished), which the parties discuss at length, also supports immunity. There, we considered whether “the Governor and Attorney General of the State of Oklahoma . . . [we]re sufficiently connected to the enforcement of the Oklahoma Constitution’s marriage provisions” to permit suit. Id. at 362.20 We concluded that the “officials’ generalized duty to enforcestate law, alone, [wa]s insufficient to subject them to a suit challenging a constitutional amendment they have no specific duty to enforce.” Id. at 365. Because the judiciary was responsible for administration of marriage licenses, the “claims [we]re simply not connected to the duties of the Attorney General or the Governor.” See id. Likewise, here, the PELRB bears responsibility for the provision at issue, and Mr. Hendrickson’s claims thus are not connected to the New Mexico Defendants.
Mr. Hendrickson relies on Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), and Petrella v. Brownback, 697 F.3d 1285 (10th Cir. 2012),21 but they do not support the contrary conclusion. In Kitchen, we held the governor and attorney general of Utah were proper parties to a suit challenging Utah’s laws banning same-sex marriage because in Utah, unlike in Oklahoma, “marriage licenses are issued not by court clerks but by county clerks.” See id. at 1199-202, 1204. The defendants’ “actual exercise of supervisory power and their authority to compel compliance from county clerks and other officials provide[d] the requisite nexus” between the defendants and the provision atissue. See id. at 1204. Here though, this inquiry fails to show the requisite nexus between the New Mexico Defendants and the PELRB members.
Similarly, in Petrella we determined the governor and attorney general of Kansas to be proper parties to a suit challenging the constitutionality of Kansas’s school-funding laws. See id. at 1289, 1293-94. We found it cannot “be disputed that the Governor and Attorney General of [a] state . . . have responsibility for the enforcement of the laws of the state,” they
* * * *
We hold that Mr. Hendrickson’s claim against the New Mexico Defendants on Count 2 must be dismissed because they are not proper parties to this suit under Ex parte Young and thus have
2. Union
The Supreme Court’s treatment of exclusive bargaining representation—including in Janus itself—forecloses Mr. Hendrickson’s exclusive representation claim against the Union.22
a. Additional legal background
The Supreme Court has discussed exclusive representation at length in Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), and in Janus.
i. Knight
In Knight, the Supreme Court considered the constitutionality of exclusive representation. See id. at 273. State law provided for bargaining units to select an exclusive representative based on majority vote. See id. at 273-74. Several college faculty who were not members of the union designated as the exclusive representative objected. See id. at 278. They claimed that limiting participation in meetings to the exclusive representative violated their
The Court found that, although exclusive representation might “amplif[y] [the representative’s] voice,” this did not mean the challengers’ right to speak had been infringed. See id. at 288-89. Similarly, the Court found that although individuals may “feel some pressure to join the exclusive representative,” such pressure did not impair their freedom of association. See id. at 289-90; see also id. at 290 (“[T]he pressure is no different from the pressure to join a majority party that persons in the minority alwaysfeel. Such pressure is inherent in our system of government; it does not create an unconstitutional inhibition on associational freedom.”).
Thus, “restriction of participation . . . to the faculty’s exclusive representative” did not infringe “speech and associational rights.” See id. at 288. “The state has in no way restrained [the faculty’s] freedom to speak on any education-related issue or their freedom to associate or not to associate with whom they please, including the exclusive representative.” Id. (emphasis added). The Court therefore held that “restriction on participation . . . of professional employees within the bargaining unit who are not members of the
ii. Janus
Janus explained that the union in that case was an exclusive representative. See Janus, 138 S. Ct. at 2460. And the Court indicated its ruling on agency fees would not prevent such exclusive representation: “[I]t is simply not true that unions will refuse to serve as the exclusive representative of all employees in the unit if they are not given agency fees.” Id. at 2467. The Court acknowledged that “[i]t is . . . not disputed that the State may require that a union serve as exclusive bargaining agent for its employees.” Id. at 2478. It further said, “States can keep their labor-relations systems exactly as they are—only they cannot force nonmembers to subsidize public-sector unions.” Id. at 2485 n.27.
b. Analysis
Mr. Hendrickson argues exclusive representation requires him to “allow the Union to speak on his behalf,” and this “compelled association” violates his
Knight found exclusive representation constitutionally permissible. Exclusive representation does not violate a nonmember’s “freedom to speak” or “freedom to associate,” and it also does not violate one’s freedom “not to associate.” See 465 U.S. at 288. Knight thus belies Mr. Hendrickson’s claim that exclusive representation imposes compulsion in violation of the
Janus reinforces this reading. As noted, the Janus Court stated that “[i]t is . . . not disputed that the State may require that a union serve as exclusive bargaining agent for its employees.” Janus, 138 S. Ct. at 2478. And exclusive representatives have a “duty of providing fair representation for nonmembers.” See id. at 2467-68. Even though exclusive representatives speak on behalf of nonmembers, the Court stated that, with theexception of agency fees, “[s]tates can keep their labor-relations systems exactly as they are.” Id. at 2485 n.27.
Finally, “[a]ll Circuits that have addressed this issue subsequent to the Janus decision have concluded that exclusive representation remains constitutional.” Oliver v. Serv. Emps. Int’l Union Local 668, 830 F. App’x 76, 80 n.4 (3d Cir. 2020) (unpublished); see also Reisman v. Associated Facs. of Univ. of Me., 939 F.3d 409, 414 (1st Cir. 2019), cert. denied, 141 S. Ct. 445 (2020); Jarvis v. Cuomo, 660 F. App’x 72, 74 (2d Cir. 2016) (unpublished); Akers v. Md. State Educ. Ass’n, No. 19-1524, --- F.3d ----, 2021 WL 852086, at *5 n.3 (4th Cir. 2021); Thompson v. Marietta Educ. Ass’n, 972 F.3d 809, 813-14 (6th Cir. 2020), petition for cert. filed, No. 20-1019 (U.S. Jan. 22, 2021); Ocol v. Chi. Tchrs. Union, 982 F.3d 529, 532-33 (7th Cir. 2020); Bierman v. Dayton, 900 F.3d 570, 574 (8th Cir. 2018); Mentele v. Inslee, 916 F.3d 783, 786-90 (9th Cir. 2019), cert. denied sub nom. Miller v. Inslee, 140 S. Ct. 114 (2019).
III. CONCLUSION
We affirm the district court’s decisions to grant the Union’s motion for summary judgment and the New Mexico Defendants’ motion to dismiss. We remand to the district court with instructions to amend its judgment to reflect that (1) the dismissal of Mr. Hendrickson’s request for prospective relief on Count 1 as moot and (2) the dismissal of Count 2 against the New Mexico Defendants based on
Notes
The public employer shall honor payroll deductions [of membership dues] until the authorization is revoked in writing by the public employee in accordance with the negotiated agreement and for so long as the labor organization is certified as the exclusive representative.
A labor organization that has been certified by the board or local board as representing the public employees in the appropriate bargaining unit shall be the exclusive representative of all public employees in the appropriate bargaining unit. The exclusive representative shall act for all public employees in the appropriate bargaining unit and negotiate a collective bargaining agreement covering all public employees in the appropriate bargaining unit. The exclusive representative shall represent the interests of all public employees in the appropriate bargaining unit without discrimination or regard to membership in the labor organization.