Messing Adam & Jasmine LLP
PORAC, leading a coalition of 14 other public safety unions and associations (representing nearly half a million public safety employees nationwide, including the National Association of Police Organizations and local organizations from California to New York), filed an amicus brief on January 19 in the United States Supreme Court in the case Janus v. American Federation of State, County and Municipal Employees, Council 31 in support of AFSCME. The lawyers at Messing Adam & Jasmine organized the effort and filed the PORAC brief along with co-counsel at the Stanford Law School Supreme Court Litigation Clinic.
The issue in Janus is a familiar one for readers of PORAC Law Enforcement News: whether public-sector unions may charge “agency fees” (also known as “fair share fees”) to nonmember employees to cover the costs of negotiating for those employees, representing those employees in grievances and more. The Supreme Court is scheduled to hear arguments on February 26, and a decision is expected later this year.
As our brief on behalf of PORAC argues, if Mark Janus succeeds, public-sector labor unions will face significant risks to their funding streams. The decision would kick off what has been described as a “death spiral”: Union members would face a starker financial choice when deciding whether to remain a member, because the Supreme Court would be creating their right to pay nothing toward the cost of representation, which would cause fewer people to retain their membership. This would require unions to raise their rates (because they would still be responsible for everyone in the bargaining unit despite having less revenue), which, in turn, would make the financial choice starker still, and on and on.
The question of whether the court should send public-sector unions down these “death spirals” was most recently up for review in 2016 in Friedrichs v. California Teachers Association (2016) 136 S.Ct. 1083. In that case, the court split 4–4 after Justice Antonin Scalia’s death. Their nine-word decision, “The judgment is affirmed by an equally divided court,” effectively left the status quo, which allows unions to collect agency fees from nonmembers. In the May 2016 edition of PORAC Law Enforcement News, we and others correctly predicted that this question would rise quickly through the federal courts on review, and here we stand not two years later.
The legal question has not changed. Specifically, the court has granted review to decide whether to overrule its 40-year-old precedent in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which permits public-sector unions to charge “fair share fees.” PORAC’s brief demonstrated to the court how valuable public-sector unions are to efficient governance in a number of states. Among other benefits, associations like PORAC efficiently collect and analyze information, prioritize issues during negotiations, and identify overlooked dangers and inefficiencies in state and local service. The California Attorney General’s amicus brief — one of the many other amicus briefs filed in the case — also attested to the benefit that public employers receive from having strong, exclusive representatives to deal with when addressing workplace issues.
Furthermore, we noted why this case was a bad “vehicle” to bring before the court such a categorical question that challenges so many kinds of public-sector unions in so many different states and circumstances. This case took a relatively awkward procedural path to land before the court, and this has had the significant result of leaving the relevant facts in this case underdeveloped. Janus rushed this litigation to the courthouse before the decision in Friedrichs came down, in the hope that Friedrichs would prevail, enabling Janus to begin dismantling Illinois public unions as quickly as possible. The case record contains none of the complex factual findings an appellate court would need to review before it could make as sweeping a one-size-fits-all change to public-sector unions that it is considering.
Public safety unions historically have had strong membership rates, but the risk to these unions remains. Furthermore, the labor movement is founded on the principles of solidarity and the belief that we win our biggest victories when we stand united with strong partners. PORAC members will be worse off if this case comes out in Janus’ favor. A weakened national labor movement would significantly undermine the ability of public safety unions to stand for public safety workers’ rights when we need to marshal our allies.
Unfortunately, it is not looking as if Abood will survive this court a second time. As for the eight holdover justices, there is no indication that any of them have changed their minds about the underlying law, and there is no reason to believe the facts in Janus are significantly different than the facts that were presented in Friedrichs in 2016. Our new justice, Neil Gorsuch, has not yet weighed in on this specific issue, but there is every indication that his relatively conservative jurisprudence will lead him to join an opinion along with the four justices ready to overturn Abood.
At this point, we will have to wait to see how the oral argument goes February 26, and how broadly or narrowly the court decides to draft its holding. Look out for our next article in PORAC Law Enforcement News as this case develops.
About the Authors
Gary Messing, Gregg Adam and Yonatan Moskowitz of Messing Adam & Jasmine LLP are PORAC LDF panel attorneys. In April 2015, after practicing at Carroll, Burdick & McDonough for many decades, Gary, Gregg and panel attorney Jason Jasmine formed a new law firm predominately representing public safety unions and their members in their labor relations.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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Quick response, experienced and knowledgeable attorney which assisted in every step. [My representative] kept me apprised through the process. Thank you.
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[ My representative ] is an awesome attorney.
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Very well informed group.
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I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
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Can’t say enough. Both representatives that I had in 2016 were excellent. ( My attorney ) made himself available to me in late night hours, which made me feel comfortable and at ease. This program is essential to us in law enforcement.
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Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
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Very satisfied with the service I was given.
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Thank God for the L.D.F.
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[My representative] was awesome.
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Keep up the great work.
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LDF is a valuable resource that no law enforcement officer should be without.
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- Dan Lovelace Chandler LEA
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[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
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[My representative] made himself available 7 days a week understanding that those were my needs. He was very well informed and kept me on the right track and in the right frame of mind.
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Great job by my LDF lawyer. I have had to use them several times over my 20 year career and their service is invaluable.
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[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
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[ My representative ] was bogged down with multiple cases when he represented me, but I feel he did an excellent job. I would not have wanted anyone else to represent me during a very troublesome time.
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(My attorney) is a very good attorney, despite his young age. He kept me well informed throughout my legal matter and returned phone calls in a prompt manner. I was very satisfied with his performance and would not hesitate to be represented by him again.
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An excellent plan. Very valuable to its members.
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Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
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I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
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Thank you for your help. I feel very secure as you assisted me.
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I couldn't have been more satisfied with the representative!
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[My representative was] very quick to respond, helpful and professional. Thank you!
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Highly recommend this program for any LEO!
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[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
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Keep up the good work.
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[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
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My attorney was excellent. I would use her again.
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My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
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I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
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[My Representative] was great! Thank you.
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
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I appreciate the fact that my representative met with me in a social setting prior to the interview, during which time she learned the facts of the case. She was prepared for the interview. She seemed to have a genuine interest in my case.
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This attorney and her legal team were one of the best I’ve seen and interacted with. I was always in the loop and constantly updated on the case status. I would use (my attorney) again if the need came and recommend her to anyone.
- Gilbert Garcia Oceanside POA
My attorney provided outstanding representation.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- William Burdette Newport Beach PMA
26 years and I have never needed a LDF rep, but the one time you need one, it was worth the fee’s paid.”
- James Beckman Miracosta College POA
Excellent service everytime.
- Adam Laird Eureka POA
Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Erick Gaunt Palos Verdes POA
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Daniel Smock Ventura County PPOA
Everything went smooth. I think the current system works very well.
- Martha Tschetter Carson City Sheriffs PA
The LDF process was painless and I was able to get immediate representation in an urgent time of need. Thank you LDF
- Nicholas Ward Antioch POA
[ Representative ] did a great job. My case was extremely complicated and difficult. She did a great job.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Sherri Coral Riverside Community College
He was very professional. I trusted him to defend and he did! I am very thankful he was here for me.
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Steven Moorehouse Redding POA
Thank you for your help.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- Tamboura Nettingham Claremont Custody Center EA
My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Ricky L. Hemphill Los Angeles School PA
[My representative] was an excellent lawyer.
- Russell Wise Alameda POA
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Nicholas Belliveau Sebastopol POA
High quality service, proficient, well informed. Overall, very happy with experience.
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- Sean Tinney Berkeley PA
[My representative] was very attentive to my case and thorough with his investigation. I would request [him] again in the future.
- George Fierro El Monte POA
I am a firm believer that LDF serves an essential part in the assistance to protect an officer's POBR & in the integrity of an investigation or complaint. I highly recommend the law office of [My Represenative].
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Kerry Carlson Midpeninsula Ranger POA
I have held leadership positions in our POA most of my career. Because of my role as President and Vice President I have been a target to management. I feel that if it were not for LDF I wouldn't have a job
- Aaron Delgado Monterey POA
My representative called me back promptly and kept me informed. I had the impression she cared and was there to help.
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Kim Prout Upland Firefighters Assoc
It was great comfort to know somebody would be there for me in this matter. I was able to finally sleep @ night & wake up with confidence that I would be ok. Thanks.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Jeff Stanley Upland POA
Excellent representation. [My representative] is a great attorney.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- Roman Fernandez Inglewood POA
My representatives were always well-prepared and organized for hearings and meetings. Their efforts, hard work and full support is truly appreciated.
- Jay Garacochea Culver City POA
[My representative] not only did he do a great job but he listened to my concerns. He did not force his views or game plan and we worked well w/ each other. We agreed on a goal and achieved it.
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- Christopher Boyd Carlsbad POA
[My representative] was an outstanding attorney to work with. Even though I did not receive a desirable outcome entirely, I was exceptionally satisfied with his representation. Thank you.
- Andrew Hill Statewide University PA
I have used this law firm for union related business for the last several years. It was a no brainer to call them for LDF.