Key Takeaways from the AG Opinion on Janus v. AFSCME

Alaska Attorney General Kevin G. Clarkson released an opinion today analyzing last year’s Supreme Court ruling on Janus v. American Federation of State, County, and Municipal Employees (AFSCME), Council 31. In the opinion, AG Clarkson clearly states that the Janus decision invalidates certain Alaska Statutes and must be addressed.


“I have concluded that Janus requires a significant change to the State’s current practice in order to protect state employees’ First Amendment rights.”

— Alaska Attorney General Kevin G. Clarkson


Here are the key takeaways from the AG opinion:

  • The Janus decision invalidated part of the Alaska Public Employment Relations Act (PERA), AS 23.40.110(b)(2). This allowed the government to enter into agreements with unions that required all employees to pay money to the union—whether a member or not—as a condition of employment.
  • The previous administration took corrective steps to prevent unions from collecting fees from non-members, but this alone does not fulfill the requirements set forth in Janus.
  • Therefore, the current state payroll deduction process for union dues is “constitutionally untenable.”
  • In order to opt-in to union membership, government workers must waive their First Amendment rights, but to do so, they must have a full understanding of what that means.
  • To comply with the Supreme Court’s mandate in Janus, the government, as an employer, must have “clear and compelling evidence” that the waiver of an employee’s First Amendment rights was “freely given.”
  • Because unions currently control the membership process, the state cannot guarantee that an employee’s authorization to waive his First Amendment rights was “the product of a free and deliberate choice rather than coercion or improper inducement.”
  • This current system does not satisfy the standards set forth in Janus, thus, “the State will require that the employee provide that consent directly to the State.”
  • Additionally, an employee’s waiver of his First Amendment rights is not valid indefinitely and will have to be renewed periodically.
  • The governor may exercise executive authority to issue an administrative order establishing new payroll deduction procedures for union members which will honor state employees’ First Amendment rights by requiring that employees provide their consent to waive those rights directly to the state.

Alaska Policy Forum applauds the diligent work of the Attorney General’s office in thoroughly analyzing the Janus v. AFSCME decision. We agree with the analysis in that Janus clearly stipulates affirmative consent is required for government employees to opt-in to union membership, thereby waiving their First Amendment rights. Additionally, we agree with AG Clarkson’s analysis of court precedence that such a waiver is not effective indefinitely and must be renewed periodically. Implementation of Supreme Court decisions is not optional; Alaska government employees have the right to determine whether or not to give their hard-earned pay to a union, as Janus confirms. This opinion is a welcome step toward correcting Alaska’s unconstitutional payroll deduction system, and we look forward to the Governor’s actions to rectify the situation.


Read the full opinion from the Attorney General here. For more information on last year’s landmark Janus v. AFSCME ruling, check out these resources. Photo of AG Clarkson at the announcement of criminal justice reform legislation in January 2019, by Governor Dunleavy, cropped, CC BY-NC-ND 2.0.