Law360: Janus seeks refund of fair share fees that were declared illegal

The U.S. Supreme Court ruled in Janus v. AFSCME that mandatory government union fees are illegal. Mark Janus is arguing AFSCME should refund the illegal dues he was forced to pay before the decision.

The U.S. Supreme Court ruled in Janus v. AFSCME that mandatory government union fees are illegal. Mark Janus is arguing AFSCME should refund the illegal dues he was forced to pay before the decision.

This article first appeared on Law360 on September 20, 2019.

(September 20, 2019, 7:56 PM EDT) — The namesake plaintiff in the landmark Janus case and other nonunion state workers urged the Seventh Circuit on Friday to grant them a refund of the “fair share” fees they once paid for collective bargaining, but the judges said it’s not a given that the U.S. Supreme Court‘s decision applies retroactively.

When the nation’s high court held in Janus v. AFSCME that forcing public sector workers who aren’t union members to pay “agency fees” violates their First Amendment rights, it left open the question of whether they’re entitled to refunds for those fees because the unions were acting under an arrangement blessed by the existing legal precedent when they were collecting the dues, Chief U.S. Circuit Judge Diane P. Wood said during oral argument.

Counsel for Mark Janus, who is seeking damages in the amount of union dues he paid before the Supreme Court’s ruling in the case, disagreed with the assertion that the high court left that open to lower courts’ interpretation.

“You cannot get around retroactivity based on reliance on an old statute,” said William L. Messenger of the National Right to Work Legal Defense Foundation. “Our position is AFSCME should have to make him whole. Mr. Janus should not have to pay for AFSCME’s unconstitutional conduct.”

The panel heard arguments in two cases on Friday — one brought by Janus, and the other brought by named plaintiff Stacey Mooney on behalf of public school teachers against the Illinois Education Association.

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