Law 360

Union Foe Janus Wants High Court Return in Fee Dispute

March 9, 2020

(Law 360) — The ex-Illinois state worker who persuaded the U.S. Supreme Court to let public-sector workers refuse to fund their unions urged the high court Monday to review a ruling that his union doesn’t have to return the possibly millions of dollars in fees it collected over the years.

Mark Janus petitioned the court to review a Seventh Circuit decision affirming that the American Federation of State, County, and Municipal Employees isn’t on the hook for refunds because it extracted these fees in accordance with the law at the time.

But this “good faith defense” — which courts around the country have recently cited to reject similar fee clawback suits against other public-sector unions — does not exist, Janus said in his certiorari petition Monday.

“The court should now resolve this important question to disabuse the lower courts of the rapidly spreading notion that a defendant acting under color of a statute before it is held unconstitutional is a defense to Section 1983,” Janus said.

Janus’ June 2018 high court win established that public-sector unions violate workers’ First Amendment rights when they make objectors pay “agency fees” covering representation costs, but it left open whether unions must repay this unconstitutional windfall.

The former Illinois Department of Healthcare and Family Services worker said they must after his suit was sent back to the district court, arguing that justice demanded refunds for him and a class of his colleagues.

Janus made this demand under Section 1983, a Reconstruction-era addition to the U.S. Code that empowers people to sue for damages when the government or a private entity violates their civil rights “under color of” state law.

The Northern District of Illinois rejected Janus’ fees bid in March, and the Seventh Circuit affirmed in November, saying AFSCME did not have to repay him under Section 1983 because it charged him under the high court’s then-valid Abood v. Detroit Board of Education ruling, which greenlit agency fees. This gave the union a good-faith defense under Supreme Court precedent, the panel said.

The Ninth Circuit rejected a similar fee clawback suit against AFSCME’s Washington state chapter in December, and the Sixth Circuit found the Ohio Civil Service Employees Association acted in good faith last week.

The appeals courts rested their decisions in large part on the Supreme Court’s 1992 ruling in Wyatt v. Cole . In that case, a majority said private Section 1983 defendants don’t enjoy qualified immunity like public officials generally do but suggested they may have a good-faith defense in certain cases. But the Wyatt majority only considered the defense for claims that require proof of malice and probable cause, neither of which are part of a First Amendment claim, Janus said.

“Under Janus, a union deprives public employees of their First Amendment rights by taking their money without affirmative consent,” Janus said. “A union’s intent when so doing is immaterial.”

Recognizing a good-faith defense to Section 1983 claims for fee repayments would also be unfair to the wronged workers, Janus said.

Janus is represented by the Liberty Justice Center and the National Right to Work Legal Defense Foundation, which seek court precedent weakening unions. These groups are currently litigating more than 30 cases seeking a combined $120 million in fees.

“It is time for the U.S. Supreme Court to weigh in on this issue and finally hold unions accountable for their years of unconstitutional behavior,” the Liberty Justice Center President said in a statement.

An AFSCME representative did not immediately respond Monday to a request for comment.

Janus is represented by Jeffrey Schwab of the Liberty Justice Center, and William Messenger and Aaron Solem of the National Right to Work Legal Defense Foundation.

AFSCME was represented at the Seventh Circuit by Melissa J. Auerbach and Stephen Anthony Yokich of Dowd Bloch Bennett Cervone Auerbach & Yokich and John M. West of Bredhoff & Kaiser PLLC.

The case is Janus v. AFSCME, before the U.S. Supreme Court. The case number was not available Monday.

–Additional reporting by Celeste Bott. Editing by Jack Karp.