A challenge to the power of state worker labor unions to extract so-called “fair share” fees from non-union workers could be ticketed for the U.S. Supreme Court, where opponents of the fees hope a conservative-majority court could overturn a longstanding legal precedent used by unions to justify their forcible collection of fees from public employees who refuse to pay formal union dues.

On March 1, attorneys representing two state workers squared off before a three-judge panel of the U.S. Seventh Circuit Court of Appeals in Chicago, against lawyers representing the American Federation of State, County and Municipal Employees (AFSCME) and a Teamsters local over the two state workers’ claims the collection of those fees are unconstitutional.

In arguments, lawyers for the plaintiff workers, Mark Janus and Brian Trygg, asked the court to find against them, so they can appeal the case to the Supreme Court.

In September, U.S. District Judge Robert W. Gettleman dismissed Janus and Trygg’s lawsuit, finding the plaintiffs’ case is doomed under existing precedent established in the Supreme Court’s 1977 ruling in Abood v Detroit Board of Education, which had allowed the collection of “fair share fees.”

However, attorney William Messenger, of the National Right to Work Legal Defense Foundation, echoing a brief his foundation filed in the case along with the Chicago-based Liberty Justice Center, agreed with Judge Gettleman’s reasoning, and explained the plaintiffs are asking for the chance to take the matter to the Supreme Court in the hope of persuading the high court to overturn the Abood precedent.

“Only the Supreme Court can grant the relief they seek,” Messenger said Wednesday during oral arguments before the three Seventh Circuit judges.

The case had landed in federal court in 2015, when Illinois Gov. Bruce Rauner initially filed suit to stop state worker unions from taking the fees from the paychecks of state workers.

Unions have argued the fees are needed to offset the costs they incur in collective bargaining, which they claim benefits all employees, whether they are full members of the union or not. They assert workers who benefit from their negotiations without contributing dues are essentially freeloaders.

In his legal challenge, however, Rauner had argued the mandatory collection of the fees violates the constitutional rights of state workers who do not wish to associate with the unions. While unions are not permitted to use the fees to fund explicitly political activities, the lawsuit argued the work of a union representing government workers cannot be separated from the union’s political activities, since the union deals with lawmakers and other government officials as a matter of course.

According to Rauner’s lawsuit, about 6,600 of the state’s more than 46,000 employees make fair share payments, rather than pay union dues. The lawsuit noted fair share fees can amount to as much as 99 percent of the dues paid by similar workers who are union members.

In May 2015, Gettleman threw Rauner off the litigation, saying the governor lacked standing to represent the fair share fee-paying state workers.

But at the same time, the judge granted permission to Janus and Trygg to intervene in the case, and essentially take Rauner’s place. As state employees who pay fair share fees, Janus and Trygg satisfied the standing question, allowing the case to go forward.

As Rauner’s legal challenge entered the courts, the U.S. Ninth Circuit Court of Appeals ruled in a separate case that public unions are entitled to the fair share fees, despite a challenge from public workers in California, who similarly argued the fee collection violated their constitutional rights.

Before the case could be decided by the U.S. Supreme Court, however, Supreme Court Justice Antonin Scalia died, resulting in a 4-4 deadlock, allowing the Ninth Circuit’s ruling to stand.

Attorneys for Janus and Trygg have indicated they would like to take the Illinois case to the Supreme Court, to give the court - which could again have nine justices, should the U.S. Senate approve the nomination of federal Appellate Judge Neil Gorsuch to the court to replace Scalia – another chance to take action on the question of whether Abood should be allowed to stand.

Seventh Circuit judges Richard Posner, David Hamilton and Diane Sykes did not question Messenger during oral arguments.

However, they did interrogate attorneys for AFSCME Council 31 and Teamsters Local 916.

AFSCME’s attorney, John West, argued the court, before sending the matter onto the Supreme Court, needed first to rule on whether Janus and Trygg could actually intervene in the case after Rauner had been dismissed.

Judge Posner, however, sharply questioned that rationale, calling the arguments little more than “trivial,” “legalism” and “fussing.”

“What is the benefit to society of throwing this case out, and forcing them to file a new complaint, rather than treating the intervention motion as a complaint?” Posner said.

Attorney Carl Draper, representing the Teamsters, argued Trygg should be tossed from the case, as Trygg had already sued over his fair share fees, and had been allowed under a ruling from an Illinois court, to donate his fair share fees to charity, rather than pay them to a union.

Judge Hamilton questioned this reasoning, asking Draper if he believed Trygg would not benefit from a Supreme Court ruling undoing the Abood decision – the precedent underpinning the ruling requiring him to donate the fees.

Hamilton asked Draper if it was his position Trygg should be made to “indefinitely … abide by a settlement under Abood, decades after Abood had been declared invalid?”

In response, Draper said he continued to believe Trygg’s claim should be disallowed, as Trygg did not raise his constitutional challenge to the fair share fee rules during his state appellate case.

“He had his first bite at the apple,” Draper argued.

In rebuttal, however, Messenger said Trygg’s challenge would not have been allowed before either the Illinois Labor Relations Board or the Illinois Appellate Court, as “neither had jurisdiction over that claim.”

The Seventh Circuit panel took the matter under advisement, and is expected to render an opinion at a later date.

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Organizations in this Story

U.S. Court of Appeals for the Seventh Circuit
219 S Dearborn St
Chicago, IL 60604

National Right to Work Foundation
8001 Braddock Road
Springfield, VA 22151

Liberty Justice Center
190 South LaSalle Street
Chicago, IL 60603

AFSCME Council 31
205 N Michigan Ave
Chicago, IL 60601

Teamsters Local #916
3361 Teamster Way
Springfield, IL 62707

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