The U.S. Supreme Court will get the chance to decide just
how much public worker unions in Illinois and elsewhere can exact from
non-union workers, after a federal appeals court in Chicago upheld a lower
court’s dismissal of a lawsuit intended to challenge a longstanding legal precedent
used by unions to justify the forcible collection of so-called “fair share”
On March 21, a
three-judge panel of the U.S. Seventh Circuit Court of Appeals dismissed the
lawsuit originally filed by Illinois Gov. Bruce Rauner, but now led by state
employee Mark Janus, against two labor unions, the American Federation of
State, County and Municipal Employees (AFSCME) and the Teamsters, asserting
those unions’ collection of fees from non-union workers was unconstitutional.
The ruling was not unexpected, and was actually sought by
attorneys for Janus, who had bluntly told both a federal district judge and the
Seventh Circuit judges of their intent to use them as procedural steps en route
to the Supreme Court. At the high court, Janus’ legal team say they intend to
ask a new conservative-majority court to overturn the 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.
Under existing labor law, unions are not allowed to collect
dues from non-union workers, as the unions would be free to use those dues to
fund political activities to which non-union workers may object, violating the
non-union workers’ constitutional speech and association rights. However, as
the unions argue their collective bargaining actions benefit all workers,
whether dues-paying members or not, the courts said the unions are allowed to
charge those workers for their “fair share” of the unions’ negotiating costs.
In the legal challenge brought by Rauner, however, the
governor had argued the mandatory collection of the fees also 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
According to Rauner’s lawsuit, about 6,600 of the states
more than 46,000 employees must pay fair share payments, rather than 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, U.S. District Judge Robert Gettleman threw
Rauner off the litigation, saying the governor lacked standing to represent the
But the judge also granted permission to Janus and fellow
state employee Brian Trygg to intervene as plaintiffs, taking Rauner’s place. Because
Janus and Trygg were fair-share fee paying state employees, the case was
allowed to move forward.
However, Gettleman also dismissed the suit, noting the Abood
decision required him to do so.
Much the same, Seventh Circuit Judge Richard Posner noted in
his opinion the court was bound by the Abood decision. Circuit Judges David
Hamilton and Diane Sykes concurred in the opinion authored by Posner.
“Of course, only the Supreme Court has the power, if it so
chooses, to overrule Abood,” Posner wrote. “Janus and Trygg acknowledge that they
therefore cannot prevail either in the district court or in our court - that
their case must travel through both lower courts - district court and court of
appeals - before they can seek review by the Supreme Court.”
Janus, however, will now stand as the sole remaining
plaintiff, as the Seventh Circuit removed Trygg, noting he had already sued
over his fair share fees, asserting a religious objection, and had been allowed
under a ruling from an Illinois court to donate his fair share fees to charity.
The ruling was hailed by Janus’ attorneys at the Chicago-based
Liberty Justice Center.
“No one should be forced to
pay money to a union as a condition of employment. We’re pleased with the
court’s ruling today; it allows us to present this issue to the U.S. Supreme
Court so that it can declare that public sector workers can’t be forced to give
their money to a union just to keep their jobs,” said Jacob Huebert, senior attorney at the Liberty
Justice Center, in a prepared statement released following the ruling.
Janus was also represented by attorneys with the National Right to Work Foundation.
the U.S. Supreme Court take up Janus’ case, it would mark the second time in
the past two years the high court has considered the question of fair share
fees. In 2016, the Supreme Court deadlocked 4-4, following the death of Supreme
Court Justice Antonin Scalia, in the case of Friedrichs v. California Teachers
Association. The deadlock allowed the decision of the San Francisco-based U.S. Ninth
Circuit Court of Appeals to stand, upholding the fees as constitutional.
the time Janus’ case can be appealed, the court is expected to add a ninth
justice, as the Republican-controlled U.S. Senate is expected to soon confirm
President Donald Trump’s selection of Supreme Court nominee Neil Gorsuch to the