IL 'fair share fees' lawsuit tossed; plaintiffs say 'desired result,' allowing appeal to SCOTUS

By Jonathan Bilyk | Mar 21, 2017

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” fees.

 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 of course.

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 state workers.

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.

Should 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.

By 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 high court.

Want to get notified whenever we write about any of these organizations ?

Sign-up Next time we write about any of these organizations, we'll email you a link to the story. You may edit your settings or unsubscribe at any time.

Organizations in this Story

American Federation of State County and Municipal Employees Council 31 Illinois Governor Bruce Rauner International Brotherhood of Teamsters Local 916 Liberty Justice Center National Right to Work Foundation U.S. Court of Appeals for the Seventh Circuit U.S. Supreme Court

More News

The Record Network