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Saying a union’s unconstitutional seizure of $32 million in fees from non-union home care providers via the state of Illinois was legally not much different than picking a pocket on the street, a group of those personal assistants have asked the U.S. Supreme Court to step in and overturn lower courts’ decisions allowing the union to keep the money, even the high court had determined the union had no right to collect the money in the first place.

On Jan. 8, attorneys representing named plaintiffs Theresa Riffey, Susan Watts and Stephanie Yancer-Price petitioned the Supreme Court to hear their appeal of the decision by the U.S. Seventh Circuit Court of Appeals in Chicago, which rejected the plaintiff’s request to bring a class action lawsuit against the union on behalf of potentially more than 80,000 people from whom the Illinois state government deducted fees, which were then handed over to the Service Employees International Union.

“When a union lacks lawful authority to require individuals to subsidize certain activities under the First Amendment, it necessarily follows that the union cannot take their money for that purpose,” the plaintiffs’ attorneys wrote in the petition.  “The union has no rightful claim to those funds. Here … SEIU had no more right to take personal assistants’ money than it had the right to steal money from the pocket of a man on the street.”

The request to appeal to the Supreme Court comes about three months since the Seventh Circuit upheld the decision of a Chicago federal district court judge to deny the certification of the plaintiffs’ requested class action against the SEIU. The lawsuit asserted the class could include all in-home personal care assistants who had been paid through state subsidies provided to cover the costs of their work to aid Illinois residents with disabilities.

From 2008-2014, Illinois used a state law to declare the home caregivers state employees and compelled them to either join the SEIU or deducted so-called “agency fees” from the checks paid by the state on behalf of those to whom they provided care.

In 2014, the Supreme Court struck down that regime, declaring in Harris v. Quinn such compulsory fees to be an unconstitutional infringement on the rights of the personal assistants and child care providers who were not on the state payroll and never asked to be represented by any union.

However, in the wake of that decision, the federal courts have refused to allow personal care assistants in Illinois and others who worked under similar regimes in other states to recover the fees the Supreme Court said the union should have never been allowed to collect.

In 2016, for instance, U.S. District Judge Manish Shah refused requests from both personal care assistants and child care providers to bring class actions against the union, declaring the court couldn’t determine which of the caregivers may or may not have supported the union during the time the fees were being unconstitutionally deducted.

He also declared he believed the union should be able to hold onto the tens of millions of dollars in fees it had improperly collected for nine years because the union had collected the fees “in good faith,” relying on state law.

The Seventh Circuit appellate judges sided with Shah, saying they believed “it was reasonable inference … that a significant number of class members would indeed have chosen” to join the union or voluntarily pay agency fees, if they had but been given the choice.

Therefore, the Seventh Circuit said, the non-union caregivers could not be allowed to press a class action claim against the union to reclaim the money the Supreme Court had said the union had not been entitled to collect.

In their petition to the Supreme Court, drafted and signed by attorneys William Messenger and Amanda K. Freeman of the Springfield, Va.-based National Right to Work Legal Defense Foundation and attorney Michael Haugh, of suburban Glenview, the plaintiffs argued the lower courts’ position flies in the face of the rationale underlying the Harris decision.

The plaintiffs said it shouldn’t matter under the law and the Constitution if anyone might politically support the goals of the union or not, noting, as a comparison, that supporters of firearm ownership rights would still be entitled to relief if a government seized money from them and gave it to the National Rifle Association.

“Even if some nonmember personal assistants did not oppose SEIU’s agenda, but were agnostic, ambivalent, or favorably disposed towards it, the State and SEIU deprived them all of their right to choose whether to support SEIU’s agenda,” the petitioners wrote.

Further, they argued, the lower courts’ decisions effectively encourage unions to use political supporters in state government to allow them to continue to take workers’ money until the workers either object or a court makes them stop.

They said this is particularly poignant during the high court’s current term, as justices prepare to hear arguments in February in the case of Janus v. AFSCME, a high stakes case in which a non-union state employee has asked the court to overturn decades-long legal precedent allowing unions to require non-union workers to pay so-called “fair share fees,” ostensibly to offset union bargaining costs.

The petitioners asked the Supreme Court to hold any action on their petition until after justices rule on Janus, on the chance that decision addresses the questions raised in the petition.

However, regardless, the petitioners said the court needs to step in to allow those the court declared had suffered rights violations reclaim their property.

“To allow unions to profit from unconstitutional fee seizures will beget more unconstitutional fee seizures,” the petitioners wrote. “… Public sector unions will have little incentive to comply with that ruling (Janus) and cease their agency fee seizures. Instead, unions will have a strong financial incentive to keep seizing fees from nonmembers until a court forces them to stop, because the unions will be able to retain most of the illegally seized monies.

“It is thereby imperative the Court establish that unions are not free to keep monies they unconstitutionally seize from nonmembers who have not expressed an objection.”

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State of Illinois U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois U.S. Supreme Court

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