Janus decision could give IL caregivers new shot at reclaiming $32M in unconstitutional union fees: SCOTUS

By Jonathan Bilyk | Jun 28, 2018

A day after overturning the legal precedent that allowed public sector unions to use the state to grab a share of non-union workers’ paychecks, the U.S. Supreme Court has ordered a federal appeals court in Chicago to use its ruling to take another look at his decision forbidding a group of home caregivers from suing a labor union to claw back some of the $32 million in similar fees the state had taken from the caregivers and paid to the union.

On June 28, the U.S. Supreme Court in a single-paragraph order granted a petition from those caregivers to vacate the decision of U.S. District Judge Manish Shah, which was later upheld by the U.S. Seventh Circuit Court of Appeals, in the lawsuit brought by named plaintiffs Theresa Riffey, Susan Watts and Stephanie Yancer-Price against the Service Employees International Union and state of Illinois.

“The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of Janus v. State, County, and Municipal Employees,” the Supreme Court said in an order Thursday, included amid a list of other orders concerning petitions to the court.

The order means the plaintiffs in the case will get another chance to secure the potential refund of as much as $32 million in so-called “agency fees” the SEIU had used a state law to take from the caregivers’ checks over a six-year period ending in 2014.


US Supreme Court Justice Samuel Alito  

In late 2017, the Seventh Circuit had found the law did not allow such a refund, even if the state’s compulsory collection of the fees violated the caregivers’ rights to free speech and association.

That decision had upheld findings from Judge Shah, who said he believed the union should be able to hold onto the tens of millions of dollars in fees it had improperly collected because the union had collected the fees “in good faith,” relying on state law.

Further, the judges had turned aside the plaintiffs’ attempt to turn their complaints into a class action, to 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.

The judges said they believed it would be impossible to accurately determine which caregivers may or may not have supported the union during the time the fees were being unconstitutionally deducted.

The Seventh Circuit judges said 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.

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.

That rationale was expanded this week, when the Supreme Court, in a 5-4 decision in the Janus case, found states trample the speech and association rights of their non-union employees in forcing them to pay so-called “fair share” fees to unions. While the unions ostensibly use the fees to cover the costs of bargaining and other actions taken on behalf of the non-union members, as required by law, Supreme Court Associate Justice Samuel Alito, who authored the majority’s decision in Janus, noted the result was untold  “billions of dollars … taken from nonmembers and transferred to public-sector unions in violation of the First Amendment.”

While the law prohibited unions from using such fees for political advocacy, Alito noted unions have used any number of methods to justify their use of the money, including spending it on “lobbying” activity the union claimed benefits all workers.

“That formulation is broad enough to encompass just about anything that the union might choose to do,” Alito wrote.

In their petition to the Supreme Court submitted in January, months before the Janus decision, the plaintiffs in the Riffey case likened the Seventh Circuit’s decision to allow the SEIU to keep the unconstitutionally-collected fees to one allowing pickpockets to keep money pilfered from purses.

“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 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.

 “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 … 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.”

The plaintiffs in the case were represented by attorney Anastas Shkurti, of the firm of Veverka, Rosen & Haugh, of Chicago; attorney Michael Austin Haugh, of Glenview; and attorneys with the National Right to Work Legal Defense Foundation, of Springfield, Va.

Defendant SEIU Healthcare of Illinois & Indiana was defended by attorneys with the firms of Altshuler Beron LLP, of Chicago, and Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, of Chicago.

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Dowd Bloch & Bennett National Right to Work Legal Defen SEIU 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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