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Unions that used a state law which was later declared to be unconstitutional to take millions of dollars from non-union home caregivers who were not employed by the state should not be exposed to the risk of a class action lawsuit to force the union to refund those unconstitutional fees, Illinois’ governor and attorneys for a union said in briefs filed with the U.S. Supreme Court this week.
On May 20, Illinois Attorney General Kwame Raoul, on behalf of Ill. Gov. JB Pritzker, and lawyers representing labor union SEIU Healthcare Illinois, Indiana, Missouri and Kansas, filed virtually matching briefs to the Supreme Court.
The documents ask the court to reject the appeal brought by a group of plaintiffs who say they represent a class of nearly 80,000 home care providers in Illinois, asking the court to order the union to refund potentially tens of millions of dollars in fees the court has already ruled were collected in violation of the U.S. Constitution.
In the filings, Raoul, Pritzker and their union political allies assert the justices should uphold the rulings of Chicago federal judges and the U.S. Seventh Circuit Court of Appeals, which had shut down the class action attempt against the union.
The state Democratic officials and the union argue the lower courts got the case law correct in finding the law did not allow for such a mass refund, even if the state’s compulsory collection of the fees violated the caregivers’ constitutional rights to free speech and association.
Rather, they said, the plaintiffs should be forced to pursue their refund claims against the union individually.
“… The (Seventh Circuit) court directly stated that the First Amendment prohibited the collection of a fee absent affirmative consent,” Raoul wrote in the brief on behalf of Pritzker. “Although petitioners fault the court for conducting a separate injury analysis, they overlook the basic distinction between a constitutional violation and a compensable injury.
From 2008-2014, the state, under former Gov. Pat Quinn, a Democrat backed by the SEIU and other unions, used a law to declare all in-home personal care assistants paid through state subsidies to be state employees, subject to representation by SEIU.
Caregivers could still decide whether to formally join the union and pay dues. Regardless of their decision, however, the state still deducted so-called “fair share fees” or “agency fees” from the checks written by the state to non-union caregivers, ostensibly to offset the union’s bargaining costs. A similar regime was established over home child care providers, who were paid through state subsidies, as well.
However, in 2014, the Supreme Court struck down the fee regime, declaring such compulsory fees to be unconstitutional in the case known as Harris v Quinn.
The Harris decision then sparked a class action from the caregivers, seeking to recover an estimated $32 million from SEIU Healthcare. The lawsuit named both SEIU Healthcare and then-Illinois Gov. Bruce Rauner as defendants. Pritzker became governor in February 2019.
Federal judges and the Seventh Circuit rejected the class action attempt, essentially finding courts couldn’t decipher how many of the 80,000 affected caregivers actually didn’t want the union to take the fees from their pay.
Shortly after the Seventh Circuit rejected the caregivers’ class action, the Supreme Court decided in the case known as Janus v American Federation of State County and Municipal Employees that states also trample the rights of actual state employees by forcing non-union workers to pay agency fees. Supreme Court Justice Samuel Alito noted such fee payments had resulted in “billions of dollars … taken from nonmembers and transferred to public sector unions in violation of the First Amendment.”
The Supreme Court then also directed the Seventh Circuit to revisit its earlier decision in the caregivers’ class action in light of the Janus decision.
Earlier this year, however, the Seventh Circuit again denied the class action attempt, saying they saw no conflict between the First Amendment violations established in the Harris and Janus decisions, and the Seventh Circuit’s rejection of the class action.
The caregivers, led by named plaintiff Theresa Riffey, then appealed again to the Supreme Court, arguing the lower courts’ decisions amount to resistance of the Supreme Court’s holdings in Harris and Janus, “based on the discredited proposition that individuals must object to subsidizing union speech to establish First Amendment injury and damages.”
“The Court should make it clear that unions are not free to keep monies they unconstitutionally seize from individuals without consent, but must return to its rightful owner all monies they wrongfully extract,” the plaintiffs wrote in a brief filed with the Supreme Court in February.
In response, however, the union and Attorney General Raoul, for Pritzker, said the plaintiffs had mischaracterized the Seventh Circuit’s decisions.
They said nothing in the Seventh Circuit decision blocks any would-be plaintiff from pursuing claims on their own against the union to recover the fees.
Further, the union and state officials asserted the union’s collection of the fees was based on “good faith,” as it relied on existing law and legal precedent at the time. The Supreme Court’s 1977 decision in Abood v Detroit Board of Education declared agency fees to be constitutional. The Supreme Court overturned that decision in the Janus case.
Unions have used that argument to great effect so far in lower courts. Most recently, a federal judge in Chicago used the union’s “good faith” to underpin his decision to reject the attempt by Mark Janus, the non-union state employee who served as plaintiff in Janus v AFSCME, to collect a refund of his fees from AFSCME.
In that decision in March, U.S. District Judge Robert Gettleman said the union had “no way .. to predict the resolution of” the Janus case, adding, if Democrat Hillary Clinton had won the race for U.S. President in 2016, “the composition of the Supreme Court that decided the case may well have been different, leading to a different result.”
SEIU Healthcare is defended in the caregivers’ class action by attorneys Robert Bloch, of the firm of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, of Chicago, and Scott A. Kronland, of Altshuler Berzon LLP, of San Francisco.
The caregivers are represented by attorneys William Messenger and Amanda K. Freeman of the National Right to Work Legal Defense Foundation, of Springfield, Va.