CHICAGO — Lawyers for former Illinois state worker Mark Janus have asked a federal appeals panel to overturn a ruling barring nonunion state workers from collecting refunds of the fees they paid to unions, even though the unions had more than a strong inkling the fees were about to be declared unconstitutional.
On March 18, U.S. District Judge Robert Gettleman sided with the American Federation of State County and Municipal Employees by rejecting a request from Janus for a court order to refund union fees he’d paid before a 2018 U.S. Supreme Court ruling in favor of Janus in his dispute with AFSCME and the state, finding states trample the speech and association rights of their non-union employees by forcing them to pay so-called “fair share” or “agency” fees to unions.
Gettleman found unions didn’t owe refunds because they were acting in “good faith,” relying on state laws and prior legal precedent. The fees were collected under state laws based on the presumption the union would use the fees — only slightly discounted from full union membership dues — to offset a union’s bargaining costs.
Representing Janus are attorneys with the firm of Winston & Strawn LLP, of Chicago; the National Right to Work Legal Defense Foundation, of Springfield, Va.; and the Liberty Justice Center, of Chicago. In a brief filed July 3, Janus’ legal team asserted the state and union improperly argue “every private defendant that reasonably relies on a state statute when depriving others of their constitutional rights should not be liable for damages.”
Rather, Janus' lawyers argue, the applicable federal law specifically outlines damages liability entitling Janus to his requested refund, specifically requiring “that ‘every person’ who acts under color of state law to deprive others of their constitutional rights ‘shall be liable to the party injured in an action at law.’ ”
By not ordering a refund, the brief continues, the result is Janus being forced to pay for someone else’s unconstitutional conduct. The lawyers further said AFSCME weakened its position by continuing to collect such fees when it knew the validity of the law allowing it to do so was in question, and that Gettleman’s ruling would “encourage parties to engage in potentially unconstitutional conduct by diminishing their liability for so doing,” including all private-party defendants as well as municipalities.
Janus’ lawyers also said no court has “recognized a blanket, statutory reliance defense” such as the one Gettleman endorsed from AFSCME and the state, and that the cases relied on as precedent differ because they involve questions of probable cause, malicious prosecution and abuse of judicial processes, none of which are considerations in this dispute.
The state tried to paint Janus’ position as claiming AFSCME misused a government process, but his lawyers responded by arguing the federal law concerns misuse of the judicial process, “an action literally taken by a court.” That protection “exists to protect the integrity of the judicial process and to protect litigants from harassment,” the brief states.
“Compelled speech violates the First Amendment because it offends individual autonomy and distorts the marketplace of ideas," Janus' lawyers argued.
The brief said AFSCME should’ve known it would have to reimburse Janus and pointed to a 1995 U.S. Supreme Court opinion in Reynoldsville Casket Co. v. Hyde, which “not only reiterated that its decisions must be applied retroactively, but further held that courts cannot avoid retroactive application by fashioning contrary equitable remedies based on a party’s reliance on overruled law.”
Janus’ lawyers said AFSCME should’ve placed any disputed fees into escrow accounts once he sued, and that the union “is relying on its own deliberate choice to seize and to spend Janus’ money during the pendency of this litigation to justify not having to repay him.”
Finally, Janus’ lawyers said AFSCME argued it shouldn’t have to pay him back because it provided bargaining services in exchange for his fees, and countered by pointing out that’s the exact dispute the Supreme Court settled in Janus’ favor, and “AFSCME was not entitled to any of Janus’ earned wages.”
According to a release from the National Right to Work Foundation, Janus is seeking a refund of about $3,000 in fees.
In that release, the Foundation said "the case has significant implications for dozens of other cases being litigated around the country for hundreds of thousands of other workers seeking the return of forced fees seized unlawfully by union officials."
The Foundation said it is litigating 16 cases with more than $120 million in refunds at stake.
“The Janus case is a milestone of worker freedom, but rather than accept that the funding of government unions must be completely voluntary union bosses continue to block workers from exercising their rights and to deny workers refunds for the constitutional violations union officials committed,” said National Right to Work Foundation President Mark Mix in a prepared statement. “We hope the Seventh Circuit will follow the clear logic of the Supreme Court’s decision issued a year ago and establish that union bosses cannot profit from violating the First Amendment rights of workers.”
“Government workers are finally free from forced union fees after the Janus decision, but government unions’ coffers are full from the years of unconstitutional financial support taken from workers,” said Patrick Hughes, president and co-founder of the Liberty Justice Center, in a prepared statement. “Mark and hundreds of thousands of former agency fee payers are entitled to full relief from the government unions’ wrongdoing.”
Jonathan Bilyk contributed to this report.