The U.S. Supreme Court has again declined to step into the debate over whether unions should refund unconstitiutional fees collected for them by state governments and other public bodies from non-union public workers.
On Jan. 25, the Supreme Court denied petitions in three cases from Illinois centered on the question of whether the unions enjoyed protection from such refund demands, because they claimed to have received such fees in “good faith” reliance that the fee collections were legal.
The high court justices did not provide any comment explaining their rejection of the appeals.
John M. West
| Bredhoff & Kaiser
However, the decisions continue a trend in the courts, upholding the unions’ good faith defense and affirming the unions’ right to hold onto the millions of dollars they received through the years from the non-union government workers and others from whom the state steered money to the unions.
The cases, and others like them, have landed in federal courtrooms in the roughly two years that have followed the Supreme Court’s 2018 decision in Janus v American Federation of State County and Municipal Employees (AFSCME), in which the court’s conservative majority declared such compulsory union fee collection schemes unconstitutional.
The unions claimed such fees, known as “agency fees” or “fair share fees,” were needed to reimburse unions for the cost they incurred representing non-union workers included in the so-called employee bargaining units within state government agencies that the unions represented. The “fair share fees” were then deducted from non-union workers’ pay by the government agencies for which they worked.
The fees often amounted to 95% of the regular union dues paid by union members.
In the 2018 case, then-Illinois state worker Mark Janus challenged those fees, calling them unconstitutional infringements on his First Amendment speech and free association rights.
The Supreme Court agreed, and struck down the regime.
Janus himself was among a number of plaintiffs who have since sued, demanding the unions refund at least a portion of those fees.
Federal courts, however, including the U.S. Seventh Circuit Court of Appeals in Chicago, have steadfastly, to this point, rejected those refund demands. They said the good faith defense holds even if the fees were collected after Janus filed suit, and the plaintiffs claimed the unions should have been on legal notice that the fee regimes were likely illegal.
On Jan. 25, the Supreme Court rejected an appeal from Janus, as well as two other non-union Illinois public workers who sued the unions that had represented them.
The other cases were brought by downstate public school teacher Stacey Mooney, who had sued the Illinois Education Association teachers’ union, and Chicago Transit Authority worker Benito Casanova, who had sued the International Association of Machinists Local 701.
In their petitions, the plaintiffs argued the unions had twisted the “good faith” defense to allow the unions to illegally keep the unconstitutionally collected fees.
They argued allowing the unions to claim the good faith defense in these cases would be akin to forcing “victims of constitutional violations” to pay “for the … unconstitutional conduct.”
The decision to deny the appeal petitions from Janus, Mooney and Casanova follows the Supreme Court’s decision in 2019 to reject a similar appeal. In that case, plaintiffs Theresa Riffey, Susan Watts and Stephanie Yancer-Price sought to bring a class action on behalf of 80,000 other non-union home caregivers against the Service Employees International Union (SEIU). The caregivers, who were not state employees, claimed SEIU had wrongly relied on state law to extract union fees from payments they received from the state on behalf of those to whom they provided care.
Those fees were also declared unconstitutional in a 2014 decision, Harris v Quinn.
However, even though the fees were collected unconstitutionally, federal judges and the Seventh Circuit also ruled in favor of the SEIU, asserting the caregivers didn’t do enough at the time the fees were being deducted to object to the collection of the fees. Thus, they could not press a class action now to make the union refund the estimated $32 million it reaped from the unconstitutional arrangement with the state of Illinois.
The Supreme Court denied their petition to appeal, as well.
Other cases arguing similar claims may still find their way to the Supreme Court, however.
In late 2020, for instance, the Seventh Circuit similarly denied an appeal from a Chicago Public Schools math teacher against the Chicago Teachers Union for allegedly illegally collecting fees from his pay. In its decision, the Seventh Circuit noted it was denying the teacher’s appeal, at his request, to allow him to petition the Supreme Court.
In the appeals, Janus was represented by attorneys Jeffrey M. Schwab, of the Liberty Justice Center, of Chicago, and William L. Messenger and Aaron B. Solem, of the National Right to Work Legal Defense Foundation, of Springfield, Va.
Casanova has also been represented by the National Right to Work Legal Defense Foundation, as well as attorney Christopher Wadley, of the firm of Walker Wilcox Matousek, of Chicago.
Mooney was represented by attorneys Talcott J. Franklin, of Dallas, Texas; Jonathan F. Mitchell, of Mitchell Law, of Austin, Texas; and Norman Rifkind, of Chicago.
The IEA was represented by attorneys John M. West and others with the firm of Bredhoff & Kaiser, of Washington D.C., as well as attorneys from the IEA and the National Education Association.
The IAM was also represented by Bredhoff & Kaiser.
AFSCME was also represented by Bredhoff & Kaiser, as well as attorneys Melissa J. Auerbach and Stephen Yokich, of the firm of Dowd Bloch Bennett Cervone Auerbach & Yokich, of Chicago, and attorneys from AFSCME.