In 2018, Mark Janus convinced the Supreme Court that mandatory government union dues violate the First Amendment. Now he wants his money back.
After his triumph at the High Court, Janus asked a federal trial judge to require the American Federation of State, County, and Municipal Employees (AFSCME) pay out about $3,000 in agency fees the union collected from his paycheck between 2013 and 2018. The judge declined and Janus lost on appeal, prompting a new petition to the Supreme Court.
So-called right-to-work cause lawyers including the Liberty Justice Center and the National Right to Work Foundation are litigating some 30 cases that collectively seek $120 million in garnished wages for public sector workers. Public sector unions proved surprisingly resilient after the Janus decision, seeing modest increases in membership and limited losses of revenue. Judgments ordering restitution to aggrieved workers, however, could vindicate doomsayers who predicted the end of agency fees would devastate organized labor. Approximately 5.9 million public employees paid mandatory fees prior to Janus, a massive pool of prospective plaintiffs.
"The Supreme Court has already sided with Mark Janus and ruled that forcing public employees to fund union activities violates the First Amendment, but almost two years later, he and countless public servants across the country are still awaiting the return of their hard-earned dollars that were taken from them in violation of their rights," said National Right to Work Legal Defense Foundation president Mark Mix.
"The Supreme Court should follow its clear logic from the original Janus decision and take this case again to ensure that public sector union bosses are not permitted to profit from their widespread violation of workers' rights," Mix added.
Janus sought damages from AFSCME under a federal civil rights law. The union refused, saying no damages were owed because it operated under a good faith belief that mandatory fee collection was constitutional. The Supreme Court expressly sanctioned agency fees in a 1977 case called Abood v. Detroit Board of Education, and laws permitting the practice existed in many states.
In turn, Janus said a good faith defense is not available under the civil rights law. Even if it were, he continued, that defense cannot prevail in his case because the Supreme Court signaled serious misgivings about mandatory union fees in a pair of cases from 2012 and 2014. AFSCME was on notice that agency fees were legally suspect and it should have changed its behavior, Janus argued.
The trial judge sided with AFSCME, finding that the union could not have anticipated that the law would change. The Seventh U.S. Circuit Court of Appeals affirmed, saying that the rule of law "requires that parties abide by, and be able to rely on, what the law is, rather than what the readers of tea‐leaves predict that it might be in the future."
"Until Janus said otherwise, AFSCME had a legal right to receive and spend fair-share fees collected from nonmembers as long as it complied with state law and the Abood line of cases," the Seventh Circuit decision reads. "It did not demonstrate bad faith when it followed these rules."
Trial judges in about two dozen other cases and two appeals courts have reached the same conclusion and rebuffed worker attempts to recoup lost wages. If allowed to stand, those decisions "are likely to doom all such cases," Janus's petition to the High Court warns.
"This Court should grant review so the employees in these suits can recover a portion of the ‘windfall' of compulsory fees unions wrongfully seized from them," the petition reads.
Other Janus follow-on cases are currently pending before the Supreme Court. One petition asks the Court to declare the so-called integrated bar unlawful under Janus. Integrated bar rules require lawyers to join a state bar association and pay fees as a condition of practicing law. Another petition asks whether employers can designate a union as the sole representative of its workers in collective bargaining.
The Court will hear the case in its next term, which begins in October, if it grants review. AFSCME's response to Janus's petition is due on April 9. The case is No. 19-1104 Janus v. American Federation of State, County and Municipal Employees, Council 31.