Mark Janus is seeking to complete his mission. And the U.S. Supreme Court soon will let him and other dissenting public-sector union members know where they stand. Two weeks from now, on June 18, the High Court will decide whether to grant legal standing to a petition by Janus, a former Illinois state employee, to recover dues payments dating back several years collected by an affiliate of the American Federation of State, County and Municipal Employees (AFSCME). Two years earlier the Court concluded that a government employee union cannot deduct partial dues (“agency fees”) from a nonmember paycheck without the affirmative consent of the employee. A grant of certiorari could open the door to similar nonmember actions, including a class action suit in Minnesota seeking a $19 million refund on behalf of about 8,000 employees.
Until the Supreme Court’s 2018 decision in Janus v. AFSCME Council 31, state and local employee unions had enjoyed more than four decades of monopoly bargaining. Back in 1977 the Court had ruled in Abood v. Detroit Board of Education that a local teachers union had the authority to collect agency fees from nonmember employees under contract even if the employees objected. More than 20 states proceeded to pass laws authorizing this practice. With labor and management more than ever sharing an interest in expanding government, public-sector wages, salaries and (especially) benefits grew well out of proportion to those of the private sector. Hardball union negotiation has been a prominent reason why so many states and localities have been locked into expensive and potentially unsustainable long-term commitments. Yet over the decades, the Supreme Court has loosened the grip of unions. Decisions in Chicago Teachers Union v. Hudson, Lehnert v. Ferris Faculty Association, Knox v. Service Employees International Union (SEIU) Local 1000 and Harris v. Quinn in their own way created a certain leeway for withholding dues.
The situation was headed for a showdown. Abood remained intact, but the exceptions to it now constituted a trend. In June 2015, the Supreme Court gave standing to a group of dissenting Southern California teachers, led by Rebecca Friedrichs, who sought to recover agency fees imposed upon them by the California Teachers Association. It was a longshot bet. The plaintiffs’ case already had been dismissed by a district and an appeals court. Making a favorable ruling even less likely was the death from natural causes of the sympathetic Justice Antonin Scalia the following February. Weeks later, the Court, deadlocked at 4-4, let stand the circuit court dismissal.
For a while, at least, public-sector union authority to extract dues from unwilling employees was secure. But this de facto victory would be short-lived. In September 2017, the Supreme Court agreed to review the case of a dissenting Illinois state child welfare employee, Mark Janus, who argued that he had the right to withhold dues from Council 31 of the American Federation of State, County and Municipal Employees. His original suit had been filed by then-Illinois Republican Governor Bruce Rauner in February 2015. A coalition of public-sector unions – AFSCME, the American Federation of Teachers, the National Education Association and the Service Employees International Union – issued a joint statement to denounce the suit as “a blatantly political and well-funded plot.” Representing Janus in his renewed challenge was the Springfield, Va.-based National Right to Work Legal Defense Foundation and the Chicago-based Liberty Justice Center. And on June 27, 2018, the High Court, in a 5-4 ruling, concluded that neither Mark Janus nor his co-plaintiffs could be compelled to pay agency or “fair share” fees.
Union leaders were livid. Roberta Lynch, director of AFSCME Council 31, called the decision a “blatant political attack by Bruce Rauner and other wealthy interests on the freedom of working people to form strong unions.” Randi Weingarten, president of the American Federation of Teachers, termed the ruling “an existential threat.” AFL-CIO President Richard Trumka called it “a political stain” on the legacy of the Supreme Court. A number of pro-union state governments responded with efforts to circumvent Janus. On June 27, the very day of the ruling, New York Democratic Governor Andrew Cuomo signed an executive order ostensibly intended to protect public-sector union members from outside intimidation – ironic, given the frequency with which the unions apply intimidation to organizing and dues collections. Not long after, the state began deducting dues on behalf of public-sector unions minus any mechanism to verify worker membership. In Oregon, state lawmakers introduced a bill to establish a special fund from which public agencies would collect dues and then pass them along to unions. Fortunately, the measure did not result in formal action.
Meanwhile, the second phase of Janus was in play. As part of its 2018 decision, the Supreme Court remanded the case to the district court level to determine the appropriate level of compensation. Mark Janus wanted dues refunds totaling about $3,000 going back to March 23, 2013. Here was a new issue: retroactivity. Janus, again backed by the National Right to Work Legal Defense Foundation and the Liberty Justice Center, argued that he was entitled to a full refund of fees captured since that date, even though the most of its time frame predated June 27, 2018. To bolster his case, he relied heavily on a 1993 Supreme Court decision, Harper v. Virginia Department of Taxation, which had concluded that a federal rule, once promulgated, “must be given full retroactive effect by all courts adjudicating federal law.” He also invoked his constitutional privileges and immunities. On March 18, 2019, the district court ruled against him. A little over a week later, Janus appealed. But last November, the Seventh Circuit Court affirmed the judgment. Mark Janus, not one to take defeat easily, this March took his case to the Supreme Court. And that month the Court placed the case on the docket for a determination of standing. Convincing the Supreme Court that retroactive dues refunds are justifiable may be an uphill climb, but Janus’ case is stronger than one might think.
First, the union, not the dissenting member, must prove the case against retroactivity. In Harper v. Virginia Department of Taxation, the Supreme Court, citing James B. Beam Distilling Co. v. Georgia, held: “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law, and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or even postdate the announcement of the rule.” A lower court, the Court emphasized, cannot create an exception to retroactivity, including instances in which actions are at cross purposes with Section 1983 of the Civil Rights Act of 1871. And Section 1983 happens to be the main basis for Mark Janus’s latest petition.
Second, public-sector unions, as the Supreme Court noted in its Janus decision, had been “on notice” for several years that dues seizures without the expressed consent of workers were not constitutional. The Knox v. SEIU (2012) and Harris v. Quinn (2014) decisions each expressed doubts that the practice was constitutional. “Any public-sector union seeking an agency-fee provision in a collective-bargaining agreement must have understood that the constitutionality of such a provision was uncertain,” the majority wrote. The current Janus case not only meets that standard, but is not seeking to flout Illinois statutes of limitations. And in any event, the amount sought is small compared to the total of unconstitutional dues seizures.
The outcome of Mark Janus’ request for a dues refund will have implications for states that authorize dues collections by or on behalf of public employee unions. Minnesota is one such battleground. On May 11, the National Right to Work Legal Defense Foundation and the Liberty Justice Center announced the filing of a federal class action lawsuit on behalf of six Minnesota state employees who for years have been required to pay dues to a pair of unions – AFSCME Council 5 and the Minnesota Association of Professional Employees – if they wanted to keep their jobs. The plaintiffs are seeking a combined refund of almost $19 million for about 8,000 state and local government employees.
Public-sector unions are highly political organizations. They will do what it takes to maximize their revenues for organizing, bargaining and lobbying. They are eager for dues income extracted from workers, willingly or not, covered by an active contract. “Public sector” is not synonymous with public-spiritedness. It was to be expected that AFSCME, along with SEIU and other state and local employee unions, aided by their allies in governor’s offices and state legislatures, would go the extra mile to skirt the Supreme Court’s Janus decision of two years ago. A grant of certiorari in the latest case would represent an overdue drawing of a line.