Supreme Court Asked to Decide if State Workers’ Unconstitutional Compulsory Union Dues Must Be Repaid

March 17, 2020 Updated: March 18, 2020
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Former Illinois state government worker Mark Janus wants the U.S. Supreme Court to order the American Federation of Municipal, State, and County Employees Union (AFSCME) to refund his $3,000 in unconstitutional compulsory dues.

Janus, a former child support specialist, won the landmark Janus v. AFSCME decision in 2018 that held as unconstitutional compulsory union dues for state and local government workers, because such payments violate the First Amendment.

Attorneys representing Janus from the National Right to Work Legal Defense Foundation (NRTWLDF) and the Liberty Justice Center (LJC) filed a writ of certiorari with the high court earlier this month. The NRTWLDF’s William Messenger argued the Janus decision in 2018.

The writ was filed after the 7th Circuit Court of Appeals denied Janus’ petition for the refund, saying the high court’s decision didn’t require repayment and calling the payment of dues as “an exchange of money for services.”

In its ruling, the high court declared compulsory union dues as unconstitutional, but the justices didn’t address in their decision the issue of requiring refunds.

“The Court did not get that far as to the repayment of the dues,” NRTWLDF President Mark Mix told The Epoch Times on March 17. “They basically said it was unconstitutional to extract this money, any money, from a government employee and then went on to say that the union or the government would have to get a signed waiver before they could take any money.”

Mix said the high court “didn’t go back to the retroactive nature of the case, instead they went proactively to the future, and so this left open the question of whether there was the ability to go back and get money that was taken.”

Nearly 6 million unionized state and local public employees in 22 non-right-to-work states are covered by the Janus decision, but unions representing them haven’t been eager to refund the money involved.

An AFSCME spokesman didn’t respond to a request by The Epoch Times for comment.

Janus seeks the refund of $3,000 he paid in compulsory dues from 2013 to 2018.

“The Supreme Court agreed that the union taking money from non-members was wrong, but the union still has the money it illegally garnished from my paycheck,” said Janus in a statement issued by the NRTWLDF. “It’s time for AFSCME to give me back the money they wrongfully took.”

Patrick Hughes, LJC president and co-founder, described Janus in the statement as “just one of many public employees whose money was illegally taken by government unions. Workers across the country are rightfully asking for their money back.

“It is time for the U.S. Supreme Court to weigh in on this issue and finally hold unions accountable for their years of unconstitutional behavior.”

As an indicator of how much money is potentially involved if the Janus decision is comprehensively applied and refunds are granted to all the formerly forced union members requesting them, the NRTWLDF and the LJC are currently litigating more than 30 cases, including seven jointly, filed in response to the Janus decision.

The 30 cases collectively seek more than $120 million in refunds.

Mix told The Epoch Times that Supreme Court Justice Samuel Alito has said “‘the unions should have been on notice about the unconstitutionality of Abood’ because of the decisions that we won” in 2012 and 2014.

The Supreme Court upheld the ability of a public employee union to compel membership in the 1977 decision of Abood v. Detroit Board of Education.

Now, as challenges to compulsory dues and refund demands proliferate in state and federal courts, Mix said unions “have been using the so-called ‘good-faith defense that while we collected this money, we were entitled to it, the statutes said we could’ and so forth.”

But Mix said, “the basis of the argument for the refund” is that when a statute is ruled unconstitutional, federal courts must consider that “it always was” prior to the ruling.

“The Supreme Court was clear in the case of Mark Janus in saying his rights were violated, so what kind of redress would there be. Obviously, the freedom going forward is pretty evident in the decision. The question is the damages of the past.”

Mix acknowledged that federal district and circuit courts haven’t been receptive to litigation seeking refunds, “but we hope that based on the Janus ruling and where we thought [the high court justices] were headed that they might take an interest in this again.”

If Janus succeeds in getting a refund, Mix said NRTWLDF has two cases, one in Ohio and one in California, that have been certified for class-action status that involve “real money, if there’s relief, it’s real money, hundreds of millions of dollars.”

A Feb. 19, 2019, study by the Manhattan Institute about the response to the Janus ruling found that state and local government worker unions have lost revenues, but “new state laws, executive orders, and court decisions have restricted the access and ability of outside groups to communicate with public employees about their legal rights.”

Contact Mark Tapscott at Mark.Tapscott@epochtimes.nyc.