Supreme Court Petitioned to Decide if Forced Union Dues Must Be Refunded Following Landmark 2018 Janus Decision

By Mark Tapscott
Mark Tapscott
Mark Tapscott
Congressional Correspondent
Mark Tapscott is an award-winning investigative editor and reporter who covers Congress, national politics, and policy for The Epoch Times. Mark was admitted to the National Freedom of Information Act (FOIA) Hall of Fame in 2006 and he was named Journalist of the Year by CPAC in 2008. He was a consulting editor on the Colorado Springs Gazette’s Pulitzer Prize-winning series “Other Than Honorable” in 2014.
July 14, 2020Updated: July 15, 2020

A Chicago Transit Authority (CTA) worker is petitioning the U.S. Supreme Court to decide whether the union dues he was forced to pay must be returned, thanks to the 2018 Janus v. American Federation of State, County, and Municipal Employees Union  (AFSCME) decision.

Benito Casanova was forced to pay dues to the local chapter of the International Association of Machinists and Aerospace Workers (IAM) that represents CTA workers. He’s represented by attorneys for the National Right to Work Legal Foundation (NRTWLF).

The court held in Janus that public-sector employees who don’t wish to join a union can’t be forced to pay dues to a labor organization that represents a workforce in a validly negotiated agreement with government authorities. Such forced dues payments violate the individual employee’s First Amendment rights, the court said.

Public-sector unions such as AFSCME stopped assessing membership dues of individuals who declined to join after the Janus decision was announced, although the Court didn’t decide if past dues must be reimbursed. Hundreds of millions of dollars could potentially be at stake.

“In Janus, this Court recognized that ‘unions have been on notice for years regarding this Court’s misgiving about Abood,’ and that, since at least 2012, ‘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,” Casanova argued in his Writ of Certiorari.

Abood v. Detroit Board of Education is the 1977 Supreme Court decision upholding the right of public-sector unions to charge dues to individuals who declined to join. The Janus decision overturned Abood.

Casanova further noted, “The Court also lamented the ‘considerable windfall’ that unions wrongfully received from employees during prior decades: ‘it is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment.’

“Shortly after Janus was decided, Casanova filed suit and sought damages from IAM for agency fees it unconstitutionally seized from him and a class of similarly situated employees.

“Casanova did so under Section 1983, which provides that ‘[e]very person who, under color of any statute’ deprives citizens of their constitutional rights ‘shall be liable to the party injured in an action at law.’ 42 U.S.C. Section 1983.”

If the Court accepts Casanova’s petition, it will have to decide if “there is a ‘good faith defense’ to 42 U.S.C. Section 1983 that shields a defendant from damages-liability for depriving citizens of their constitutional rights if the defendant acted under color of a law before it was held unconstitutional,” according to Casanova’s petition.

Since the Janus decision, unions have argued that they aren’t required to reimburse past union dues because they assessed those fees in the good faith belief that doing so was legal under the Abood decision.

An IAM spokesman didn’t immediately respond to a request by The Epoch Times for comment on Casanova’s petition.

“For decades, union officials violated public employees’ rights by forcing them to pay union fees just to keep their jobs,” National Right to Work Legal Defense Foundation Vice President Patrick Semmens told The Epoch Times on July 10.

“In the 2018 Janus decision, the Supreme Court finally recognized that this was a First Amendment violation and observed that it was ‘hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions’ in violation of the Constitution.

“Mr. Casanova’s case is one of many at the High Court or making their way to the High Court seeking that, within the statute of limitations, illegally seized forced dues be returned to the victims whose rights were violated. It is critical that the Supreme Court take up this issue, either in this case or the already fully briefed Janus v. AFSCME cert petition.”

Former Illinois state government worker Mark Janus also has filed a petition with the high court on the same issue. Jacob Comiello, a spokesman for the NRTWLF, told The Epoch Times on July 14 that “Janus is seeking about $3,000 that was extracted unconstitutionally from his paycheck since March 2013, as permitted by the statute of limitations.

“Casanova is a class-action case, so we won’t actually know until class discovery how many people would be eligible for refunds or how much money the union would be on the hook for, though for him personally the refund could be up to thousands of dollars.”

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