Supreme Court Won’t Make Government Unions Give Back Unconstitutional Dues

January 27, 2021 Updated: January 27, 2021

While Mark Janus won a landmark legal victory in 2018 outlawing public-sector unions’ collection of forced agency fees from nonmembers, the Supreme Court has denied his follow-up request to have his money reimbursed, without granting him a hearing.

The new ruling in which the high court refused to consider the petition for certiorari in Janus v. AFSCME, which bears the same title of proceeding as the landmark ruling, came on Jan. 25. The court didn’t explain why it acted. No justices indicated they dissented from the decision.

The ruling, which leaves in place a decision by the 7th Circuit Court of Appeals, is a victory for the labor movement. It came after the Supreme Court overturned Abood v. Detroit Board of Education (1977) in Janus’s earlier lawsuit in 2018, holding that public-sector unions couldn’t collect forced agency fees from nonmembers to finance their collective bargaining activities without infringing the First and 14th Amendments.

Janus sought damages from AFSCME for the agency fees it unconstitutionally extracted from him but a U.S. district court ruled against him, finding that the union enjoyed a so-called good faith defense that shielded it from damages when it acted under the Illinois agency-fee statute that at the time was considered valid, according to a summary in the petition.

The 7th Circuit affirmed the trial court and held that “under appropriate circumstances, a private party that acts under color of law … may defend on the ground that it proceeded in good faith” and acted “reasonably” based “on established law.”

Apart from Illinois-based Council 31 of the American Federation of State, County, and Municipal Employees (AFSCME), the respondents were Simone McNeil, in her official capacity as acting director of the Illinois Department of Central Management Services, and Illinois Attorney General Kwame Raoul, a Democrat.

“We are pleased with the court’s decision,” Annie Thompson, senior press secretary for Raoul, told The Epoch Times.

But the National Right to Work Foundation, which, along with Liberty Justice Center of Chicago, represents Janus, was disappointed by the ruling.

“Leaving the lower court decisions in place allows union officials to profit from their wide-scale violation of rank-and-file government employees’ First Amendment rights,” National Right to Work Foundation Vice President Patrick Semmens told The Epoch Times in a statement.

“While we are disappointed the Supreme Court declined to take up this issue … we will continue to stand with workers across the country who simply want the freedom to choose for themselves whether or not to fund union activities with their hard-earned money.

“However, Monday’s orders don’t stop the over a dozen other ongoing cases brought by Foundation staff attorneys seeking well over $100 million in refunds for public workers who were forced to fund union activities prior to Janus

“The fact that some of those cases present distinguishing facts and that the Supreme Court often agrees to hear cases even after previously declining to hear cases presenting similar issues, suggests that the justices could still rule on this issue in the future.

“And of course, these refund cases are only a small part of the Foundation’s Janus enforcement efforts, as Foundation staff attorneys are also litigating over a dozen cases challenging current union schemes to restrict workers from stopping union dues in violation of the Janus precedent.”

At the same time, the Supreme Court dismissed other cases also seeking the refund of forced agency fees from unions, among them, Mooney v. Illinois Education Association, Danielson v. Inslee, Ogle v. Ohio Civil Service Employees Association, Lee v. Ohio Education Association, and Casanova v. International Association of Machinists.

The Epoch Times previously reported on one of those cases, Danielson v. Inslee, which came from the 9th Circuit Court of Appeals.

Writing for a unanimous three-judge panel in a 20-page decision, Obama appointee Jacqueline H. Nguyen determined the union had collected the agency fees in good faith and shouldn’t have to return them.

The union is “not required to forecast changing winds at the Supreme Court,” she wrote.

“It is true that, under current law, the employees suffered a constitutional wrong for which they may have no viable means of compensation if the good faith defense prevails,” Nguyen wrote.

“Nonetheless, it would not be equitable to order the transfer of funds from one innocent actor to another, particularly where the latter received a benefit from the exchange.”