Two Cert Petitions Seeking Refunds of Union Dues Seized in Violation of First Amendment Janus Rights Now Fully Briefed at SCOTUS
Chicago transit worker’s suit, Mark Janus’ petition and two other cases seeking refunds all now scheduled to be considered at High Court’s October 9 conference
Washington, DC (September 25, 2020) – Staff attorneys at the National Right to Work Legal Defense Foundation have just filed their reply brief with the US Supreme Court in the class-action case Casanova v. International Association of Machinists, Local 701. Thus, the petition asking the Supreme Court to hear the case is now fully briefed. The case will now be considered at the Court’s October 9 conference.
The plaintiff, Benito Casanova, a Chicago Transit Authority worker, is seeking a refund of union fees that were seized from his paycheck and the paychecks of similarly situated coworkers in violation of the First Amendment, as the landmark 2018 Janus v. AFSCME Supreme Court decision recognized.
In Janus, which was argued and won by National Right to Work Foundation staff attorneys, the High Court ruled that requiring public sector workers to pay union dues as a condition of getting or keeping a job violates the First Amendment. The Court also held that union dues can only be deducted from the paycheck of a public worker with his or her affirmative consent. Casanova wants the Court to rule that International Association of Machinists (IAM) union bosses must return money deducted from nonmember workers’ paychecks from 2016 through 2018, in accordance with Illinois’ two-year statute of limitations.
This is now the second Foundation-backed case seeking such a refund that is currently waiting on a certiorari petition from the Court. The other is the continuation of the Janus case itself, in which the original plaintiff, former Illinois child support specialist Mark Janus, is asking the High Court to hear his case which demands a return of unconstitutional union dues from 2013 (two years before his case began) to the day the Janus decision was handed down in 2018. Janus continues to be litigated by Foundation staff attorneys in partnership with attorneys from the Liberty Justice Center, an Illinois nonprofit.
Union bosses have been using a so-called “good faith” defense at lower courts to avoid returning forced fees that were unconstitutionally seized from public employees’ paychecks. In a recent supplemental brief in Janus, Foundation attorneys point out that two of three judges on a panel of the Third Circuit Court of Appeals recently opined that such a defense is invalid, while other federal judges have upheld it. This, they argue, makes it especially vital that the Court hear the case to clear up the confusion among lower courts and ultimately reject this spurious argument allowing union officials to profit from violating workers’ constitutional rights.
Both Foundation-supported cases have been scheduled for the Court’s conference on October 9. Two other class-action cases dealing with the same issue, Danielson and Mooney, have been scheduled for the same conference. Foundation staff attorneys are actively litigating about 20 of these cases which collectively seek the return of an estimated $130 million or more in forced union fees seized from workers in violation of the First Amendment.
“The Supreme Court pointed out in the Janus decision two years ago that public sector union bosses had unjustly gained a ‘considerable windfall’ by violating the First Amendment rights of public servants who wanted to disassociate with unions,” commented National Right to Work President Mark Mix. “We are proud to stand with Mr. Janus, Mr. Casanova, and scores of other public sector workers across the country as they seek to reclaim their hard-earned dollars that union bosses refuse to return despite the Supreme Court’s clear ruling in Janus.”
“The so-called ‘good faith’ defense, which permits union bosses to continue ignoring an established Supreme Court precedent, has already been rejected by two federal judges. It is vital that the Supreme Court take up this issue to disabuse all lower courts of this flawed argument, and to ensure that the victims of union officials’ First Amendment violations finally get some justice,” Mix added.
University of California Workers Challenge Restrictions on Janus Rights
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2020 edition. To view other editions or to sign up for a free subscription, click here.
Class-action lawsuit targets state and union for illegally blocking dues revocations
Former presidential candidate and self-described socialist Bernie Sanders gained the endorsement of UPTE union bosses, who are saddling employees with arbitrary restrictions on their First Amendment rights.
SAN DIEGO, CA – In March, UC San Diego Health Service Desk Analysts Pablo Labarrere and Sam Doroudi filed a federal class-action lawsuit against the University Professional and Technical Employees (UPTE) union and the University of California for seizing dues from their paychecks in violation of their First Amendment rights.
With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Labarrere and Doroudi contend that the dues seized from them and their colleagues are unconstitutional under the 2018 Foundation-won Janus v. AFSCME Supreme Court decision. In Janus, the Court ruled that deducting union dues from any public sector worker’s paycheck without his or her affirmative and knowing consent breaches the First Amendment of the U.S. Constitution.
The class-action lawsuit names University of California President Janet Napolitano as a defendant for the university system’s role in perpetrating this scheme. It also names California Attorney General Xavier Becerra as a defendant for the state’s enforcement of the illegal union dues policy.
UPTE Bosses Enforce Phony Restrictions on Janus Rights
According to the lawsuit, UC San Diego Health officials made all new employees “believe that it was a condition of employment to either join the union as full members or pay forced fees as non-members” during a mandatory orientation session. New employees were given and told to sign “dues deduction authorization cards” which provided that union officials would continuously collect dues from each employee’s paycheck unless a revocation letter was sent in a 30-day window before the annual anniversary of signing the card.
According to the lawsuit, the authorization cards did not explain, as Janus requires, that public sector employees “have a First Amendment right not to subsidize the union and its speech” and that signing the card would waive those rights. Labarrere and Doroudi eventually discovered their First Amendment Janus rights independently and sent letters to UPTE officials in December 2019 demanding that dues deductions be cut off. UPTE agents rejected both requests and continued to seize dues from Labarrere’s and Doroudi’s paychecks, ostensibly because they did not submit their requests within the “escape period” created by the union bosses.
The lawsuit contends that UPTE bosses are violating Labarrere’s and Doroudi’s First Amendment Janus rights by continuing to take dues from their paychecks without ever having received their “affirmative authorization and knowing waiver” of those rights. It also argues that the 30-day “escape period” illegally restricts Labarrere and Doroudi in the exercise of their Janus rights.
The class-action lawsuit additionally seeks to stop UPTE bosses and the University of California system from enforcing the scheme against any other workers, and require UPTE officials to return all dues and fees to any employees in the workplace that had their First Amendment rights violated because of the policy.
Workers Continue to Abolish “Escape Periods” With Foundation Legal Aid
Since the Janus decision, Foundation staff attorneys have litigated at least 14 cases around the country for thousands of workers whose First Amendment Janus rights have been infringed upon with union-created “escape periods.” Six of these cases have already been settled favorably for the plaintiff employees, providing relief and refunds for them and hundreds of their coworkers, while eliminating the restrictions for tens of thousands more.
In one of those cases, Michael McCain, a math professor at a community college in Ventura County, California, fought an illegal “escape period” foisted on his workplace by American Federation of Teachers (AFT) union officials, by filing a federal lawsuit in the District Court for the Central District of California. Ultimately, instead of facing Foundation staff attorneys in court, AFT officials settled the case and paid refunds to all workers who had dues seized because of the illegal policy.
“The Supreme Court made it absolutely clear in Janus that union officials violate public workers’ First Amendment rights when they seize union dues without their consent,” observed National Right to Work Foundation Vice President Patrick Semmens. “Yet over a year and a half after the decision, California union bosses — with the assistance of state officials — continue to subject the state’s public servants to schemes that violate these rights, all to fill union coffers with more illegal dues.”
Foundation Asks Supreme Court to Hear Janus Case Again, Seeking Return of Forced Fees
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, May/June 2020 edition. To view other editions or to sign up for a free subscription, click here.
Case could set precedent for hundreds of millions of dollars in refunds to Big Labor’s victims
Mark Janus’ second Foundation-backed appeal to the Supreme Court landed the top spot on Fox News’ website. If Janus prevails again, hundreds of millions of dollars in unconstitutional union dues could be returned to public sector employees.
WASHINGTON, DC – Mark Janus is returning to the U.S. Supreme Court, this time asking the Justices to hear the continuation of Janus v. American Federation of State, County, and Municipal Employees (AFSCME), Council 31. Janus seeks repayment of the thousands of dollars in fees the union took from his paycheck in violation of his First Amendment rights. Another Supreme Court victory for Janus could set a precedent resulting in the return of hundreds of millions of dollars seized by union officials in violation of workers’ constitutional rights.
The original Janus v. AFSCME was argued successfully before the Supreme Court by veteran National Right to Work Foundation staff attorney William Messenger. In a landmark victory, the Court sided with Janus on June 27, 2018, and declared it illegal to force public employees to subsidize a union as a condition of employment. The Court recognized that compelling public workers to pay fees to a union violates their First Amendment rights.
Illinois Child Support Public Servant Intervenes in Lawsuit with Foundation Aid
As a result of Janus, more than five million public sector employees across the country are no longer required to pay union dues or fees to keep their jobs. However, Janus’ case continues as he seeks the return of the fees that AFSCME seized from his paycheck without his permission from June 27, 2018, to March 23, 2013, representing the two-year statute of limitations from the date his case started in March 2015 through the Supreme Court’s 2018 decision in his favor.
The Janus case began in February 2015, when then-newly elected Illinois Governor Bruce Rauner issued an executive order prohibiting state agencies from requiring employees who had abstained from formal union membership to pay union fees, based on a Right to Work Foundation U.S. Supreme Court victory in 2014 in another Illinois case. Rauner also filed a federal lawsuit seeking a declaratory judgment that forced union fees violate the First Amendment rights of public workers.
Staff attorneys from the Foundation, in partnership with the Illinois-based Liberty Justice Center, filed a motion for Mark Janus and two other plaintiffs to intervene in the case in March 2015, and have represented Janus ever since. The U.S. District Court for the Northern District of Illinois granted Janus’ motion to file a complaint in intervention, which allowed the suit to move forward even after the court ruled that Rauner lacked standing to pursue the lawsuit.
The Supreme Court permitted union bosses to impose forced union fees on public workers in the 1977 Abood v. Detroit Board of Education decision. However, before the Janus victory, Foundation staff attorneys secured several victories for workers which called the constitutionality of forced fees into question. In 2012, the court ruled in Knox v. SEIU that union officials must obtain affirmative consent from workers before using workers’ forced union fees for special assessments or risk infringing on their First Amendment rights. In 2014, the court ruled in Harris v. Quinn that requiring home healthcare providers who receive a subsidy from the government to pay union dues is a First Amendment violation.
Following Janus’ groundbreaking win at the Supreme Court in June 2018, Foundation attorneys continued his case in Illinois federal courts, arguing that the Supreme Court’s ruling is retroactive and that AFSCME should be required to return dues they seized unconstitutionally before the decision. In this and similar cases, union bosses have made a so-called “good faith” argument to defend their seizing of dues before Janus was issued. The U.S. Seventh Circuit Court of Appeals in Chicago ruled in 2019 that AFSCME could keep the unconstitutional dues, prompting Janus’ petition to the Supreme Court.
Hundreds of Millions of Dollars Potentially At Stake
“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,” commented Janus. “It’s time for AFSCME to give me back the money they wrongfully took.”
Foundation staff attorneys are currently fighting for thousands of workers in about 20 cases which seek refunds of dues seized unconstitutionally before Janus was decided. While Janus is seeking the return of $3,000 of his own money, a favorable decision for him would set a precedent that could result in the return of over $120 million to public servants just in Foundation-backed cases. Other cases brought by workers could bring that total to hundreds of millions of dollars.
Workers Already Winning Refunds of Illegal Dues with Foundation Legal Aid
“The Supreme Court has already sided with the Foundation arguments for Mark Janus and ruled that forcing public employees to fund union activities violates the First Amendment,” said National Right to Work Foundation Vice President and Legal Director Raymond LaJeunesse. “The Supreme Court should take this case again to ensure that public sector union bosses are not permitted to profit from their widespread violation of workers’ First Amendment rights.”
Foundation staff attorneys in July 2018 secured the nation’s first-ever refund of dues seized unconstitutionally before Janus for Debora Nearman, an Oregon state wildlife employee. SEIU bosses were forced to settle and give back to Nearman over $3,000 in illegal fees they had seized from her over two years, during which they had sponsored an aggressive political campaign against her own husband, who ran successfully for the Oregon Legislature in 2016.
Sacramento Employee Hits Union with Charge for Ignoring Janus Rights
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, January/February 2020 edition. To view other editions or to sign up for a free subscription, click here.
More than a year after Court decision, union bosses still tell workers forced fees are legal
In the Foundation-won Janus v. AFSCME decision, the Supreme Court recognized the right of all American public sector workers to refrain from subsidizing unions, but California IUOE bosses are acting as if those rights don’t exist.
SACRAMENTO, CA – Ethan Morris works for Sacramento County as a wastewater treatment employee. With free legal aid from the National Right to Work Legal Defense Foundation, he has hit the International Union of Operating Engineers (IUOE) Stationary Engineers union bosses at his workplace with charges that their misstatements of his requirement to pay union fees breach California law by disregarding workers’ First Amendment rights under the Foundation-won Janus v. AFSCME Supreme Court decision.
California’s Public Employment Relations Board (PERB), the agency in charge of determining whether unions like IUOE have violated California’s public sector labor laws, will now investigate Morris’ charge.
California Union Bosses Blatantly Lie About Legality of Forced Dues
Morris has never been a member of IUOE Stationary Engineers. He recounts in his charge that he received a notice from an IUOE financial secretary in July 2019 which claimed that “employees who do not join the Union must pay a . . . fee” to the union as a condition of employment, and that these mandatory fees are “legal and enforceable in California” through direct deductions from non-member employees’ paychecks.
Morris’ charge says the union’s fee demands ignore government employees’ First Amendment rights under the 2018 Foundation-won Janus v. AFSCME Supreme Court decision. In Janus, a majority of the Court recognized that union dues or fees cannot be mandatory for public employees and may only be deducted from government workers’ paychecks if they have given “affirmative and knowing” waivers of their First Amendment right not to subsidize a union.
Morris maintains that by ignoring Janus, IUOE Stationary Engineers bosses infringed his rights under California’s Meyers-Milias-Brown Act (MMBA). That statute provides Golden State workers “the right to refuse to join or participate in the activities of employee organizations” and prohibits unions from “coerc[ing] or discriminat[ing] against” employees for exercising that right.
IUOE Officials Broke California Labor Law by Defying Janus
Morris demands that union officials rectify the situation by stopping the illegal fee demands and posting a PERB-approved notice informing his coworkers of their right to refrain from union activities and acknowledging that compulsory fee demands violate that right.
“Ethan Morris discovered his First Amendment Janus rights independently, and in doing so was able to catch IUOE Stationary Engineers bosses in a red-handed lie about the right of public sector workers in America to abstain from financially supporting a union,” observed National Right to Work Foundation President Mark Mix. “For every worker who rebuffs illegal union threats, there are almost certainly thousands of workers who unknowingly sign away their rights.
“State governments must step up and proactively protect employees’ Janus rights, including making sure that every worker knows those rights and not deducting any union dues or fees absent a worker’s knowing and voluntary waiver of his or her rights,” Mix added.
Taking the lead on protecting public workers’ Janus rights is Alaska, where last September Gov. Mike Dunleavy issued an executive order requiring all state agencies to stop the deduction of union dues from any worker who had not submitted a form affirmatively waiving his or her right under Janus not to fund any union activities.
Final Briefs Filed at Appeals Court in Continuation of Janus v. AFSCME
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, September/October 2019 edition. To view other editions or to sign up for a free subscription, click here.
Foundation seeks first-in-nation appellate court ruling to order non-member dues refunded
Veteran Foundation staff attorney William Messenger, seen here speaking to reporters after Supreme Court oral arguments in Janus, leads the Foundation’s Janus enforcement task force.
CHICAGO, IL – Although Janus v. AFSCME secured a landmark victory at the U.S. Supreme Court for government employees’ First Amendment rights, Mark Janus’ case is not over because AFSCME union bosses have refused to return the funds taken from him in violation of the First Amendment.
Janus’ attorneys from National Right to Work Foundation and Illinois-based Liberty Justice Center have completed briefing with the Seventh Circuit Court of Appeals on the issue of whether union officials can keep money they seized from non-members in violation of their constitutional rights. The case is likely to mark the first time an appellate court will rule on the issue, potentially establishing a precedent that could result in the return of hundreds of millions of dollars seized by union bosses in violation of the Janus precedent.
Janus Secured Workers’ First Amendment Rights
Mark Janus was an Illinois child support specialist whose case was successfully argued at the Supreme Court by National Right to Work Foundation staff attorney William Messenger.
The Supreme Court’s June 27, 2018, decision in Janus’ favor found that any union fees taken from workers like Mark Janus – who was not a member of AFSCME – without the workers’ affirmative and knowing consent violate the First Amendment. Justice Samuel Alito wrote for the majority that compulsory fees “[violate] the free speech rights of non-members by compelling them to subsidize private speech on matters of substantial public concern.”
The Supreme Court sent the case back to the lower courts to determine, among other things, whether Janus is entitled to all the union fees he was forced to pay since March 23, 2013.
Janus’ appeal comes after a district court judge ruled that union officials are not required to refund forced fees seized from non-member workers prior to the Janus decision.
“Just like a thief would not be allowed to keep the money he stole, union bosses must be forced to return funds unlawfully seized from workers,” said National Right to Work Foundation Vice President and Legal Director Ray LaJeunesse. “It would be a massive injustice to deny workers victimized by Big Labor the refunds to which the Supreme Court made clear they are entitled.”
Seventh Circuit Likely First Appeals Court to Rule on Non-member Refunds
Janus will likely be the first case in which an appellate court will evaluate the so-called “good faith” defense that union lawyers have asserted in response to worker lawsuits seeking refunds, arguing that union officials should be allowed to keep funds seized prior to the Janus decision.
This contention has generally succeeded in lower courts despite the Supreme Court asserting that union bosses have been “on notice” for years that mandatory fees likely would not comply with the heightened level of First Amendment scrutiny articulated in the Supreme Court’s earlier Knox v. SEIU decision, also won by Foundation staff attorneys.
Mark Janus is asking the Seventh Circuit to rule that he is entitled to refunds of approximately $3,000 in fees he was forced to pay since March 23, 2013, as the statute of limitations permits. In addition, the case has significant implications for dozens of other cases being litigated around the country for hundreds of thousands of other workers seeking the return of forced fees seized unlawfully by union officials.
Janus Refund Efforts Continue Nationwide
Foundation staff attorneys are currently litigating over a dozen such cases that collectively seek over $120 million in refunds for non-members forced to pay union fees before Janus. Other ongoing lawsuits and potential cases could result in half a billion dollars or more returned to government workers from union treasuries.
“The Janus case is a milestone of worker freedom, but union bosses continue to block workers from exercising their rights and deny workers refunds for dues and fees seized against their wishes,” said LaJeunesse. “We hope the Seventh Circuit Court of Appeals will follow the clear logic of the Supreme Court’s decision in Janus and establish that union bosses cannot profit from violating workers’ First Amendment rights.”
