In a major victory for First Amendment rights, the U.S. Supreme Court ruled in Janus v. AFSCME that non-union government workers cannot be required to pay union fees as a condition of working in public service on June 27, 2018.
This landmark case guarantees the First Amendment rights to free speech and free association for more than 5 million public school teachers, first responders and other government workers across the country.
Despite this victory for workers, Big Labor has sought to maintain an iron fist over public-sector employees with their billion-dollar forced-dues machine and force them to continue paying tribute to a union boss just to get or keep a job.
Defiance of the Supreme Court’s ruling by Big Labor has required the Foundation to litigate dozens of follow-up cases across the country to enforce the Janus decision and protect the rights of workers.
Public employees interested in learning more about how to exercise their rights under Janus can do so by visiting a special website created by the Foundation: MyJanusRights.org
About the Case
On February 9, 2015, relying on the Supreme Court’s decision in Harris v. Quinn (more information below), newly elected Illinois Governor Bruce Rauner issued an executive order prohibiting state agencies from enforcing state bargaining agreement provisions requiring nonmember state employees to pay union fees. Rauner directed that any fees deducted be placed in escrow pending the resolution of litigation over the constitutionality of the forced fee provisions.
On the same day Governor Rauner sued in the U.S. District Court for the Northern District of Illinois against the unions collecting forced fees from state employees for a declaratory judgment that the forced fee provisions violate the First Amendment and that his executive order is valid.
On March 23, 2015, Foundation staff attorneys filed a motion, eventually granted by the court, to intervene as plaintiffs for Mark Janus and two other Illinois state employees who were compelled to pay union fees as a condition of their jobs. Their accompanying complaint requested not only a declaratory judgment, but also an injunction against and damages from the unions to which they were compelled to pay fees.
Although the court eventually ruled that Governor Rauner did not have standing necessary to file his lawsuit, the challenge continued on behalf of the three employees. On July 2, 2015, the Attorney General moved to stay the case pending the Supreme Court’s decision in Friedrichs v. California Teachers Association which the court granted on July 8, 2015. After deadlock in Friedrichs left in place union bosses forced-dues powers for the time being, a District Court judge dismissed the case citing Friedrichs.
The Foundation, along with the Liberty Justice Center, filed an appeal to the U.S. Seventh Circuit Court of Appeals in October 2016. Hearings were held on March 1st 2017. On March 21, the Seventh Circuit upheld the decision of the Illinois district court which ruled that the Abood v. Detroit Board of Education precedent applied to Janus v. AFSCME. The decision by the Seventh Circuit, which was expected, allowed Foundation staff attorneys to next file a writ of certiorari to ask the Supreme Court to take the case.
The Supreme Court granted the Foundation’s petition for a writ of certiorari on September 28, 2017, and veteran Foundation staff attorney Bill Messenger argued the case before the High Court on February 26, 2018. The Court issued the landmark decision in Janus guaranteeing the rights of public employees on June 27, 2018.
After the decision
Following the Supreme Court’s Janus ruling, many public-sector unions have refused to abide by the decision. In addition to numerous cases already won for public workers, the Foundation is currently litigating dozens of follow-up cases as a result, including numerous class-action lawsuits.
Oregon State employee Debora Nearman became the first person to win a refund of forced dues under Janus. SEIU officials were required under a settlement won by the Foundation to return over two years of illegally seized fees, nearly $3,000. Thanks to Janus, she was also no longer forced to fund the organization that ran an aggressive campaign against her husband, Rep. Mike Nearman.
Foundation staff attorneys continue to litigate about 20 similar 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. This includes the continuation of Mark Janus’ case, which is again pending at the US Supreme Court.
On March 9th 2020, Janus asked the Supreme Court to hear his case seeking the return of dues he was forced to pay before the Court ruled it unconstitutional. Union officials have thus far relied on the so-called “good faith” defense to avoid paying back money they took from nonmembers before the ruling in violation of the First Amendment as recognized in Janus. They argue their actions were consistent with their understanding of the law before the Janus decision.
However, in the Janus decision, not only did the Supreme Court not rule out retroactive relief, it also observed that union officials have been “on notice” for years that mandatory fees likely would not comply with the High Court’s heightened level of First Amendment Scrutiny articulated in the 2012 Knox v. SEIU Supreme Court decision.
If the Court decides to hear Mark Janus’ case or any of the others seeking the return of forced fees seized in violation of the First Amendment, it could result in a precedent leading to the return of the return of hundreds of millions of dollars in forced fees seized from public employees across the country.
About Mark Janus
Mark Janus worked at the Illinois Department of Healthcare Services as a child support specialist. To read an op-ed that Mark wrote in the Chicago Tribune please click here.
He was forced to pay union dues or fees for the privilege of working for his own state government.
Even after winning the right to stop subsidizing a union after at the Supreme Court ruling, union officials refused to refund any of the dues seized from his paycheck, requiring follow-up litigation by the Foundation.
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 permitted by the statute of limitations with free aid from Foundation staff attorneys.
Selected Media Coverage
Janus Decision Still at Risk, Say Mark Janus and Bill Messenger (The Epoch Times)
The Legal Battle to Enforce Janus v. AFSCME (Federalist Society)
On Labor Day, celebrate workers’ First Amendment rights under Janus (Washington Examiner)
Supreme Court hands Illinois governor a rare win over unions (Associated Press)
Mark Janus Op-ed (Chicago Tribune)
Supreme Court to Consider Public Worker Union Dues (Wall Street Journal)
Supreme Court Will Hear Case on Mandatory Fees to Unions (New York Times)
Supreme Court to Hear Labor Case that Threatens Unions (Bill Messenger interviewed on NPR)
Union Power Hangs In The Balance Of This New SCOTUS Case (Daily Caller)
Supreme Court asked to take up fight over mandatory union fees (Washington Examiner)
A Supreme Court Absence is Felt (Wall Street Journal Editorial)
Trump justice nominee means Illinois’ fair share case could lead to national right-to-work law (Illinois News Network)
Janus Legal Documents
Janus II legal documents
2016 – Friedrichs v. California Teachers Association
California public school teacher Rebecca Friedrichs along with eight other teachers, brought forth a challenge that argued Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. Unfortunately, Justice Scalia’s untimely death resulted in a 4-4 deadlock and kept the Appeals Court decision that denied the challenge to Abood .
2014 – Harris v. Quinn
The Court held five-to-four that an Illinois requirement that nonunion Medicaid-funded home-care personal assistants pay union fees violates the First Amendment. The Court refused to extend Abood, which upheld forced fees imposed on public employees to the extent that they are used for collective bargaining, to the “new situation” before it, “[b]ecause of Abood’s questionable foundations, and because the personal assistants are quite different from full-fledged public employees.” This holding renders unconstitutional similar forced-fee schemes imposed on providers in at least thirteen other states.
To watch an interview with plaintiff Pam Harris please click here.
2012 – Knox v. Service Employees International Union
In 2005, the California State Employees Association (CSEA) union, a local affiliate of the SEIU, imposed a “special assessment” on every civil servant in its bargaining unit to pay for a campaign to defeat several California ballot initiatives. The Court Supreme Court struck down the scheme in a precedent-setting ruling issued on June 21, 2012 that applied strict scrutiny to forced union dues or fees for the first time. The Court’s majority ruled that government union officials must obtain affirmative consent from workers before using workers’ forced union fees for union politicking.
To watch an interview with Foundation staff attorney and lead plaintiff Dianne Knox please click here.
1977 – Abood v. Detroit Board of Education
A six-member majority of the Court rejected arguments that the strict scrutiny test should be used when determining whether requiring public employees to pay agency fees to keep their jobs violates the First Amendment. The Court ruled that the agency shop as such is constitutionally valid, but only “insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.” The Court unanimously agreed that “a union cannot constitutionally spend [objectors’] funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative.”