Wednesday, November 20, 2019

Seventh Circuit Rebuffs Claim for Pre-Janus Fair-Share Fees

The Seventh Circuit earlier this month rejected Mark Janus's claim for retroactive fair-share fees he paid to AFSCME, before the Court struck fair-share fees under the First Amendment in Janus.

The ruling is the first in a circuit court to address whether workers in a union shop are entitled to retroactive fair-share fees that they paid before Janus. District courts that have ruled on the issue are unanimous in rejecting the claims.

A contrary ruling--one putting public sector unions on the hook for retroactive fair-share fees--could be (even more) devastating to public sector unions.

Recall that the Court struck mandatory fair-share fees for public-sector unions in Janus. That was huge, because the case overturned a 1977 ruling, Abood v. Detroit Board of Education, that upheld those fees.

After Janus came down, the plaintiff in that case, Mark Janus, sued again, this time to get back fees he paid before the Supreme Court struck them. AFSCME argued that it collected those fees in good-faith reliance on Abood and therefore wasn't required to repay them.

The Seventh Circuit agreed with AFSCME. But it also emphasized the narrowness of its decision:

It is not true, as Mr. Janus charges, that this defense will be available to "every defendant that deprives any person of any constitutional right." We predict that only rarely will a party successfully claim to have relied substantially and in good faith on both a state statute and unambiguous Supreme Court precedent validating that statute.

The issue is brewing in several other circuits.

https://lawprofessors.typepad.com/conlaw/2019/11/seventh-circuit-rebuffs-claim-for-pre-janus-fair-share-fees.html

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