Janus v. AFSCME

April 9, 2020 • Legal Briefs
By Jacob Huebert, Patrick J. Wright, Ilya Shapiro, Trevor Burrus, & Dennis Garcia

In 2018, in Janus v. AFSCME, the Supreme Court struck down compulsory union dues of public‐​sector employees as a violation the First Amendment. Unfortunately, lower courts have been reluctant to award damages for the wrongfully taken fees without explicit direction from the Supreme Court. Mark Janus, an Illinois child‐​support specialist who was forced to pay fees to a public‐​sector union, is back at the Supreme Court to get his money back, with damages. Here and in dozens of other class‐​action and individual lawsuits pending across the country, government employees who were forced to subsidize unions’ political speech are asking federal courts to not only order unions to disgorge their ill‐​gotten gains but to award damages for violating the employees’ constitutional rights.

After Janus won at the Supreme Court, his case was remanded to the lower courts. The district court and later the Seventh Circuit Court determined that the union did not have to pay damages for violating the First Amendment because the dues and fees were collected in “good faith.” The “good‐​faith” defense is not well founded in American law. It’s been raised a few times before the Supreme Court, but the Court has never fully endorsed it. Courts in other circuits have held that it applies, however, possibly because they worried it would be inequitable to make certain unions offer restitutions while other unions are not required to do so. As most of these cases are still pending before the circuit courts, this is an issue the Supreme Court should resolve.

Now on petition to the Supreme Court, Cato has joined the Goldwater Institute and the Mackinac Center on an amicus brief urging the Court to take the case. If the Court does not resolve this issue, public‐​sector actors will know they can take actions which may infringe free speech without fear that they will need to make restitution if citizens’ First Amendment rights are vindicated. The Court should grant review and overturn the Seventh Circuits in order to correct this injustice.

This case concerns potentially hundreds of thousands of public‐​sector employees who were forced to pay agency fees and who deserve relief. The issue involved may extend into an even greater number or cases, including those where public employees joined unions before Janus v. AFSCME, when it was not clear that their First Amendment rights would be protected if they chose not to join. Without guidance from the Supreme Court, circuit courts are likely to continue to deny them damages.

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