Seventh Circuit likely to be the first appellate court to rule whether nonmembers can recover dues seized in violation of First Amendment

Washington, D.C. (July 3, 2019) – Today attorneys representing Mark Janus have filed the final brief with the United States Court of Appeals for the Seventh Circuit in the continuation of Janus v. American Federation of State, County, and Municipal Employees (AFSCME), Council 31. At issue is whether union officials are entitled to keep money they seized from nonmembers in violation of their constitutional rights. Last June, the US Supreme Court issued the landmark ruling in the case, finding that it is a violation of the First Amendment to mandate that government workers fund union activities.

Mark Janus was an Illinois child support specialist who filed his case with free legal aid from the Liberty Justice Center and the National Right to Work Legal Defense Foundation. The case was successfully argued at the U.S. 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 worker’s affirmative and knowing consent violate the First Amendment. Justice Samuel Alito ruled in the majority opinion that compulsory fees “[violate] the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

Janus will be the first case in which a circuit court will evaluate the so-called “good faith” defense that union lawyers have asserted in response to worker petitions for 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 never suggesting that Janus only requires prospective relief for affected workers. The High Court further noted 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, won by National Right to Work Foundation staff attorneys.

Mark Janus is asking the Court of Appeals 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). However, 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. National Right to Work Foundation staff attorneys are currently litigating sixteen cases that collectively seek over $120 million in refunds.

“The Janus case is a milestone of worker freedom, but rather than accept that the funding of government unions must be completely voluntary union bosses continue to block workers from exercising their rights and to deny workers refunds for the constitutional violations union officials committed,” said National Right to Work Foundation President Mark Mix. “We hope the Seventh Circuit will follow the clear logic of the Supreme Court’s decision issued a year ago and establish that union bosses cannot profit from violating the First Amendment rights of workers.”

“Government workers are finally free from forced union fees after the Janus decision, but government unions’ coffers are full from the years of unconstitutional financial support taken from workers,” added Patrick Hughes, president and co-founder of the Liberty Justice Center. “Mark Janus’ fight on behalf of government workers isn’t over. Mark and hundreds of thousands of former agency fee payers are entitled to full relief from the government unions’ wrongdoing.”