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In Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), the Supreme Court of the United States held that agency-shop arrangements that require nonmembers to pay fair-share fees and thereby subsidize private speech on matters of substantial public concern, are inconsistent with the First Amendment rights of objectors, no matter what interest the state identifies in its authorizing legislation.
Plaintiff Mark Janus was formerly a child-support specialist employed by the Illinois Department of Healthcare and Family Services. Defendant American Federation of State, County and Municipal Employees ("AFSCME"), Council 31, was designated as the exclusive representative of Janus' employee unit. Janus exercised his right not to join the union. He also objected to the withholding of $44.58 from his paycheck each month to compensate AFSCME for representing the employee unit in collective bargaining, grievance processing, and other employment-related functions. Later, the then-governor of Illinois filed a lawsuit in federal district court challenging the Illinois Public Labor Relations Act ("IPLRA"), which, under 5 ILCS § 315/6, provided that a union designated as the exclusive representative of an employee unit was "responsible for representing the interests of all public employees in the unit," whether union members or not, and permitted assessment of fair-share fees. The district court dismissed the governor for lack of standing, but at the same time it permitted Janus (and some others) to intervene as plaintiffs. Janus asserted that the state's compulsory fair-share scheme violated the First Amendment. Ultimately, the Supreme Court of the United States reversed its long-standing precedent to the contrary and ruled that compulsory fair-share or agency fee arrangements impermissibly infringed on employees' First Amendment rights. With the case back before the district court, the remaining issue to be decided was whether Janus was entitled to damages, under 42 U.S.C.S. § 1983, in the amount of the fair-share fees he had paid prior to the Supreme Court's decision. The parties filed cross-motions for summary judgment, and the district court granted AFSCME's motion and denied Janus' motion, holding that Janus was not entitled to a refund of some or all of that money. Janus appealed.
Was Janus, a non-union employee who paid fair-share union fees under protest, entitled to a refund of some or all of that money?
The court of appeals affirmed the district court's decision. The court ruled, in general, that after the Supreme Court reversed its prior position and held that compulsory fair-share or agency fee arrangements impermissibly infringed on employees' First Amendment rights, an employee who paid fair-share fees under protest was not entitled to a refund of some or all of that money. With respect to Janus, the court ruled, he was not entitled to a refund because AFSCME, acting as a private party who acted under color of state law for purposes of 42 U.S.C.S. § 1983, was entitled to a good faith defense to liability. AFSCME established this defense, the court continued, because at the time it collected the fees, AFSCME had a legal right to receive and spend fair-share fees collected from nonmembers as long as it complied with state law and the applicable line of caselaw and it did not demonstrate bad faith when it followed those rules.