Get Ready for Janus 2.0, Which Could Devastate Labor More Than the First

Moshe Z. Marvit June 11, 2020

The second Janus Supreme Court case aims to wipe out public-sector unions' coffers. (Photo by SAUL LOEB/AFP via Getty Images)

On June 27, 2018, the Supreme Court issued its rul­ing in Janus v. AFSCME, which rad­i­cal­ly changed estab­lished con­sti­tu­tion­al inter­pre­ta­tion to make it a vio­la­tion of the First Amend­ment for pub­lic-sec­tor unions to col­lect fair-share fees. These fees are equiv­a­lent to the por­tion of union dues that are ger­mane to col­lec­tive bar­gain­ing. The plain­tiff in the case was Mark Janus, a child sup­port spe­cial­ist with the Illi­nois Depart­ment of Health­care and Fam­i­ly Ser­vices, who object­ed to pay­ing $23.48 in fair-share fees per pay peri­od to AFSCME, the union that rep­re­sent­ed him and his cowork­ers. Back­ing Janus was a coterie of anti-union groups, head­ed by the Nation­al Right to Work Legal Defense Foun­da­tion, which has spent decades attack­ing labor. 

Despite this sting­ing loss before the Supreme Court, many unions had pre­pared for this pos­si­bil­i­ty, and laid the ground­work to help mit­i­gate the dam­ages. The result was that — at least in the short term — the case that was intend­ed to serve as a major body blow to labor appears to have had a reju­ve­nat­ing effect.

For many, it seemed like the Janus case was over. Mark Janus, the lead plain­tiff, had left his state job and went to work for the anti-union Lib­er­ty Jus­tice Cen­ter, which helped rep­re­sent Janus before the Supreme Court and whose entire Work­ers’ Rights” plat­form con­sists of work­ers suing unions to recov­er fair-share fees. Janus was gone, fair-share fees in the pub­lic sec­tor were gone, and unions became bet­ter at mem­ber­ship engage­ment such that they didn’t see the free-rid­er” tidal wave that many had feared.

Now, Mark Janus is back before the Supreme Court, ask­ing to make their 2018 deci­sion retroac­tive, and force pub­lic sec­tor unions to refund much of the fair-share fees they col­lect­ed in recent years. If the Court agrees to hear the case and sides with Janus again, it could cost orga­nized labor many mil­lions of dollars.

Janus’s case is being brought under the Civ­il Rights Act of 1871 — or Sec­tion 1983” as it is more com­mon­ly called — which allows peo­ple to sue state actors for con­sti­tu­tion­al vio­la­tions. The typ­i­cal sub­ject of such law­suits includes such issues as exces­sive use of force by police, cru­el and unusu­al pun­ish­ment towards pris­on­ers and vio­la­tions of pub­lic employ­ees’ First Amend­ment rights. In rare instances, usu­al­ly when a pri­vate cred­i­tor uses state pro­ce­dures to attach a debtor’s assets in vio­la­tion of due process, a pri­vate actor can be found to be engag­ing in state action and sued under Sec­tion 1983 for vio­lat­ing con­sti­tu­tion­al rights. There­fore, AFSCME and oth­er pub­lic sec­tor unions could be sued for col­lect­ing fair-share fees under state law, which a 5 – 4 major­i­ty of the Supreme Court found in the 2018 Janus case was a vio­la­tion of the First Amendment.

How­ev­er, what makes this sec­ond Janus case tru­ly bizarre is that the Supreme Court has stat­ed, and every court has agreed, that there is a good-faith defense for pri­vate par­ties being sued under Sec­tion 1983.

Shel­don Nah­mod, Emer­i­tus Pro­fes­sor at Chica­go-Kent Col­lege of Law and an expert on Sec­tion 1983, says that the good faith defense grew out of the sim­ple mat­ter of pub­lic pol­i­cy that pri­vate par­ties fol­low the law rather than act con­trary to it.” With regard to pub­lic-sec­tor fair-share fees, the union relied on a decades-old state law that was passed pur­suant to a 1977 Supreme Court deci­sion that treat­ed fair-share fees as con­sti­tu­tion­al. Janus is argu­ing here that Jus­tice Ali­to and sev­er­al oth­er con­ser­v­a­tive Jus­tices voiced their dis­com­fort with pub­lic-sec­tor fair-share fees over the past few years, so unions should have been on notice that the law was prob­lem­at­ic. But the Sev­enth Cir­cuit Court of Appeals in this case rebuked this idea, stat­ing, The Rule of Law requires that par­ties abide by, and be able to rely on, what the law is, rather than what the read­ers of tea-leaves pre­dict that it might be in the future.”

The tri­al court judge went even fur­ther, acknowl­edg­ing the emp­ty Supreme Court seat left by Sen. Mitch McConnell’s refusal to call a Sen­ate vote for Pres­i­dent Obama’s nom­i­nee Mer­rick Gar­land, stat­ing, had the gen­er­al and/​or pres­i­den­tial elec­tion result­ed dif­fer­ent­ly, the com­po­si­tion of the Supreme Court that decid­ed the case may well have been dif­fer­ent, lead­ing to a dif­fer­ent result.” If ever there was a case for argu­ing that a par­ty act­ed in good faith in fol­low­ing the wide­ly accept­ed law, this was it.

Anoth­er strange facet of Janus’s peti­tion to the Supreme Court is that, though it claims to be attack­ing the good faith defense avail­able to pri­vate par­ties under Sec­tion 1983, it does not cite any arti­cles about the good faith defense. Instead, the only arti­cles it cites con­cern the very dif­fer­ent and prob­lem­at­ic issue of qual­i­fied immu­ni­ty, which is avail­able to state actors.

Qual­i­fied immu­ni­ty was cre­at­ed by the courts to pro­tect pub­lic actors from lia­bil­i­ty unless they vio­lat­ed clear­ly estab­lished” statu­to­ry or con­sti­tu­tion­al rights that a rea­son­able per­son would have known. How­ev­er, over the years, the courts inter­pret­ed the doc­trine so broad­ly that it has become extreme­ly dif­fi­cult to win a law­suit against police for extreme misconduct.

A recent inves­ti­ga­tion by Reuters describes in griz­zly detail how police killed a con­fused hos­pi­tal patient with pneu­mo­nia who refused to return to his room, a man who suf­fered brain dam­age after being smashed to the ground by police, a bicy­clist who was shot 17 times in a case of mis­tak­en iden­ti­ty, and many more where qual­i­fied immu­ni­ty pro­tect­ed unlaw­ful action by police.

For years, there has been grow­ing anger at the doc­trine of qual­i­fied immu­ni­ty because of the ways that it shields police offi­cers, and since the mur­der of George Floyd by Min­neapo­lis police, that drum­beat for rever­sal or reform of the doc­trine has grown loud­er. Sev­er­al Jus­tices have called for a reex­am­i­na­tion of qual­i­fied immu­ni­ty and there are cur­rent­ly eight qual­i­fied immu­ni­ty cas­es pend­ing before the Court. A bill has been intro­duced by a broad bipar­ti­san group in the House to elim­i­nate qual­i­fied immu­ni­ty. Now, it appears that Janus is try­ing to use the impor­tant issue of qual­i­fied immu­ni­ty reform to get rid of the rel­a­tive­ly rare good faith defense that unions are rely­ing on.

On June 18, the Supreme Court is sched­uled to con­sid­er whether it will accept the sec­ond Janus case for review. Labor law pro­fes­sor Char­lotte Gar­den of the Seat­tle Uni­ver­si­ty School of Law says, I don’t think there’s any rea­son for the Court to take this case. The low­er courts have been unan­i­mous in hold­ing that there is a good faith defense. Absent a cir­cuit split, the Court would typ­i­cal­ly take this case only if it pre­sent­ed an espe­cial­ly impor­tant ques­tion (such as the con­sti­tu­tion­al­i­ty of a major fed­er­al pro­gram) — and I just don’t see a ques­tion that ris­es to that lev­el here.”

How­ev­er, Jus­tice Ali­to writ­ing for the major­i­ty in the orig­i­nal Janus case, stat­ed It is hard to esti­mate how many bil­lions of dol­lars have been tak­en from non­mem­bers and trans­ferred to pub­lic-sec­tor unions in vio­la­tion of the First Amend­ment.” This sen­ti­ment was echoed by one of the judges on the 7th Cir­cuit pan­el who heard this case. The con­ser­v­a­tive major­i­ty of Jus­tices has shown that it is will­ing to accept cas­es where there is no split in the cir­cuits and that it’s will­ing to over­turn estab­lished prece­dent if the result is to harm labor.

Janus II may rep­re­sent such a case. But, as Pro­fes­sor Gar­den stat­ed con­cern­ing the wind­fall” that unions are alleged to have received, if we real­ly want­ed to unwind union agency fees, we’d also have to think about what rep­re­sent­ed work­ers got in exchange for their agency fees. Sup­pose Janus’s union (backed by agency fees) nego­ti­at­ed pay rais­es, or bet­ter insur­ance ben­e­fits, etc., and then enforced those con­trac­tu­al pro­vi­sions through a griev­ance process. Assum­ing the union nego­ti­at­ed pay/​benefits/​etc. that were worth more than the amount of union dues, then, shouldn’t we say that by Janus’s log­ic, Janus received a wind­fall, or at least got the ben­e­fits he paid for with his agency fees?”

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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