Mark Janus stands outside of the United States Supreme Court in Washington, D.C., February 26, 2018. (Leah Millis/Reuters)

In Janus v. AFSCME, the Supreme Court decided that, under the First Amendment, public-sector employees could not be compelled to pay fees to unions that they did not want to join. But that did not fully resolve the case: Janus also asked for damages to compensate him for fees that had already been collected.


This raises a tricky issue. When the fees were charged, they were legal under Supreme Court precedent — but the Court has now decided that the precedent was wrong, and that the fees were actually illegal under the true meaning of the Constitution. Hitting the union with damages smacks of ex post facto punishment (and no doubt would lead to lots of similar claims against other unions), but on the other hand, it doesn’t seem right to tell Janus simultaneously that (A) it was unconstitutional to make him pay the fees and (B) he’s not entitled to his money back.

A new court decision sides with the union. Under federal law, individuals can sue government actors for violations of their rights, and this applies as well to private parties (such as unions) that invoke state statutes to violate rights. However, there’s a murky legal question of when private parties are able to invoke the “good faith” defense available to public officials in such cases.

The new opinion reports that “although the [court’s own] Seventh Circuit has not yet addressed the issue, ‘[e]very federal appellate court that has considered the good-faith defense . . . has found that it exists for private parties.’” It further concludes that if there’s a good-faith defense available, it applies in this case (citations removed):

The statute on which defendant relied had been considered constitutional for 41 years. It is true, as plaintiff argues, that in Harris v. Quinn, the Court found that collection of compulsory fair-share fees from in-home-care personal assistants who were not full-fledged public employees, was unconstitutional, but left for another day whether Abood remained good law. Plaintiffs argue that, as the Janus court stated, “unions have been on notice for years regarding this Court’s misgivings about [Abood],” and that “any public-sector union seeking an agency fee provision in a collective-bargaining agreement must have understood that the constitutionality of such a provision was uncertain.” Despite these statements in Janus, prior to the instant case Abood remained the law of the land. And, despite these statements, there was no way for defendant to predict the resolution of this case. Indeed, 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. . . . Defendants’ action were in accord with a constitutionally valid state statute. Nothing presented by plaintiff prevents application of that defense to defendant AFSCME. Defendant AFSCME followed the law and could not reasonably anticipate that the law would change.

Josh Blackman has put the decision online here. And coincidentally, today Janus will be receiving the Whittaker Chambers Award at National Review Institute’s 2019 Ideas Summit.