Can Public Sector Unions Be Forced to Pay Back Previously Collected Agency Fees?

Precedents in the law are often double edged swords. They can help one ideological side in one case only to harm them in a future case. For example, a decision that helps liberals in one case might harm them in a future case. It is this factor that gives judge made law some semblance of neutrality. The liberals on the court in case one need to think about the consequences of their decision for future cases.

Of course, if a future court can distinguish the two decisions, then this neutrality is defeated. So, if the liberals who decided the matter in case one can distinguish case two, which would harm liberal interests, the neutrality of the law will be undermined.

I thought of this when reading a blog post by Will Baude about the possible liability of the public sector unions after the Janus case. Janus, of course, is the recent Supreme Court case that held it is unconstitutional for the states to require public employees to pay agency fees to labor unions if the public employees choose not to become members.  Baude asks: “what about the agency fees that unions had been collecting before Janus? Are unions liable for collecting them? Can they be forced to pay them back?”

It turns out that a lawsuit is being brought to force the unions to pay back the prior agency fees that were collected. According to Baude:

Janus makes it likely that unions can be sued for agency fees they collected in the past. The case for liability has three key steps.

First, Janus [applies] equally to conduct before it was decided as it does to conduct in the future. Under standard retroactivity doctrine, Supreme Court decisions are taken to state the true law as it has always been, rather than to change the law. . .

Second, even though unions are themselves private organizations, not the government, they can still be sued for constitutional violations because of the way they used the power of the state to collect money. They key precedent is a Supreme Court case called Lugar v. Edmondson Oil. In Lugar, the Court allowed lawsuits against private debt collectors because they had made use of an unconstitutional state statute that allowed the attachment of property without due process. Even though the debt collectors were private, they could be sued because they had used an unconstitutional statute passed by the state, and had “invok[ed] the aid of state officials to take advantage of state-created attachment procedures.” Union collection of agency fees appears to be analogous.

Third, unions do not have the qualified immunity defense that is available to government Section 1983 defendants. Most government officials have a qualified immunity defense when they were doing something that was thought to be constitutional at the time. But in a sequel to Lugar, called Wyatt v. Cole, the Supreme Court said that private entities do not get the same kind of defense.

It is interesting to think about the alignment of the justices in these cases. In Janus, it was the conservatives, in a 5-4 decision, who held that the collection of agency fees by public employer unions was unconstitutional. But in Lugar v. Edmondson Oil, it was the liberals, in a 5-4 decision, who held that private debt collectors could be sued for the unconstitutional action. In Lugar, a White opinion was joined by Brennan, Marshall, Blackman and Stevens. The dissenters were Burger, Powell, Rehnquist, and O’Connor.

It is not surprising that liberals would have opposed private debt collectors, whereas conservatives would have supported them. But if the nature of the parties and the issues between them influenced the justices, would they have had the same position if they knew the case would be applied to public employer unions in the future?

Perhaps the vote of the liberals yesterday will come back to haunt the liberals of today. And perhaps the loss of the conservatives of yesterday will provide a victory to the conservatives of today.

Of course, this type of analysis of Supreme Court decisions – based on ideology and of the identity of the parties rather than the relevant law – is only part of the story. But it is interesting.