October 24, 2021

Volume XI, Number 297

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October 22, 2021

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Sixth Circuit Adds its Voice to the post-Janus Chorus: Good-Faith Defense Applies to Union “Fair-Share” Fees

On Monday, the Sixth Circuit joined the Seventh and Ninth Circuits by ruling that the so-called “good faith” defense bars § 1983 claims that seek to recover “fair-share” fees collected under valid state law.

In the Supreme Court’s 2018 Janus v. AFSCME decision, the Court overruled a 1977 decision and held fair-share fees violated non-union members’ speech rights “by compelling them to subsidize private speech on matters of substantial public concern.”

An Ohio school teacher, Sarah Lee, relied on Janus to file a § 1983 suit against the Avon Lake Education Association. She sought to recoup the fair-share fees she had been required to pay as a non-member. But the district court recognized the union’s good-faith defense and dismissed.

A unanimous Sixth Circuit panel (Griffin op., Daughtrey, Clay) affirmed. Even assuming Janus applies retroactively, the union, as a private actor, could assert the affirmative defense that it acted in good faith: it followed Ohio law in effect at the time, which was consistent with prevailing Supreme Court precedent specifically allowing for fair-share fees.  The Seventh and Ninth Circuits, plus numerous district courts, have come down in the same way. The Sixth, according to Judge Griffin, “now add[s] our voice to that chorus.”

This post is brought to you thanks to the help of friend-of-the-blog Kirk Mattingly, EIC of the University of Louisville Law Journal.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 58
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About this Author

Benjamin Beaton Litigation Attorney Squire Patton Boggs Cincinnati, OH
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Benjamin Beaton is co-chair of the Appellate & Supreme Court Practice. He handles complex appeals, regulatory disputes and law-intensive trial proceedings. Ben has authored more than a dozen briefs at the US Supreme Court, where he previously served as a law clerk. He has drafted dozens more in the federal courts of appeal and state supreme courts, and regularly confers with trial and in-house counsel regarding appellate and motions strategy. Chambers has noted the firm’s “well-resourced appellate team, with notable experience in disputes heard before the Sixth Circuit.” The...

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