Plaintiffs seek retroactive fees paid to unions

SACRAMENTO -- An attempt by conservative groups to retroactively recoup fair share fees paid to public employee unions hung by a thread at an intense yet convivial hearing in federal court Monday.

Hamidi v. Service Employees International Union Local 1000, 14CV00319 (E.D. Cal., filed Jan. 31, 2014) is one of numerous cases around the country attempting to grapple with the U.S. Supreme Court's decision in Janus v. AFSCME Council 31, 2018 DJDAR 6308.

That landmark decision found non-union members' First Amendment rights were violated when they were forced to pay fees to public employee unions engaged in speech and political actions they disagreed with. This includes so-called fair share fees, paid by non-members in order to repay the union for negotiating on their behalf.

But unlike most of the other cases, Hamidi predates Janus by years. When the lead attorneys approached the podiums Monday, U.S. District Judge William B. Shubb joked, "You don't have to introduce yourselves anymore."

"When we started a few years ago, your honor, we were all younger and less gray," replied W. James Young, a staff attorney for the National Right to Work Legal Defense Foundation.

Young represents lead plaintiff Ken Hamidi, who founded the California Professional Public Employees Association in opposition to public employee unions. Hamidi originally challenged the state's opt-out system for workers who don't want to join public employee unions.

The case changed post-Janus with the plaintiffs arguing for the retroactive return of fair share fees. In June, Shubb dismissed the plaintiffs' claims for injunctive and declaratory relief and also dismissed the California State Controller as a defendant. He wrote the plaintiffs in each case received benefits from the union's activities that cannot be returned, something the U.S. Supreme Court acknowledged in its Janus ruling.

But Young was allowed to come back and argue his clients still deserve damages and to oppose the SEIU's motion to decertify the class and dismiss the case outright. In court and in a brief filed last week, he argued for a return of dues going back to July 1, 2013, when the union instituted its current opt-out provision.

This led into a discussion of when a party can be presumed to have objected. Young argued the pre-Janus situation with public employee unions was one in which many workers did not feel free to express the objections to the union.

"When a man with a gun tells me to do something, your honor, I tend to accede to his request," Young said.

Arguing for the SEIU, Jeffrey B. Demain said the plaintiffs can rightfully rely on a good faith defense. The partner with Altshuler Berzon LLP in San Francisco said the union was in "compliance with the law at the time," and essentially changing the law retroactively would undermine confidence in the rule of law.

"An injunction is always prospective; it is never retrospective," Demain said.

He later added, "The good faith defense applies even when the defendant relies on a statute of dubious constitutionality."

Shubb shot back by noting limits to a good faith defense.

"Just like qualified immunity, it was created whole cloth by the courts," Shubb said.

The case is one of several that have attempted to retroactively recoup union dues in the wake of Janus. This includes another case in Shubb's courtroom, Hernandez v. AFSCME California, 18CV02419 (E.D. Cal., filed Aug. 31, 2018). He also dismissed a portion of that case in June though the sides are due back in Shubb's court next month.

Demain referenced Hernandez in an argument that the plaintiffs' claims should be declared moot, joking, "I think your honor has read that case."

It was one of several lighthearted moments between Shubb and the attorneys. After the hearing, Demain and Young together reminisced outside the courtroom about some of their prior cases against each other.