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Nonunion Md. teachers lose bid for refund of dues

Maryland public school teachers who declined to join the state labor union but were statutorily compelled to pay a representation fee are not entitled to a refund on the money they paid before the U.S. Supreme Court ruled the compelled payments unconstitutional in 2018, a federal appeals court ruled Monday.

The 4th U.S. Circuit Court of Appeals’ decision was a defeat for a class of teachers across Maryland who had argued they were owed a refund due to the high court’s decision in Janus v. AFSCME that found mandatory fees violated nonunion members’ right to free speech.

In its published 3-0 decision, the 4th Circuit said the Maryland State Education Association can keep the pre-2018 payments from nonunion members because the MSEA acted in “good-faith” in collecting the fees. The MSEA stopped collecting the fees – the payment of which was a condition of public school employment — after the Janus decision.

The union’s good faith collection is rooted in the fact that the fee payments were required by state law and had been deemed constitutional by the Supreme Court in its 1977 decision in Abood v. Detroit Board of Education, the 4th Circuit said. The justices overturned that decision in Janus.

Judge Robert B. King, writing for the 4th Circuit, said MSEA relied on a state law the union did not create and had no reason until the Janus decision to believe was invalid in light of the Supreme Court’s ruling in Abood.

The 4th Circuit noted that its decision followed similar “good-faith” rulings in six other appellate courts that unions need not refund representation fees collected from nonunion members prior to the Supreme Court’s ruling in Janus.

In Abood, the Supreme Court held that a required representation fee was constitutional because it funded the union’s administration of contracts and not its political or ideological activities. However, the court reversed course in 2018, holding in Janus that requiring nonunion members to pay a fee to the union violates their First Amendment protection against compelled speech in support of the union.

Left unresolved by the Supreme Court’s Janus decision – and unaddressed by the 4th Circuit and other appellate courts — is whether the prohibition on compelled representation fees applies retroactively to money paid before the ruling in the absence of a good-faith exception.

As a result, the issue of retroactivity as a well as a challenge to the finding of good faith are matters the teachers could raise on further appeal.

The teachers’ appellate attorney, Jonathan F. Mitchell, did not immediately return a message Tuesday seeking comment on the 4th Circuit’s decision and plans to appeal. Mitchell, a former Texas solicitor general, is with Mitchell Law PLLC in Austin, Texas.

MSEA’s appellate attorney, Leon Dayan, also did not immediately respond to a message seeking comment. Dayan is with Bredhoff & Kaiser PLLC in Washington.

The Maryland teachers’ lawsuit against MSEA was initially filed on June 18, 2018 – nine days before the Supreme Court handed down its decision in Janus.

Lead plaintiff Ruth Akers, a Baltimore County school teacher, challenged the fee on the same First Amendment grounds the Supreme Court found on June 27. Akers’ class action case in the U.S. District Court in Baltimore subsequently became a claim to recover the fees paid before the Janus decision.

U.S. District Judge Richard D. Bennett ruled in April 2019 that MSEA did not have to refund the money because the union had acted in good faith compliance with Maryland law and what had been Supreme Court precedent.

The teachers then sought review by the 4th Circuit.

King was joined in the opinion by Judges Henry F. Floyd and Stephanie D. Thacker.

The 4th Circuit rendered its decision in Ruth Akers et al. v. Maryland State Education Association et al., No. 19-1524.

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