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. 

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.”