Kourosh Kenneth Hamidi, et al. v. Service Employees International Union, Local 1000

The Civil Rights Act of 1871 provides that “every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State” deprives a citizen of a constitutional right “shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983. In Knox v. SEIU, Local 1000, this Court held that in earlier cases, “we assumed without any focused analysis that the dicta from Street had authorized the opt-out requirement as a constitutional matter,” and that “By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” 567 U.S. 298, 313-14 (2012). In the context of a procedure to collect a “Temporary Special Assessment to Create a Political Fight-Back Fund” from nonmembers (including those who previously opted out), this Court declared “This aggressive use of power... to collect fees from nonmembers... indefensible.” Id. In Janus v. AFSCME, Council 31, this Court went further, stating that “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” 138 S.Ct. 2448, 2486 (2018). Nevertheless, notwithstanding these unambiguous pronouncements, Respondent persisted in imposing an -ii“opt-out” requirement upon nonmembers, requiring an affirmative objection in order to avoid the seizure from their wages of fees exceeding the reduced fee amount authorized by Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), overruled Janus, 138 S.Ct. at 2486. The questions presented are:

1. May a labor union acting in concert with State officials, consistent with the First and Fourteenth Amendments, seize for union political speech payments from an employee absent clear and compelling evidence that he knowingly, intelligently, and voluntarily waived his First Amendment right under the standard set forth in Johnson v. Zerbst, 304 U.S. 458, 464 (1938)?

2. May a private party who violates constitutional rights be immunized from liability for damages under 42 U.S.C. § 1983 by a profession of “good faith” reliance under color of a law before that law or practice was held unconstitutional?