MARK JANUS and BRIAN TRYGG v. American Federation of State, County and Municipal Employees, Council 31

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3638
M ARK JANUS and BRIAN TRYGG,
Plaintiffs-Appellants,
v.
A MERICAN F EDERATION OF S TATE, C OUNTY AND M UNICIPAL
EMPLOYEES, C OUNCIL 31, et al.,
Defendants-Appellees,
and
LISA M ADIGAN , Attorney General of the State of Illinois,
Intervening Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 1235 — Robert W. Gettleman, Judge.
____________________
A RGUED M ARCH 1, 2017 — DECIDED M ARCH 21, 2017
____________________
Before POSNER , S YKES, and HAMILTON , Circuit Judges.
POSNER , Circuit Judge. In Abood v. Detroit Board of Educa-
tion, 431 U.S. 209 (1977), the Supreme Court upheld, against
a challenge based on the First Amendment, a Michigan law

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2 No. 16-3638
that allowed a public employer (in that case a municipal
board of education), whose employees (public-school teach-
ers) were represented by a union, to require those of its em-
ployees who did not join the union nevertheless to pay fees
to it because they benefited from the union’s collective bar-
gaining agreement with the employer. The fees could only
be great enough to cover the cost of the union’s activities
that benefited them; they could not be expanded to enable
the union to use a portion of them “for the expression of po-
litical views, on behalf of political candidates, or toward the
advancement of other ideological causes not germane to [the
union’s] duties as collective-bargaining representative.” 431
U.S. at 235–36. For were that permitted, the workers who
disagreed with the political views embraced by the union
would be unwilling contributors to expenditures for promot-
ing political views anathema to them, and the law requiring
those contributions would thereby have infringed their con-
stitutional right of free speech.
Illinois has a law, similar to the Michigan law, called the
Illinois Public Relations Act, 5 ILCS 315 et seq., under which
a union representing public employees collects dues from its
members, but only “fair share” fees (a proportionate share of
the costs of collective bargaining and contract administra-
tion) from non-member employees on whose behalf the un-
ion also negotiates. See 5 ILCS 315/6. But in 2015 the gover-
nor of Illinois filed suit in federal district court to halt the un-
ions’ collecting these fees, his ground being that the statute
violates the First Amendment by compelling employees who
disapprove of the union to contribute money to it.
The district court dismissed the governor’s complaint,
however, on the ground that he had no standing to sue be-

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No. 16-3638 3
cause he had nothing to gain from eliminating the compul-
sory fees, as he is not subject to them. But two public em-
ployees—Mark Janus and Brian Trygg—had already moved
to intervene in the suit as plaintiffs seeking the overruling of
Abood. Of course, only the Supreme Court has the power, if it
so chooses, to overrule Abood. Janus and Trygg acknowledge
that they therefore cannot prevail either in the district court
or in our court—that their case must travel through both
lower courts—district court and court of appeals—before
they can seek review by the Supreme Court.
While dismissing the governor’s complaint for lack of
standing, the district court granted the employees’ motion to
intervene and declared that the complaint appended to their
motion would be a valid substitute for Governor Rauner’s
dismissed complaint. Technically, of course, there was noth-
ing for Janus and Trygg to intervene in, given the dismissal
of the governor’s complaint. But to reject intervention by Ja-
nus and Trygg on that ground would be a waste of time, for
if forbidden to intervene the two of them would simply file
their own complaint when Rauner’s was dismissed. As there
would be no material difference between intervening in
Rauner’s suit and bringing their own suit in the same court,
the efficient approach was, as the district court ruled, to
deem Rauner’s suit superseded by a motion to intervene that
was the equivalent of the filing of a new suit. See Village of
Oakwood v. State Bank & Trust Co., 481 F.3d 364, 367 (6th Cir.
2007).
But we need to distinguish between the two plaintiffs,
Janus and Trygg, because while Janus has never before chal-
lenged the requirement that he pay the union “fair share”
fees, Trygg has. First before the Illinois Labor Relations

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4 No. 16-3638
Board and then before the Illinois Appellate Court, Trygg
complained that the union bargaining on his behalf (the
Teamsters Local No. 916, one of the defendants in this case)
was ignoring a provision of the Illinois law that allows a
person who has religious objections to paying a fee to a un-
ion to instead pay the fee to a charity. 5 ILCS 315-6(g). The
Illinois court agreed, and on remand to the Board Trygg ob-
tained the relief he sought: instead of paying the fair-share
fee to the union, he could pay the same amount to a charity
of his choice. The defendants (the unions that bargain on be-
half of Janus and Trygg, respectively—AFSCME for Janus,
the Teamsters for Trygg—the Director of the Illinois De-
partment of Central Management Services, which is the state
agency that has collective bargaining agreements with both
unions; and the Attorney General of Illinois intervening on
the side of the defendants) argue that Trygg’s claim in the
present suit is precluded by his earlier litigation.
Claim preclusion is designed to prevent multiple law-
suits between the same parties where the facts and issues are
the same in all of the suits, and 28 U.S.C. § 1738 requires fed-
eral courts to give the same preclusive effect to a state court
judgment that it would be given by the courts of the state in
question. Kremer v. Chemical Construction Corp., 456 U.S. 461,
466 (1982). Trygg’s First Amendment claim and his earlier
Illinois statutory claim arise from the same fact: the existence
of an Illinois law requiring that he pay fees to the Teamsters,
the union required to bargain on his behalf. But the parties
disagree as to whether Trygg could have raised his First
Amendment claim in the earlier litigation. It’s true that the
Illinois Labor Relations Board could not have entertained a
constitutional challenge to the statute, but Trygg could have
included the claim in his appeal from the Board’s decision to

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No. 16-3638 5
the court, because it presented an issue relevant to the legali-
ty of the Board’s action. See Reich v. City of Freeport, 527 F.2d
666, 671–72 (7th Cir. 1975). He did not do so; and because he
had a “full and fair opportunity” to do so, he is precluded by
Illinois law from litigating the claim in the present suit. See
Abner v. Illinois Department of Transportation, 674 F.3d 716, 719
(7th Cir. 2012). He missed his chance.
Janus’s claim was also properly dismissed, though on a
different ground: that he failed to state a valid claim because,
as we said earlier, neither the district court nor this court can
overrule Abood, and it is Abood that stands in the way of his
claim.
The judgment of the district court dismissing the com-
plaint is therefore
A FFIRMED.

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