and we will hear from mr messenger to begin case number three janice twenty five janice versus american federation of smi so mr messenger faith defense discussed by the justices and why force is coal and later recognized by other appellate courts in those cases the courts recognize that good faith reliance on a statute can rebut the malice and probable cause elements of a claim arising from an abuse is a suit for damages that you're bringing and it's in the nature of those other kinds of cases it means that they have deliberately used that  remind you of by a five to four vote justice alito thought it was very clear but for other justices didn't mean it was a highly contested area of the law and you were deep in the midst of much of this litigation there were lots of different opinions floating any statute which include illinois agency fee statute so how can relying upon illinois agency fee statute which is an element of one thousand nine hundred and three also be a defense but you're confusing two things here under color of law means that you  sufficiently the state to be suable under that statute so you don't bring in one thousand nine hundred and three actions for example against a private attorney who decides to take a  case in federal court they're not the state for that purposes so the argument here though is that once whichever entity it is of the state enters into a collective bargaining agreement with the private entity that private entity assumes the mantle of the state for that purpose just as wexford health who perform you know they're a private organization they give medical care in the illinois prisons they're not themselves the state but they are close enough so you got to be the state before nine hundred and eighty three is even in the picture once you're the state though then the question becomes did you an actor for the state reasonably if we don't till nine hundred and eighty two dollars come around to the idea that private parties can be sued under one thousand nine hundred and three then maybe you shouldn't even be here at all you should be in state court seeing if you can equitable way get the money back but let's put that to one side you've got them as a state actor and now the question is whether there's a good face defense for their retention of monies that were paid legally exactly your honor i submit reason for taking the money might have been you may be supposed mr janice adhere to a religion that renders it a sin to go to a physician and so mr janice said i don't want health insurance taken out of my paycheck but the state took health insurance out of his paycheck anyway now it's still a claim for return for taking his money in a way that he didn't want them to take it it's just not a st it's not the same part of the st amendment anyway it's an establishment clause or free exercise claim underlying the reason but you can have lots of reasons for taking the money but the claim to get the money back is the target you can find the basis of why a person's cole in the cases that followed it is that malice and lack of probable cause or elements of abuse of process claims and good faith in turn is a defense to the malice and lack of probable cause elements of an abuse of process claim justice rehnquist was very clear about that in footnote one of his decision so it was just as kennedy in his opinion we're talking about the essential elements of the tort both of them said is a misnomer to even call this a good faith because what we're talking about is a defendant can rebut malice and lack of problem caused by showing good faith reliance on a statute and i submit that logic only applies to k claims that are like abuse of a court process here by contrast a st amendment claim under there's a way that people get their paychecks when they work for a governmental entity at the state level and the process is that certain monies are taken out of the check before the person sees it your social security is taken out your taxes to various authorities and so in that sense that's that's how you get from the state to the union you're sure it's a it's a procedure that three is a constitutional tort by itself well because the elements of an abuse of process claim don't necessarily transfer to every claim that can be brought under section one thousand and nine one hundred and three dollars here in janice the supreme court says the elements of received no benefit for his fair share do none whatsoever none that he could be required to pay for your honor under janice mr under the supreme court's decision janice mr janice had no obligation to pay for any of the union's lobbying on his behalf and also mention that you know it's all to me the state of illinois that paid mr janice's wages and provided benefits the most the union did was bargain or lobby the state to extend that and under the supreme court's decision mr janis does not have to pay for any of that st amendment advocacy and therefore should receive back all the money he was compelled to pay unconstitutionally in this case to see why if if at some point there was an increase in wages government to require him to pay anything to ask me to bargain with the government and that can't be you can't that cannot be worked around by framing it as restitution or something back the supreme court's decision on that is unequivocal and on this point you know for several years asked me unconstitutionally took two thousand nine hundred and twenty nine dollars while calculation from mr janice and our position is that asked me should have to make a whole as a supreme court said in owen versus city of independence elemental notions of fairness dictate that one who causes the last should bear the loss here mr janice should not have to pay for asking is unconstitutional conduct your assuming of course your home brief assumes that we answer the retroactivity question in your favor the janice opinion self really leaves out for another day as i read it it doesn't say we're changing the past it says don't go forward this way i disagree writers open the question of what happens to the past for sure i submit that it's not open because under harper and reynolds will casket it's been the last it's the ninety's that supreme court decisions are retroactive given date there and they don't mix them up and this is an instance in which perhaps retroactivity in the sense of paying paying back monies that were that would that are no longer being collected no one is arguing anything that started yes i believe that's reynolds you'll casket answers that question in that case the state of ohio tried to get around retroactivity of supreme court decision by saying well we're lions on we called unconstitutional will say is a remedy that you can still rely on that statute that was struck down as unconstitutional the supreme court and reynolds bill casket said you can't get around retroactively that way you cannot get around retroactivity remedy based on reliance of the old statute and yet that's exactly what ask me is asking for here today i don't get around retroactivity by saying well we relied on the old unconstitutional statute but that was when the state court is trying to the same but i know this whole thing turns on good faith in i look at it more as good luck frankly they've got had a boot out there for a long time and i don't think there's any doubt that i've had some problems with mood in the past but this is the only good news i see in this case we've learned about it but i just wondered far as the good faith to the bitter end you know the malice and lack of probable cause elements at issue in that case and then morse to pacifically here going back to a question of escrow which i believe is what you're alluding to in this case asked me refused to escrow the compulsory fees taken from mr janice and his coworkers but when i did i really just remind you mr messages that it's very risky to predict exactly what the supreme court is going to do and the example i'll give you is dickinson everybody thought that when the supreme court took the dickinson case they were going to say that the warnings spelled out in the miranda decision were not of constitutional magnitude they were just an enforcement mechanism congress could replace them the states could do something different and lo and behold that's not what the supreme court did the supreme court an opinion by the chief justice chief justice rehnquist said gee this been around for a long time you know and actually it really is a constitutional magnitude so i just give that as an example and we lower courts may sometimes think we know what they're going to do i don't know what they're going to do i don't disagree with that or are not so i don't want to start s crowing because you think you know what the supreme court's going to do is not that they knew have never taken the position that asked me should have predicted but rather they knew it was suspect that this amount of money they were taking challenge i'll go that far with you and if you have two parties i don't use a suspect well the supreme court called it suspect that any union should have been on notice that's what five members of the supreme court said that four members didn't say that yes your honor but i submit that when you have two parties contesting over who is entitled to a piece of property or in this case money even if both sides have a good faith belief it's theirs when the coral truly says cases were due process claims that and the most analogous towards as is a process here's why that here's why that does not make a difference in the st place if if the court had been requiring that you can only get a good faith defense if there is an element of good faith or see enter or motivation in the constitutional claim itself the due process cases would have turned out differently because the constitutional issue in why it in these other due process places cases were whether the plaintiffs constitutional rights were violated because he was not given sufficient notice before his property was seized you know it seems it seems to me like the teacher could say might be stronger in this ability of private defendants to rely on existing law what the governor said was his own personal opinion judge gentleman actually in the court below held that throughout the governor's lawsuit because that he had no standing he had no personal stake in this but he certainly had no authority to change the what the constitution provided what abood provided and the other point is on the on the escrow i talked about this a little bit before but let me to come back to a prank that chief judge would made which is if we're if we're going to put it in escrow not only does that have serious implications for our ability to provide provide our services but when do we put it in i know of people and i'm thinking of myself actually who gave speeches that maybe a meeting saying the court couldn't get the th vote in harris persons quinn to overrule abood i think that issue is gone now and not going to come up again of course i was wrong but you know what what was the union supposed to do then or is it just and then the court granted cert in the friedrich's case and everybody knew just like in the dickinson case everybody knew that the the situation where you know the senate is dealing with what supreme court nominee is going to be confirmed in the outcome of the election are we really saying that a union is required at the risk of substantial liability points that your opponents have made is one about boundaries basically you know if we thought there was a good faith defense they have argued that it's just this boundless you know any time somebody has a mistake of law practically it comes into effect and then at the other extreme we have this you know direct reliance on a directly applicable supreme court decision which is good until it's not good anymore abood through janice or any reliance on a state statute so tell me how broad is this rule you're arguing ok or good well let me let me address st your initial question you know the notion that you can say quite this way this morning that i think mr messengers argument is basically that the good faith defense swallows the rule of right of private parties liability no that the this is the exceptional case the basis for this section one hundred and eighty three dollars claim in this case is that the defendant's actions became unlawful only because of a an after the fact decision of the supreme court overruling its forty year old precedent that the plaintiff would have had no cause of action had it not been for that and so the what what is at issue here is this question when the when the supreme court over rules and existing precedent are the private parties liable inaccurate because it's actually going to be only very few cases where you have this kind of a situation is that because you think it will be hard to show reliance because obviously a supreme court sets the legal background for a great deal of acti  no i think it's i think it's because there are really few cases where statutes are overruled statutes are held unconstitutional and particularly few where statutes are held unconstitutional by overruling an existing precedent so this is a case i think actually this is if i may say so i think this is the easy case because if you compare this you mean what is your genesis case now no i know i ok but thank you so this case where there is an existing supreme court precedent that nobody disputes that authorizes the action and the supreme court over rules that precedent  ok this is a much much easier case i think even then all of the court of appeals cases that we have in wyatt and pinsky and several other court of appeals cases where the court said the  the defendant in relying on his state replevin or attachment statute was entitle to rely on that statute because of the presumption of statutory validity the spite the fact that there was in those cases no on point judicial precedent saying that these saturates were constitutional it's simply determining that on the basis of a of a of a presumption of statutory liberty here we're way beyond that we have not only the presumption of statutory validity but we've got a directly on point decision saying this is constitutional so i think the you know status of any of the pending twenty five dollars additional cases any change hinson briefing judge wrote in or what i can tell you is that there have been several more we submitted a twenty eight dollars j letter earlier this week in which we cited for additional district court cases that had been decided since we filed our moony brief and all of them that this brings now and eighteen dollars total district court cases that have decided the issue presented by these two cases and all of them without any exception have held that unions are entitled to invoke the good faith defense and are not liable for damages after that there are a number of other cases that are still pending in the district courts but there has not been a single case in which the  courts have found that unions are liable for following the law as it existed at the time of the of the actions that they took and i take it none of the i don't mean to mix up the arguments but none of these cases involved restitution every theory to the contrary your honor about i could count them up but at least half of these cases were cases where mr mitchell cases where he made exactly the same argument that he's making making here and it was rejected in all of them some of them rejected some merely some of them had had more extended legal reasoning explaining why it why it made no sense i'd like to just turn for a moment to the retroactivity case that came up during mr messenger's argument i do want to make sure that we're distinguishing between retroactivity and remedy as i said reynolds hill casket case you're going to talk about well yes and reynolds fill casket particularly that the problem with reynolds bill casket  was that the court found that the attempt to say well this is a remedial issue there was not a bonafide remedial issue there that's and that's why the court  know no we're not we're not going to do that but the court specifically held in in reynolds school casket to fight the exact language after after saying that this is not a bona ordinary application of a new rule of law backwards means that it's retroactive sait to pending cases may or may not involve a further issue of remedies so the court is very specifically saying even though we held that in this particular case there is no remedial issue that changes the outcome there are other cases it depends on the facts of each case where there will be a remedial issue and in in runnels will casket the the court lists several scenarios under which you can have one in one of them was the one that i think is is is applicable here where there where there is a a rule of law that is not a matter it received these fees the actions it took in receiving these fees and the state's public employers actions in in transmitting these fees were taken under law that existed at the time that said this is this arrangement for funding public sector collective bargaining is constitutional well there and without the law and the collective bargaining agreement exactly exactly means and and the gist of the plaintiff's argument both in the janice and the movie cases is that by its decision overruling abood the court after the fact made these actions unconstitutional after actions that were clearly constitutional and lawful at the time that they were undertaken after the fact become unconstitutional and i think one can invoke or well or something if one were so inclined but but i think this helps explain why every single district court that has addressed this issue so far has found had no problem at all in holding that union should mean at the end of day mr janice is the one who suffered injury and owen versus city of independence the supreme court made rather clear in rejecting the idea that municipalities should have qualified immunity that it's an injustice for victims to be deprived of compensation to which they're due and that elemental notions of fairness dictate that one who causes the loss should bear the loss and that in balancing the interests of the victims versus against you mr palette even if it did rely on existing law the balance strongly favor compensating victims and here i submit that even if there is any deep unfairness to ask me mr jancis interest in the interest of employees who st minute rights were violated trump those interests thank you all right thank you very much thanks to both counsel everybody we will take this case under advi