Cuyahoga County probation officer Kimberlee Warren has just defeated an attempt by Fraternal Order of Police (FOP) union officials to shut down her case asserting that union officials violated her First Amendment right to opt out of union membership and financial support.

With free legal representation from attorneys with the National Right to Work Foundation and The Buckeye Institute, Warren contends that FOP union officials ignored her constitutional rights recognized in the landmark 2018 Janus v. AFSCME U.S. Supreme Court decision.

A Northern Ohio District Court judge just rejected FOP lawyers’ attempt to have the case dismissed on the grounds that Warren has no constitutional claim under federal law because, according to union lawyers, the union was not a “state actor” in jointly participating with the state to illegally take money from her paycheck. The judge instead ruled that “Warren has sufficiently pleaded that the FOP acted under color of state law when it continued to collect union fees from Warren’s wages post-Janus.”

With the union lawyers’ motion to dismiss denied, Warren’s case will now continue. Her lawsuit seeks not only the return of all monies that FOP union officials took from her paycheck for more than two years after the Janus decision was handed down, but also punitive damages because FOP showed “reckless, callous” indifference toward her First Amendment rights by repeatedly ignoring her requests to reclaim illegally taken fees.

Union Officials Refused to Return Dues Seized in Violation of First Amendment

In Janus, which was argued and won by National Right to Work Foundation staff attorneys, the Justices declared it a First Amendment violation to force any public sector employee to pay union dues or fees as a condition of keeping his or her job. The Court also ruled that public employers and unions cannot take union dues or fees from a public sector employee unless they obtain that employee’s affirmative consent.

The federal lawsuit says that Warren was not a member of the FOP union before the Janus decision in June 2018, and never signed an authorization for the deduction of union dues or fees from her wages. However, FOP union bosses collected fees and later full union dues from her wages anyway without her consent.

According to the complaint, deductions continued into December of 2020, even after Warren notified union officials that they were violating her First Amendment rights by taking the money and after she demanded that the union stop the coerced deductions and return all money taken from her paycheck since the Janus decision.

When the deductions finally ended, FOP chiefs refused to return the money they had already seized from Warren in violation of her First Amendment rights. They claimed the deductions had appeared on her check stub and thus any responsibility to stop the deductions fell on her – even though they had never obtained her permission to opt her into membership or to take cash from her paycheck in the first place.

According to the lawsuit, Warren also asked FOP bosses to produce any dues deduction authorization document they claimed she had signed. FOP officials rebuffed this request as well, presumably because no such authorization existed.

The High Court ruled in Janus that, because all monopoly bargaining activities public sector unions undertake involve lobbying the government and thus are political speech, forcing a public employee to pay any union dues or fees as a condition of keeping his or her job is forced political speech the First Amendment forbids.

Before the Janus ruling, Ohio state law and the union’s monopoly bargaining agreement with Cuyahoga County permitted the union bosses to seize union fees from nonmember workers’ paychecks (including Warren’s) as a condition of employment. FOP union officials took this amount from Warren prior to Janus. After the Janus decision, they covertly designated Warren as a union member and began taking full dues – deducting even more money from her wages than they did before the Janus decision despite the complete lack of consent.

“Although Kimberlee Warren still has a long way to go in her battle to vindicate her First Amendment Janus rights, the fact that the District Court shut down this specious union boss attempt to prematurely end the case likely shows how little ammunition they have,” commented National Right to Work Foundation President Mark Mix. “That FOP union bosses alleged they somehow didn’t break federal law despite refusing to give back dues seized in violation of Warren’s constitutional rights – and despite charging her full union dues after the Janus decision was issued – is arrestingly outrageous.”

“Foundation staff attorneys are proud to stand behind Warren as she fights for her right to refuse to subsidize a union of which she disapproves,” Mix added.

“The Buckeye Institute is pleased that Ms. Warren will have her day in court and confident that she will prevail in her efforts to recover dues that the Fraternal Order of Police — a union Ms. Warren never joined — illegally took from her paycheck,” said Robert Alt, President and Chief Executive Officer of The Buckeye Institute.

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in around 250 cases nationwide per year.

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