Mark Janus

Footnote 12 and Retroactive Liability

An important point on judicial retroactivity buried in a footnote of Justice Kavanaugh's opinion in Barr v. AAPC.

|The Volokh Conspiracy |

As Jonathan and others have noted, the plurality opinion in Barr v. AAPC has a lot of interesting severability analysis. It also contains a very important, if unexplained, footnote, after the plurality concludes that the government-debt exception is unconstitutional:

As the Government acknowledges, although our decision means the end of the government-debt exception, no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before the entry of final judgment by the District Court on remand in this case, or such date that the lower courts determine is appropriate. See Reply Brief 24. On the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.

This conclusion is perfectly logical, but its legal basis is a bit mysterious to me. (Page 24 of the government's reply brief, the only authority cited, says: "It is doubtful that a person who made automated calls to collect government-backed debts before the exception was held invalid could be said to have violated the TCPA. But because no question of retroactive liability is presented here, those issues may be reserved for a future case.")

So what gives? Judicial decisions are inherently retroactive, because they are supposed to declare what the law is, not change it into something else. (The Court wrestled with special cases of prospective judicial decision making a few decades ago, but then abandoned it as a mess.) Lower courts have recognized a "good faith" defense when people relied on a statute or precedent that was later invalidated, but the Supreme Court has not decided that issue.

So it seems to me that those who joined this part of the plurality opinion (Justice Kavanaugh, the Chief Justice, and Justice Alito) must either want to experiment again with prospective-only judicial decisionmaking, or they must believe that the Court should recognize a new good faith defense after all.

Either way, the footnote has implications for the lawsuits brought against labor unions to recover agency fees paid prior to the Supreme Court's decision invalidating those fees in Janus. As I've written, both on this blog and in this article co-authored with Eugene, those lawsuits seemed surprisingly plausible if they ever made it to the Supreme Court. That no longer seems true. It's hard to imagine all of the Justices who joined footnote 12 intending to endorse liability in a pre-Janus case.

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NEXT: Supreme Court Reaffirms Traditional Severability Principles in Barr v. AAPC

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  1. “On the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.”

    Bizarre. Why would the decision “not negate” that liability? Gorsuch is correct. The severability they have now is bullshit.

    1. Because then invalidated an exception to the robocall ban (for collection of debt owed to the government) not the ban on robocalls.

      The liability of those not covered by the exception who were making robocalls in violation of the ban wouldn’t be affected.

      Gorsuch may be correct about severability, but given that severability has majority support on the court, there’s nothing bizarre here.

      1. But the guys making robocalls in violation of the ban were subject to a content-based restriction on speech. That’s one thing that’s weird about this whole remedy, it’s unclear how it works at any level outside of injunctive/declaratory relief at the supreme court. It doesn’t work retrospectively, because they can’t sever it retrospectively, a district court can’t sever it and bind other district courts, or state courts, etc.

        1. It’s not the severability that creates the weirdness in this case.

          It’s that the court faced with a challenge to the ban decided to attack the excemption and not the ban. That is Bizarre.

          However everything that follows after with the severability analysis is perfectly normal.

          1. The reason it needs to be prospective is three days ago robocalling to collect government debt was legal and now it is a felony. Applying that retroactively would be an ex post facto criminal sanction.

  2. Judicial decisions are inherently retroactive, because they are supposed to declare what the law is, not change it into something else.

    In essence, that’s telling anyone depending on a law being constitutional that they really should have known that the Court was going to rule that it wasn’t. So it seems a good thing that the Court is moving away from that.

  3. Could the distinction between this and Janus be the distinction between Civil and Criminal liability?

    In ruling the exemption unconstitutional, what they essentially are doing is creating an ex post facto criminal law, which they can’t do.
    This fixes that.

  4. Perfectly analogous to qualified immunity.

  5. The reason ought to be obvious.

    A law whose text says the exact opposite of what the courts later hold it to mean is ipso facto void for vagueness.

    Fair notice is the quintessential, the original, due process right. And it is difficult to think of a statute that more conspicuously fails to gives people fair notice of what it prohibits than a statute that not only gives people no notice that their conduct is illegal, it actually lies to them and tells them it’s legal.

    I find it astonishing that given the profusion of doctrines of due process expounded of late, the concept of fair notice has so diminished that it’s no longer thought of even in the face of a blatant example.

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