The governor’s lawsuit
Tuesday, Feb 10, 2015 - Posted by Rich Miller
* Tribune…
Mandatory union fees were upheld by the Supreme Court’s 1977 decision in a Detroit school board case that concluded fair share dues were constitutional as long as the fees were not used to support a union’s political activities like lobbying or campaign contributions.
But in ruling on the 2014 home health care case, Justice Samuel A. Alito argued that the court’s analysis in the Detroit case had been “questionable on several grounds.”
“In the public sector, core issues such as wages, pensions and benefits are important political issues, but that is generally not so in the private sector,” Alito wrote. “In the years since (the ruling), as state and local expenditures on employee wages and benefits have mushroomed, the importance of the difference between bargaining in the public and private sectors has been driven home.”
That argument was mirrored by Rauner’s team in its lawsuit filed Monday. The suit asserts that “indeed, the significant impact that Illinois public sector labor costs have imposed and will continue to impose on the state’s financial condition clearly demonstrates the degree to which Illinois state employee collective bargaining is an inherently political activity.”
Rauner’s suit joins another case brought by union opponents in California that was appealed to the U.S. Supreme Court this year. That suit was brought on behalf of an Orange County, Calif., elementary school teacher, who objects to being required to pay about $650 a year to the teachers union.
* The governor’s lawsuit is here. I’ll post a few excerpts and you can discuss the rest in comments.
When Unions expend dollars collected pursuant to the Fair Share Contact Provisions to lobby or bargain against reductions to their own benefits packages or to shift more significant reductions to other state programs or services, there is no principled distinction between the Unions and the various special interest groups who must expend money on political activities to protect their own favored programs and services.
Indeed, the significant impact that Illinois public sector labor costs have imposed and will continue to impose on the State’s financial condition clearly demonstrates the degree to which Illinois state employee collective bargaining is an inherently political activity. […]
(I)n Knox v. Service Employees International Union, Local 1000, __ U.S. __,132 S. Ct. 2277, 2289 (2012), the Supreme Court also recognized that “a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences.” For that reason, “compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights.” Id. (internal quotation marks omitted). Knox emphasized the “general rule” that “individuals should not be compelled to subsidize private groups or private speech.” […]
Regarding the “fair share” provisions at issue in that case, the [Harris v. Quinn] majority noted that “‘[t]he primary purpose’ of permitting unions to collect fees from nonmembers is ‘to prevent nonmembers from free-riding on the union’s efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred.’” Harris, 134 S. Ct. at 2627 (quoting Knox, 132 S. Ct. at 2289). The Court continued, however, that “‘[s]uch free-rider arguments . . . are generally insufficient to overcome First Amendment objections.’”
A majority of the Supreme Court also recognized in Harris that “fair share” provisions in public employee collective bargaining agreements impose First Amendment concerns not necessarily presented in the private sector, because the collective bargaining process itself is political when taxpayer funds go to pay the negotiated wages and benefits, especially given the great power of unions in electoral politics and the size of public employee payrolls. In coordination with their express political advocacy, the Unions routinely take positions in the collective-bargaining process that greatly affect the State’s budget.
- A guy - Tuesday, Feb 10, 15 @ 10:00 am:
I know what I think, but this is now clearly in the realm of a legal argument. That, I am not qualified to make. There will be plenty of fascination watching this.
- low level - Tuesday, Feb 10, 15 @ 10:00 am:
Yeah, to “liberate” me from having someplace to turn when I have a grievance to being at the mercy of Bozo Bruce and his con artist conservatives.
So if I refuse the fair share portion, do I represent myself the next time the contract comes up? Or the union represents me and I don’t have to pay anything?
- low level - Tuesday, Feb 10, 15 @ 10:01 am:
aka - the “free rider” phenomenon.
- Bigtwich - Tuesday, Feb 10, 15 @ 10:02 am:
I am not sure he has standing unless he will assert the State will pay the fair share people less if he succeeds.
- Wordslinger - Tuesday, Feb 10, 15 @ 10:04 am:
That’s quite a legislative argument Justice Alito is making there. What does it have to do with interpreting the Constitution?
- Gb20 - Tuesday, Feb 10, 15 @ 10:06 am:
The win here for Rauner is the escrow - locking up funds for bargaining right before and during contract negotiations.
Deadly cynicism.
- too obvious - Tuesday, Feb 10, 15 @ 10:09 am:
I’m no particular fan of unions in general, but this move by Rauner actually causes me to have sympathy for the unions.
Rauner’s just reminding people why we have unions in the first place in this country. Rauner invokes the robber-barons of old, the ultra rich who couldn’t be satisfied and who just had to have more.
If you honestly think this is about Rauner and Ken Griffin etc. giving a hoot about the regular people of Illinois, then I’ve got a bridge to show you.
On the bright side, Rauner’s suit is not only a loser, he’s uniting his opponents like nothing else could. I knew Rauner’s ego and greed would eventually be his downfall but I didn’t expect it to happen so soon.
- Grandson of Man - Tuesday, Feb 10, 15 @ 10:10 am:
“Indeed, the significant impact that Illinois public sector labor costs have imposed and will continue to impose on the State’s financial condition clearly demonstrates the degree to which Illinois state employee collective bargaining is an inherently political activity. […]”
What about the lobbying power and political contributions of wealthy conservatives, who have caused a significant burden to Illinois taxpayers via corporate tax loopholes and a regressive tax system? They can spend untold sums of money to influence the political process to the detriment of many others. Tax policy has contributed to our historical income inequality.
There is also more laziness from the far right as far as ballooning labor costs. Instead of stripping unions, the politicians can be tougher negotiators. One or more unions were prepared to give Gov. Walker what he wanted on benefits, when he was first elected. Walker, being an agent of the Kochs, wanted more, to strip union rights. Talk about conflict of interest and hypocrisy–such servility to political funders.
- Gone, but not forgotten - Tuesday, Feb 10, 15 @ 10:13 am:
As an AFSCME worker, I was asked by merit comp employees to please attend my union meeting during critical times to find out what was being discussed. This was requested since it seemed that whatever AFSCME got would trickle down to them (MC), not as far as raises, but insofar as benefits. However, I experienced that AFSCME did not receive the same as Teamsters. It seemed to me that MC would benefit from both AFSCME and Teamsters, kind of a design your own benefits, or getting all benefits from both unions. They never paid a penny in union fees; are they freeloaders?
- Sam Weinberg - Tuesday, Feb 10, 15 @ 10:19 am:
Who needs the judicial or the legislative branch? We’ve got Rauner reading between the lines of Supreme Court opinions and issuing EOs on the basis of his interpretation of the U.S. Constitution. “L’etat, c’est moi.”
- Amalia - Tuesday, Feb 10, 15 @ 10:19 am:
national notice. Rauner is into more than just budgeteering.
- Apocalypse Now - Tuesday, Feb 10, 15 @ 10:20 am:
Choice is an often used work by Democrats. Here is an opportunity to be the voice of choice. Unions shouldn’t be worried. If you have a good product, people will buy, but they shouldn’t be forced to buy any product they feel is not good for them.
- Rich Miller - Tuesday, Feb 10, 15 @ 10:21 am:
===but they shouldn’t be forced to buy any product they feel is not good for them. ===
It’s not about choice. It’s about paying for services rendered.
- Makandadawg - Tuesday, Feb 10, 15 @ 10:24 am:
This legal argument has to be at core of why he ran for Govenor. It has come suspiciously fast in in is tenure. Someone out there, probably not from Illinois, paid or is paying for this Governor, at this time to through his luggage onto this train headed for a trainwreck. These people do not care about Illinois.
- Apocalypse Now - Tuesday, Feb 10, 15 @ 10:37 am:
Ok. No one should be required to pay dues to a union they don’t want to belong to.
- Del Clinkton - Tuesday, Feb 10, 15 @ 10:40 am:
@apocalypse:
Using your logic Bruce should create Broccoli Empowerment Zones or Right to Broccoli Zones. You’d think with names like that you had some sort of “Right” to Broccoli. But in reality, they would ban the choice of buying Broccoli.
This is what Bruce wants to do. Just substitute unions.
HOpe that helps.
- walker - Tuesday, Feb 10, 15 @ 10:46 am:
This is drama for the national stage.
The script was written by new staffers who have been at this in other states for a long time.
- Carhart Representative - Tuesday, Feb 10, 15 @ 10:46 am:
What about all the money that I’m paying in my taxes to pay for this lawsuit against my better interests? Or the money I’m now chipping in so that Rauner can hire relatives of his campaign staffers and try and bring the “Kansas Miracle” to Illinois? Where’s my empowerment?
- Joe M - Tuesday, Feb 10, 15 @ 10:47 am:
Rauner is not only attacking unions, he is attacking the middle class in favor of the wealthy. If I didn’t already belong to a union, I would be joining one as fast as I could. Middle class workers are going to need all the help they can get with this administration. Just compare Illinois’ per capita incomes - and household incomes with those of the 24 or so right to work for less states.
- anon - Tuesday, Feb 10, 15 @ 11:07 am:
Glaringly absent from the caption is the standard phrase Governor “in his official capacity.” And the lawsuit is not in fact filed by the bally-hooed Dan Webb or Winston & Strawn. It is signed by Dennis Murashko, “Special Assistant Attorney General,” who is not listed as an attorney on the Winston & Strawn website. Murashko’s ARDC registration lists his business address in Schaumburg at a location which plugged into Google Maps sure looks like a residential home. This looks WAY hinky. Surely an executive order can only be issued in a governor’s official capacity so Rauner could not possibly bring a lawsuit in another capacity. The AG appoints many private attorneys around the State for various purposes as “Special Assistant Attorney Generals.” What is the exact scope of Murashko’s AG appointment? Under the Illinois Constitution, Lisa Madigan is the legal officer of the State and by statute only the AG can bring litigation on behalf of the State, its agencies or actions taken in an official capacity. Was this declaratory judgment action really authorized by Lisa Madigan? If not, and Rauner is on a rogue mission, this lawsuit is gonna get tossed out by a motion to strike long before the court looks at the merits unless Lisa decides she wants to take over.
- RNUG - Tuesday, Feb 10, 15 @ 11:12 am:
The unions sat on their hands throughout 2 years of attacks orchestrated by the national 1% through the elite Chicago groups. Inaction has a price …
- Rich Miller - Tuesday, Feb 10, 15 @ 11:13 am:
anon, good eye. Checking.
- anon - Tuesday, Feb 10, 15 @ 11:16 am:
Here are the constitutional and statutory provisions about filing lawsuits. Not seeing that Rauner can do this unless Madigan agreed.
Article V: SECTION 15. ATTORNEY GENERAL - DUTIES
The Attorney General shall be the legal officer of the State, and shall have the duties and powers that may be prescribed by law.
(15 ILCS 205/4) (from Ch. 14, par. 4)
Sec. 4. The duties of the Attorney General shall be–
First - To appear for and represent the people of the State before the supreme court in all cases in which the State or the people of the State are interested.
Second - To institute and prosecute all actions and proceedings in favor of or for the use of the State, which may be necessary in the execution of the duties of any State officer.
Third - To defend all actions and proceedings against any State officer, in his official capacity, in any of the courts of this State or the United States …
- walker - Tuesday, Feb 10, 15 @ 11:22 am:
If anon. above is correct, then this is entirely for show. Nothing else.
- Wordslinger - Tuesday, Feb 10, 15 @ 11:37 am:
This is looking more and more like a publicity stunt.
How does Rauner even have standing?
Aren’t some of the alleged 6,500 who are being “wronged” here the ones who should be filing suit?
- carbaby - Tuesday, Feb 10, 15 @ 11:46 am:
From a Friday appointment dump last month:
Dennis Murashko, Deputy Counsel
Dennis Murashko is a senior associate at Jones Day. Dennis clerked on the 10th and DC Circuits Courts. Dennis is a native of Russia and also an actuary by background. Dennis will lead legal review of pension reform, procurement and personnel reform efforts. Dennis earned a bachelor’s degree from Maryville University and a law degree from Northwestern University.
- anon - Tuesday, Feb 10, 15 @ 11:46 am:
Looks like the defendants should file a motion to dismiss an action for failure to prosecute in the name of the real party in interest pursuant to Federal Rule of Civil Procedure 17. Which also recognizes under 17(d)that if the party uses the official title, the suit is brought in the official capacity: 17(d) PUBLIC OFFICER’S TITLE AND NAME. A public officer who sues or is sued in an official capacity may be designated by official
title rather than by name, but the court may order that the officer’s name be added. Either file that lawsuit as “Bruce Rauner, private citizen” or as “Governor Rauner in his official capacity.”
- anon - Tuesday, Feb 10, 15 @ 11:48 am:
But being appointed as Deputy Counsel is for advice to the governor, not representation in court, as the constitution and statutes make clear.
- ChiTown Seven - Tuesday, Feb 10, 15 @ 11:58 am:
Murashko is one of Rauner’s crack young lawyers — all of whom are about 4 years out of law school, on the average. AG Madigan appointed him as special AG to represent Rauner, in part because her office will have to defend the statute in question, and probably because Rauner’s postion is distasteful to her.
- anon - Tuesday, Feb 10, 15 @ 12:04 pm:
Either he has proper authority from Madigan to file suit and was too inexperienced to understand that it must be in official capacity, or he deliberately left that designation off the caption to glide over the AG issue. I suspect the more experienced lawyers from Winston & Strawn or somewhere else ghost wrote the complaint so not going to make any assumptions until confirmed that Madigan specifically authorized filing of that action and authorized giving up any control over the litigation.
- Phaedrus - Tuesday, Feb 10, 15 @ 12:15 pm:
Anon is absolutely correct. Under the Illinois Constitution and case law only the AG can represent the state in court. Also only the AG can appoint another lawyer as a Special Attorney General:that is a formal act involving a letter from the AG with the appointment. I think the standing is dubious as well, but would have to read further. Finally, after the $ 20 million George Ryan debacle, I am surprised that Winston and Strawn would agree to be an Illinois governor’s private law firm again, unless the scope of their representation was pretty limited, which may explain why the Governor’s deputy counsel signed the complaint. There is zero chance that that guy has the capability to handle this on his own, so we’ll see how involved Winston gets.
- ChiTown Seven - Tuesday, Feb 10, 15 @ 12:21 pm:
Whoever responds to Rauner’s complaint (and I think the AG should weigh in insofar as the suit challenges the validity of a statute) should file a motion to dismiss because Rauner does not have standing to bring the lawsuit. Typically, courts require that those who bring lawsuits demonstrate that the action that they are challenging somehow causes them injury or harm. Rauner might not LIKE the current fair-share practice, but his pleadings do not show that he has been harmed by them. His lawyers try to skirt the issue by asserting that Rauner has standing because he is tasked with enforcing a contract that he argues is illegal because it adversely affects the 1st amendment rights of others. Certainly, those “others” have theoretical standing to challenge the current fair-share approach, but I don’t see how that applies to Rauner — especially because the courts have long held that no one has standing to assert the 1st amendment rights of others.
- Anonymous Retiree - Tuesday, Feb 10, 15 @ 12:27 pm:
AG appointed the SPAG who filed the suit
- Arizona Bob - Tuesday, Feb 10, 15 @ 12:29 pm:
@Rich
=It’s not about choice. It’s about paying for services rendered.=
So, by that logic, if an employee chooses to negotiate his/her own contract, the union hasn’t “rendered services” so the employee can skip paying “fair share dues”?
That’s effectively what would happen. Of course, you’d have to change the Education Labor Relations Act to do the because allegedly GOP Governor Thompson included the requirement that schools could only have a “sole bargaining agent”.
There’s currently a LOT of unfairness in public education contracts, especially regarding younger teachers who have the same workload as senior faculty, yet the union arranged to have the district give them double to triple the rates as the younger employees. This, of course, adversely affects the younger staff from being commensurately compensated.
It’s a bad, unfair system for many, and freedom is just about the only solution.
- Demise - Tuesday, Feb 10, 15 @ 12:30 pm:
Since the State is the one contracting with the unions, not the governor personally, shouldn’t the State be named as a party somewhere in this suit? Of course, the State can’t be a plaintiff unless the AG is on board.
- Rich Miller - Tuesday, Feb 10, 15 @ 12:30 pm:
=== if an employee chooses to negotiate his/her own contract===
Um, that doesn’t comport with collective bargaining.
- anon - Tuesday, Feb 10, 15 @ 12:34 pm:
It still seems fishy to me that Rauner makes a big crow in the press about being represented by private counsel and then the lawsuit is not filed in his official capacity … It doesn’t add up.
- Anon III - Tuesday, Feb 10, 15 @ 12:59 pm:
The Gov’s suit purports to be for a declaratory judgment. At the end of the road, the U.S. Supreme Ct. does not take declaratory judgment actions. However, if the AFSCME sues to recover the payments escrowed, that would be a case that Scouts would take.
- Bigtwich - Tuesday, Feb 10, 15 @ 1:12 pm:
The complaint is interesting. It is not asking that the statute which provides employees may be bound by a lawful fair share agreement be declared unconstitutional but that the contract the state entered into be declared unconstitutional. It may be that that is being done to avoid giving notice to the Attorney General which would be required by the Federal Rules of Civil Procedure if the constitutionally of a statute is challenged. Looking forward to seeing how that distinction plays out.
- A guy - Tuesday, Feb 10, 15 @ 1:29 pm:
“But I dont think Massa Rauna….”
I’m pretty sure this comment oughta get bounced.
- Rich Miller - Tuesday, Feb 10, 15 @ 1:33 pm:
Thanks, a guy. I was working on a post and didn’t see that one.
- D.P.Gumby - Tuesday, Feb 10, 15 @ 1:42 pm:
This is another example of how the right-wing has been using the First Amendment as a sword to cut away at established rights and public protection under a dubious claim of individual rights, e.g., claims of religious freedom to support discrimination, money-is-speech to gut campaign finance, and now this double talk that collective bargaining is really a violation of individual speech rights?? This is the same type of twisted constitutional analysis that the 2nd Amendment was subjected to over the past 40 years.
- Anon. - Tuesday, Feb 10, 15 @ 1:55 pm:
==Aren’t some of the alleged 6,500 who are being “wronged” here the ones who should be filing suit?==
Oh, I’m sure their interests are being well-represented by the Governor and his private attorneys. And they will all be billed for the services rendered on their behalf (or it will be taken out of the escrowed funds). I mean, fair is fair, right? Can’t let them be deadbeats!
Oh, wait . . .
- girllawyer - Tuesday, Feb 10, 15 @ 3:17 pm:
This is the weirdest thing ever. He issues an executive order and then files a federal lawsuit asking the federal court to sanction his E.O.? I’ve been a lawyer for a long time, including time as an AAG and I have never seen anything like this. I can envision half a dozen ways this gets tossed and each one makes him look clueless.
- New Guy - Tuesday, Feb 10, 15 @ 5:50 pm:
Notice all the Unions listed in the lawsuit
https://drive.google.com/file/d/0B4Bi-iePG1O6dlIxM2UwVVJXbUU/view
it is not just Public Employees he is after it is all Unions. Public Employees are just the beginning.
https://www.youtube.com/watch?v=SKWfnO7fhQM
- Anonymous - Tuesday, Feb 10, 15 @ 9:16 pm:
Yz
- x ace - Wednesday, Feb 11, 15 @ 12:59 am:
Great comments regarding Standing , Authority , Motive , …..
Seems like State of Illinois is , one way or another , a necessary Party defendant.
But the State nor State Agency or Official is a named Defendant ( why not ? )
Constitutionality of State Statute being Challenged ( Prayer says find ILPRA Unconstitutional )
AG Required to Get Notice ( did she ? )
AG Required to Defend the Statute/Constitution (right? )
So ends up Governor/ People of the State of Illinois ( if he has standing , and Authority ) versus The People of the State of Illinois ( in form of Attorney General ) and the Multiple Named Defendant Unions
Bottom Line : IL v IL
” no adequate remedy at law ” - Why not ? It’s a Contract.
Grandstanding for the Cause ????