* From the Illinois Policy Institute…
The U.S. Supreme Court will soon decide whether the government can force government workers to pay union fees to keep their jobs when the court issues its ruling in Friedrichs v. California Teachers Association, a lawsuit brought by a group of California public-school teachers.
Many groups and individuals want the court to listen to their views on this issue. Last month, 25 amicus (“friend of the court”) briefs were filed in support of the plaintiffs, including an amicus brief from the Liberty Justice Center on behalf of three Illinois state workers who object to coerced union fees. And many people and groups will weigh in on the other side as well.
But there’s one person with an interest in this important case whose views Illinois Attorney General Lisa Madigan believes the court should not consider: Gov. Bruce Rauner, who filed an amicus brief on behalf of himself and a group of Illinois public-school employees who object to forced union fees.
After Rauner filed his brief, Madigan’s office took a most unusual action: It filed a letter with the Supreme Court insisting that Rauner had no authority to file a brief expressing his views on this issue without Madigan’s permission. The letter points to provisions of state law and state court decisions that say that only the attorney general may represent the state before the Supreme Court or represent the state or its officials in court cases in which the state “is the real party in interest.”
Madigan’s claim has some problems.
First, the idea that Rauner should have to go through Madigan to express his views on this issue is absurd. The governor is a citizen with First Amendment rights, and he is entitled to submit an amicus brief stating his views on the issue like anyone else. His brief made clear that it expressed his own views, not those of the state. And it’s well known that Rauner’s views on this issue – which favor workers’ freedom to choose whether to give money to a union – are the opposite of Madigan’s, whose campaigns have received substantial funding from government-worker unions that rely on coerced fees from government employees. In fact, as Rauner’s counsel pointed out in a response letter, Madigan has opposed Rauner on this very issue in more than one lawsuit.
The amicus brief is here. The AG’s initial response is here.
They’re absolutely correct that the “governor is a citizen with First Amendment rights, and he is entitled to submit an amicus brief stating his views on the issue like anyone else.”
I totally agree.
* But, as always, there’s an inconvenient fact that the Institute omitted. From the Solicitor General’s response about the governor’s state counsel, with emphasis added…
Mr. Barclay and Mr. Murashko claim that Governor Rauner submitted his amicus brief “in his individual capacity. ” But the brief makes no such claim, and its contentions do not relate to the interests of the Governor personally. In fact, both the brief and the letter explain that Governor Rauner’s interest in this matter derives from the fact that, as Governor, he oversees the negotiation of collective bargaining agreements and supervises much of the State’s workforce. Moreover, it would be unlawful for Mr. Barclay and Mr. Murashko, while acting as state employees paid from public tax revenues, to represent Mr. Rauner in his individual capacity in any matter.
Notice that highlighted word? Do you think Illinois’ Solicitor General uses that word lightly - in a letter to the United States Supreme Court, no less?
* So, which is it? Are they perhaps breaking the law to write private briefs on state time, or are they representing the governor in his official capacity? It can’t be both, and the AG’s office says they can’t do the latter. Back to the Solicitor General…
Finally, Mr . Barclay and Mr . Murashko are mistaken in their assertion that the First Amendment authorizes them to file briefs on behalf of the Illinois Governor or gives the Governor the authority to direct their filing. This Court has repeatedly held that the First Amendment protects private speech, not speech by government officials. See, e.g., Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009). The State of Illinois has the power to determine who speaks for the State in specific matters. For purposes of litigation, the State’s Constitution and statutes, see 15 ILCS 205/1, et seq., make the Illinois Attorney General the voice of the State and its officials.
…Adding… We have some (I believe) deliberately obtuse commenters who are trying to muddy the waters. So, click here and read the governor’s counsel admit that they submitted the amicus brief for Rauner “in his individual capacity,” and reveal that he is “expressing his own views.”