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* AP…
Unions late Thursday filed a motion to dismiss the case Rauner filed against them in federal court last month.
Rauner wants a judge in Chicago — and ultimately the U.S. Supreme Court — to declare so-called “fair share” dues unconstitutional. He also issued an executive order ending the requirement that nonmembers pay the dues.
The unions’ motion filed in U.S. District Court says the issue should be decided in state court because it’s a question of state law.
The Court must dismiss this action for lack of jurisdiction. The Governor’s claim does not “aris[e] under” federal law within the meaning of 28 U.S.C. §1331, because the federal question the Governor identifies – whether fair-share fees violate the First Amendment – would be raised only as a defense to a state law proceeding to enforce the fair-share provisions. The Governor also lacks standing to bring this suit in federal court because the state law and state contracts do not affect him in his personal capacity.
Alternatively, the Court should dismiss the complaint for failure to state a claim, because fair-share provisions are a constitutional means of preventing free riding in a system of exclusive representative collective bargaining. “The First Amendment permits the government to require both public sector and private sector employees who do not wish to join a union designated as the exclusive collective-bargaining representative at their unit of employment to pay that union a service fee.” Locke v. Karass, 555 U.S. 207, 213 (2009) (unanimous decision).
* The First Amendment issue explained…
The only federal issue identified in the Governor’s declaratory judgment complaint is whether fair-share fees violate the First Amendment. That First Amendment issue would arise only as a defense to the Unions’ hypothetical state law action to enforce the fair-share provisions of their contracts or to set aside the Governor’s Executive Order as inconsistent with the IPLRA.
The Unions’ hypothetical, well-pleaded claim for breach of contract would not present a federal question. See Minn. Elevator, Inc. v. Imperial Elevator Servs., 758 F. Supp. 2d 533, 537 (N.D. Ill. 2010) (elements of a breach of contract claim under Illinois law). The issue whether provisions of the contract are unconstitutional would be raised, if at all, only as a defense to the state-law breach-of-contract claim. See Employers Ins. of Wausau v. Titan Int’l, Inc., 400 F.3d 486, 900 (7th Cir. 2005) (illegality of the contract is an affirmative defense under Illinois law); Am. Buyers Club of Mt. Vernon, Ill. Inc. v. Grayling, 368 N.E.2d 1057, 1059 (5th Dist. 1977); see also Narkiewicz-Laine v. Scandinavian Airlines Sys., 587 F. Supp. 2d 888, 890 (N.D. Ill. 2008) (“Plaintiff brought state-law breach of contract claims. Because the conditions and limits of the Montreal Convention are defenses to the state-law claims raised by plaintiff, they do not provide a basis for federal-question subject matter jurisdiction.”).
Nor would a hypothetical, well-pleaded claim by the Unions to set aside the Executive Order as contrary to the IPLRA present a federal question. The IPLRA states on its face that it prevails over executive orders, 5 ILCS 315/15(a), and state statutes are presumed to be constitutional, see People v. Garcia, 770 N.E.2d 208, 209 (Ill. 2002). An argument that the fair-share provisions of the IPLRA are not valid would be raised, if at all, only as a defense to the Unions’ claim.
* Standing…
State officials lack standing to challenge the constitutionality of state law in federal court where the officials are not personally adversely affected – that is, where their interest is official, rather than personal. For example, in Smith v. Indiana, 191 U.S. 138 (1903), a county auditor brought an action alleging that a state property tax statute was unconstitutional. The Supreme Court dismissed the appeal, reasoning that:
the jurisdiction of this court . . . can only be invoked by a party having a personal interest in the litigation. It follows that he cannot sue out a writ of error in behalf of third persons. . . . It is evident that the auditor had no personal interest in the litigation. He had certain duties as a public officer to perform. The performance of those duties was of no personal benefit to him. Their nonperformance was equally so. He neither gained nor lost anything by invoking the advice of the supreme court [of Indiana] as to the proper action he should take. He was testing the constitutionality of the law purely in the interest of third persons, viz., the taxpayers. . . . We think the interest of an appellant in this court should be a personal, and not an official, interest.
The Seventh Circuit, in D’Amico v. Schweiker, 698 F.2d 903 (7th Cir. 1983), similarly “dismissed for want of standing a suit brought by administrative law judges of the Social Security Administration who were complaining that a directive by their superiors required them to decide social security cases in a manner contrary to law,” because “they did not suggest that compliance with the directive would reduce their pay or benefits or increase their work or anything of the sort.” Cronson v. Clark, 810 F.2d 662, 664 (7th Cir. 1987) (discussing D’Amico). D’Amico determined that “these administrative law judges . . . are the wrong people to be raising with us the question whether the challenged instruction is lawful.” D’Amico, 698 F.2d at 906; see also Finch v. Miss. St. Med. Ass’n, 585 F.2d 765, 774 (5th Cir. 1978) (Governor of Mississippi lacked standing to challenge constitutionality of state law).
Here, the Governor’s complaint does not identify any personal interest in this case sufficient to confer standing. The Governor is not personally subject to a fair-share requirement. Indeed, Governor Rauner is not even a party to the collective bargaining agreements with the defendant Unions; they were entered into by a state agency. See Complaint ¶ 14. Nor would the Governor receive any additional money if he prevailed in this litigation. The complaint, instead, alleges that this litigation is an exercise of the Governor’s “duty to protect the First Aendment rights . . . of all people in the State of Illinois,” and his desire not to “violat[e] his oath of office.” Complaint ¶ 84. But those are classic “official[] interest[s]” long held to be insufficient to confer standing. Smith, 191 U.S. at 149. […]
The Governor cannot confer standing upon himself to challenge the constitutionality of state law by issuing Executive Order 15-13 to instruct his subordinates to disobey the IPLRA. See D’Amico, 698 F.2d at 906 (“[I]f administrative law judges do not have standing to bring such a suit they cannot confer it on themselves, bootstrap fashion, by disobeying the instruction and then complaining that their disobedience laid them open to discipline.”). The Governor is free to rescind his Executive Order at any time. In essence, “[t]he mental disposition of the Governor is all that gives him cause to complain; were he to change his mind tomorrow and decide, rightly or wrongly, that the state statute is valid, he would no longer have any interest in the case. He has no personal stake in the outcome of this case; he will not be affected favorably by a decision that the statute is unconstitutional nor adversely by a decision that it is valid.”
* Failure to state a claim…
Even if the Court has jurisdiction, the complaint still must be dismissed for failure to state a claim. The complaint seeks a declaration that “[t]he Fair Share Contract Provisions under the IPLRA are unconstitutional under the First Amendment.” Complaint at 21. At the same time, the complaint accurately states that “[i]n Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the United States Supreme Court considered and approved ‘fair share’ provisions under a public sector labor contract.” Complaint ¶ 71. That concession is fatal to the request that fair share provisions be declared unconstitutional. “If a precedent of [the Supreme] Court has direct application in a case,” the obligation of a lower court is to “follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). There is no question that Abood squarely held that fair share agreements are constitutional “insofar as the service charge is used to finance expenditures by the Union for the purposes of collective bargaining, contract administration, and grievance adjustment.” 431 U.S. at 225-26. And just recently, the Supreme Court refused to even consider the “argument that Abood should be overruled.” Harris v. Quinn
The governor’s office replied by reiterating yesterday’s comment about the state fair share lawsuit.
posted by Rich Miller
Friday, Mar 6, 15 @ 1:50 pm
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When will you people learn that I, Rauner, am above the law? I won’t stop signing EOs and filing lawsuits until I have broke the unions for good, and removed all Democrats from office. It is called Tea Bagging!
Comment by Mama Friday, Mar 6, 15 @ 1:57 pm
Rauner wins this thing in the end, he could be the next Secretary of Labor for President Walker, reaping the rewards of the lawsuit win…
Comment by Oswego Willy Friday, Mar 6, 15 @ 1:59 pm
The governor’s mouthpieces apparently thought “grandstanding” and “standing” were the same thing.
Comment by Wordslinger Friday, Mar 6, 15 @ 2:03 pm
OW, if Walker wins there won’t be a department of labor.
Comment by Casual Observer Friday, Mar 6, 15 @ 2:04 pm
- Casual Observer -,
The department may be cut, but there will be a need for a Cabinet Secretary;
It’s a plum appointmet to the beltway.
Someone needs to keep their thumb ON labor. Different mission, maybe?
Comment by Oswego Willy Friday, Mar 6, 15 @ 2:07 pm
Unions give the little guy a voice to be heard and exercise his 1st Amendment Right, Mr. Rauner.
Comment by Anonymous Friday, Mar 6, 15 @ 2:07 pm
Well played Wordslinger.
Comment by The Captain Friday, Mar 6, 15 @ 2:09 pm
Well crafted motion. Unions win this round on the standing issue alone.
Next round goes to the Governor in CBA negotiations. Good luck trying to collect dues when the State refuses to include a dues deduction provision in the CBAs. The Unions will have to spend a lot of money filing suit in state court to collect from their members.
Comment by Western Ave. Doug Friday, Mar 6, 15 @ 2:10 pm
Standing? We don’t need no stinking standing.
Comment by relocated Friday, Mar 6, 15 @ 2:12 pm
===when the State refuses to include a dues deduction provision in the CBAs===
I’m not sure about this, but isn’t that in state law?
Comment by Rich Miller Friday, Mar 6, 15 @ 2:16 pm
Rauner loses his federal lawsuit and loses to AFSCME and all in their state lawsuit.
Rauner is smart and knew that going in (or else he is far more dumb than he looks).
So, he is really using this maneuver for other political steps.
The real question for everyone to try to guess is how will he use this to his advantage?
Comment by SkeptiCal Friday, Mar 6, 15 @ 2:16 pm
Rauner’s problem is that he can’t purchase federal judges.
Comment by Norseman Friday, Mar 6, 15 @ 2:18 pm
Rich,
From the statue 5 ILCS 315/6(e)(f):
(e) When a collective bargaining agreement is entered into with an exclusive representative, it may include in the agreement a provision requiring employees covered by the agreement who are not members of the organization to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and conditions of employment, as defined in Section 3(g), but not to exceed the amount of dues uniformly required of members. The organization shall certify to the employer the amount constituting each nonmember employee’s proportionate share which shall not exceed dues uniformly required of members. In such case, the proportionate share payment in this Section shall be deducted by the employer from the earnings of the nonmember employees and paid to the employee organization.
(f) Only the exclusive representative may negotiate provisions in a collective bargaining agreement providing for the payroll deduction of labor organization dues, fair share payment, initiation fees and assessments. Except as provided in subsection (e) of this Section, any such deductions shall only be made upon an employee’s written authorization, and continued until revoked in writing in the same manner or until the termination date of an applicable collective bargaining agreement. Such payments shall be paid to the exclusive representative.
Comment by Western Ave. Doug Friday, Mar 6, 15 @ 2:24 pm
Rich,
Unless there is some other portion of the Act, the “it may” language makes it a subject of bargaining.
Comment by Western Ave. Doug Friday, Mar 6, 15 @ 2:27 pm
Adding to Western, and given the really insignificant marginal increase in costs of simply adding another deduction when payroll is done, no employer in their right mind would fall on the sword in regards to collecting dues when it comes to everything else that is on the table in negotiations.
Comment by Juice Friday, Mar 6, 15 @ 2:37 pm
== (e) When a collective bargaining agreement is entered into with an exclusive representative, it MAY include in the agreement == (emphasis added)
The key word there is “may” … it’s not “shall” or “must”
Comment by RNUG Friday, Mar 6, 15 @ 2:47 pm
The standing issue is curious.
Why didn’t they round up a few people who could actually make a claim?
Could it be that Rauner just wanted the publicity splash from only his name being on the suit?
Comment by Wordslinger Friday, Mar 6, 15 @ 3:09 pm
I believe the “may” part is referreing to the employees agreement with the union representing them. If the agree the the employer “shall”, as it say later on, deduct it.
Comment by Union dues Friday, Mar 6, 15 @ 3:16 pm
Scary thought, but this whole starring role of union killer, on a national stage, might be more important to Rauner than legitimately balancing the state budget. He will keep the union crises active for as long as he can, with or without legal justification.
It’s why I suspect his $2.2B fake save on pensions in his budget, is more than just a plug number. It was a deliberate opening act in the whole drama.
Rauner will eventually come out and say to the voters: “Do you want more taxes or do you want to support government union thugs?” And that’s regardless of what happens with his other proposed spending cuts.
He will not make the full pension payment, unless under direct court order, no matter what else happens to the budget. The anti-union battle is his route to national standing. A legally balanced budget is not.
Comment by walker Friday, Mar 6, 15 @ 3:39 pm
“No employer in their right mind would fall on the sword in regards to collecting dues when it comes to everything else that is on the table in negotiations.” I agree, but I think Walker has it right that Rauner’s #1 goal is to break unions. If you listen to him talk about any issue, you can tell that he genuinely believes that this will solve all the state’s financial problems. Since he won’t be able to get the legislature to help him attack the unions through the law, he will do everything he can to achieve his goals through the collective bargaining process. I don’t think he cares if that leads to a crippling of state government through strikes, lockouts, or labor strife.
Comment by Pelonski Friday, Mar 6, 15 @ 3:54 pm
- Union dues -
But the State doesn’t have to agree to include any of those provisions … and probably won’t if Rauner gets a say in it..
Comment by RNUG Friday, Mar 6, 15 @ 3:56 pm
===But the State doesn’t have to agree to include any of those provisions … and probably won’t if Rauner gets a say in it..===
That’s why the Unions would be wise to negotiate in complete good faith, and be locked out AND not protest too vehemently, instead of striking, being loud and proud to give stained a backdrop to say, “See what the Unions are doing to Illinois?”
Let Rauner hem and haw, negotiate in good faith, and if Rauner shuts down the state, ghost offices, vacant because of a lockout really speaks to Rauner not the Unions.
“We want to work, but the governor, in hard ball politics, would rather cripple state agencies during negotiations than work to find common ground. We’ve instructed our workers to stay home, as per the lockout, and wait until agreements can be reached.
The real loser is Illinois.”
We ain’t Wisconsin, we ain’t Indiana.
Comment by Oswego Willy Friday, Mar 6, 15 @ 4:03 pm
==If you listen to him talk about any issue, you can tell that he genuinely believes that this will solve all the state’s financial problems.==
At this point, there appears to be nothing genuine coming from the executive branch concerning solving the state’s financial problems, to me.
Comment by Kippax Blue Friday, Mar 6, 15 @ 4:05 pm
@Oswego
Public sector lockouts are extremely rare and he didn’t go to the Illinois Labor Relations Board like it requires. You lock out employees, workers are then automatically eligible for unemployment benefits. He refuses to bargain, then binding arbitration takes president.
Comment by Anonymous Friday, Mar 6, 15 @ 4:09 pm
“Why didn’t they round up a few people who could actually make a claim?”
Haste makes waste. There’s only, what, 6,500 state employees on Fair Share? And now we know that a significant number of them are converting to full membership. None of them would have been named plaintiffs. Figure there’s a few more who aren’t joining up but still wouldn’t want the hassle, a few more who understand fair share, and then a few who don’t but would be bad plaintiffs…and it’s starting to become a lengthy search for the right test case. Not what a Governor looking for Bold and Useless Action wants.
Comment by Arsenal Friday, Mar 6, 15 @ 4:12 pm
- Anonymous -,
It’s not me arbitrarily (pun intended) using the word “lockout”, Rauner said he may have to shut down the state, so I just “pretended” that Rauner can do whatever Rauner wants, since he governs that way.
That’s all that was. Listening to the Governor’s own plans.
Comment by Oswego Willy Friday, Mar 6, 15 @ 4:13 pm
There is no binding arbitration for public employees that are not considered public safety. A strike is the only leverage the unions have.
Unlike Rahm, Bruce doesn’t blink.
Comment by ABC Lawyer Friday, Mar 6, 15 @ 4:22 pm
ABC–the Unions went “status quo” with Quinn for over a year before ratification of the current CBA. I would argue this is a “sort of” Union leverage as well, if the intent is to break the Unions.
Comment by Kippax Blue Friday, Mar 6, 15 @ 4:27 pm
I’m not sure why Rauner would choose a lockout. I think he is more likely to declare an impasse and then implement his last offer to see if the unions will strike.
Comment by Pelonski Friday, Mar 6, 15 @ 4:29 pm
===I’m not sure why Rauner would choose a lockout. I think he is more likely to declare an impasse and then implement his last offer to see if the unions will strike.===
Rauner said he would shut down the state. Hit the search key.
A strike would be a disaster, with Rauner mugging forvthe cameras with “I told you guys.”
If Rauner decides, on his own, to lockout, empty iffices and services not done by his decision, not good, especially if the workers just stay home…
“Fun” speculation, dangerous game.
Comment by Oswego Willy Friday, Mar 6, 15 @ 4:33 pm
Im thinking I typed too soon. Can the executive implement the last best and final… if so, my bad
Comment by Kippax Blue Friday, Mar 6, 15 @ 4:34 pm
I now understand why Rauner wanted to be governor. He doesn’t want to govern, instead he plans to use the “bully” pulpit (emphasis on bully) to slam unions as the sole cause for the state’s woes.
His latest attack, Chicago is on the road to bankruptcy because of union influenced politics. The show goes on…
Comment by Wensicia Friday, Mar 6, 15 @ 4:34 pm
Status quo or lock out, the unions are going to regret that day in March last year when they couldn’t knock off Rauner. Henry Bayer was smart for retiring when he did.
Comment by ABC Lawyer Friday, Mar 6, 15 @ 4:35 pm
===… the unions are going to regret that day in March last year when they couldn’t knock off Rauner.===
Well said, and very on point.
Elections have consequences.
Here is one.
Comment by Oswego Willy Friday, Mar 6, 15 @ 4:36 pm
The unions would likely fight any declaration of impasse, but if it is determined that an impasse is reached, Rauner can implement his last proposal. Quinn didn’t do that because he didn’t want the bad publicity or to be seen as the bad guy. Rauner, obviously, isn’t concerned about that. That makes him very dangerous for the unions.
Comment by Pelonski Friday, Mar 6, 15 @ 4:46 pm
Who/what define an impasse? Rauner is probably there already.
Comment by Johnnie F. Friday, Mar 6, 15 @ 4:50 pm
No doubt about the Union regret… but at least as far as I am concerned, I had / have no desire to be identified as an R after a primary vote. I’ve worked too hard in the field for the Democratic Party to even consider crossing in a primary–even thoughI believe I knew the consequence of the Republicans choosing this guy in March.
Comment by Kippax Blue Friday, Mar 6, 15 @ 4:54 pm