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Order steers union issue toward Supreme Court

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Illinois Gov. Bruce Rauner speaks to YMCA members earlier this month in Springfield, Ill. (AP Photo/Seth Perlman)

Illinois Republican Gov. Bruce Rauner's ban on state agencies deducting union "fair-share" fees from the paychecks of non-union employees is an attempt to trigger a Supreme Court case on whether they are constitutional, observers say.

The justices upheld their constitutionality in 1977 but signaled recently that they may change their minds. This could devastate public sector unions, stanching their main source of revenue.

There is "no doubt it is his intention to take the case to the Supreme Court," said Jacob Huebert, senior attorney at Liberty Justice Center, a public-interest law firm started by the conservative Illinois Policy Institute. Rauner cannot prevail unless the justices agree to revisit the issue, he said.

"The issue was already on the Supreme Court's radar," said F. Vincent Vernuccio, a lawyer with Michigan-based Mackinac Center, because of another case involving fair share fees,Friedrichs v. California Teachers Association. Friedrichsis on a petition to be heard by the justices. Rauner's move increases the odds the justices will grant "cert", i.e. decide the issue must be addressed, Vernuccio said.

Until recently, Illinois law required all state government employees to pay the fees if their workplace was unionized, even if the employee had never joined the union. The fees were automatically deducted from the worker's paychecks and transferred to the unions. In theory, the money reimbursed the unions for the cost any collective bargaining they did on the worker's behalf. Critics, of whom Rauner is one, say the money often funds political activities.

Rauner issued an executive order last month declaring the fees a violation of the First Amendment because they force some state employees "to participate in or fund public sector labor union activities to which they object." He directed all state agencies to put the fees into an escrow account until "any court of competent jurisdiction" rules on the matter.

At the same time last month, Rauner also challenged the fees in federal court. He told reporters, "Weare... asking ultimately that the [Illinois] Supreme Court declare that these fair share provisions are unconstitutional."

The state branch of the AFL-CIO and 26 other unions filed suit last week to block Rauner's lawsuit. In a statement Thursday, the unions said they were acting specifically to prevent the matter from becoming a federal one. "[A] state court is the appropriate venue to enforce state law," the unions said.

On Monday, State Attorney General Lisa Madigan, a Democrat, also sought to intervene. "I have submitted a motion to dismiss the case, arguing that the governor does not have the legal authority to sue to challenge the law in federal court," she said in a statement.The governor's office could not be reached for comment.

Rauner's executive order draws much of its legal justification from Harris v. Quinn, a Supreme Court case decided last year. It involved whether Medicaid-subsidized Illinois home health care workers were state employees eligible for unionization.

Initially, observers on both sides of Harris v. Quinn thought the justices' ruling could overturn the 1977 precedent, Abood v. Detroit Board of Education, which first allowed fair share fees in public sector workplaces. Instead, the court declared in a 5-4 vote that the home healthcare workers were not really state employees in the first place. That meant the Abood precedent didn't apply and thus was left intact.

Rauner's executive order nevertheless heavily cites the majority opinion in Harris v. Quinn. It argues that in the sections that discussed Abood the justices "held that 'fair share' provisions ... violated the First Amendment" and "served no compelling state interest."

"[T]he aforementioned criticisms of Abood and the present facts and circumstances of Illinois public sector collective bargaining leave no doubt that the Fair Share Contract Provisions, as permitted by the Illinois Labor Act, violate Illinois state employees' freedoms of speech and association," Rauner said in the order.

The citation of Harris v. Quinn has other state lawmakers sputtering. "As recently as last year, the United States Supreme Court was urged to rule that [the fees] were unconstitutional. The court explicitly declined to do that, leaving in place the case law saying these fees are constitutional," Ann Spillane, chief of staff for Madigan, told Governing magazine last month.

Others argue that the justices essentially punted on the question of Abood and might take up another case if the workers in question really were state employees, something not in dispute in Rauner's actions.

"If there's a good solid case, the Supreme Court may decide against labor. ... And I think labor's view is, oppose everything because you can't win, you can only lose something that you already have,"Gary Chaison, a professor of labor relations at Clark University in Massachusetts told the Chicago Tribune.

Pat Semmens, spokesman for the National Right To Work Committee, said it comes down to whether the majority was serious about its criticisms of fair share fees in Harris v. Quinn. "Ultimately, the issue will have to be resolved by the Supreme Court, because as long as Abood stands lower courts are going to follow it," he said.