The fight in the Supreme Court over public employee unions and the First Amendment is expected to be one of the most divisive of the Term. That was true even before the state of Illinois weighed in on both sides of the case

Call it a sideshow, or a play within the play. Whatever the label, it is unusual for the Court to find itself, as it does now, in the middle of a dispute between state leaders over which official’s view from Illinois should count – the governor’s or the attorney general’s.

The dispute offers important insights into the intersection between state law and politics, as well as advocacy and decision-making in the Supreme Court.

The unusual circumstance has developed in the case of Friedrichs v. California Teachers Association. The issue in the case is whether a public employee union may charge workers who do not want to join a fee to cover the cost of collective bargaining and related activities that may benefit all workers. The Court must decide whether the required payment in lieu of union dues, called an agency fee (and also known as a “fair share” fee), violates the free speech rights of workers who do not want to be associated with the union’s activities.

In 1977, the Court ruled in the case of Abood v. Detroit Board of Education that the First Amendment requires that workers be allowed to opt out of financing the union’s political and legislative activities, but allows unions to charge them a fee for the labor activities that benefit all workers. Critics have targeted the ruling since it was announced. The Court has chipped away at the reasoning, and some Justices have suggested that Abood is a target for overruling.

The Friedrichs case may be the vehicle for the demise of Abood, and with the stakes for the future viability of public employee unions high, interest in the case is substantial. Among the dozens of amicus briefs filed in the case, states have lined up on both sides of the case, with only a handful of states not taking part.

Supporting the California teachers who argue that their First Amendment rights are being violated by being forced to contribute to their union’s labor activity are twenty states in three different amicus briefs. Supporting the California Teachers Association and the continued viability of collective bargaining for public employee unions are twenty-two states in two different amicus briefs.

Only the state of Illinois is on both sides of the case.

The drama began on September 11, 2015, when Illinois Governor Bruce Rauner filed an amicus brief in the Friedrichs case. The brief says it was filed for Rauner as governor and the administrative staff of the Kaneland School District. The lawyers listed are from the office of general counsel to the governor and a private Chicago law firm for the school workers. The brief urges the Court to overrule Abood on the ground that it draws an unworkable distinction between a union’s labor and other advocacy activities. The brief also argues that the fee arrangement approved in Abood violates the free speech rights of government workers because the labor activities of unions influence legislatures and public policy and cannot be separated from advocacy to which employees may object.

This amicus brief might have received little comment or notice were it not for a letter to Scott Harris, the Clerk of the Supreme Court, dated September 25, 2015. The letter, from Illinois Solicitor General Carolyn Shapiro, who is part of the office of Illinois Attorney General Lisa Madigan, informed the Court that the governor’s brief was not authorized under Illinois law. Shapiro argued in the letter that Illinois law and the state constitution give the state attorney general the sole authority to speak for the state in any litigation involving the state’s interests. Shapiro also said the Illinois Supreme Court has consistently upheld the exclusive authority of the state attorney general to speak for the state in litigation matters.

On October 1, the lawyers for Rauner, General Counsel Jason Barclay and Deputy General Counsel Dennis Murashko responded with their own letter to Harris. They argued that the brief they filed makes clear that it is for Rauner in his individual capacity as governor, not for the state of Illinois. Their letter says the governor has legal authority to file his own views and that to deny him that ability would interfere with his First Amendment right to express his own views on issues.

The governor’s lawyers also asserted that the dispute essentially reflects political and policy differences between Rauner, a Republican first elected in 2014, and Madigan, a Democrat who has been elected four times beginning in 2002. The battle between the two, the letter said, is playing out in a state court lawsuit in Illinois over an executive order Rauner issued in February that declares the collection of the agency fee to violate the First Amendment. Madigan has taken the opposite approach in the state litigation, the governor’s letter said.

That was not the last word. In a letter to Harris on October 9, Shapiro responded, continuing to refer to the governor’s brief as “unauthorized” and disputing that it was filed in his individual capacity because it relates to his role overseeing collective bargaining with public employees in Illinois.

What is likely to be the last word occurred on November 13, when Madigan signed on to an amicus brief filed by New York Attorney General Eric Schneiderman and joined by nineteen other states and the District of Columbia. The brief argues that Abood achieved the right balance and flexibility to allow states to engage in effective collective bargaining while accommodating the free speech rights of public employees.

The backdrop for this fight is the last case the Supreme Court decided on this issue. In 2014, the Justices ruled in Harris v. Quinn that Illinois home-health-care workers who were paid with state Medicaid funds could not be forced to pay a union fee to which they objected because they were not “full-fledged” public employees. In a decision that criticized the reasoning of the Abood decision but did not overrule it, the Court ruled that the fee violated the workers’ First Amendment rights. Written by Justice Samuel Alito, the five-to-four decision suggested strongly that Abood would be on the chopping block in the near future.

In Harris v. Quinn, Madigan defended the Illinois law in behalf of Pat Quinn, who was then the Democratic governor of Illinois. Quinn was defeated by Rauner in the 2014 gubernatorial election, setting the stage for the change of attitude in the governor’s office and leading to the current struggle.

What will come of this fight? With so many amicus briefs on both sides from states as well as many other interested groups, there are plenty of perspectives and viewpoints on which the Justices may draw, if they are so inclined. The fight between Illinois officials may be relegated to an interesting footnote to history.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the American Federation of Teachers and American Association of University Professors in support of the respondents in this case. The author of this post, however, is not affiliated with the law firm.]

Posted in Friedrichs v. California Teachers Association, Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students: Who speaks for Illinois?, SCOTUSblog (Nov. 23, 2015, 3:44 PM), http://www.scotusblog.com/2015/11/scotus-for-law-students-who-speaks-for-illinois/