Attorney general challenges governor on ‘fair share’ dues

Published March 18, 2015

Gov. Bruce Rauner says he’s put the block on “fair-share” dues to protect state employees’ First Amendment rights and uphold the principle of freedom of choice.

Attorney General Lisa Madigan, however, says the governor has strayed beyond his duties and is “forum shopping” his personal views.

The two now may meet in court.

“Fair-share” dues are partial dues withheld from employees who do not join the unions. They are intended to reimburse the unions for costs related to bargaining and contract administration.

The attorney general argues Gov. Bruce Rauner overstepped his authority in halting the dues collection by executive order and seeking a federal court ruling to back his decision.

As the attorney for the state, Madigan says it is her duty to defend the constitutionality of Illinois’ laws, in this case the Illinois Public Labor Relations Act.

Rauner administration spokesman Lance Trover said the move was expected and will not derail the governor’s plans.

“The attorney general’s actions will have no impact on the Governor’s efforts to protect taxpayers and state employees who don’t want to pay forced union dues,” he said.

In motions filed Monday, the attorney general argues:

  • The partial dues are valid under Illinois law, in line with controlling case law and part of valid collective bargaining agreements.
  • The governor had no standing to file a federal action in this matter as an injured party but is merely expressing his personal opinion on the constitutionality of the dues. She contends the governor is “forum shopping.”
  • The federal court has no jurisdiction in the matter as there is no federal law claim being made. Rather, she argues, is raising the First Amendment as anticipated defense against state-law claims.
  • Even if it chooses not to dismiss, the court should stay any action to allow state suits on the same subject to proceed, as the question is one of state law.

Rauner says he isn’t trying to cripple unions and only is standing up for constitutionally protected rights and freedom of choice.

The unions say otherwise, accusing Rauner of everything from a “war on the middle class” to trying to beat unions down prior to contract talks with the state coming this summer.

Bill Messenger, a lawyer with the National Right Work Foundation who has argued labor law cases before the Supreme Court, said the questions in the Rauner pleadings and a similar case, Friederichs v. California Teachers Association, are ripe and of national importance.

In recent cases including Harris v. Quinn and Knox v. Service Employees International Union, the justices have indicated they are leaning toward examining the constitutionality of public-sector employees being forced to pay mandatory fees, Messenger said.

If Rauner or Friedrichs is successful, there would be a direct impact for public-sector employees and examination of cases in the private sector might follow.

“It’s not so much a direct impact on the private sectors as it is what’s the next issue to be considered,” he said.

Political analyst Kent Redfield said he doesn’t see Madigan’s attempt to intervene as motivated by partisan politics, although some will certainly see it as such.

The fourth-term attorney general is a Chicago Democrat and daughter of longtime House Speaker Michael Madigan, D-Chicago. Rauner is a Republican from Winnetka who touts local choice and free markets.

But Illinois politics are always either blatantly partisan or at least viewed as such, said Redfield, professor emeritus at University of Illinois Springfield.

Perhaps more unusual and more interesting about this case, he said, are the dynamics of two constitutionally empowered executive officers seeking to fulfill their duties but coming from entirely different viewpoints.

“It’s probably being handled as reasonably as it could be given the complexity of both the legal-constitutional arguments and the politics,” he said. “It’s really easy to see conspiracy and partisanship in terms of this … but there are basic legal arguments here.”

Mark Fitton ([email protected]) is a reporter for the Illinois News Network, a project of the Illinois Policy Institute. An earlier version of this article first appeared at Reprinted with permission.