Over the past several weeks, Illinois’ largest labor unions and Attorney General Lisa Madigan took steps to defend “fair share” fees against Governor Rauner’s Executive Order suspending the collection of those fees, and his federal lawsuit attacking them as unconstitutional. On March 5, 2015 the Illinois AFL-CIO and 26 labor unions filed suit in state court to block Governor Rauner’s Order. On March 9, Attorney General Lisa Madigan intervened against Governor Rauner in the federal lawsuit he filed, and moved to dismiss the suit.

As we explained last month, Governor Rauner issued Executive Order 15-13, which ordered all State agencies to immediately cease enforcement of “fair share” provisions in collective bargaining agreements between labor unions and the State. Under these provisions, non-union member State employees must pay fees to the union that are proportionate to the union’s costs associated with collective bargaining, contract administration, and other activities germane to the union’s duties as collective bargaining representative. Simultaneously, Governor Rauner filed suit in federal court, No. 15 CV 1235, seeking a declaratory judgment that fair share provisions are unconstitutional. Governor Rauner contends that the fair share provisions themselves constitute coerced political speech in violation of the First Amendment.

On March 5, 2015, shortly after Governor Rauner filed his suit, the Illinois AFL-CIO, along with 26 other labor unions, filed a lawsuit in state court in St. Clair County seeking to invalidate Governor Rauner’s order. In their lawsuit, the unions argued that fair share provisions are authorized under Section 3(g) of the Illinois Public Labor Relations Act, 5 ILCS 315/3(g). Furthermore, current collective bargaining agreements between AFSCME Council 31, the largest union representing State employees, and the State of Illinois contain fair share provision. Many other unions representing smaller bargaining units of State employees also include fair share provisions in their contracts with the State. The unions have alleged that Governor Rauner is attempting to undermine public sector labor unions in violation of state law, and therefore, enforcement of the Executive Order must be enjoined.

On March 9, 2015, Attorney General Madigan moved to intervene in the federal lawsuit and filed a motion to dismiss Governor Rauner’s claims. Attorney General Madigan argues that Governor Rauner’s claims involve state law provisions, notably the Illinois Public Labor Relations Act, and should be resolved in state court. Further, the Attorney General maintains that Governor Rauner has no “injury” in the case because he has based his entire lawsuit on his personal conclusion that fair share provisions are unconstitutional, and therefore, lacks standing to sue. The Attorney General also argued that Governor Rauner filed his federal lawsuit only as a procedural maneuver to preempt the unions’ proper state court claims. According to the Attorney General, Governor Rauner’s federal lawsuit should be dismissed, or at the very least, stayed pending resolution of state court proceeding.

The very next day, Governor Rauner removed the labor unions’ state court lawsuit in St. Clair County to federal court in the Southern District of Illinois, No. 15 CV 0271. While the Attorney General asserted that the dispute is focused on State law, Governor Rauner argued that the central issue is the constitutionality of fair share provisions. Therefore, according to Governor Rauner, the court will be called to interpret the First Amendment of the U.S. Constitution, and a federal court is the only appropriate forum.

Lawsuits are now pending before both the Northern and Southern Districts of Illinois. Meanwhile, Comptroller Leslie Munger, an appointee of Governor Rauner, has refused to enforce the Executive Order. AFSCME Council 31 and the State are currently negotiating a new master collective bargaining agreement with the State, as the current contract expires on June 30, 2015.