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U.S. Supreme Court Agrees to Take Case on Union Fees, Again

The U.S. Supreme Court will hear a case originally brought by Gov. Bruce Rauner that challenges whether government employee unions should be able to collect fees from nonmembers, a critical question for organized labor nationwide that the court deadlocked over last year.

By Kim Geiger

The U.S. Supreme Court will hear a case originally brought by Gov. Bruce Rauner that challenges whether government employee unions should be able to collect fees from nonmembers, a critical question for organized labor nationwide that the court deadlocked over last year.

In one of his first acts in office in February 2015, the Republican governor attempted to halt the passing along of the union fees in order to invite a legal challenge. On Thursday, the Supreme Court agreed to consider the lawsuit that resulted, and Rauner said a victory would be "transformative for the state of Illinois, transformative for America."

Losing the required fees worries labor leaders because it could lead to more workers leaving unions to avoid the cost, starving unions of money and members. The American Federation of State, County and Municipal Employees union at the center of the lawsuit called it "yet another example of corporate interests using their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor."

A similar case out of California was already in the legal pipeline when Rauner acted in 2015. By the time it was decided, the Supreme Court was short one member following the death of conservative Justice Antonin Scalia. The court issued a 4-4 split decision that left the existing system intact.

With President Donald Trump's appointment of Neil Gorsuch, the court's ruling in the Illinois case could deal a major blow to public-sector unions nationwide if Gorsuch sides with the conservative justices who were in favor of doing away with the "fair share" fees.

Unions negotiate new contracts and handle grievances on behalf of all workers within a bargaining unit, not just those who are members. The fees help pay for those efforts.

Illinois is one of about two dozen states that requires its workers to pay fair share fees to public employee unions even if they are not union members. The thinking is that workers who are not part of a union still benefit from its services, even if they don't support the union's political agenda. If the fees were no longer required, more workers might decide not to join unions in an effort to keep more money in their paychecks.

Rauner has contended that the fair share system violates free speech and that workers should not have to support unions they don't want to belong to. Unions are not allowed to spend fair share fees on political activities such as campaign contributions, but the governor has questioned that restriction, saying it's impossible to separate political activities because public-sector unions negotiate directly with the government.

"By its very nature, the activity of a government union is political," Rauner said in a Thursday interview with the Tribune. "Everything they do is political because it's inside government, it impacts politics."

Hours after the high court had announced its decision to take up the case, Rauner was in victory mode as he gave a speech at a luncheon of the Illinois Chamber of Commerce.

"This is a big deal, ladies and gentlemen, big deal," Rauner said, adding that his lawyers have predicted a "90 percent chance" of the ruling going in his favor, which he said would be "transformative for the state of Illinois, transformative for America and the relationship between our taxpayers and the people who work for our taxpayers. It's not going to be a one-way deal anymore."

The American Federation of State, County and Municipal Employees -- the largest public employee union in Illinois and the one at the center of the lawsuit -- predicted victory for their side.

"When working people are able to join strong unions, they have the strength in numbers they need to fight for the freedoms they deserve, like access to quality health care, retirement security and time off work to care for a loved one," AFSCME President Lee Saunders said in a statement. "The merits of the case, and 40 years of Supreme Court precedent and sound law, are on our side. We look forward to the Supreme Court honoring its earlier rulings."

The Illinois case dates to 2015, when Rauner issued an executive order that directed state government to stop passing fair share fees on to unions. Anticipating a legal challenge, Rauner also filed a federal lawsuit seeking to have his decision declared legal and hoping to bring the issue to the Supreme Court.

The executive order was put on hold when a judge in Downstate St. Clair County ordered the state to keep passing the fees along while the matter continued to play out in court. Around the same time, a federal judge dismissed Rauner from a parallel case, saying he lacked standing to challenge public unions in his official capacity because he had "no personal interest at stake."

Three workers who also were contesting the payments were allowed to proceed with their own complaint. That's the case now before the Supreme Court, Janus v. AFSCME.

The lead plaintiff, Mark Janus, is a child support specialist at the Illinois Department of Healthcare and Family Services. He's being represented by attorneys at the National Right to Work Foundation and the Illinois-based Liberty Justice Center, which is an affiliate of the Illinois Policy Institute, a conservative think tank with close ties to Rauner.

Arguments in the case are likely to take place in early 2018, with a decision expected before the June adjournment of the court.

Last year, the eight justices on the court deadlocked over a similar case brought by an Orange County teacher who asserted that her free speech rights were violated by being forced to pay about $650 a year in fees to a union.

Unions had been bracing for an unfavorable ruling after oral arguments in January 2016 indicated that a majority of the justices were skeptical of the fair share arrangement. The death of Scalia the next month left the court without a majority, leading to the split decision.

(c)2017 the Chicago Tribune

Caroline Cournoyer is GOVERNING's senior web editor.
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