Supreme Court to Decide Constitutionality of Illinois Scheme That Forces Home-Care Providers to Support Union Lobbying: Harris v. Quinn, 656 F.3d 692 (7th Cir. 2011), cert. granted, No. 11-681 (U.S. Oct. 1, 2013). National Right To Work Legal Defense Staff Attorney William L. Messenger.
At least seventeen states have imposed schemes to unionize workers who are not state employees, but who indirectly receive state subsidies. This is one of three Foundation cases challenging such schemes on federal constitutional grounds with the intent of setting a precedent that will be applicable nationwide. The State of Illinois, like most other states, operates a Medicaid-waiver program that subsidizes the costs of home personal care for disabled individuals. Many providers of home personal care are individuals hired by the disabled persons or their guardians. These providers are either employees of the disabled person or independent contractors.
In 2003, former Illinois Governor Rod Blagojevich issued an executive order that designated a Service Employees International Union local as exclusive representative of home personal care providers for the purpose of “bargaining” with the State of Illinois over its Medicaid reimbursement levels for home personal care. This executive order was later codified into a law that designated the providers as “public employees” of the State solely for purposes of unionization, but explicitly for no other purpose. The State and union then signed agreements requiring that compulsory union dues be deducted from the Medicaid payments owed to home personal care providers for caring for disabled individuals.
In June 2009, Illinois Governor Pat Quinn, issued an executive order that seeks to impose monopoly union representation on a second group of Illinois home personal care providers. Although these providers rejected two unions, the SEIU local and an American Federation of State, County & Municipal Employees local, in an election conducted in the fall of 2009, they remain under threat of being forced to support a compulsory union representative.
On April 22, 2010, ten providers Messenger represents filed a class action suit against the State and the unions in the United States District Court for the Northern District of Illinois. The complaint alleges that forcing care providers to support the unions violates the providers’ rights to free association and speech guaranteed by the First Amendment to the U.S. Constitution. The providers seek injunctive relief, a declaratory judgment, damages for all monies wrongfully taken by the unions, and attorneys’ fees. The case’s theory is that providers are being forced to support financially the unions as their state-designated lobbyists, and that no compelling state interest justifies the compulsory political representation the State imposes upon the providers.
Both the State and the unions moved to dismiss. After the completion of briefing, the case was reassigned to Judge Sharon Johnson Coleman, a new judge appointed by President Obama. On November 12, 2010, she dismissed the case on the merits, ruling that, because the Supreme Court has held monopoly bargaining constitutional for public employees, it is also constitutional for a state to impose monopoly representation on individuals who merely receive state funds.
On December 10, 2010, Messenger filed the providers’ appeal with the U.S. Court of Appeals for the Seventh Circuit, which heard oral argument on June 9, 2011. The three-judge panel issued its decision on September 1, 2011, affirming the district court’s judgment on the merits.
The panel found that “the personal assistants are [joint] employees of the State of Illinois, at least in those respects relevant to collective bargaining,” because the State has “significant control over virtually every aspect of a personal assistant’s job.” The panel relied on the facts that the State: “sets the qualifications and evaluates the patient’s choice” of provider; can “refus[e] payment for services provided by personal assistants who do not meet the State’s standards”; “approv[es] a mandatory service plan that lays out a personal assistant’s job responsibilities and work conditions and annually reviews each personal assistant’s performance”; and “sets salaries and work hours, pays for training, and pays all wages . . . directly to the personal assistant after withholding federal and state taxes.”
The panel therefore rejected the “arguments that the State’s interests in collective bargaining do not apply to the unique circumstances of personal assistants.” The panel stressed that it was not considering whether the result would be the same “if the personal assistants were properly labeled independent contractors rather than employees” or “whether and how a state might force union representation for other health care providers who are not state employees.”
Messenger filed a petition for certiorari with the U.S. Supreme Court for the plaintiff home-care providers on November 29, 2011. The principal question presented is whether a state may constitutionally “compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the State for greater reimbursements from its Medicaid programs.” The State of Illinois waived its right to respond to the petition.
The unions’ opposition to the petition was filed on February 3, petitioners’ reply on February 16.
On February 29, 2012, the Court ordered the State to file a response, which it did on April 30. The Court then conferenced the case twice and, on June 29, 2012, invited the U.S. Solicitor General to file a brief “expressing the views of the United States.” The Solicitor did not file the Administration’s brief until May 10, 2013. As expected, it argued that the Court should not take the case. Messenger filed a supplemental brief responding to the Administration’s arguments on May. 22.
The case was listed for conference four more times before the Court adjourned its 2012-13 Term on June 26, 2013, without issuing any order in the case. The case was then re-listed for the September 30 conference, and the Court finally granted certiorari on October 1, 2013.