656 F.3d 692 (7th Cir. 2011), 10-3835, Harris v. Quinn

Docket Nº:10-3835
Citation:656 F.3d 692
Opinion Judge:Manion, Circuit Judge.
Party Name:PAMELA J. HARRIS, et al., Plaintiffs-Appellants, v. GOVERNOR PAT QUINN, in his official capacity as Governor of the State of Illinois, et al., Defendants-Appellees
Attorney:For PAMELA J. HARRIS, ELLEN BRONFELD, CAROLE GULO, MICHELLE HARRIS, WENDY PARTRIDGE, THERESA RIFFEY, SUSAN WATTS, PATRICIA WITHERS, STEPHANIE YENCER-PRICE, Plaintiffs - Appellants: William L. Messenger, Attorney, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, Springfield, VA. For PAT QUINN, Gov...
Judge Panel:Before MANION, WOOD, and HAMILTON, Circuit Judges.
Case Date:September 01, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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656 F.3d 692 (7th Cir. 2011)

PAMELA J. HARRIS, et al., Plaintiffs-Appellants,

v.

GOVERNOR PAT QUINN, in his official capacity as Governor of the State of Illinois, et al., Defendants-Appellees

No. 10-3835

United States Court of Appeals, Seventh Circuit

September 1, 2011

Argued June 9, 2011

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 CV 02477--Sharon Johnson-Coleman, Judge.

For PAMELA J. HARRIS, ELLEN BRONFELD, CAROLE GULO, MICHELLE HARRIS, WENDY PARTRIDGE, THERESA RIFFEY, SUSAN WATTS, PATRICIA WITHERS, STEPHANIE YENCER-PRICE, Plaintiffs - Appellants: William L. Messenger, Attorney, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, Springfield, VA.

For PAT QUINN, Governor; in His Official Capacity as Governor of the State of Illinois, Defendant - Appellee: Paul Berks, Attorney, OFFICE OF THE ATTORNEY GENERAL, Civil Appeals Division, Chicago, IL.

For SEIU HEALTHCARE ILLINOIS & INDIANA, Defendant - Appellee: Scott A. Kronland, Attorney, ALTSHULER BERZON LLP, San Francisco, CA.

For SEIU LOCAL 73, Defendant - Appellee: Joel A. D'Alba, Attorney, ASHER, GITTLER & D'ALBA, Chicago, IL.

For AFSCME UNION COUNCIL 31 OF THE CHICAGO DEPARTMENT OF HEALTH, Defendant - Appellee: Melissa J. Auerbach, Attorney, CORNFIELD & FELDMAN, Chicago, IL; John M. West, Attorney, BREDHOFF & KAISER, Washington, DC.

Before MANION, WOOD, and HAMILTON, Circuit Judges.

OPINION

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Manion, Circuit Judge.

The plaintiffs in this appeal provide in-home care for people with varying levels of disabilities and other health needs. They present a narrow question: Does a collective bargaining agreement that requires Medicaid home-care personal assistants to pay a fee to a union representative violate

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the First Amendment, regardless of the amount of those fees or how the union uses them? We hold that it does not. Because the personal assistants are employees of the State of Illinois, at least in those respects relevant to collective bargaining, the union's collection and use of fair share fees is permitted by the Supreme Court's mandatory union fee jurisprudence in Railway Employees' Dep't v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956), and Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). However, we lack jurisdiction to consider the claims of plaintiffs who have opted not to be in the union. Because they are not presently subject to mandatory fair share fees, their claims are not ripe.

I.

The plaintiffs in this case all provide in-home care to disabled individuals through Medicaid-waiver programs run by the Illinois Department of Human Services. Some are part of the Home Services Program administered by the Division of Rehabilitation Services. The others are part of the Home Based Support Services Program administered by the Division of Developmental Disabilities. We will call these groups the Rehabilitation Program plaintiffs and Disabilities Program plaintiffs respectively.

A. Home-Based Medicaid Waiver Program Features

These programs subsidize the costs of home-based services for disabled patients who might otherwise face institutionalization. The programs offer flexibility and self-direction for services that are tailored to patients' individual needs. In the Rehabilitation Program, each patient works with a counselor to develop an individual service plan, which specifies " the type of service(s) to be provided to the patient, the specific tasks involved, the frequency with which the specific tasks are to be provided, the number of hours each task is to be provided per month, [and] the rate of payment for the service(s)." 89 Ill. Admin. Code 684.50. The service plan must be certified by the patient's physician and approved by the State. Id. § 684.10.

Once a counselor identifies the type of personal assistant the patient needs for the service plan, the patient is free to select almost any personal assistant who meets the qualifications set by the State. Id. § § 684.20, 684.30 The State, in turn, requires personal assistants to comply with age and work-hour limitations, provide written or oral recommendations from past employers, have related work experience or training, and satisfy the patient and counselor that they can communicate and follow directions. Id. § 686.10. Personal assistants sign employment agreements directly with patients, although the terms of the agreement are set by the State. Id. The State sets wages and pays personal assistants directly, withholding Social Security as well as federal and state taxes. Id. § § 686.10, 686.40.

The Disabilities Program functions similarly. Each patient works with a State " service facilitator" to develop a " service/treatment plan." 59 Ill. Admin. Code 117.120, 117.225(a). The State then pays for services provided under the plan, including personal care services. Id. at 117.215. The record is much less developed on the exact relationship between the State and the Disabilities Program personal assistants. And for good reason: the district court dismissed the claims on jurisdictional grounds, so no court has yet considered the merits of those claims.1

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B. Rehabilitation Program Unionization

In the mid-1980s, personal assistants in the Rehabilitation Program sought to unionize and, under the Illinois Public Labor Relations Act, collectively bargain with the State. The State Labor Relations Board, however, found that the personal assistants were in a unique employment relationship and that it lacked jurisdiction over that relationship because the State was not their sole employer. The personal assistants thus could not unionize until 2003, when the Illinois Public Labor Relations Act was amended to designate " personal care attendants and personal assistants working under the Home Services Program" as State employees for purposes of collective bargaining. 20 Ill. Comp. Stat. 2405/3. Then-Governor Blagojevich issued an executive order directing the State to recognize an exclusive representative for Rehabilitation Program personal assistants if they designated one by majority vote and to engage in collective bargaining concerning all employment terms within the State's control. According to the Governor, this was important because each patient employed only one or two personal assistants. Thus, only the State could control the economic terms of employment and the widely dispersed personal assistants could not " effectively voice their concerns" about the program or their employment terms without representation.

Later that year, a majority of the approximately 20,000 Rehabilitation Program personal assistants voted to designate SEIU Healthcare Illinois & Indiana as their collective bargaining representative with the State. The Union and the State negotiated a collective bargaining agreement which sets the pay rates, creates a health benefits fund for personal assistants, and establishes a joint Union-State committee to develop training programs. The agreement also contains other typical collective bargaining agreement provisions, including the union security clause that has given rise to this lawsuit and appeal. This " fair share" provision requires " all Personal Assistants who are not members of the Union . . . to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment."

C. Disabilities Program Attempted Unionization

In 2009, Governor Pat Quinn issued an executive order directing the State to recognize an exclusive representative for the Disabilities Program personal assistants, if a majority so chose. See Ill. Exec. Order 2009-15. SEIU Local 713 petitioned for an election to become that representative, and AFSCME Council 31 intervened in the election as a rival candidate. In a mail ballot election, however, a majority of the approximately 4,500 Disabilities Program personal assistants rejected representation by either union. But that victory is not permanent: the unions can request new elections in the future, and, under Illinois labor law, may bypass an election altogether if they collect a sufficient number of union cards from the personal assistants. See id.; 80 Ill. Admin. Code 1210.100(b).2

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D. Current Litigation

The following year, the personal assistants from both groups filed a two-count complaint against the Governor and the three unions involved. The Rehabilitation Program plaintiffs claimed that the fair share fees they were required to pay violated the First Amendment by compelling their association with, and speech through, the Union. The Disabilities Program plaintiffs argued that although they did not yet pay fees, they are harmed by the mere threat of an agreement requiring fair share fees. The district court dismissed the Rehabilitation Program plaintiffs' claims for failure to state a claim upon which relief could be granted. It dismissed the Disabilities Program plaintiffs' claims for lack of subject matter jurisdiction because they lacked standing and their claims were not ripe. The plaintiffs appeal both dismissals.

II.

The two sets of plaintiffs in this case stand in very different positions. The Rehabilitation Program plaintiffs are currently subject to a collective bargaining agreement that requires them to pay fair share fees to their union representative. The Disabilities Program plaintiffs have successfully rejected unionization and are not subject to fair share fees, but fear that may change at any time. This difference has important consequences: we have jurisdiction to consider the Rehabilitation Program plaintiffs' claims, which we discuss in the first part of the analysis. But we must dismiss the Disabilities Program plaintiffs' claims for lack of jurisdiction because they are not ripe for adjudication. We explain...

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