In the wake of a deadlock at the U.S. Supreme Court, letting stand a federal appeals court’s ruling that public unions can compel workers not represented by unions to pay so-called “fair share” fees in lieu of union dues, a Chicago federal judge has tossed a lawsuit brought by several Illinois state workers, similarly challenging the union’s payroll deductions.

U.S. District Judge Robert W. Gettleman dismissed the legal action brought by state employees Mark Janus and Brian Trygg, who had intervened as plaintiffs in the legal action originally brought by Illinois Gov. Bruce Rauner against government worker unions to stop the fees from being taken from the paychecks of state workers, on the grounds that the mandatory collection of the fees violates the constitutional rights of state workers who do not wish to associate with the unions.

Illinois Gov. Bruce Rauner
Illinois Gov. Bruce Rauner

While unions are not permitted to use the fees to fund explicitly political activities, the legal challenge argued the work of a union representing government workers cannot be separated from the union’s political activities, since the union deals with lawmakers and other government officials as a matter of course.

According to the lawsuit, about 6,600 of the state’s more than 46,000 employees make fair share payments, rather than pay union dues. The lawsuit noted fair share fees can amount to as much 99 percent of the dues paid by similar workers who are union members.

Unions have argued the fees are needed to offset the costs unions incur for collective bargaining, which the unions claim benefits all employees, whether they are full members of the union or not.

In May 2015, Gettleman ruled Rauner had no standing to sue, saying he had no standing to represent the fair share fee-paying state workers. However, at that time, the judge allowed the Janus and Trygg to step in and replace Rauner as the lead plaintiffs in the lawsuit.

As Rauner’s legal challenge to the fees was entering the court system, the U.S. Ninth Circuit Court of Appeals ruled in the case of Friedrichs v. California Teachers Association, finding public unions are entitled to the fees, despite a similar challenge from public workers in California, who similarly argued the fees violated their free speech and free association rights.

On appeal, the U.S. Supreme Court deadlocked 4-4 on the case, following the death of Supreme Court Justice Antonin Scalia, allowing the Ninth Circuit’s ruling to stand.

In light of those rulings, attorneys for the unions and the state asked the court to dismiss the lawsuit, saying the decisions left the 1977 U.S. Supreme Court decision in Abood v. Detroit Board of Education – which had allowed the collection of fair share fees, and which the California and Illinois cases had sought to overturn - as “valid and binding precedent.”

Gettleman agreed, delivering his judgment in an order covering a little more than a page.

“Plaintiffs continue to argue that Abood was wrongly decided, but recognize that it remains controlling in the instant case,” Gettleman wrote. “Consequently, defendants’ motion to dismiss is granted.”

The unions were represented in the case by the firms of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, of Chicago; Feldman Wasser, of Springfield; and Bredhoff & Kaiser, of Washington, D.C.

State defendants were represented by the Illinois Attorney General’s office.

Plaintiffs in the case were represented by the Liberty Justice Center, of Chicago; Winston & Strawn, of Chicago; the National Right to Work Legal Defense Foundation, of Springfield, Va.; and Bartlit Beck Herman Palenchar & Scott, of Chicago.

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Organizations in this Story

AFSCME Council 31 Bartlit Beck Herman Palenchar and Scott LLP Bredhoff & Kaiser Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich Feldman Wasser Liberty Justice Center Winston and Strawn LLP

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