Hill, et al vs. Service Employees International Union, et al

Filing 40

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 5/12/2016: Defendants' motions to dismiss, 28 and 29 , are granted. Plaintiffs' amended complaint, 10 , is dismissed in its entirety. Enter judgment in favor of defendants and terminate civil case. [For further detail see attached order.] Notices mailed by Judicial Staff. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
REBECCA HILL, et al.,
Plaintiffs,
No. 15 CV 10175

v.
SERVICE EMPLOYEES INTERNATIONAL
UNION, HEALTHCARE ILLINOIS,
INDIANA, MISSOURI, KANSAS, et al.,

Judge Manish S. Shah

Defendants.
MEMORANDUM OPINION AND ORDER
Collective bargaining in the public sector necessarily involves interaction
with the government, and the constitutional limits on state action have a say in the
relationships among unions, the individuals and interests they represent, and the
government. In this case, plaintiffs claim that a state-law requirement that a union
(as an exclusive representative) negotiate terms and conditions of employment with
the government on plaintiffs’ behalf amounts to a compelled association with the
union in violation of the First Amendment. The plaintiffs are not employees of the
state, and as such, plaintiffs argue that there is no compelling justification to
require them to be linked to—to speak through—the union. They filed suit and seek
a declaration that the exclusive representation regime is unconstitutional.
Defendants (the union and the state officials responsible for the particular statutory
regime at issue) move to dismiss plaintiffs’ complaint, and argue that the First

Amendment’s freedom to associate has not been abridged in any way.1 The Supreme
Court may revisit its precedents in this area, but until it does, plaintiffs’ theory
runs counter to the established principle that a state does not infringe on
associational rights by requiring the type of exclusive representation at issue here.
Defendants’ motions to dismiss are granted.
I.

Legal Standard
A complaint may be dismissed if it fails to state a claim upon which relief

may be granted. Fed. R. Civ. P. 12(b)(6); see Foxxxy Ladyz Adult World, Inc. v. Vill.
of Dix, Ill., 779 F.3d 706, 711 (7th Cir. 2015). At this stage, the facts alleged in the
complaint are assumed to be true, and inferences from those facts are drawn in
plaintiffs’ favor. Id. Matters of public record—for example, statutes, regulations,
and executive orders—are subject to judicial notice and may be considered even if
not mentioned in the complaint. See, e.g., White v. Keely, 814 F.3d 883, 886 n.2 (7th
Cir. 2016).
II.

Background
The Illinois Department of Human Services Home Services Program provides

funding for certain qualifying individuals to hire personal assistants to perform
household and incidental health care tasks. 20 ILCS § 2405/3(f); 89 Ill. Admin. Code
§ 676.10; [10] ¶¶ 15–18.2 The personal assistant is paid by the state, but supervised

The current director of the Illinois Department of Central Management Services is
Michael Hoffman, and the current secretary of the Illinois Department of Human Services
is James Dimas. The Clerk shall substitute Hoffman and Dimas for their predecessors, Tom
Tyrrell and Gregory Bassi as defendants in this case. Fed. R. Civ. P. 25.
1

2

Bracketed numbers refer to entries on the district court docket.

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by the person receiving care. Harris v. Quinn, 134 S.Ct. 2618, 2624 (2014). Illinois’s
Child Care Assistance Program is similar—it pays for certain child care services
provided to low-income families (by licensed and license-exempt day care providers).
305 ILCS § 5/9A-11; 89 Ill. Admin. Code §§ 50.310, 50.320; [10] ¶¶ 25–32. Under
both programs, the state sets the key elements of compensation for covered services.
20 ILCS § 2405/3(f); 305 ILCS § 5/9A-11(f).
The Illinois Public Labor Relations Act authorizes “public employees” to
negotiate hours, wages, and other conditions of employment, with the state through
a labor organization as their exclusive representative. 5 ILCS § 315/6(a), (c). The
designated labor organization represents “the interests of all public employees in
the unit.” 5 ILCS § 315/6(d). Although they are not actually employed by the state,
the personal assistants and child care providers paid through Illinois’s Home
Services and Child Care Assistance programs are designated “public employees”
under the Public Labor Relations act. 5 ILCS § 315/3(n); see Harris, 134 S.Ct. at
2626, 2634. State law requires key terms of the caregivers’ employment to be
negotiated with an exclusive representative. 20 ILCS § 2405/3(f); 305 ILCS § 5/9A11(c-5). Defendant SEIU Healthcare Illinois, Indiana, Missouri, Kansas is the
designated exclusive representative for the personal assistants and child care
providers. [10] ¶¶ 42, 44; 5 ILCS § 315/3(f)(iv)–(v).
The union negotiated and entered into collective bargaining agreements with
the state on behalf of all personal assistants and child care providers. [10] ¶ 51. But
the plaintiffs do not want to be required to accept the union as their representative

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for contract negotiations with the state, and do not want to be affiliated in any way
with the union. [10] ¶ 70. Their claim is that the statutory system that inserts the
union between the plaintiffs and the state on matters related to the plaintiffs’
employment amounts to a compelled association in violation of the First
Amendment. The plaintiffs in Harris v. Quinn did not challenge the authority of the
union to serve as the exclusive representative of all personal assistants in
bargaining with the state. 134 S.Ct. at 2640. This case raises that challenge.
III.

Analysis
The First Amendment implicitly protects the freedom of association. Laborers

Local 236, AFL-CIO v. Walker, 749 F.3d 628, 638 (7th Cir. 2014). If the state
punishes, interferes with, or distorts the message of associations, the state may
improperly burden that constitutionally protected right. Id. But there is more to the
right because the freedom to associate includes a freedom not to associate. See
Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984). The state is not
constitutionally required to encourage people to associate, Laborers Local 236, 749
F.3d at 639, and thus the state is not required to assist non-association. The specific
question here is whether authorizing exclusive representation (and mandating it if
an exclusive representative is selected) in negotiations with the state over the terms
and conditions of employment that are within the state’s control infringes plaintiffs’
freedom not to associate with the union.
The Constitution tolerates “impingements” of First Amendment rights in the
area of public-sector collective bargaining. Compulsory collective bargaining fees for

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full-fledged public employees are constitutional. See Knox v. SEIU, Local 1000, 132
S.Ct. 2277, 2289 (2012); Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977). But taking
fair-share fees from non-state employees who do not want to join or support the
union violates the First Amendment. Harris, 134 S.Ct. at 2644. This kind of
compelled subsidization (from dissenters or simply the uninterested) of speech
crosses the line. Post-Harris, plaintiffs no longer have to pay for representation, but
does the representation itself infringe or impinge associational rights?
The answer is found in Minnesota State Bd. for Community Colleges v.
Knight, 465 U.S. 271 (1984), and the answer is no. The Court held that associational
rights “have not been infringed” by a system where the state negotiates with an
entire constituency through a single, exclusive representative association. Id. at
288. There was no infringement because the state was entitled to ignore dissenters
(and listen only to the exclusive representative), the dissenters were free not to join
or support the association, and the dissenters were free to express their views. Id. at
287–90. The Court in Knight did not expressly discuss the right not to associate, but
in holding that no associational rights were infringed, the Court necessarily
included the full breadth of associational rights. And absent any infringement,
there is no need to balance the justifications for the regime in this case against the
plaintiffs’ interests in distancing themselves from the union.
If exclusive representation unconstitutionally inhibits the right not to
associate, Knight was wrongly decided. But lower courts are bound by Knight, and
nothing in Harris supports a distinction between non-state employees and the full-

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fledged employees in Knight. Harris limited the compulsory fees approved by
Abood, but the Court expressly avoided the issue of exclusive representation
generally (an issue that was unchallenged in that case). See Harris, 134 S.Ct. at
2640. Harris and Knight stand together for the proposition that the First
Amendment prohibits some compulsory fees but does not prohibit exclusive
representation. The state may not endorse taking fees from non-employees without
consent, but its choice to listen only to an exclusive representative does not infringe
on anyone’s associational rights.
The First Circuit’s decision in D’Agostino v. Baker, 812 F.3d 240 (1st Cir.
2016), addressed the distinction between Harris and Knight and is persuasive. In
reviewing a Massachusetts child care provider system similar to the one at issue
here, and challenged on similar grounds as those asserted by plaintiffs, the court
held that no cognizable associational rights were infringed. Id. at 243–244. The
First Circuit observed that Knight presumed and extended a premise: that
“exclusive bargaining representation by a democratically selected union does not,
without more, violate the right of free association on the part of dissenting nonunion members of the bargaining unit.” Id. at 244. D’Agostino correctly articulates
the Knight premise, and Knight, in turn, provides the answer to plaintiffs’ claim.
Ordinarily, plaintiffs should be given an opportunity to replead. See Runnion
ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Ind., 786 F.3d 510, 519 (7th
Cir. 2015). But here, plaintiffs’ legal theory would remain the same in any
amendment, and would not state a claim under the First Amendment. The

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complaint is therefore dismissed with prejudice and judgment will be entered in
favor of defendants.
IV.

Conclusion
Defendants’ motions to dismiss, [28] and [29], are granted. Plaintiffs’

amended complaint, [10], is dismissed in its entirety. Enter judgment in favor of
defendants and terminate civil case.

ENTER:
___________________________
Manish S. Shah
United States District Judge

Date: 5/12/16

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