Search

Civil Litigation FLASHPOINTS July 2022

Andrew J. Schuyler, Katten Muchin Rosenman LLP, Chicago
312-902-5397 | E-mail Andrew Schuyler

Illinois Right to Collective Bargaining Amendment Reigns Supreme in First Legal Challenge

In Sachen v. Illinois State Board of Elections, Case No. 2022CH000034 (7th Jud.Cir. Apr. 21, 2022) (petition for leave to file taxpayer action to restrain and enjoin disbursement of state funds), several Chicago Public Schools parents and teachers filed a lawsuit in the Seventh Judicial Circuit Court in Sangamon County against the Illinois State Board of Elections, the Illinois Secretary of State, and the Illinois State Comptroller, seeking to remove the Illinois Right to Collective Bargaining Amendment (Workers’ Rights Amendment) from the November 8, 2022, ballot. The petitioners alleged that the amendment would violate the Supremacy Clause of the United States Constitution by creating a state law right to private-sector collective bargaining.

On May 26, 2022, Circuit Judge Raylene Grischow issued an order denying the petition, writing that “the Court has no power to restrain a referendum on the grounds that, if the proposed law were enacted, its enforcement would be unconstitutional” and that the petitioners “offer[ed] no basis for preventing the Amendment’s submission to the voters merely because some anticipated applications may be preempted by federal law.” Sachen v. Illinois State Board of Elections, Case No. 22-CH-34, slip op. at 7 (7th Jud.Cir. May 26, 2022) (order denying leave to file taxpayer action).

The Workers’ Rights Amendment comes at a time when Illinois has been implementing numerous employee-friendly statutes and regulations, with more on the horizon.

The Illinois Right to Collective Bargaining Amendment

In May 2021, the Illinois General Assembly passed a joint resolution to add the following to Article I of the Illinois Constitution:

SECTION 25. WORKERS’ RIGHTS

(a) Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.

(b) The provisions of this Section are controlling over those of Section 6 of Article VII [Powers of Home Rule Units]. S.J.Res.Const.Amend. No. 11, 102d Gen.Assem. (2021).

If passed by voters in November 2022, the Workers’ Rights Amendment would preclude the State of Illinois and any local governments from passing right-to-work laws, which generally prohibit agreements that require all employees in a bargaining unit to pay union dues (i.e., union security agreements). National Labor Relations Board, Frequently Asked Questions — NLRB, www.nlrb.gov/resources/faq/nlrb. Should that happen, Illinois would join Hawaii, Missouri, and New York, whose respective state constitutions provide a right to collective bargaining. See HAW.CONST. art. XIII, §§1, 2 (private employees and public employees “shall have the right to organize for the purpose of collective bargaining.”); MO.CONST. art. I, §29 (“[E]mployees shall have the right to organize and to bargain collectively through representatives of their own choosing.”); N.Y.CONST. art. I, §17 (“Employees shall have the right to organize and to bargain collectively through representatives of their own choosing.”). On the other side of the issue, 27 states have right-to-work laws, allowing private employees in unionized workplaces to opt out of union membership and fees.

The Workers’ Rights Amendment garnered the attention of several organizations, including the Liberty Justice Center and Illinois Policy Institute. Their attorneys filed suit on behalf of two Chicago Public Schools parents — Sarah Sachen and Alberto Molina — and two Chicago Public Schools teachers — Ifeoma Nkemdi and Joseph Ocol (collectively, “petitioners”).

Facts of the Case and Procedural Background

Under 735 ILCS 5/11-303, a citizen or taxpayer of the State of Illinois can commence an action “by petition for leave to file an action to restrain and enjoin the defendant or defendants from disbursing the public funds of the State.” On April 21, 2022, the petitioners filed their petition seeking to file a complaint under 735 ILCS 5/11‑303 against the Illinois State Board of Elections, the Illinois Secretary of State, and the Illinois State Comptroller (collectively, “respondents”). Sachen v. Illinois State Board of Elections, Case No. 2022CH000034 (7th Jud.Cir. Apr. 21, 2022). The complaint sought to “prevent Respondents . . . from using public funds to place the [Workers’ Rights Amendment] on the November 2022 general election ballot because [it was] preempted by the National Labor Relations Act and therefore violate[d] the Supremacy Clause of the United States Constitution.” Slip op. at 1.

The respondents filed an objection to the petition, arguing that “[t]he Court must deny the petition because Petitioners’ claims [were] premature and fail[ed] as a matter of law.” Sachen v. Illinois State Board of Elections, Case No. 2022-CH-34, slip op. at 3 (7th Jud.Cir. May 16, 2022) (objection to petition for leave to file taxpayer action). Specifically, the respondents argued (1) that the Illinois Constitution required the Workers’ Rights Amendment to be submitted to the voters, (2) that the petition sought an impermissible advisory opinion, and (3) that preemption would merely suspend enforcement of the Workers’ Rights Amendment and is not a basis for not placing it on the ballot. Slip op. at 3 – 4. The critical issue for the court, however, was whether the petitioners “presented ‘reasonable ground for the filing of’ their proposed action.” Sachen v. Illinois State Board of Elections, Case No. 22-CH-34, slip op. at 2 (7th Jud.Cir. May 26, 2022), quoting 735 ILCS 5/11-303.

Applicable Standard: Reasonable Grounds

The court began by reviewing the relevant statute, the question presented, and the appropriate standard to analyze it. Any citizen and taxpayer of the State of Illinois may bring “[a]n action to restrain and enjoin the disbursement of public funds by any officer or officers of the State government.” 735 ILCS 5/11-301. When brought by a citizen and taxpayer of the state, such action must “be commenced by petition for leave to file” the necessary action. 735 ILCS 5/11-303. If the court finds reasonable grounds for the filing of the action, it “may grant the petition and order the complaint to be filed and process to issue.” Id.

“In evaluating whether reasonable grounds exist, well-pleaded nonconclusory allegations of fact must be taken as true . . . but conclusions or unjustified allegations should be disregarded.” Slip op. at 2, citing Hamer v. Dixon, 61 Ill.App.3d 30, 377 N.E.2d 820, 822, 18 Ill.Dec. 335 (2d Dist. 1978), and Barco Manufacturing Co. v. Wright, 10 Ill.2d 157, 139 N.E.2d 227, 230 (1956). A petition will lack reasonable grounds if the “claims sought to be asserted fail as a matter of law.” Slip op. at 2, citing Tillman v. Pritzker, 2021 IL 126387, ¶22, 183 N.E.3d 94, 451 Ill.Dec. 48, Wirtz v. Quinn, 2011 IL 111903, ¶¶6, 9, 953 N.E.2d 899, 352 Ill.Dec. 218, and Kaider v. Hamos, 2012 IL App (1st) 111109, ¶¶6, 20, 24, 28, 33, 35, 975 N.E.2d 667, 363 Ill.Dec. 641.

Whether Reasonable Grounds Exist

Even accepting all of the petitioners’ allegations as true, the court did not find reasonable grounds to permit suit. “Petitioners’ claims fail[ed] as a matter of law, and impermissibly [sought] an advisory opinion as to ‘constitutional issues . . . [which] may never progress beyond the realm of the hypothetical.’ ” Slip op. at 2, citing Slack v. Salem, 31 Ill.2d 174, 201 N.E.2d 119, 121 (1964).

In reaching this conclusion, the court first observed that “under Article XIV, section 2 of the Illinois Constitution, ‘[a]mendments approved by the vote of three-fifths of the members elected to each house shall be submitted to the electors at the general election next occurring at least six months after such legislative approval, unless withdrawn by a vote of a majority of the members elected to each house.’ ” [Emphasis added by Sachen court.] Slip op. at 2 – 3, quoting ILL.CONST. art. XIV, §2(a). And because §2’s requirements were clearly met, “the command” was clear: “[t]he proposal must be submitted to the voters for adoption or rejection.” Slip op. at 3.

The court next addressed the premature and hypothetical nature of the petition. Courts have “no power to restrain a referendum on the grounds that, if the proposed law were enacted, its enforcement would be unconstitutional.” Slip op. at 3, citing Slack, supra, 201 N.E.2d at 120, and Fletcher v. Paris, 377 Ill. 89, 35 N.E.2d 329, 330 – 332 (1941). That would represent an improper advisory opinion. Slip op. at 4, quoting Slack, supra, 201 N.E.2d at 121 (“This court has no power to render advisory opinions, and until the legislative process has been concluded, there is no controversy that is ripe. . . . Indeed, the constitutional issues upon which the opinion of this court is sought may never progress beyond the realm of the hypothetical.”).

The petitioners had relied on Hooker v. Illinois State Board of Elections, 2016 IL 121077, ¶¶8 & n.2, 48, 63 N.E.3d 824, 407 Ill.Dec. 392, and Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill.2d 502, 641 N.E.2d 525, 528, 531 – 532, 204 Ill.Dec. 301 (1994),for the proposition that “[w]here a proposed constitutional amendment scheduled to go before voters is itself unconstitutional, the proper remedy is an injunction to prevent state officials from placing it on the ballot.” Sachen v. Illinois State Board of Elections, Case No. 2022CH000034, slip op. at 10 (7th Jud.Cir. Apr. 21, 2022). However, the petitioners’ reliance on those two cases was misplaced. Sachen v. Illinois State Board of Elections, Case No. 22-CH-34, slip op. at 4 (7th Jud.Cir. May 26, 2022). “Those cases concerned the requirements of citizen ballot initiatives, which are governed by Article XIV, section 3, not legislative initiatives — such as the Workers’ Rights Amendment — which are governed by section 2.” Id. The proposals in those cases did not comply with Article XIV, section 3. Id. (i.e., “the proposed manner of amendment violated the Illinois constitution”). Moreover, neither Hooker nor Chicago Bar Ass’n involved, as here, “a challenge to enforcement of the amendment or its substantive validity assuming a successful referendum.” Id. “Instead, the cases addressed solely whether such amendments could be the subject of citizen ballot initiatives” (id.) and merely elucidate the principle that “ballot proposals must comply with the requirements for such proposals” (slip op. at 5).

Therefore, with respect to the petitioners’ request for injunctive relief, the proper question before the court was whether the underlying ballot proposal, Senate Joint Resolution Constitutional Amendment No. 11, complies with Article XIV, §2, of the Illinois Constitution. Slip op. at 5 – 6. However, as discussed earlier, “[t]he referendum is plainly proper because the requirements for holding the referendum under XIV, section 2 [were] met.” Slip op. at 6.

Finally, the court turned to the petitioners’ argument that the Workers’ Rights Amendment is preempted by National Labor Relations Act (NLRA) and therefore violates the Supremacy Clause of the United States Constitution. Assuming arguendo that the court has the power to issue an advisory opinion and that the petitioners were correct that, if enacted, “the Workers’ Rights Amendment [as applied] to private employees would be preempted by the NLRA,” the court determined that the amendment still has valid applications. Slip op. at 7.

Indeed, the court found that the Workers’ Rights Amendment “would serve at least three permissible purposes.” Slip op. at 8. First, the Amendment would create rights for public employees. Slip op. at 7 (“Petitioners plainly concede the Amendment would have valid applications, specifically application to public employees.”). See also Sachen v. Illinois State Board of Elections, Case No. 2022CH000034, slip op. at 5 (7th Jud.Cir. Apr. 21, 2022). (Workers’ Rights Amendment “makes no distinction between private-sector and public sector employees and therefore would establish a right to collective bargaining for both”). Second, the amendment would prohibit the State of Illinois and local governments from passing laws that restrict union security agreements. Sachen v. Illinois State Board of Elections, Case No. 22-CH-34, slip op. at 7 (7th Jud.Cir. May 26, 2022). Third, if the federal government ever repealed the NLRA, the amendment would “act as a state-law failsafe to preserve rights for private-sector employees.” Slip op. at 9. Moreover, “[a]t most, federal preemption would merely render the Workers’ Rights Amendment dormant, not invalid, because it would still apply to situations not covered by the NLRA and would become enforceable even as to preempted applications in the event the NLRA were ever repealed.” Slip op. at 8.

In sum, the petitioners did not state reasonable grounds for filing suit. Slip op. at 9. Because Senate Joint Resolution Constitutional Amendment No. 11 complied with the Illinois Constitution’s requirements concerning legislative initiatives, the Workers’ Rights Amendment must therefore be submitted to the voters. Additionally, the petitioners’ action failed because it was premature and sought an improper advisory opinion from the court. And even if the petitioners’ preemption theory had been true, it was not grounds for preventing the amendment from being placed on the November 2022 general election ballot; if passed, it would apply to matters that are not preempted by the NLRA and would merely lay dormant, becoming enforceable should the NLRA be repealed.

Recent Developments

Although the Workers’ Rights Amendment has cleared its first legal hurdle, as of June 3, 2022, the petitioners have filed notice appealing the circuit court’s decision. Challenges will likely continue all the way until the November 2022 general election and into the future should Illinois voters adopt the referendum.

A Changing Labor and Employment Landscape

Illinois has been modifying the employer-employee framework in recent years, adopting new labor-and-employment-related statutes and regulations. Since 2020, Illinois has expanded noncompetition and nonsolicitation restrictions, adopted new annual sexual harassment training requirements, placed new limits on employers’ use of conviction records, and added new reporting requirements on employers to report any settlement, adverse judgment, or administrative ruling against them involving harassment or discrimination, to name a few. And this trend looks like it will continue.

In what would be the biggest change in Illinois employment law to date, the Illinois General Assembly is considering banning at-will employment. House Bill 3530, 102d Gen.Assem. (2021), and S.B. 2332, 102d Gen.Assem. (2021), both pending legislation, propose to create the Illinois Employee Security Act. Among other things, the Act “[e]stablishes a framework for employee discipline and discharge[, p]rohibits the unjust discharge of an employee[, r]equires employers to utilize progressive discipline measures[, and l]imits the use of electronic monitoring.” If the Act becomes law, Illinois will become one of the few states not to recognize at-will employment, absent an employment agreement, changing the Illinois employer-employee framework completely.

For more information about financial services, see CIVIL PRACTICE: PREPARING FOR TRIAL (IICLE®, 2022). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Leave your comment
Filters
Sort
display