harris v. quinn petition

8/13/2019 Harris v. Quinn Petition

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No. 11-____

WILSON-EPES PRINTINGCO.,INC. (202)789-0096 WASHINGTON,D.C.20002

IN THE

Supreme ourt of the United States

PAMELA HARRIS et al.,Petitioners,

v.

PAT QUINN, in His Official Capacity asGovernor of the State of Illinois et al.,

Respondents.

On Petition for Writ of Certiorari to theUnited States Court of Appeals

for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

29 November 2011

WILLIAM L.MESSENGERCounsel of Record

c/oNATIONAL RIGHT TOWORK LEGAL DEFENSEFOUNDATION,INC.

8001 Braddock RoadSuite 600Springfield, VA 22160(703) [email protected]

Counsel for Petitioners


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(i)

QUESTIONS PRESENTED1. May a State, consistent with the First and

Fourteenth Amendments to the United StatesConstitution, compel personal care providers toaccept and financially support a private organizationas their exclusive representative to petition the Statefor greater reimbursements from its Medicaidprograms?

2. Did the lower court err in holding that theclaims of providers in the Home Based Support

Services Program are not ripe for judicial review?


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PARTIES TO THE PROCEEDINGS BELOWThe parties to the proceedings before the United

States Court of Appeals for the Seventh Circuit werePlaintiffs-Appellants Pamela Harris, Ellen Bronfeld,Carole Gulo, Michelle Harris, Wendy Partridge,Theresa Riffey, Stephanie Yencer-Price, Susan Watts,and Patricia Withers and Defendants-Appellees PatQuinn, in his official capacity as governor of the Stateof Illinois, SEIU Healthcare Illinois & Indiana, SEIULocal 73, and AFSCME Council 31.

CORPORATE DISCLOSURE STATEMENT

Because no Petitioner is a corporation, a corporatedisclosure statement is not required under SupremeCourt Rule 29.6.


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(iii)

TABLE OF CONTENTSPage

QUESTIONS PRESENTED................................ i

PARTIES TO THE PROCEEDINGS BELOW ... ii

CORPORATE DISCLOSURE STATEMENT ..... ii

TABLE OF AUTHORITIES ................................ vi

OPINIONS BELOW ............................................ 1

JURISDICTION .................................................. 2

PROVISIONS INVOLVED ................................. 2

STATEMENT OF THE CASE ............................ 2

I. Illinois Home-Based Medicaid Programs.. 3

II The State Compels Personal Assistantsto Support a Representative to Petitionthe State over Its RehabilitationProgram .................................................... 4

III. Proceedings Below .................................... 6

REASONS FOR GRANTING THE WRIT .......... 7

I. The Court of Appeals Has Decided anImportant Federal Constitutional Ques-tion in a Way That Conflicts with ThisCourts First Amendment Decisions byPermitting Illinois to Force Individualsto Associate for the Sole Purpose ofPetitioning Government ........................... 8

II. The States Interest in Maintaining

Labor Peace in Its Workplaces DoesNot Apply to Providers Who Petition theState as Citizens in Public Forums .......... 11


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TABLE OF CONTENTSContinuedPage

A. The Labor Peace Rationale DoesNot Apply to Petitioning GovernmentOutside the Workplace ........................ 11

B. Illinois Has No Labor Peace Inter-est in Quelling Competing Demandsfrom Providers Because They Peti-tion the State Not as Employeesin a Government Workplace But as

Citizens in Public Forums ................... 15

C. The Seventh Circuits Application ofAbood to Providers Is Flawed and In-consistent with This Courts Decisionin OHare.............................................. 19

III. This Case Is of Exceptional ImportanceBecause Compulsory Advocates HaveBeen, and Could Be, Imposed on ManyOther Medicaid Providers and OtherRecipients of Government Monies ........... 21

IV. This Case Is of Exceptional ImportanceBecause Compelled Association to Peti-tion Government Is Antithetical to thePrinciples of Democratic Pluralism Pro-tected by the First Amendment ............... 25

V. The Seventh Courts Holding That theClaims of Providers in the DisabilitiesProgram Are Not Ripe Conflicts withDecisions of This Court and AnotherCircuit........................................................ 27

CONCLUSION .................................................... 29


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TABLE OF CONTENTSContinuedAPPENDICES Page

APPENDIX A: Opinion of the United StatesCourt of Appeals for the Seventh Circuit(1 Sept. 2011) ................................................ 1a

APPENDIX B: Opinion of the United StatesDistrict Court for the Northern District ofIllinois (12 Nov. 2010) .................................. 18a

APPENDIX C: Illinois Public Act 93-204,

2003 Ill. Legis. Serv. 93-204 ......................... 40aAPPENDIX D: Illinois Executive Order

2003-08 (4 Mar. 2003) .................................. 45a

APPENDIX E: Illinois Executive Order2009-15 (29 June 2009) ................................ 48a


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TABLE OF AUTHORITIESCASES Page

Abood v. Detroit Board of Education,431 U.S. 209 (1977) .....................................passim

BE & K Construction Co. v. NLRB,536 U.S. 516 (2002) ...................................... 9

Borough of Duryea v. Guarnieri,__ U.S. __, 131 S. Ct. 2488 (2011) ...............passim

Boy Scouts of America v. Dale,

530 U.S. 640 (2000) ...................................... 8

California Motor Transportation Co. v.Trucking Unlimited,404 U.S. 508 (1972) ...................................... 9

Citizens Against Rent Control v. City ofBerkeley,454 U.S. 290 (1981) ...................................... 13, 26

City ofMadison Joint School District v.Wisconsin Employment Relations

Commission,429 U.S. 167 (1976) ...................................... 14, 17

Cohen v. California,403 U.S. 15 (1971) ........................................ 14

Community for Creative Non-Violence v. Reid,490 U.S. 730 (1989) ...................................... 19-20

Connick v. Myers,461 U.S. 138 (1983) ...................................... 17

Cornelius v. NAACP Legal Defense &Education Fund,473 U.S. 788 (1985) ...................................... 12


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TABLE OF AUTHORITIESContinuedPage

Davenport v. Washington Education Assn,551 U.S. 177 (2007) ...................................... 11

De Jonge v. State of Oregon,299 U.S. 353 (1937) ............................. 9-10, 14, 26

Elrod v. Burns,427 U.S. 347 (1976) ...................................... 8

Engquist v. Oregon Department of Agriculture,

553 U.S. 591 (2008) ...................................... 11, 14Garcetti v. Ceballos,

547 U.S. 410 (2006) ...................................... 12, 17

Keller v. State Bar of California,496 U.S. 1 (1990) .......................................... 8

Lehnert v. Ferris Faculty Assn,500 U.S. 507 (1991) ...................................... 18

Mulhall v. UNITE HERE Local 355,618 F.3d 1279 (11th Cir. 2010) .................... 27, 28

NAACP v. Claiborne Hardware Co.,458 U.S. 886 (1982) ...................................... 13, 14

New York v. Ferber,458 U.S. 747 (1982) ...................................... 25

New York Times Co. v. Sullivan,376 U.S. 254 (1964) ...................................... 26, 28

Nixon v. Shrink Missouri Government PAC,528 U.S. 377 (2000) ...................................... 25

OHare Truck Service Inc. v. City of Northlake,

518 U.S. 712 (1996) ............................. 9, 10, 19, 20Pennsylvania v. West Virginia,

262 U.S. 553 (1923) ...................................... 27


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Perry Education Assn v. Perry LocalEducators Assn,460 U.S. 37 (1983) ............................. 12, 13, 16, 17

Perry v. Sindermann,408 U.S. 593 (1972) ...................................... 18

Pharmaceutical Research & Manufacturers ofAmerica v. Walsh,

538 U.S. 644 (2003) ...................................... 24Pickering v. Board of Education,

391 U.S. 563 (1968) ...................................... 11, 18

Riley v. National Federation of the Blind,487 U.S. 781 (1988) ...................................... 10, 14

Roberts v. United States Jaycees,468 U.S. 609 (1984) ...................................... 8

Roth v. United States,354 U.S. 476 (1957) ...................................... 26

Smith v. Doe,538 U.S. 84 (2003) ........................................ 24-25

Snyder v. Phelps,__ U.S. __, 131 S. Ct. 1207 (2011) ................ 14

State of Illinois (Department of CentralManagement Services & RehabilitationServices),2 PERI P 2007 (1985) .................................. 4, 5, 20

United States v. Associated Press,52 F. Supp. 362 (S.D.N.Y. 1943) .................. 26

United States v. United Foods,533 U.S. 405 (2001) ................................... 8, 10, 25


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Waters v. Churchill,511 U.S. 661 (1994) ...................................... 11, 14

CONSTITUTION

U.S. Const.

amend. I....................................................... passim

amend. XIV ................................................... i

STATUTES & REGULATIONS

Federal Statutes

28 U.S.C. 1254(1) ....................................... 2

28 U.S.C. 1291 ........................................... 7

28 U.S.C. 1331 ........................................... 7

28 U.S.C. 1343 ........................................... 7

28 U.S.C. 1395a ......................................... 24

42 U.S.C. 1396n(c) ..................................... 3

Federal Regulations

42 C.F.R. 414.1 - 414.68 ........................... 24

42 C.F.R. 424.22(a)(1)(iii) .......................... 24

42 C.F.R. 424.24 ........................................ 24

42 C.F.R. 424.27(a)(3) ................................ 24

42 C.F.R. 424.5(a)(1) .................................. 24

42 C.F.R. 424.500 - 424.565 ..................... 24

State Statutes

Cal. Welf. & Inst. Code 12301.6(c)(1) ........ 22


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Illinois Home Services Program

5 Ill. Comp. Stat. 315/3 ............................. 23

5 Ill. Comp. Stat. 315/3(n) ........................ 5

5 Ill. Comp. Stat. 315/7 ............................. 23

20 Ill. Comp. Stat. 2405 et seq................. 3

20 Ill. Comp. Stat. 2405/3(f) .................. 5, 20, 22

Illinois Home Based Support Services Program

405 Ill. Comp. Stat. 80/2-1 et seq............. 3

405 Ill. Comp. Stat. 80/2-6 ........................ 4

Mass. Gen. Laws ch. 118G, 31(b) .............. 22

Md. Code Ann. art. 5, 5-595 et seq. ......... 23

Md. Code Ann. art. 9, 15-901 et seq. ....... 22

Me. Rev. Stat. Ann. tit. 22, 8308(2)(C) ..... 23

Mo. Rev. Stat. 208.862(3) .......................... 22N.M. Stat. 50-4-33 ..................................... 23

Or. Const. art. XV, 11(f) ............................ 22

Or. Rev. Stat. 410.612 ............................... 22

Or. Rev. Stat. 443.733 ............................... 22

Or. Rev. Stat. 657A.430 ............................. 23

Wash. Rev. Code 41.56.028 ....................... 23

Wash. Rev. Code 41.56.029 ....................... 22

Wash. Rev. Code 74.39A.270 ..................... 22


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Wis. Stat. 111.02 et seq........................... 22, 23

Wis. Stat. 111.81 et seq. .......................... 22

State Regulations

59 Ill. Admin. Code 117 et seq................. 4

89 Ill. Admin. Code 676.10(c) .................... 4

89 Ill. Admin. Code 676.30(b) .................... 3

89 Ill. Admin. Code 676.30(p) .................... 3

89 Ill. Admin. Code 684.10 ........................ 4

89 Ill. Admin. Code 684.10(c) .................... 4

89 Ill. Admin. Code 684.20(b) .................... 3

89 Ill. Admin. Code 684.50 ........................ 4

89 Ill. Admin. Code 686.40 ........................ 4

State Executive Orders

Conn. Exec. Order 9 (21 Sept. 2011) ............ 23

Conn. Exec. Order 10 (21 Sept. 2011) .......... 22

Ill. Exec. Order 2003-08 (4 Mar. 2003) .......passim

Ill. Exec. Order 2009-15 (29 June 2009) .....passim

Iowa Exec. Order 45 (16 Jan. 2006) ............ 23

Kan. Exec. Order 07-21 (18 July 2007) ....... 23

Minn. Exec. Order 11-31 (15 Nov. 2011) ..... 23

N.J. Exec. Order 23 (2 Aug. 2006) ............... 23

N.Y. Exec. Order No. 12 (11 May 2007) ...... 23

Pa. Exec. Order 2007-06 (14 June 2007) ..... 23

Pa. Exec. Order 2010-04 (14 Sept. 2010) ..... 22


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TABLE OF AUTHORITIESContinuedMISCELLANEOUS Page

Illinois Public Act 93-204, 2003 Ill. Legis.Serv. 93-204 ............................................... 2, 4, 5

Interlocal Agreement between Mich. Deptof Cmty. Serv. & Tri-County AgingConsortium (10 June 2004) ...................... 22

Interlocal Agreement between Mich. Deptof Human Serv. & Mott Cmty. College

(27 July 2006) ............................................ 23Ohio House Bill 1, 741.01-06 (17 July

2009) .......................................................... 22, 23

Janet OKeefe et al, Understanding Medi-caid Home & Community Services: A

Primer, U.S. Dept of Health & HumanServ. (2010 ed., 29 Oct. 2010) (availableat http://aspe.hhs.gov/daltcp/reports/2010/primer10.pdf)....................................... 3, 21

Supreme Court Rule 29.6 ............................. ii
http://aspe.hhs.gov/daltcp/reports/20%2010/primer10.pdfhttp://aspe.hhs.gov/daltcp/reports/20%2010/primer10.pdfhttp://aspe.hhs.gov/daltcp/reports/20%2010/primer10.pdfhttp://aspe.hhs.gov/daltcp/reports/20%2010/primer10.pdf


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IN THESupreme ourt of the United States

No. 11-___

PAMELA HARRIS et al.,Petitioners,

v.

PAT QUINN, in His Official Capacity as

Governor of the State of Illinois et al.,Respondents.

On Petition for Writ of Certiorari to theUnited States Court of Appeals

for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Pamela Harris, Carole Gulo, Michelle Harris,Wendy Partridge, Theresa Riffey, Stephanie Yencer-Price, Susan Watts, and Patricia Withers respectfullypray that a writ of certiorari issue to review the

judgment and opinion of the United States Court ofAppeals for the Seventh Circuit entered on 1September 2011. (App. 1a).

OPINIONS BELOW

The opinion of the United States Court of Appealsfor the Seventh Circuit dated 1 September 2011 is

reported at 656 F.3d 692 (7th Cir. 2011). (App. 1a).The opinion of the United States District Court forthe Northern District of Illinois is reported at 189


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L.R.R.M. (BNA) 2900, 2010 WL 4736500 (12 Nov.2010).

JURISDICTION

(App. 18a).

On 1 September 2011, the Seventh Circuit entereda judgment that affirmed a district court judgmentdismissing the Complaint of the Petitioners-Appel-lants. (App. 1a). This Courts jurisdiction is invokedunder 28 U.S.C. 1254(1).

PROVISIONS INVOLVED

The First Amendment to the United States Con-stitution provides that Congress shall make no lawrespecting an establishment of religion, or prohibit-ing the free exercise thereof; or abridging the freedomof speech, or of the press; or the right of the peoplepeaceably to assemble, and to petition the Govern-ment for a redress of grievances. U.S. Const. amend I.

The state provisions involved are Illinois Public Act93-204, 2003 Ill. Legis. Serv. 93-204 (App. 40a);Illinois Executive Order 2003-08 (4 Mar. 2003) (App.

45a); and Illinois Executive Order 2009-15 (29 June2009) (App. 48a).

STATEMENT OF THE CASE

The State of Illinois requires that individuals whoprovide in-home care to Medicaid recipients acceptand support an exclusive representative to petitionthe State over its reimbursement rates for that care.Petitioners assert that compelling them to associatefor purposes of petitioning government about apublic-aid program infringes on their right to free

expressive association guaranteed by the FirstAmendment.


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I. Illinois Home-Based Medicaid ProgramsThe federal Medicaid Home and Community Based

Service Program partially funds state programs thatassist persons with disabilities with living in theirhomes to prevent their institutionalization. See 42U.S.C. 1396n(c).1

Under the Rehabilitation Program, a PersonalAssistant (PA) is an individual employed by thecustomer to provide . . . varied services that havebeen approved by the customers physician. 89 Ill.

Admin. Code 676.30(p). The program participant orcustomer is the employer of the PA, and is re-sponsible for controlling all aspects of the employ-

ment relationship between the customer and the PA,including, without limitation, locating and hiring thePA, training the PA, directing, evaluating and other-wise supervising the work performed by the PA,imposing . . . disciplinary action against the PA, andterminating the employment relationship betweenthe customer and the PA.Id. at 676.30(b); see alsoid. at 684.20(b) (similar).

Illinois operates two such pro-grams through its Department of Human Services(DHS): (1) the Home Services Program (Rehabilita-tion Program), 20 Ill. Comp. Stat. 2405 et seq.; and(2) the Home Based Support Services Program (Dis-abilities Program), 405 Ill. Comp. Stat. 80/2-1 et seq.

Among other things, these programs subsidize a pro-gram participants costs of employing a provider orpersonal assistant to provide in-home personal care.

1General information about these types of programs can be

found at Janet OKeefe et alUnderstanding Medicaid Home &

Community Services: A Primer, (U.S. Dept of Health & HumanServ., 2010 ed., 29 Oct. 2010) (available at http://aspe.hhs.gov/daltcp/reports/2010/primer10.pdf) (accessed on 21 Nov. 2010).
http://aspe.hhs.gov/%20daltcp/reports/2010/primer10.pdfhttp://aspe.hhs.gov/%20daltcp/reports/2010/primer10.pdfhttp://aspe.hhs.gov/%20daltcp/reports/2010/primer10.pdfhttp://aspe.hhs.gov/%20daltcp/reports/2010/primer10.pdf


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The Rehabilitation Program will pay for those per-sonal assistant services deemed necessary in aphysician-approved service plan. Id. at 684.10,684.50, 686.40. However, [a]lthough DHS shall beresponsible for ensuring that the funds availableunder the [Rehabilitation Program] are administeredin accordance with all applicable laws, DHS shall nothave control or input in the employment relationshipbetween the customer and the personal assistants.

Id. at 676.10(c).

The Disabilities Program operates in a similar

fashion. Persons with disabilities or their guardiansmay employ providers to provide in-home personalcare, and are responsible for their hiring, firing, andsupervision. DHS pays for these in-home services tothe extent permitted by a service plan. See 405 Ill.Comp. Stat. 80/2-6; 59 Ill. Admin. Code 117 et seq.

Petitioners (the Providers) are providers whoserve participants in either the Rehabilitation orDisabilities programs. All but one Provider cares fora disabled family member. Several provide this care

within their own homes.II. The State Compels Personal Assistants to

Support a Representative to Petition theState over Its Rehabilitation Program

In 1985, the Illinois State Labor Relations Boardheld that personal assistants are not public em-ployees of the State under Illinois Public LaborRelations Act. SeeState of Ill. (Dept of Cent. Mgmt.

Serv. & Rehab. Serv.), 2 PERI P 2007 (1985), super-seded by 2003 Ill. Legis. Serv. 93-204. The Board

found that [t]here is no typical employment arrange-ment here, public or otherwise; rather, there simplyexists an arrangement whereby the state of Illinois


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pays individuals (the service providers) to work underthe direction and control of private third parties(service recipients). 2 PERI P 2007, at *2.

On 4 March 2003, former Illinois GovernorBlagojevich issued Executive Order (EO) 2003-08,which called for state recognition of an exclusiverepresentative for personal assistants. (App. 45a).Blagojevichs order asserted that it is essential forthe State to receive feedback from personal assistantsin order to effectively and efficiently deliver homeservices, and that personal assistants cannot effec-

tively voice their concerns about the organization ofthe Home Services Program, their role in the pro-gram, or the terms and conditions of their employ-ment under the Program without representation.(App. 46a).

On 16 July 2003, Governor Blagojevich codified EO2003-08 by signing Illinois Public Act 93-204, 2003Ill. Legis. Serv. 93-204. (App. 40a). The Act recognizedthe right of the persons receiving services defined inthis Section to hire and fire . . . personal assistants or

supervise them within the limitations set by theHome Services Program. 20 Ill. Comp. Stat. 2405/3(f).(App. 44a). Nevertheless, it designated personal as-sistants to be public employees of the State [s]olelyfor the purposes of coverage under the Illinois PublicLabor Relations Act, and for no other purpose,including but not limited to, purposes of vicariousliability in tort and purposes of statutory retirementor health insurance benefits. Id. (emphasis added)(App. 43a-44a); see also 5 Ill. Comp. Stat. 315/3(n)(similar) (App. 41a-42a).

About 26 July 2003, the State designated SEIUHealthcare Illinois-Indiana (SEIU) to be the per-sonal assistants exclusive representative for purpose


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of bargaining with the State over its RehabilitationProgram. The State and SEIU then entered intoagreements that require, among other things, that allpersonal assistants pay compulsory fees to the SEIU.These fees are directly deducted from the Medicaidmonies paid to the assistants for caring for programparticipants. As a result, each year more than 20,000personal assistants in Illinois are forced to pay over$3.6 million to the SEIU to petition the State.

In June 2009, current Illinois Governor Pat Quinnissued EO 2009-15, which is almost identical to EO

2003-08, but targets providers in the DisabilitiesProgram. (App. 48a). It calls for the designation of anexclusive representative for these providers pursuantto either an election or card-check, and is similarlypredicated on the proposition that providers cannoteffectively voice their concerns . . . without repre-sentation. (App. 49a-50a).

Despite Governor Quinns support for mandatoryrepresentation, Disabilities Program providers defeatedefforts by SEIU Local 73 and AFSCME Council 31 to

become their representative in a mail-ballot electionthat concluded on 19 October 2009. However, EO2009-15 remains in effect. These providers thus re-main under threat of the State designating an organi-zation to act as their representative vis--vis theState.

III. Proceedings Below

On 22 April 2010, the Providers filed a class actionlawsuit alleging that the First Amendment prohibitsthe State from compelling them to support a repre-

sentative to petition the State about its Medicaidprograms. On 12 November 2010, the district courtdismissed their complaint. (App. 39a). On 1 Septem-


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ber 2011, the Seventh Circuit affirmed the dismissalon two grounds. (App. 17a).2

First, the court reasoned that, if personal assis-tants can be considered employees of the State,then the case law that permits the designation ofexclusive representatives for public employees con-trols. (App. 9a). The court found that the State can beconsidered the personal assistants joint employer,along with the Medicaid recipients who hire, fire andsupervise them, because the State pays for theirservices and controls what services it will reimburse.

(App. 10-11a). Abood v. Detroit Board of Education,431 U.S. 209 (1977), was thus held to control (id.),despite the courts acknowledgement thatAboodwasnever previously applied in this context. (App. 10a).

Second, the claims of the Providers in the Disabili-ties Program were held to be premature because it ispossible that these Providers will not be compelled tosupport a mandatory representative under EO 2009-15. (App. 15a-16a).

REASONS FOR GRANTING THE WRIT

This case presents the extraordinary circumstanceof citizens being forced to petition a state for morebenefits from a public-aid program through an advo-cate the state itself designated. This is grievouslyoffensive to the First Amendment, which guaranteesall individuals the freedom to choose with whom theyassociate to petition the Government for a redress ofgrievances. U.S. Const. amend. I. Indeed, it turnsthe basic precepts of republican democracy on their

2The district court had jurisdiction over this action pursuant

to 28 U.S.C. 1331 and 1343, and the Seventh Circuit hadjurisdiction pursuant to 28 U.S.C. 1291.


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head. Instead of citizens choosing their representa-tives in government, government chooses representa-tives for its citizens. Given that similar schemes havebeen imposed on care providers in at least a dozenstates, see n.10, infra, immediate review by thisCourt is warranted.

I. The Court of Appeals Has Decided anImportant Federal Constitutional Ques-tion in a Way That Conflicts with ThisCourts First Amendment Decisions byPermitting Illinois to Force Individuals to

Associate for the Sole Purpose of Peti-tioning Government

The First Amendment guarantees individuals theright to associate for the expressive purposes ofspeech and petition[ing] the Government for a re-dress of grievances. U.S. Const. amend. I. Of course,[f]reedom of association . . . plainly presupposes afreedom not to associate. Roberts v. U.S. Jaycees,468 U.S. 609, 622-23 (1984). State compelled associa-tion for expressive purposes is thus subject to strict

constitutional scrutiny.Id. at 623; see also Boy Scoutsof Am. v. Dale, 530 U.S. 640, 648 (2000).

This Court has reviewed the constitutionality ofcompelled expressive association in several contexts.These include government compelling public em-ployees to associate with political parties, Elrod v.

Burns, 427 U.S. 347 (1976); public employees toassociate with unions, Abood, 431 U.S. 209; privategroups to associate with individuals, Roberts, 468U.S. 609, Dale, 530 U.S. 640; attorneys to associatewith bar associations, Keller v. State Bar of Cali-

fornia, 496 U.S. 1 (1990); companies to associatewith marketing cooperatives, United States v. United

Foods, 533 U.S. 405, 411 (2001); and contractors to


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associate with political parties, OHare Truck Servicev. City of Northlake, 518 U.S. 712 (1996).

This case presents a new and pernicious form ofcompelled expressive association in which individualswho provide services to government-aid recipientsare forced to associate with a private organization topetition the government over its subsidies for theservices. Here, personal assistants are simply indi-

viduals whose services to persons with disabilitiesare paid for by a Medicaid program. They are likedoctors, nurses, and other practitioners who care for

Medicaid recipients. Illinois is forcing these personalcare providers to accept and financially support adesignated representative to deal with the State overits Medicaid reimbursement rates and policies.

The State thus compels association for the verypurpose of petition[ing] the Government for a re-dress of grievances within the meaning of the First

Amendment. Cf. Borough of Duryea v. Guarnieri, __U.S. __, 131 S. Ct. 2488, 2495 (2011) ([t]he rightto petition is generally concerned with expression

directed to the government.). It is little differentfrom a state forcing all doctors or hospitals to lobbythe state for greater Medicaid reimbursement ratesthrough a state-appointed lobbyist.

Compelling association for the purpose of petition-ing government inflicts the greatest harm to First

Amendment values. The right to petition [is] one ofthe most precious of the liberties safeguarded by theBill of Rights, and . . . is implied by [t]he veryidea of a government, republican in form. BE & KConstr. Co. v. NLRB, 536 U.S. 516, 524-25 (2002)

(citations omitted); see also Guarnieri, 131 S. Ct. at2494-95, 2498-2500; California Motor Transp. Co. v.Trucking Unlimited, 404 U.S. 508, 510-11 (1972);De


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Jonge v. State of Or., 299 U.S. 353, 364-65 (1937).Indeed, compelling support for an advocacy group isno different from compelling support for a politicalparty, which would be unconstitutional. SeeOHare,518 U.S. at 725-26. In either case, association iscompelled for the purposes of influencing governmentpolicy.

Illinois stated justification for forcing providers topetition it through a State-designated advocatethatproviders supposedly cannot effectively voice theirconcerns . . . without representation, EO 2003-08

(App. 46a); EO 2009-15 (App. 49a)is particularlyabhorrent to the First Amendment. This Court hassteadfastly rejected the paternalistic premise thatexpressive activities can be regulated because per-sons are incapable of deciding for themselves themost effective way to exercise their First Amendmentrights. Riley v. Natl Fedn of the Blind, 487 U.S.781, 790 (1988). The First Amendment mandatesthat we presume that speakers, not the government,know best both what they want to say and how to sayit.Id. at 790-91.

This Court has never upheld compelled subsidiesfor speech in the context of a program where theprincipal object is speech itself. United Foods, 533U.S. at 415. Illinois policy of compelling providers tosubsidize an organization for the purpose of petition-ing the State for more benefits from a Medicaid pro-gram is an affront to fundamental constitutional

values. It demands this Courts immediate attention.


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II. The States Interest in Maintaining LaborPeace in Its Workplaces Does Not Applyto Providers Who Petition the State asCitizens in Public Forums

This Court has found it undeniably unusual for agovernment agency to give a private entity the power,in essence, to tax government employees. Davenportv. Wash. Educ. Assn, 551 U.S. 177, 184 (2007). TheSeventh Circuit has now extended this extra-ordinary power, previously applicable only to actualgovernment employees, id., to individuals whose ser-

vices are merely subsidized by a government pro-gram. This is untenable, as the state interest inlabor peace that makes it constitutional for govern-ment employers to control how their employees peti-tion it in the workplace has no application to careproviders who petition government as citizens inpublic forums.

A. The Labor Peace Rationale Does NotApply to Petitioning Government Out-side the Workplace

[T]here is a crucial difference, with respect toconstitutional analysis, between the government ex-ercising the power to regulate or license, as law-maker, and the government acting as proprietor,to manage [its] internal operation. Engquist v. Or.

Dept of Agric., 553 U.S. 591, 598 (2008) (citationomitted). [T]he State has interests as an employer inregulating the speech of its employees that differsignificantly from those it possesses in connectionwith regulation of the speech of the citizenry in gen-eral. Pickering v. Bd. of Educ., 391 U.S. 563, 568(1968); see also Engquist, 553 U.S. at 598-99; Watersv. Churchill, 511 U.S. 661, 671-74 (1994) (pluralityopinion).


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Among other things, a government employers in-terest in effective human-resources managementgrants it significant authority to control the mannerin which its employees petition it within the work-place.SeeGuarnieri, 131 S. Ct. at 2495-96, 2500-01;cf. Garcetti v. Ceballos, 547 U.S. 410, 422 (2006)(Employers have heightened interests in controllingspeech made by an employee in his or her profes-sional capacity.). Government also has far greaterauthority to regulate expressive activity on its prop-erty, such as within its workplaces, than it does in

public forums. See Perry Educ. Assn v. Perry LocalEducators Assn, 460 U.S. 37, 45-46 (1983); Corneliusv. NAACP Legal Def. & Educ. Fund, 473 U.S. 788,800 (1985).

The government rationale that constitutionally jus-tifies compelling public employees to deal with theiremployer about employment conditions through anexclusive representativethe need for so-called laborpeacearises from a states unique interests inmanaging its employees within its workplaces. Asdescribed in Abood, labor peace is an interest in

avoiding workplace disruptions caused by employeeattempts to petition their employer through multipleorganizations. 431 U.S. at 220-21. Peace is attainedby requiring that all employees deal with their em-ployer about workplace matters through only anexclusive representative.Id.3

3Aboodheld that [t]he designation of a single representative

avoids the confusion that would result from attempting to en-force two or more agreements specifying different terms andconditions of employment. It prevents inter-union rivalries from

creating dissension within the work force and eliminating theadvantages to the employee of collectivization. It also frees theemployer from the possibility of facing conflicting demands fromdifferent unions, and permits the employer and a single union to


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For example, in public schools, the evils that theexclusivity rule . . . was designed to avoid are theconfusion and conflict that could arise if rivalteachers unions, holding quite different views as tothe proper class hours, class sizes, holidays, tenureprovisions, and grievance procedures, each sought toobtain the employers agreement. Id. at 224. Theexclusion of the rival union may reasonably beconsidered a means of insuring labor-peace withinthe schools, as it serves to prevent the Districtsschools from becoming a battlefield for inter-union

squabbles.Perry,460 U.S. at 52 (citation omitted).Whatever its merits within a workplace, the labor

peace rationale has no application outside of it. Thevery essence of democratic pluralism is that citizenscan make competing demands on their governmentthrough multiple associations. That is a core rightprotected by the First Amendment:

[T]he practice of persons sharing common viewsbanding together to achieve a common end isdeeply embedded in the American political pro-

cess. . . . Its value is that by collective effortindividuals can make their views known, when,individually, their voices would be faint or lost.The Court has long viewed the First Amendmentas protecting a marketplace for the clash of dif-ferent views and conflicting ideas. That concepthas been stated and restated almost since theConstitution was drafted.

Citizens Against Rent Control v. City of Berkeley, 454U.S. 290, 294-95 (1981); see also NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 907-11 (1982).

reach agreements and settlements that are not subject to attackfrom rival labor organizations. 431 U.S. at 220-21.


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States have no legitimate interest in forcingsimilarly-situated citizens to petition their govern-ment through one designated representative in orderto quell their disparate demands. To permit one sideof a debatable public question to have a monopoly inexpressing its views to the government is the anti-thesis of constitutional guarantees. City ofMadison

Joint Sch. Dist. v. Wis. Empt Relations Commn, 429U.S. 167, 175-76 (1976).

This is true even if competing demands fromdiverse groups might be disruptive to government, as

expressive association to influence public affairscannot be lawfully suppressed absent extraordinarycircumstances. SeeDe Jonge, 299 U.S. at 364-65;(unconstitutional for state to prevent assembly to in-fluence public affairs, absent threat of violent over-throw of government); Claiborne Hardware, 458 U.S.at 908-11 (unconstitutional for state to sanction non-

violent boycotts and protests). The First Amendmentdemands tolerance for verbal tumult, discord, andeven offensive utterance, as necessary side effects of. . . the process of open debateCohen v. California,

403 U.S. 15, 24-25 (1971); see also Snyder v. Phelps,__ U.S. __, 131 U.S. 1207, 1219 (2011) (speech inpublic place on matter of public concern cannot besuppressed because it is upsetting). Moreover, [t]hegovernments interest in achieving its goals as effec-tively and efficiently as possible is . . . a relativelysubordinate interest when it acts as sovereign, asopposed to a significant one when it acts as em-ployer.Engquist, 553 U.S. at 598-99 (quoting Waters,511 U.S. at 675); see also Riley, 487 U.S. at 795 (theFirst Amendment does not permit the State to sacri-

fice speech for efficiency).


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In short, while government may have a legitimateinterest in using exclusive representation to attainlabor peace amongst its employees in the work-place, government has no analogous interest in usingsuch means to impose political peace on citizens inpublic forums.

B. Illinois Has No Labor Peace Interestin Quelling Competing Demands fromProviders Because They Petition theState Not as Employees in a Govern-ment Workplace But as Citizens inPublic Forums

The labor peace justification for forced unionismamongst employees has no application to providersbecause, if they petition the State for changes to itsMedicaid programs through multiple organizations,this will occur inpublic forumsand in their capacityas citizens. This expressive activity cannot impair theefficiency of internal State operations. Indeed, theState complains about an ostensible lack of effectivepetitioning by providers, not unrest caused by disrup-

tive petitioning from various associations of them.See EO 2003-08 (positing that personal assistantscannot effectively voice their concerns to the Statewithout representation) (App. 46a); EO 2009-15(same) (App. 49a). Even if provider petitioning of theState were somehow disruptive, Illinois has no lawfulinterest in quelling their diversity of expressive asso-ciation by forcing them to petition the State throughone designated organization.

First, providers do not work in government work-places like public employees, but rather in theprivate homes of persons with disabilities. Thus, pro-

viders cannot disrupt the harmony of a governmentworkplace by making competing demands on the State,


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as could public employees doing the same in a Stateworkplace. Cf.Perry,460 U.S. at 52 (describing laborpeace interest in preventing schools from becoming abattlefield for inter-union squabbles). If providerspetition the State for changes to its Medicaid pro-grams, this expressive activity will occur in public

forums. The State has no lawful interest in quellingthe constitutional right of providers or anyone elseto make disparate demands on the State throughdiverse associations in public forums.

Not only is the labor peace problem inapplicable in

public forums, but so is its solution: exclusivity ofrepresentation. It may be possible for a state em-ployer to free itself from the possibility of facingconflicting demands from different unions within itsworkplace by exclusively dealing with one union,as it can exclude rival unions from its privateproperty. Abood, 431 U.S. at 221; cf.Perry,460 U.S.at 52. But states cannot truly grant any organizationthe exclusive right to petition it in public forums,as rival groups cannot lawfully be excluded frompublic forums or otherwise prevented from petition-

ing government. The labor peace interest is not onlyincognizable in public forums, it is unattainable.

Second, providers act as citizens petitioning theirState as sovereign when seeking changes to IllinoisMedicaid programs, just as doctors and nurses dowhen seeking the same. This expressive activity isnot that of a servant speaking to a master, or anemployee presenting a grievance to management,because providers are not managed by the State.They are directed by the person with disabilities who

employs them. Thus, if providers choose to petitionthe State for greater Medicaid reimbursement rates,they do so on their own time and in their capacity as


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citizens. This expressive activity cannot create mana-gerial problems for the State. Even if it could, Illinoishas no more legitimate interest in using exclusiverepresentation to quell the right of providers to peti-tion the State through diverse associations than itwould in using these means to quell the right ofdoctors or hospitals to lobby the State for greaterMedicaid reimbursement rates through diverse asso-ciations.

Notably, these two factors often define and limitgovernments authority to regulate the expressive

activities of its true employees.See Guarnieri, 131 S.Ct. at 2500-01; Garcetti,547 U.S. at 417-20. Limita-tions on public employees ability to petition theirgovernment employer in their capacity as employeesand within the workplace have been upheld when

justified by legitimate management interests.4

4See Abood, 431 U.S. 209 (public employees can constitution-

ally be required to subsidize an exclusive representatives costsof dealing with their employer on employment conditions); PerryEduc. Assn, 460 U.S. 37 (public employer can constitutionallyexclude rival union from using interschool mail system); cf.Garcetti, 547 U.S. at 420-21 (constitutional for public employerto discipline employee for communication made pursuant to his

official duties and within the workplace);Connick v. Myers,

461U.S. 138, 153 (1983) (constitutional for public employer to dis-cipline employee for creating and circulating a communicationwithin office, on work time, that disrupted the workplace).

Incontrast, regulation of public employees right to peti-tion their government employer in their capacity ascitizens and in public forums has been held uncon-stitutional. See City of Madison, 429 U.S. at 174-76(unconstitutional to prohibit public employees who

were represented by a union from petitioning state


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employer in public forum).

5

Thus, even public employees cannot be compelledto support union efforts to lobby government aboutpublic programs that affect them, due in part to theinapplicability of the labor peace interest in publicforums:

AsAboodrecognized, theprinciple of exclusivity cannot constitutionally beused to muzzle a public employee who, like any othercitizen, might wish to express his view about govern-mental decisions. 431 U.S. at 230.

Labor peace is not especially served by allowing[unions to charge employees for its lobbyingexpenses] because, unlike collective-bargainingnegotiations between union and management,our national and state legislatures, the media,and the platform of public discourse are public

foraopen to all. Individual employees are free topetition their neighbors and government in oppo-sition to the union which represents them in theworkplace.

Lehnert v. Ferris Faculty Assn, 500 U.S. 507, 521

(1991) (emphasis added) (plurality opinion); accordid.at 559 (Scalia, J.) (unconstitutional to compel pub-lic employees to support union lobbying activities).Moreover, [t]he burden upon freedom of expressionis particularly great where . . . the compelled speechis in a public context.Id. at 522. The First Amend-ment protects the individuals right of participationin these spheres from precisely this type of invasion.

Id.

5Cf., e.g., Pickering, 391 U.S. at 571-72 (unconstitutional todiscipline public school teacher for criticizing his governmentemployers policies in a public forum);Perry v. Sindermann, 408U.S. 593 (1972) (similar).


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Here, providers that petition for changes to IllinoisMedicaid programs necessarily act as citizens in pub-lic forumsand not as employees in a governmentworkplacebecause they are neither managed by theState nor work in State workplaces. Illinois has nocognizable interest in avoiding the possibility of fac-ing conflicting demands, Abood, 431 U.S. at 221,from multiple groups of providers or any othercitizens in this context. Accordingly, the labor peaceinterest that justifies compulsory representation foremployees in the workplace has no application to

personal care providers.

6

C. The Seventh Circuits Application ofAbood to Providers Is Flawed andInconsistent with This Courts Decisionin OHare

The Seventh Circuit erred in concluding that theapplicability of Abood and the labor peace interestturns on whether providers can generically be consi-dered State employees in some sense. (App. 9a,13a). This Court has refused to make constitutionalrights dependent on such labels, which [are] at besta very poor proxy for the interests at stake. OHare,518 U.S. at 721 (citation omitted) (service providersconstitutional claim for violation of freedom of asso-ciation does not turn on whether he is deemed anemployee or independent contractor).7

6A simple example proves the point. If two organizations rep-resenting personal assistants lobbied the State for differentchanges to its Rehabilitation Program, does the State haveany lawful interest in quelling this diverse expressive activitythrough the imposition of an exclusive representative? Basic

constitutional principles dictate that the answer to this questionis no.7 To the extent relevant, providers are not State employees

under the common law factors delineated in Community for


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The lower courts error is particularly apparentfrom its finding it constitutionally dispositive thatproviders are like employees in that the State con-trols how much they are paid to perform certainservices. (App. 13a). But that fact alone does not

justify infringing on providers First Amendmentrights. Nor does it logically make the labor peacerationale applicable to providers. Government cannotcompel association merely because it pays for some-ones services. The same could equally be said of allgovernment contractors or providers of services to

public-aid recipients.In OHare, this Court rejected the proposition that

a service providers constitutional claims depend onthe degree to which it is dependent on governmentincome. 518 U.S. at 722-23. If results were to turnon these sorts of distinctions, courts would have toinquire into the extent to which the governmentdominates various job markets as employer or ascontractor. Id. We have been, and we remain, un-willing to send courts down that path. Id. at 723.

Yet, that is the path that the Seventh Circuit tra-

veled down here.

Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989).Illinois itself does not consider personal assistants to be itsemployees except for the sole purpose of collectivization. 20 Ill.Comp. Stat. 2405/3(f). It is not even completely accurate todescribe providers as State contractors, as they do not contractdirectly with the State, but rather with the persons with dis-abilities who hire and employ them. As the Illinois State LaborRelations Board accurately recognized inDepartment of CentralManagement Services: [t]here is no typical employment ar-

rangement here, public or otherwise; rather, there simply existsan arrangement whereby the state of Illinois pays individuals(the service providers) to work under the direction and control ofprivate third parties (service recipients). 2 PERI P 2007, at *2.


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The constitutionally relevant distinctions betweenproviders and public employees relate to theirexpres-sive activityhere, the manner in which they petitiongovernmentand the State interests, if any, in con-trolling that expressive activity. As established above,providers differ from public employees in this control-ling respect. A provider petitioning the State forchanges to its Medicaid program is simply not theexpressive equivalent of an employee presenting agrievance to management in the workplace. TheSeventh Circuits decision to the contrary must be

reversed.III. This Case Is of Exceptional Importance

Because Compulsory Advocates HaveBeen, and Could Be, Imposed on ManyOther Medicaid Providers and OtherRecipients of Government Monies

1. The implications of the lower courts extension ofcompulsory representation to individuals whose ser-

vices are merely paid for by government are stagger-ing. In the field of home personal care alone, 48

states and the District of Columbia operated 314home and community based service programs pur-suant to a Medicaid-waiver, and 36 states coveredpersonal care under their traditional Medicaid stateplan.8 Programs in at least 37 of these states areparticipant directed, like Illinois Rehabilitationand Disabilities Programs.9

All providers that serve the beneficiaries of theseprograms are now constitutionally susceptible to

8SeeOKeefe, supraat 29, 26.9See OKeefe, supra at 178; see also id. at 181 (self-directed

state Medicaid programs that provide for home-based servicesexist in 32 states).


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being forced to accept mandatory representationunder the lower courts ruling. Indeed, twelve (12)states have already passed laws or issued executiveorders authorizing the collectivization of persons whoprovide home care to Medicaid recipients, thoughsome of these provisions have since been repealed.10

If government can impose mandatory advocates onpersonal care providers, it can constitutionally do thesame to others who provide services to Medicaid orMedicare recipients. This includes not only physi-cians and nurses, but also entities such as hospitals

and nursing homes. For example, Oregon and Wash-ington are already forcing those who operate fosterhomes for persons with disabilities to support a rep-resentative to bargain with the state over Medicaidreimbursement rates for that service.

11

No discernible principle limits compulsory repre-sentation to the healthcare industry. Any person orentity whose services are subsidized by a governmentprogram could be targeted. Contractors who performservices directly for government, such as construction

or maintenance, are an obvious example. Even thosewho merely serve public-aid recipients are at risk.

10Cal. Welf. & Inst. Code, 12301.6(c)(1); Conn. Exec. Order

10 (21 Sept. 2011); 20 Ill. Comp. Stat. 2405/3(f); Mass. Gen.Laws ch. 118G, 31(b); Md. Code Ann. art. 9, 15-901 et seq.;Interlocal Agreement between Mich. Dept of Cmty. Serv. & theTri-County Aging Consortium (10 June 2004); Mo. Rev. Stat. 208.862(3); Ohio House Bill 1, 741.01-.06 (17 July 2009)(expired); Or. Const. art. XV, 11(f); Or. Rev. Stat. 410.612;

Pa. Exec. Order 2010-04 (14 Sept. 2010) (rescinded); Wash. Rev.Code 74.39A.270; Wis. Stat. 111.81 et seq. (repealed).

11Or. Rev. Stat. 443.733; Wash. Rev. Code 41.56.029.


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This harm is not hypotheticalsixteen (16) stateshave already passed laws or issued executive ordersthat authorize compulsory representation for smallbusinesses and individuals that provide daycare toindigent children whose care is partially subsidizedby state childcare programs.12

2. The Seventh Circuit attempted to downplay these

ramifications, asserting that its holding is limited topersonal assistants in the Rehabilitation Program.(App. 13a). This alone has broad ramifications giventhat similar programs exist in almost every state.The court acknowledges that, given our holding asto the Rehabilitation Program, the constitutionalclaim of providers in the Disabilities Program willnot last long if later adjudicated. (App. 17a).

As with personal careproviders, daycare providers are being compelledto petition states for greater subsidies for caringfor public-aid recipients through state-designatedadvocates.

The implications of the lower courts holding areactually more expansive given its sweeping rationale

that: (1) Abood controls if a state can be labeled ajoint employer, and (2) a state is a joint employer

12Conn. Exec. Order 9 (21 Sept. 2011); 5 Ill. Comp. Stat.

315/3, 315/7; Iowa Exec. Order 45 (16 Jan. 2006); Kan. Exec.Order No. 07-21 (18 July 2007); Me. Rev. Stat. Ann. tit. 22, 8308(2)(C); Md. Code Ann. art. 5, 5-595 et seq.; InterlocalAgreement Between Mich. Dept of Human Serv. & Mott Cmty.College (27 July 2006) (repealed); Minn. Exec. Order 11-31 (15Nov. 2011); N.M. Stat. 50-4-33; N.J. Exec. Order 23 (2 Aug.2006); N.Y. Exec. Order No. 12 (11 May 2007); Ohio House Bill1, 741.01-.06 (17 July 2009) (expired); Or. Rev. Stat. 657A.430;Pa. Exec. Order 2007-06 (14 June 2007); Wash. Rev. Code 41.56.028; Exec. Budget Act, 2009 Wis. Act 28, 2216j (codi-fied at Wis. Stat. 111.02 et seq.) (repealed).


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if it pays for the provision of defined services, evenif the provider of those services is hired, fired,managed, and employed by someone else. (App. 9a-11a, 13a).

This standard could encompass other healthcareproviders paid under a fee-for-service Medicaid orMedicare program. For example, patients may selecttheir physicians under Medicare Part B. 42 U.S.C. 1395a. But physicians and other healthcare practi-tioners must enroll in the program subject to numer-ous conditions to receive payment. See 42 C.F.R.

424.500-424.565. The federal government controlswhich services it will subsidize,13

This Court has granted review on the grounds ofimportance when a case addresses the constitutional-ity of a statute or practice that exists in multiplestates.See, e.g., Pharmaceutical Research & Mfrs. of

Am. v. Walsh, 538 U.S. 644, 650 (2003);Smith v. Doe,

and sets the rate ofpayment via a fee schedule. See 42 C.F.R. 414.1414.68. These are the very factors that the SeventhCircuit found dispositive in concluding that personalassistants are jointly-employed by Illinois. (App.10a-11a). Under the courts expansive standard, anyphysicians or practitioners who care for a Medicarepatient could be deemed a joint employee of thefederal government, and thus susceptible to theimposition of a compulsory representative to deal

with their ostensible federal joint employer over itsMedicare rates.

13Medicare Part B pays for only certain covered services, 42

C.F.R. 424.5(a)(1), many of which must be certified as medi-

cally necessary.Id.

424.24. Home healthcare and outpatientrehabilitation services must also be furnished according to anapproved treatment plan, just as under Illinois RehabilitationProgram.Id. 424.22(a)(1)(iii); 424.27(a)(3).


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538 U.S. 84, 89-90, 92 (2003); Nixon v. Shrink Mo.Govt PAC, 528 U.S. 377, 385 (2000) New York v.Ferber, 458 U.S. 747, 749 n.2 (1982). This Courtsguidance regarding the constitutionality of a practicethat infringes on core First Amendment rights thathas already been implemented in many states, andthat could be implemented in a myriad of formsthroughout the nation, is required.

IV. This Case Is of Exceptional ImportanceBecause Compelled Association to Peti-tion Government Is Antithetical to thePrinciples of Democratic Pluralism Pro-tected by the First Amendment

It is imperative that this Court not permit govern-ments to impose compulsory advocates on those whoserve government-aid recipients. The right to petitionis not only a fundamental personal liberty, but isintegral to the democratic process, Guarnieri, 131S. Ct. at 2495. As this Court recognized in United

Foods, First Amendment values are at serious risk ifthe government can compel a particular citizen, or a

discrete group of citizens, to pay special subsidies forspeech on the side that it favors.533 U.S. at 411.

Foremost, it distorts the democratic process forgovernment to artificially empower special interestgroups that support a particular policy agenda. Advo-cacy groups that individuals are conscripted to sup-port will have resources that far exceed the true and

voluntary degree of support that exists for the groupand its agenda. This power is further amplified bythe government designating the advocacy group asthe official representative of others, and grantingit special privileges in dealing with governmentalbodies no others enjoy. Here, Illinois is forcing ap-proximately 20,000 personal assistants to annually


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pay over $3.6 million to support the SEIU as theirexclusive representative for petitioning the State overits Medicaid policies, irrespective of whether theysupport that groups agenda or not. Governmentcreation of such artificially powerful lobbying forceson one side of an issue inherently skews the market-place for the clash of different views and conflictingideas that this Court has long viewed the First

Amendment as protecting. Citizens Against RentControl, 454 U.S. at 295.

This, in turn, undermines the First Amendments

purpose of ensuring that government is responsive tothe will of its citizens.See De Jonge, 299 U.S. at 365.The constitutional safeguard . . . was fashioned toassure unfettered interchange of ideas for the bring-ing about of political and social changes desired bythe people. New York Times Co. v. Sullivan, 376U.S. 254, 269 (1964) (quoting Roth v. United States,354 U.S. 476, 484 (1957). The right to petition, inparticular, was fashioned to allow[ ] citizens to ex-press their ideas, hopes, and concerns to theirgovernment and elected representatives. Guarnieri,

131 S. Ct. at 2495.

Government policy cannot be responsive to the truewill of citizens when government dictates throughwhom they must speak, and to whom the governmentwill listen. As Judge Learned Hand aptly stated,[t]he First Amendment . . . presupposes that rightconclusions are more likely to be gathered out ofa multitude of tongues, than through any kind ofauthoritative selection. Sullivan, 376 U.S. at 270(quoting United States v. Associated Press, 52 F.

Supp. 362, 372 (S.D.N.Y. 1943)).In short, the political collectivism that lies at the

heart of Illinois schemein which government dic-


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tates one association through which those affected bypublic programs must petition governmentis anti-thetical to principles of democratic pluralism that theFirst Amendment protects. It must not be permittedto stand.

V. The Seventh Courts Holding That theClaims of Providers in the DisabilitiesProgram Are Not Ripe Conflicts withDecisions of This Court and AnotherCircuit

The Seventh Circuit erred in concluding that theclaims of Petitioners in the Disabilities Program arenot ripe for review. (App. 15a). Their cause of actionto enjoin enforcement of EO 2009-15 was ripe fromthe moment Governor Quinn signed it, as the Execu-tive Orders sole purpose is to authorize mandatoryrepresentation for these Providers. (App. 49a-51a).Short of a bill of attainder, it is difficult to envision aregulation that more directly targets a discrete groupof persons.

The lower courts speculation that the Providers

may not be forced to support a representative underEO 2009-15 proves too much. (App. 15a). TheseProviders will not be collectivized right up untilthe very moment that they are. Under the courtsrationale, the claims of the Providers in the Disabili-ties Program will not be ripe until after they sufferconstitutional injury. That result conflicts with thisCourts long established holding that [o]ne does nothave to await the consummation of threatened injuryto obtain preventive relief. Pennsylvania v. WestVirginia, 262 U.S. 553, 593 (1923).

In Mulhall v. UNITE HERE Local 355, 618 F.3d1279 (11th Cir. 2010), the Eleventh Circuit rejectedthe proposition that an individual (Mulhall) lacked


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standing to enjoin enforcement of an agreementintended to facilitate his unionization because it waspossible that he would never be unionized. Id. at1285. Contrary to the Seventh Circuits decision here,the court there recognized that a probabilistic harmis a cognizable injury for purposes of standing, andthat the agreement will substantially increase thelikelihood that Mulhall will be unionized against hiswill.Id. at 1289 (citation omitted). Here, EO 2009-15dramatically increases the chances that DisabilitiesProviders will be forced to support a representative in

violation of their rights. Indeed, it is only because ofEO 2009-15 that the Providers are under this threatat all.

The First Amendment exists to protect individualrights from the tyranny of the majority.SeeSullivan,376 U.S. at 270. The Seventh Circuit disregarded theProviders interests in not having their constitutionalright to free association put to repeated votes underEO 2009-15. For these reasons, the Court should alsogrant review on the second question presented.


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CONCLUSIONA political system predicated on citizens choosing

their representatives in government cannot tolerategovernment choosing representatives for its citizens.Illinois policy of compelling personal care providersto support a particular advocate to petition the Stateabout its Medicaid programs must be recognized asunconstitutional under the First Amendment. Other-wise, similar policies will continue to spread through-out the nation. The petition for writ of certiorarishould be granted.

Respectfully submitted,

29 November 2011

WILLIAM L.MESSENGERCounsel of Record

c/oNATIONAL RIGHT TOWORK LEGAL DEFENSEFOUNDATION,INC.

8001 Braddock RoadSuite 600Springfield, VA 22160(703) 321-8510

[email protected]

Counsel for Petitioners


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APPENDICES


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APPENDIX A

UNITED STATES COURT OF APPEALS,SEVENTH CIRCUIT

No. 10-3835

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

v.

GOVERNOR PAT QUINN,IN HIS OFFICIAL CAPACITYAS GOVERNOR OF THE STATE OF ILLINOIS,et al.,

Defendants-Appellees.

Argued June 9, 2011Decided Sept. 1, 2011

Before MANION, WOOD, and HAMILTON, CircuitJudges.

MANION, Circuit Judge.

The plaintiffs in this appeal provide in-home carefor people with varying levels of disabilities and otherhealth needs. They present a narrow question: Does acollective bargaining agreement that requires Medi-caid home-care personal assistants to pay a fee to aunion representative violate the First Amendment,regardless of the amount of those fees or how theunion uses them? We hold that it does not. Becausethe personal assistants are employees of the State of

Illinois, at least in those respects relevant to collec-tive bargaining, the unions collection and use of fairshare fees is permitted by the Supreme Courts man-


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datory union fee jurisprudence inRailway EmployeesDept v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed.1112 (1956), and Abood v. Detroit Bd. of Educ., 431U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977).However, we lack jurisdiction to consider the claimsof plaintiffs who have opted not to be in the union.Because they are not presently subject to mandatoryfair share fees, their claims are not ripe.

I.

The plaintiffs in this case all provide in-home care

to disabled individuals through Medicaid-waiver pro-grams run by the Illinois Department of HumanServices. Some are part of the Home Services Pro-gram administered by the Division of RehabilitationServices. The others are part of the Home BasedSupport Services Program administered by the Divi-sion of Developmental Disabilities. We will call thesegroups the Rehabilitation Program plaintiffs andDisabilities Program plaintiffs respectively.

A. Home-Based Medicaid Waiver Program Features

These programs subsidize the costs of home-basedservices for disabled patients who might otherwiseface institutionalization. The programs offer flexibilityand self-direction for services that are tailored topatients individual needs. In the Rehabilitation Pro-gram, each patient works with a counselor to developan individual service plan, which specifies the typeof service(s) to be provided to the patient, the specifictasks involved, the frequency with which the specifictasks are to be provided, the number of hours eachtask 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 patientsphysician and approved by the State.Id. 684.10.


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Once a counselor identifies the type of personalassistant the patient needs for the service plan, thepatient is free to select almost any personal assistantwho meets the qualifications set by the State. Id. 684.20, 684.30 The State, in turn, requires per-sonal assistants to comply with age and work-hourlimitations, provide written or oral recommendationsfrom past employers, have related work experience ortraining, and satisfy the patient and counselor thatthey can communicate and follow directions. Id. 686.10. Personal assistants sign employment agree-

ments directly with patients, although the terms ofthe agreement are set by the State.Id.The State setswages and pays personal assistants directly, with-holding Social Security as well as federal and statetaxes.Id. 686.10, 686.40.

The Disabilities Program functions similarly. Eachpatient works with a State service facilitator to de-

velop a service/treatment plan. 59 Ill. Admin. Code117.120, 117.225(a). The State then pays for servicesprovided under the plan, including personal care ser-

vices. Id. at 117.215. The record is much less devel-

oped on the exact relationship between the State andthe Disabilities Program personal assistants. And forgood reason: the district court dismissed the claimson jurisdictional grounds, so no court has yet consi-dered the merits of those claims.

1

1 The details of the relationship between the State and the

Disabilities Program personal assistants are unimportant for

this appeal. As elaborated infra, we agree with the district court

that the Disabilities Program claims are not yet ripe. But even if

the claims were ripe, we would not consider the merits at thisstage because the defendants have not cross-appealed seeking

an expanded judgment on the merits. See Greenlaw v. United

States, 554 U.S. 237, 128 S.Ct. 2559, 2564, 171 L.Ed.2d 399


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B. Rehabilitation Program UnionizationIn the mid-1980s, personal assistants in the Reha-

bilitation Program sought to unionize and, under theIllinois Public Labor Relations Act, collectively bargainwith the State. The State Labor Relations Board,however, found that the personal assistants were in aunique employment relationship and that it lacked

jurisdiction over that relationship because the Statewas not their sole employer. The personal assistantsthus could not unionize until 2003, when the IllinoisPublic Labor Relations Act was amended to designate

personal care attendants and personal assistantsworking under the Home Services Program as Stateemployees for purposes of collective bargaining. 20Ill. Comp. Stat. 2405/3. Then-Governor Blagojevichissued an executive order directing the State to recog-nize an exclusive representative for RehabilitationProgram personal assistants if they designated oneby majority vote and to engage in collective bargain-ing concerning all employment terms within theStates control. According to the Governor, this wasimportant because each patient employed only one or

two personal assistants. Thus, only the State couldcontrol the economic terms of employment and thewidely dispersed personal assistants could not effec-tively voice their concerns about the program ortheir employment terms without representation.

Later that year, a majority of the approximately20,000 Rehabilitation Program personal assistants

voted to designate SEIU Healthcare Illinois & Indianaas their collective bargaining representative with the

(2008) (Under that unwritten but longstanding rule, an appel-

late court may not alter a judgment to benefit a nonappealing

party. . . . [without] a cross-appeal.).


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D. Current LitigationThe following year, the personal assistants from

both groups filed a two-count complaint against theGovernor and the three unions involved. The Reha-bilitation Program plaintiffs claimed that the fairshare fees they were required to pay violated theFirst Amendment by compelling their associationwith, and speech through, the Union. The DisabilitiesProgram plaintiffs argued that although they did notyet pay fees, they are harmed by the mere threat ofan agreement requiring fair share fees. The district

court dismissed the Rehabilitation Program plain-tiffs claims for failure to state a claim upon whichrelief could be granted. It dismissed the DisabilitiesProgram plaintiffs claims for lack of subject matter

jurisdiction because they lacked standing and theirclaims were not ripe. The plaintiffs appeal both dis-missals.

II.

The two sets of plaintiffs in this case stand invery different positions. The Rehabilitation Program

plaintiffs are currently subject to a collective bar-gaining agreement that requires them to pay fairshare fees to their union representative. The Disabili-ties Program plaintiffs have successfully rejected un-ionization and are not subject to fair share fees, butfear that may change at any time. This difference hasimportant consequences: we have jurisdiction to con-sider the Rehabilitation Program plaintiffs claims,which we discuss in the first part of the analysis. Butwe must dismiss the Disabilities Program plaintiffsclaims for lack of jurisdiction because they are not

ripe for adjudication. We explain these holdings inorder.


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A. Rehabilitation Program ClaimsThe Rehabilitation Program plaintiffs mount a

facial challenge to the fair share fees. That is, they donot allege that the actual fees collected are too highor that the fees are being used for purposes otherthan collective bargaining.

3

We first set out the controlling precedent. TheSupreme Court has long approved collective bargain-ing agreements that compel even dissenting, non-union members to financially support the costs of

collective bargaining representation, as well as otherclosely related costs, as long as they are not used tosupport political candidates or views, or other ideo-logical causes. First in Railway Employees Dept v.

Hanson, the Court refused to enjoin a union shopagreement between a railroad company and a unionthat required all employees of the railroad to becomenominal, dues-paying members of the union as a con-

Their only argumentis that they may not be forced to financially supportcollective bargaining with the State under anycircumstances. They present a two-step argument.First, they argue that this case does not fall underthe line of Supreme Court cases permitting manda-

tory fees to support collective bargaining representa-tion because personal assistants are employed byindividual Medicaid patients, not the State. Second,they argue that no compelling state interests justifyextending these collective bargaining cases to reachpersonal assistants.

3The plaintiffs do argue that in the Medicaid context, collec-

tive bargaining with the State amounts to political advocacy.

The Supreme Court has rejected this argument in the employmentcontext, so it falls with our conclusion that personal assistants

are State employees.See generally, Abood, 431 U.S. 209, 97 S.Ct.

1782.


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dition of employment.

4

Then, in Abood v. Detroit Bd. of Educ., the Courtextended the scope of its holding inHansonto includepublic employees and attempted to set out limits onthe use of fees collected from dissenting employees.431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261. It heldthat an agency shop clause in an agreement betweenthe Detroit Board of Education and its teachers unioncould require teachers who were not union members

to financially support the unions collective bargaining,contract administration, grievance-adjustment proce-dures, and other activities germane to its duties as

351 U.S. at 227, 76 S.Ct. 714.Although a right to work provision in the NebraskaConstitution outlawed such agreements, the Courtheld that the federal Railway Labor Act permittedunion shop agreements and thus superseded statelaw to the contrary. Along the way, it held that thisprovision of the Act was justified by Congresss inter-est in supporting industrial peace and stabilizedlabor-management and in distributing the costs ofcollective bargaining to all those who benefit from it.

Id. at 234, 238, 76 S.Ct. 714. It declined to consider

hypothetical First Amendment issues that might ariseif the union engaged in partisan or ideological speech.Id.at 238, 76 S.Ct. 714.

4In a union shop, an employer may hire nonunion employees

on the condition that they join a union within a specified time;

in an agency shop, discussed below, a union acts as an agent

for the employees, regardless of the union membership. Blacks

Law Dictionary 1504 (9th ed.2009). The Supreme Court has

treated union and agency shops as practical equivalent[s].See

Abood, 431 U.S. at 219 n. 10, 97 S.Ct. 1782. In an open shop,

union membership is permitted but is not a condition of securingor maintaining employment. Under a state right-to-work law,

employees are not to be required to join a union as a condition

of receiving or retaining a job.Blacksat 1504.


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collective-bargaining representative.Id.at 232, 235,97 S.Ct. 1782. Since Abood, the Court has continuedto refine its approach to the appropriate use of feesfrom non-union members in Chicago Teachers Unionv. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d232 (1986) (outlining appropriate procedures to protectnon-member fees), and Lehnert v. Ferris Faculty

Assoc., 500 U.S. 507, 111 S.Ct. 1950, 114 L.Ed.2d 572(1991) (elaborating specific charges that can andcannot be funded with union donations). But it hasnot wavered from its position that, as a general

matter, employees may be compelled to support legi-timate, non-ideological, union activities germane tocollective-bargaining representation.

Against this backdrop, we next consider whetherthe personal assistants are, as the defendants contend,State employees. If so, this case is controlled by

Abood and the plaintiffs claims fail. As an initialmatter, we note that we pay no particular heed to theState legislatures designation of personal assistantsas State employees solely for purposes of collectivebargaining under Illinois law.See20 Ill. Comp. Stat.

2405/3(f). The label affixed by a state, whether instatute, regulation, or order, is not sufficient to desig-nate the relationship employment. Whether some-one is an employee of the state has a host of implica-tionsunder both state and federal lawbeyondwhether mandatory union fees are permitted. Be-cause of this, the Illinois legislature may have desig-nated personal assistants as employees or not forreasons entirely unrelated to compelled speech underthe First Amendment. Rather than accept eitherpartys characterization of the relationship, we must

consider the relationship itself and decide whetherthe State is an employer for purposes of compellingsupport for collective bargaining.


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Two sources inform our analysis. First, neitherHansonnorAbooddiscusses the definition of employer,so we will assume the Court meant to give the wordits ordinary meaning: A person who controls anddirects a worker under an express or implied contractof hire and who pays the workers salary or wages.

Blacksat 604. Second, we draw from labor relationslaw the notion that more than one person or companymay be an individuals employer. Cf. Boire v. Grey-hound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 11L.Ed.2d 849 (1964) (discussing joint employment de-

termination by NLRB);DiMucci Const. Co. v. NLRB,24 F.3d 949, 952 (7th Cir.1994) (listing factors courtsconsider in reviewing an NLRB determination of jointemployment). We are aware of no cases specificallydiscussing Abood in a joint-employment situation.But it is not an uncommon situation for a singleindividual to find himself with more than one em-ployer for the same job. This undermines the plain-tiffs attempt to distinguish between the typicalemployer-employee relationship, on one hand, andevery other imaginable labor relationship, on the

other. Thus, both the home-care patient and theState may be employers if they each exercise signifi-cant control over the personal assistants.

And in the Rehabilitation Program, the State doeshave significant control over virtually every aspect ofa personal assistants job. While the home-care reg-ulations leave the actual hiring selection up to thehome-care patient, the State sets the qualificationsand evaluates the patients choice. 89 Ill. Admin.Code 686.10. And while only the patient may tech-nically be able to fire a personal assistant, the State

may effectively do so by refusing payment for servicesprovided by personal assistants who do not meet theStates standards.Id. 677.40. When it comes to con-


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trolling the day-to-day work of a personal assistant,the State exercises its control by approving a manda-tory service plan that lays out a personal assistants

job responsibilities and work conditions and annuallyreviews each personal assistants performance. Id. 686.10, 686.30. Finally, the State controls all ofthe economic aspects of employment: it sets salariesand work hours, pays for training, and pays allwagestwice a month, directly to the personal assis-tant after withholding federal and state taxes. Id.Inlight of this extensive control, we have no difficulty

concluding that the State employs personal assis-tants within the meaning ofAbood.

The plaintiffs raise two objections. First, they claimthat the patient, not the State, employs them. But aswe have explained, even if the patient is properlyconsidered an employer, that would not prevent theState from being a joint employer. Second, they arguethat, however we characterize the States relation-ship with personal assistants, the interests in collec-tive bargaining that Abood identified does not applyhere. They claim that the differences between the

personal assistants here and the typical employmentsituation at issue in Abood undermine the Statesclaimed interest in labor peace. Specifically, theplaintiffs characterize Aboods labor peace interestthus: that disruptions caused by diverse employeeexpressive association within a workplace could besolved by giving a union a monopoly over employeespeech vis--vis their employer. Pl. brief at 20. Thus,they assert that because the personal assistants areoutside the workplace and they cannot be compelled


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to speak to the State with a single voice, the laborpeace interest does not apply.5

We do not accept the plaintiffs narrow characteri-zation of the labor peace interest. In Hanson, theSupreme Court reasoned that [t]he ingredients of in-dustrial peace and stabilized labor-management rela-tions are numerous and complex and a question ofpolicy outside of the judiciarys concern. 351 U.S. at234, 76 S.Ct. 714. The Court thus envisioned laborpeace to include stabilized labor-management rela-tions, which are at issue in any employer-employee

relationship, regardless of whether employees sharethe same workplace. The Court expanded its descrip-tion of labor peace inAbood:

The designation of a single representative avoidsthe confusion that would result from attemptingto enforce two or more agreements specifyingdifferent terms and conditions of employment. Itprevents inter-union rivalries from creating dis-sension with the work force and eliminating theadvantages of employee collectivization. It also

frees the employer from the possibility of facingconflicting demands from different unions, andpermits the employer and a single union to reachagreements and settlements that are not subjectto attack from rival labor organizations.

5The plaintiffs further argue that outside the workplace, the

government has no lawful interest in quelling diverse, even dis-

ruptive, speech or association. But we do not understand the

complaint to allege that the State has quelled any of the plain-

tiffs speech, merely that they have been forced to financially

support a single bargaining representative. Employee speechjurisprudence is entirely distinct from that of compelled associa-

tion, as are the interests that justify (or not) each respective

intrusion into employees freedom of speech.


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431 U.S. at 224, 97 S.Ct. 1782. Given our conclusionthat the State employs the personal assistants, withextensive control over the terms and conditions ofemployment, and has chosen (wisely or not) to estab-lish some of those terms and conditions throughnegotiation rather than regulation, the interestsidentified by the Court inAboodare identical to thoseadvanced by the State in this case. The plaintiffsattempts to distinguishAboodare unavailing.

Thus, because of the significant control the stateexercises over all aspects of the personal assistants

jobs, we conclude that personal assistants are em-ployees of the State and reject the plaintiffs argu-ments that the States interests in collective bargain-ing do not apply to the unique circumstances ofpersonal assistants. As such, the fair share fees inthis case withstand First Amendment scrutinyatleast against a facial challenge to the imposition ofthe fees itself.

We once again stress the narrowness of our decisiontoday. We hold that personal assistants in the Illinois

home-care Medicaid waiver program are State em-ployees solely for purposes of applying Abood. Wethus have no reason to consider whether the Statesinterests in labor relations justify mandatory feesoutside the employment context. We do not considerwhether Abood would still control if the personalassistants were properly labeled independent con-tractors rather than employees. And we certainly donot consider whether and how a state might forceunion representation for other health care providerswho are not state employees, as the plaintiffs fear.

We hold simply that the State may compel the per-sonal assistants, asemployeesnot contractors, healthcare providers, or citizensto financially support a


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single representatives exclusive collective bargainingrepresentation.

B. Disabilities Program Claims

While the underlying legal issues raised by theDisabilities Program plaintiffs are similar to those weconsidered above, the district court dismissed theirclaims on ripeness and standing grounds. This is be-cause the Disabilities Program plaintiffs are in afundamentally different position. As we have noted,the Rehabilitation Program personal assistants have

chosen to be represented by a union. Illinois is not aright to work state where paying dues for unionmembership is optional for each worker, and thusunder state law the minority of caregivers opposed tothe union may be required to pay their fair share ofthe dues used to bargain for pay, working conditions,and other universal benefits. The Disabilities Pro-gram personal assistants, on the other hand, haveopted not to have union representation. By exercisingthat option, they have prevented collective bargain-ing and are not required to pay any fair share re-

quirement. But because they are not subject to anagreement mandating fair share payments, we agreewith the district court that the Disabilities Programplaintiffs claims are not ripe, and we lack jurisdic-tion to consider the complaint.

A claim is not ripe if it rests upon contingentfuture events that may not occur as anticipated, orindeed may not occur at all. Evers v. Astrue, 536F.3d 651, 662 (7th Cir.2008) (quoting Texas v. United

States, 523 U.S. 296, 118 S.Ct. 1257, 140 L.Ed.2d 406(1998)). The Disabilities Program plaintiffs complainof the same conduct as the Rehabilitation Programplaintiffs: that one of the unions and the State willenter into an agreement that will require all personal


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assistants to pay a fair share fee to support thatunions collective bargaining activity. But unlike theRehabilitation Program, the Disabilities Programpersonal assistants have rejected union representa-tion, and there is no certainty that the DisabilitiesProgram personal assistants will ever unionize. Hence,the State has no representative to recognize andcannot agree to compel the plaintiffs to pay fair sharefees at all. The plaintiffs claims are contingent onevents that may never occur and thus are not ripe.

The plaintiffs argue that the very existence of the

executive order committing the State to recognizingan exclusive union representative makes it signifi-cantly more likely that the plaintiffs will be forced tofinancially support that unions speech. Thus, there isa reasonable probability of future harm to the plain-tiffs constitutional interests, which the plaintiffs feelthey should not have to spend resources to defeat.

And they argue the courts can redress this har

harris v. quinn petition

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