Sweeney v. Raoul, 19-3413

990 F.3d 555

James M. SWEENEY, et al., Plaintiffs-Appellants,

v.Kwame RAOUL, in his official capacity as Attorney General for the State of Illinois, et al., Defendants-Appellees.

No. 19-3413

United States Court of Appeals, Seventh Circuit.

Argued September 29, 2020

Decided March 8, 2021

James Connolly, Jr., Robert A. Paszta, Dale D. Pierson, Attorneys, IUOE LOCAL 150 LEGAL DEPARTMENT, Kara Pomerantz Principe, Joseph P. Sweeney, Attorneys, INDIANA ILLINOIS IOWA FOUNDATION FOR FAIR, Countryside, IL, for Plaintiffs - Appellants.

Frank Henry Bieszczat, Attorney, OFFICE OF THE ATTORNEY GENERAL, Civil Appeals Division, Chicago, IL, for Defendants - Appellees.

Alyssa Hazelwood, Milton L. Chappell, Attorneys, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, Springfield, VA, Joseph A. Morris, Attorney, MORRIS & DE LA ROSA, Chicago, IL, for Amicus Curiae BRIAN TRYGG.

Stephen Anthony Yokich, Attorney, DOWD, BLOCH, BENNETT, CERVONE, AUERBACH & YOKICH, Chicago, IL, for Amici Curiae AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES UNION, AMERICAN FEDERATION OF TEACHERS, NATIONAL EDUCATION ASSOCIATION, SEIU LOCAL 73, ILLINOIS EDUCATION ASSOCIATION.

Before Rovner, Scudder, and St. Eve, Circuit Judges.

Scudder, Circuit Judge.

In its 2018 decision in Janus v. AFSCME , the Supreme Court held that public unions cannot require nonmembers to pay fees for the benefits of being represented by the union in collective bargaining and workplace disputes. To hold otherwise, the Court concluded, would run counter to the First Amendment's prohibition on compelled speech and association. Faced with this new economic reality, an Illinois union that represents municipal public works employees brought suit alleging that Janus itself effected a constitutional violation in the other direction—forcing unions to represent nonmembers for free in violation of the union's own First Amendment right to avoid compelled association and speech. The district court rejected that position on the merits and entered summary judgment against the union. We vacate that judgment and remand with instructions to dismiss the union's complaint for lack of subject matter jurisdiction. The union brought a claim that federal courts will have to answer in time. But we cannot answer the question now, for the union has not alleged any concrete and particular facts showing that it faces the post- Janus freeriding predicament animating its lawsuit. Our resolving the substantial legal question in the abstract would offend the longstanding prohibition on federal courts issuing advisory opinions.

I

A

The Illinois Public Labor Relations Act governs labor relations between public employees and employers across the state. See 5 ILCS 315/1. A majority of employees in a bargaining unit may vote to select a union as their exclusive representative for collective bargaining and grievance proceeding purposes. With that exclusivity comes the responsibility of the union to fairly represent all bargaining unit employees, including those who are not union members. See 5 ILCS 315/6(d).

For many years, Illinois law allowed public unions to require nonmembers to pay so-called "fair share" or "agency" fees to compensate for the representative services the union provides. This payment obligation sparked objections from nonmembers, and the issue made its way to the Supreme Court. In 1977 the Court concluded that a similar fair-share-fees law in Michigan did not violate nonmembers' First Amendment rights. See Abood v. Detroit Bd. of Educ ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261. While acknowledging that mandatory fees forced those not wishing to affiliate with a union to subsidize its operations, the Court considered this an appropriate middle ground since the union, as exclusive representative, shouldered the obligation of representing nonmembers' interests before the employer with the same fervor and diligence as it owed dues-paying members. See id. at 221–22, 97 S.Ct. 1782. This compromise came to reflect the norm in over 20 states. Until 2018 and Janus .

In Janus the Supreme Court overruled Abood and held that unions compelling the payment of fair share fees from nonmembers offended the First Amendment. Janus v. AFSCME , ––– U.S. ––––, 138 S. Ct. 2448, 2460, 201 L.Ed.2d 924 (2018). This mandatory fee, the Supreme Court reasoned, violated the "free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern." Id. Janus , in short, left public unions unable to collect fair share fees from nonmembers.

International Union of Operating Engineers Local 150 is one such union. It represents around 3,300 municipal employees in 133 bargaining units across primarily northern Illinois and northwest Indiana. James Sweeney serves as Local 150's president. The union employs nine staff members to represent public employees in employment disputes. Doing so costs about $5 million each year.

Local 150 says Janus has put the union between a rock and a hard place. As the exclusive representative of a bargaining unit's employees, it remains obligated to represent nonmembers, yet it must now do so without any way of compelling fair share fees from these employees. Many nonmembers, Local 150 adds, have sent form letters reminding the union of its fair representation obligation. Local 150 thus sees Janus as enabling a kind of freeriding sure to strain the union's limited resources.

B

Local 150 invoked 42 U.S.C. § 1983 and brought suit in the district court in February 2018, alleging that the duty of fair representation in Illinois law without the corresponding ability to collect fair share fees infringes the union's First Amendment rights of free speech and association. The lawsuit named as defendants the Attorney General of Illinois and the Executive Director of the Illinois Labor Relations Board.

The defendants saw the lawsuit as premature—as Local 150 suing to resolve a legal question it believed was teed-up by Janus , rather than in response to a nonmember who refused to pay fair share fees but sought to force the union to represent him in one form or another. The district court disagreed, concluding that, after Janus , Local 150 faced imminent injury to its rights and obligations under Illinois law. An injury of this sort, the district court reasoned, sufficed to create a viable preenforcement challenge to the union's duty of fair representation.

About a year later, in November 2019, the district court entered summary judgment for the defendants and dismissed Local 150's claims with prejudice. Janus , the district court concluded, addressed compulsory fees from nonmembers rather than the principles of fair and exclusive representation. From there the district court emphasized that the Supreme Court had made expressly plain that "states can keep their labor-relations system exactly as they are—only they cannot force nonmembers to subsidize public-sector unions." Janus , 138 S. Ct. at 2485 n.27. Because Janus in no way altered the system of exclusive and fair representation outlined in Illinois law, the district court determined that it remained bound by other Supreme Court precedent rejecting a union's First Amendment challenge to a state law mandating exclusive representation. See Minn. State Bd. for Cmty. Colls. v. Knight , 465 U.S. 271, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984). Because Janus , by its own terms, purports to affect only the constitutionality of fair share fees and because Knight remains good law, the district court entered summary judgment for the defendants.

Local 150 now appeals.

II

Local 150's lawsuit presents a question courts are certain to confront in Janus 's wake—whether a public union, no longer allowed to charge nonmembers fair share fees, must nonetheless represent those nonmembers in employment disputes. Indeed, Local 150 so anticipated the question that it brought its claims while Janus was pending, apparently predicting that a Supreme Court decision in favor of objecting nonmember employees would ripen the follow-up question.

But Local 150's asking the question does not mean a federal court owes the union an answer—at least not now. The reason comes from Article III's Case or Controversy requirement. Distilled to its essence, this requirement limits federal courts to resolving concrete disputes between adverse parties. See Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc. , 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Put another way, Article III prevents federal courts from answering legal questions, however important, before those questions have ripened into actual controversies between someone who has experienced (or imminently faces) an injury and another whose action or inaction caused (or risks causing) that injury. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). These limitations, requirements, and prohibitions are embodied in the so-called justiciability doctrines—standing, mootness, ripeness, and the prohibitions on providing advisory opinions and answering political questions. See 13 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3529 (3d ed. 2020).

A

Local 150's claims fail on straightforward applications of standing and ripeness.

To establish "the irreducible constitutional minimum of standing," the plaintiff must have suffered an injury in fact traceable to the defendant and capable of being redressed through a favorable judicial ruling. Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130. The alleged injury must be "concrete and particularized" as well as "actual or imminent, not conjectural or hypothetical" to establish standing. Id. at 560, 112 S.Ct. 2130. A "particularized" injury is one that "affect[s] the plaintiff in a personal and individual way." Id . at 560, 112 S.Ct. 2130 n.1. Concreteness requires the injury to exist and be "real," not "abstract." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct....