In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3835
P AMELA J. H ARRIS, et al.,
Plaintiffs-Appellants,
v.
G OVERNOR P AT Q UINN,
in his official capacity as
Governor of the State of Illinois, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CV 02477—Sharon Johnson-Coleman, Judge.
A RGUED JUNE 9, 2011—D ECIDED S EPTEMBER 1, 2011
Before M ANION, W OOD , and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. The plaintiffs in this appeal
provide in-home care for people with varying levels of
disabilities and other health needs. They present a
narrow question: Does a collective bargaining agree-
ment that requires Medicaid home-care personal
assistants to pay a fee to a union representative violate
2 No. 10-3835
the First Amendment, regardless of the amount of those
fees or how the union uses them? We hold that it does
not. Because the personal assistants are employees of
the State of Illinois, at least in those respects relevant
to collective bargaining, the union’s collection and use
of fair share fees is permitted by the Supreme Court’s
mandatory union fee jurisprudence in Railway Employees’
Dep’t v. Hanson, 351 U.S. 225 (1961), and Abood v. Detroit
Bd. of Educ., 431 U.S. 209 (1977). However, we lack juris-
diction to consider the claims of plaintiffs who have
opted not to be in the union. Because they are not
presently subject to mandatory fair 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 Human Services.
Some are part of the Home Services Program admin-
istered by the Division of Rehabilitation Services. The
others are part of the Home Based Support Services
Program administered by the Division of Developmental
Disabilities. We will call these groups the Rehabilita-
tion Program plaintiffs and Disabilities Program plain-
tiffs respectively.
A. Home-Based Medicaid Waiver Program Features
These programs subsidize the costs of home-based
services for disabled patients who might otherwise
No. 10-3835 3
face institutionalization. The programs offer flexibility
and self-direction for services that are tailored to pa-
tients’ individual needs. In the Rehabilitation Pro-
gram, each patient works with a counselor to develop
an individual service plan, which specifies “the type of
service(s) to be provided to the patient, the specific
tasks involved, the frequency with which the specific
tasks are to be provided, the number of hours each task
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 patient’s physician and
approved by the State. Id. § 684.10.
Once a counselor identifies the type of personal
assistant the patient needs for the service plan, the
patient is free to select almost any personal assistant
who meets the qualifications set by the State. Id.
§§ 684.20, 684.30 The State, in turn, requires personal
assistants to comply with age and work-hour limita-
tions, provide written or oral recommendations from
past employers, have related work experience or
training, and satisfy the patient and counselor that they
can communicate and follow directions. Id. § 686.10.
Personal assistants sign employment agreements
directly with patients, although the terms of the agree-
ment are set by the State. Id. The State sets wages and
pays personal assistants directly, withholding Social
Security as well as federal and state taxes. Id. §§ 686.10,
686.40.
The Disabilities Program functions similarly. Each
patient works with a State “service facilitator” to develop
4 No. 10-3835
a “service/treatment plan.” 59 Ill. Admin. Code 117.120,
117.225(a). The State then pays for services provided
under the plan, including personal care services. Id. at
117.215. The record is much less developed on the
exact relationship between the State and the Disabilities
Program personal assistants. And for good reason: the
district court dismissed the claims on jurisdictional
grounds, so no court has yet considered the merits of
those claims.1
B. Rehabilitation Program Unionization
In the mid-1980s, personal assistants in the Rehabilita-
tion Program sought to unionize and, under the Illinois
Public Labor Relations Act, collectively bargain with the
State. The State Labor Relations Board, however, found
that the personal assistants were in a unique employ-
ment relationship and that it lacked jurisdiction over
that relationship because the State was not their sole
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 this stage because the defendants have not cross-
appealed seeking an expanded judgment on the merits. See
Greenlaw v. United States, 128 S.Ct. 2559, 2564 (2008) (“Under
that unwritten but longstanding rule, an appellate court may
not alter a judgment to benefit a nonappealing party. . . .
[without] a cross-appeal.”).
No. 10-3835 5
employer. The personal assistants thus could not
unionize until 2003, when the Illinois Public Labor Rela-
tions Act was amended to designate “personal care atten-
dants and personal assistants working under the Home
Services Program” as State employees for purposes of
collective bargaining. 20 Ill. Comp. Stat. 2405/3. Then-
Governor Blagojevich issued an executive order di-
recting the State to recognize an exclusive representa-
tive for Rehabilitation Program personal assistants if
they designated one by majority vote and to engage in
collective bargaining concerning all employment terms
within the State’s control. According to the Governor,
this was important because each patient employed
only one or two personal assistants. Thus, only the
State could control the economic terms of employment
and the widely dispersed personal assistants could not
“effectively voice their concerns” about the program or
their employment terms without representation.
Later that year, a majority of the approximately 20,000
Rehabilitation Program personal assistants voted to
designate SEIU Healthcare Illinois & Indiana as their
collective bargaining representative with the State. The
Union and the State negotiated a collective bargaining
agreement which sets the pay rates, creates a health
benefits fund for personal assistants, and establishes a
joint Union-State committee to develop training pro-
grams. The agreement also contains other typical collec-
tive bargaining agreement provisions, including the union
security clause that has given rise to this lawsuit and
appeal. This “fair share” provision requires “all Personal
6 No. 10-3835
Assistants who are not members of the Union . . . to pay
their proportionate share of the costs of the collective
bargaining process, contract administration and pursuing
matters affecting wages, hours and other conditions of
employment.”
C. Disabilities Program Attempted Unionization
In 2009, Governor Pat Quinn issued an executive
order directing the State to recognize an exclusive repre-
sentative for the Disabilities Program personal assistants,
if a majority so chose. See Ill. Exec. Order 2009-15.
SEIU Local 713 petitioned for an election to become
that representative, and AFSCME Council 31 intervened
in the election as a rival candidate. In a mail ballot
election, however, a majority of the approximately
4,500 Disabilities Program personal assistants rejected
representation by either union. But that victory is not
permanent: the unions can request new elections in
the future, and, under Illinois labor law, may bypass
an election altogether if they collect a sufficient number
of union cards from the personal assistants. See id.; 80
Ill. Admin. Code 1210.100(b).2
2
While the plaintiffs allege that the unions have used coercive
tactics to get them and others to join, and to lobby state
officials, the constitutional claim in this appeal is confined to the
payment or potential payment of the fair share requirement.
No. 10-3835 7
D. Current Litigation
The following year, the personal assistants from both
groups filed a two-count complaint against the Governor
and the three unions involved. The Rehabilitation Pro-
gram plaintiffs claimed that the fair share fees they were
required to pay violated the First Amendment by com-
pelling their association with, and speech through, the
Union. The Disabilities Program plaintiffs argued that
although they did not yet pay fees, they are harmed by
the mere threat of an agreement requiring fair share fees.
The district court dismissed the Rehabilitation Program
plaintiffs’ claims for failure to state a claim upon which
relief could be granted. It dismissed the Disabilities
Program plaintiffs’ claims for lack of subject matter
jurisdiction because they lacked standing and their
claims were not ripe. The plaintiffs appeal both dismissals.
II.
The two sets of plaintiffs in this case stand in
very different positions. The Rehabilitation Program
plaintiffs are currently subject to a collective bargaining
agreement that requires them to pay fair share fees to
their union representative. The Disabilities Program
plaintiffs have successfully rejected unionization and
are not subject to fair share fees, but fear that may
change at any time. This difference has important con-
sequences: we have jurisdiction to consider the Rehabil-
itation Program plaintiffs’ claims, which we discuss in
the first part of the analysis. But we must dismiss the
8 No. 10-3835
Disabilities Program plaintiffs’ claims for lack of juris-
diction because they are not ripe for adjudication.
We explain these holdings in order.
A. Rehabilitation Program Claims
The Rehabilitation Program plaintiffs mount a facial
challenge to the fair share fees. That is, they do not
allege that the actual fees collected are too high or that
the fees are being used for purposes other than col-
lective bargaining.3 Their only argument is that they
may not be forced to financially support collective bar-
gaining with the State under any circumstances. They
present a two-step argument. First, they argue that
this case does not fall under the line of Supreme Court
cases permitting mandatory fees to support collective
bargaining representation because personal assistants
are employed by individual Medicaid patients, not the
State. Second, they argue that no compelling state
interests justify extending these collective bargaining
cases to reach personal assistants.
We first set out the controlling precedent. The
Supreme Court has long approved collective bargaining
agreements that compel even dissenting, non-union
3
The plaintiffs do argue that in the Medicaid context, collective
bargaining with the State amounts to political advocacy. The
Supreme Court has rejected this argument in the employment
context, so it falls with our conclusion that personal assistants
are State employees. See generally, Abood, 431 U.S. 209.
No. 10-3835 9
members to financially support the costs of collective
bargaining representation, as well as other closely
related costs, as long as they are not used to support
political candidates or views, or other ideological causes.
First in Railway Employees’ Dep’t v. Hanson, the Court
refused to enjoin a “union shop” agreement between a
railroad company and a union that required all em-
ployees of the railroad to become nominal, dues-paying
members of the union as a condition of employment.4
351 U.S. at 227. Although a “right to work” provision in
the Nebraska Constitution outlawed such agreements,
the Court held that the federal Railway Labor Act per-
mitted union shop agreements and thus superseded
state law to the contrary. Along the way, it held that
this provision of the Act was justified by Congress’s
interest in supporting “industrial peace and stabilized
labor-management” and in distributing the costs of
collective bargaining to all those who benefit from it.
Id. at 234, 238. It declined to consider hypothetical First
4
In a “union shop,” an “employer may hire nonunion employ-
ees 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 member-
ship.” Black’s 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. In an open
shop, union membership is permitted but is not a condition
of securing or 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.” Black’s at 1504.
10 No. 10-3835
Amendment issues that might arise if the union
engaged in partisan or ideological speech. Id. at 238.
Then, in Abood v. Detroit Bd. of Educ., the Court extended
the scope of its holding in Hanson to include public em-
ployees and attempted to set out limits on the use of fees
collected from dissenting employees. 431 U.S. 209. It
held that an “agency shop” clause in an agreement be-
tween the Detroit Board of Education and its teachers’
union could require teachers who were not union
members to financially support the union’s collective
bargaining, contract administration, grievance-adjust-
ment procedures, and other activities “germane to its
duties as collective-bargaining representative.” Id. at 232,
235. Since Abood, the Court has continued to refine its
approach to the appropriate use of fees from non-
union members in Chicago Teachers Union v. Hudson,
475 U.S. 292 (1986) (outlining appropriate procedures to
protect non-member fees), and Lehnert v. Ferris Faculty
Assoc., 500 U.S. 507 (1991) (elaborating specific charges
that can and cannot be funded with union donations).
But it has not wavered from its position that, as a
general matter, employees may be compelled to
support legitimate, non-ideological, union activities
germane to collective-bargaining representation.
Against this backdrop, we next consider whether the
personal assistants are, as the defendants contend, State
employees. If so, this case is controlled by Abood and the
plaintiffs’ claims fail. As an initial matter, we note
that we pay no particular heed to the State legislature’s
designation of personal assistants as State employees
No. 10-3835 11
solely for purposes of collective bargaining under
Illinois law. See 20 Ill. Comp. Stat. 2405/3(f). The label
affixed by a state, whether in statute, regulation, or
order, is not sufficient to designate the relationship
“employment.” Whether someone is an employee of
the state has a host of implications—under both state
and federal law—beyond whether mandatory union
fees are permitted. Because of this, the Illinois legisla-
ture may have designated personal assistants as
employees or not for reasons entirely unrelated to com-
pelled speech under the First Amendment. Rather than
accept either party’s characterization of the relation-
ship, we must consider the relationship itself and decide
whether the State is an employer for purposes of compel-
ling support for collective bargaining.
Two sources inform our analysis. First, neither
Hanson nor Abood discusses the definition of employer,
so we will assume the Court meant to give the word
its ordinary meaning: “A person who controls and
directs a worker under an express or implied contract
of hire and who pays the worker’s salary or wages.”
Black’s at 604. Second, we draw from labor relations
law the notion that more than one person or company
may be an individual’s employer. Cf. Boire v. Grey-
hound Corp., 376 U.S. 473, 481 (1964) (discussing joint
employment determination by NLRB); DiMucci Const.
Co. v. NLRB, 24 F.3d 949, 952 (7th Cir. 1994)
(listing factors courts consider in reviewing an NLRB
determination of joint employment). We are aware of
no cases specifically discussing Abood in a joint-employ-
12 No. 10-3835
ment situation. But it is not an uncommon situation
for a single individual to find himself with more than
one employer for the same job. This undermines the
plaintiffs’ attempt to distinguish between the typical
employer-employee relationship, on one hand, and
every other imaginable labor relationship, on the other.
Thus, both the home-care patient and the State may
be employers if they each exercise significant control
over the personal assistants.
And in the Rehabilitation Program, the State does
have significant control over virtually every aspect of a
personal assistant’s job. While the home-care regula-
tions leave the actual hiring selection up to the home-
care patient, the State sets the qualifications and
evaluates the patient’s choice. 89 Ill. Admin. Code
§ 686.10. And while only the patient may technically
be able to fire a personal assistant, the State may
effectively do so by refusing payment for services
provided by personal assistants who do not meet
the State’s standards. Id. § 677.40. When it comes to
controlling the day-to-day work of a personal assistant,
the State exercises its control by approving a
mandatory service plan that lays out a personal
assistant’s job responsibilities and work conditions
and annually reviews each personal assistant’s perfor-
mance. Id. §§ 686.10, 686.30. Finally, the State controls
all of the economic aspects of employment: it sets
salaries and work hours, pays for training, and pays
all wages—twice a month, directly to the personal
assistant after withholding federal and state taxes. Id.
No. 10-3835 13
In light of this extensive control, we have no difficulty
concluding that the State employs personal assistants
within the meaning of Abood.
The plaintiffs raise two objections. First, they claim
that the patient, not the State, employs them. But as we
have explained, even if the patient is properly con-
sidered an employer, that would not prevent the State
from being a joint employer. Second, they argue that,
however we characterize the State’s relationship with
personal assistants, the interests in collective bargaining
that Abood identified does not apply here. They claim that
the differences between the personal assistants here
and the typical employment situation at issue in Abood
undermine the State’s claimed interest in labor peace.
Specifically, the plaintiffs characterize Abood’s labor
peace interest thus: “that disruptions caused by di-
verse employee expressive association within a work-
place could be solved by giving a union a monopoly
over employee speech vis-à-vis their employer.” Pl. brief
at 20. Thus, they assert that because the personal
assistants are “outside the workplace” and they cannot
be compelled to speak to the State with a single voice,
the labor peace interest does not apply.5
5
The plaintiffs further argue that outside the workplace, the
government has no lawful interest in quelling diverse, even
disruptive, speech or association. But we do not understand
the complaint to allege that the State has quelled any of the
plaintiffs’ speech, merely that they have been forced to finan-
(continued...)
14 No. 10-3835
We do not accept the plaintiffs’ narrow characteriza-
tion of the labor peace interest. In Hanson, the Supreme
Court reasoned that “[t]he ingredients of industrial
peace and stabilized labor-management relations are
numerous and complex” and a question of policy outside
of the judiciary’s concern. 351 U.S. at 234. The Court
thus envisioned labor peace to include “stabilized labor-
management relations,” which are at issue in any
employer-employee relationship, regardless of whether
employees share the same workplace. The Court ex-
panded its description of labor peace in Abood:
The designation of a single representative avoids
the confusion that would result from attempting to
enforce two or more agreements specifying dif-
ferent terms and conditions of employment. It
prevents inter-union rivalries from creating dissen-
sion with the work force and eliminating the advan-
tages of employee collectivization. It also frees the
employer from the possibility of facing conflicting
demands from different unions, and permits the
employer and a single union to reach agreements
and settlements that are not subject to attack from
rival labor organizations.
5
(...continued)
cially support a single bargaining representative. Em-
ployee speech jurisprudence is entirely distinct from that
of compelled association, as are the interests that justify (or
not) each respective intrusion into employees’ freedom
of speech.
No. 10-3835 15
431 U.S. at 224. Given our conclusion that the State em-
ploys the personal assistants, with extensive control over
the terms and conditions of employment, and has
chosen (wisely or not) to establish some of those terms
and conditions through negotiation rather than regula-
tion, the interests identified by the Court in Abood are
identical to those advanced by the State in this case. The
plaintiffs’ attempts to distinguish Abood are unavailing.
Thus, because of the significant control the state
exercises over all aspects of the personal assistants’ jobs,
we conclude that personal assistants are employees of
the State and reject the plaintiffs’ arguments that the
State’s interests in collective bargaining do not apply
to the unique circumstances of personal assistants.
As such, the fair share fees in this case withstand First
Amendment scrutiny—at least against a facial challenge
to the imposition of the fees itself.
We once again stress the narrowness of our decision
today. We hold that personal assistants in the Illinois
home-care Medicaid waiver program are State em-
ployees solely for purposes of applying Abood. We
thus have no reason to consider whether the State’s
interests in labor relations justify mandatory fees
outside the employment context. We do not consider
whether Abood would still control if the personal
assistants were properly labeled independent con-
tractors rather than employees. And we certainly do not
consider whether and how a state might force union
representation for other health care providers who are
not state employees, as the plaintiffs fear. We hold
16 No. 10-3835
simply that the State may compel the personal assistants,
as employees—not contractors, health care providers, or
citizens—to financially support a single representative’s
exclusive collective bargaining representation.
B. Disabilities Program Claims
While the underlying legal issues raised by the Dis-
abilities Program plaintiffs are similar to those we con-
sidered above, the district court dismissed their claims
on ripeness and standing grounds. This is because the
Disabilities Program plaintiffs are in a fundamentally
different position. As we have noted, the Rehabilita-
tion Program personal assistants have chosen to be rep-
resented by a union. Illinois is not a “right to work”
state where paying dues for union membership is
optional for each worker, and thus under state law the
minority of caregivers opposed to the union may be
required to pay their fair share of the dues used to
bargain for pay, working conditions, and other universal
benefits. The Disabilities Program personal assistants,
on the other hand, have opted not to have union rep-
resentation. By exercising that option, they have
prevented collective bargaining and are not required to
pay any fair share requirement. But because they are
not subject to an agreement mandating fair share pay-
ments, we agree with the district court that the
Disabilities Program plaintiffs’ claims are not ripe, and
we lack jurisdiction to consider the complaint.
A claim is not ripe if it “rests upon contingent future
events that may not occur as anticipated, or indeed
No. 10-3835 17
may not occur at all.” Evers v. Astrue, 536 F.3d 651, 662
(7th Cir. 2008) (quoting Texas v. United States, 523 U.S.
296 (1998)). The Disabilities Program plaintiffs com-
plain of the same conduct as the Rehabilitation
Program plaintiffs: that one of the unions and the State
will enter into an agreement that will require all
personal assistants to pay a fair share fee to support
that union’s collective bargaining activity. But unlike
the Rehabilitation Program, the Disabilities Program
personal assistants have rejected union representation,
and there is no certainty that the Disabilities Program
personal assistants will ever unionize. Hence, the State
has no representative to recognize and cannot agree to
compel the plaintiffs to pay fair share fees at all. The
plaintiffs’ claims are contingent on events that may
never occur and thus are not ripe.
The plaintiffs argue that the very existence of the ex-
ecutive order committing the State to recognizing an
exclusive union representative makes it significantly
more likely that the plaintiffs will be forced to
financially support that union’s speech. Thus, there is
a reasonable probability of future harm to the plaintiffs’
constitutional interests, which the plaintiffs feel they
should not have to spend resources to defeat. And
they argue the courts can redress this harm by
declaring that the plaintiffs may not be compelled to
support a union, and by enjoining the State from
enforcing its laws and executive orders in such a way
that compels the plaintiffs to support a union.
But the plaintiffs do not allege that the mere existence
of the executive order violates their rights, only that it
18 No. 10-3835
makes such a violation more likely. Their argument
thus confuses this increased likelihood of a future
violation of their constitutional rights with the
probabilistic future harm which is sufficient to meet
the minimal injury-in-fact requirements of standing.
The cases on which the plaintiffs rely stand only for
the rule that a constitutional violation now may merely
increase the likelihood of injury later. That would be a
question of constitutional standing and inapplicable to
the issue of ripeness we have before us. E.g., Southworth
v. Board of Regents, 307 F.3d 566, 580-81 (7th Cir. 2002)
(students had standing to challenge a facially uncon-
stitutional system for allocating student fees); Majors
v. Abell, 317 F.3d 719, 721-22 (7th Cir. 2003) (candidates
had standing to challenge unconstitutional regulation
of political ads despite lack of enforcement); Mulhall v.
UNITE Local 355, 618 F.3d 1279, 1286-87 (11th Cir. 2010)
(employee had standing to challenge unlawful agree-
ment to facilitate unionization despite possibility that
it would never occur). This case is different because the
only violations alleged by the plaintiffs may never occur.
The plaintiffs feel burdened fighting to prevent what
they view as an unconstitutional collective bargaining
agreement. But many individuals and organizations
spend considerable resources fighting to prevent
Congress or the state legislatures from adopting legisla-
tion that might violate the Constitution. The courts
cannot judge a hypothetical future violation in this case
any more than they can judge the validity of a not-yet-
enacted law, no matter how likely its passage. To do
so would be to render an advisory opinion, which is
No. 10-3835 19
precisely what the doctrine of ripeness helps to prevent.
Wisconsin Cent., Ltd. v. Shannon, 539 F.3d 751, 759 (7th
Cir. 2008) (“[R]ipeness, when it implicates the possibility
of this Court issuing an advisory opinion, is a question
of subject matter jurisdiction under the case-or-contro-
versy requirement.”).
The district court did err in one respect however. After
holding that the Disabilities Program plaintiffs’ claims
were not yet ripe, it dismissed the complaint with preju-
dice. Generally, when a complaint is dismissed because
it is not ripe (or because the plaintiffs lack standing, for
that matter) it is dismissed without prejudice unless
it appears beyond a doubt that there is no way the plain-
tiffs’ grievance could ever mature into justiciable
claims. Chattanoga Mfg., Inc. v. Nike, Inc., 301 F.3d 789, 796
(7th Cir. 2002) (holding that district court erred in dis-
missing counterclaims with prejudice because “[i]f a
dispute ripens between the parties, [the counterclaimant]
should have the opportunity to litigate its claims.”). If
the Disabilities Program personal assistants ever do vote
to unionize and enter an agreement with the State man-
dating fair share fees, the plaintiffs will have a ripe
claim. Given our holding above, it may be that such a
claim will not last long, but we will not prejudge the
issue in this case. Therefore, we will remand the case to
the district court with instructions to dismiss the claims
of the Disabilities Program plaintiffs without prejudice.
III.
For these reasons, we reject the plaintiffs’ First Amend-
ment claims. The Disabilities Program plaintiffs do not
20 No. 10-3835
allege that a constitutional violation has yet occurred.
Thus, their claim is not ripe and we lack jurisdiction
to consider it. But because the claim is unripe, it should
be dismissed without prejudice, so we remand with in-
structions for the district court to correct the order
of dismissal. The Rehabilitation Program plaintiffs
do allege a justiciable claim, but we reject it on the
narrow grounds that Supreme Court precedent permits
the State, as a joint employer, to compel fair share fees
in the interest of stable labor relations. The judgment
of the district court is therefore A FFIRMED in part and
R EMANDED in part with instructions.
9-1-11