dissenting:
Citing separation of powers concerns, the court today bars official reporters of the Illinois judiciary from Labor Relations Act protections. This will doubtless surprise those affected here, for the plain rule of County of Kane v. Carlson (1987), 116 Ill. 2d 186, is that such concerns do not bar judicial branch employees from such protections. Unwilling to overrule County of Kane or to honor the rule for which it stands, the court blithely terms the case a "preliminary foray” into labor law, offering a thin distinguishing of it. The court similarly ignores Orenle v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, which echoed County of Kane’s rule two years later. The effort proves too much. This case is correctly decided by looking to the circumstances of the official reporters’ employment and in honoring the court’s own precedent. The inexorable conclusion is that the Labor Relations Act extends to official reporters. For those reasons, more fully explained below, I dissent.
Separation of Powers
Constitutional separation of powers concerns arise in this case for two separate, yet related, reasons. First, official reporters are employees of this State’s judicial branch of government. (Orenic, 127 Ill. 2d at 474; Carlson, 116 Ill. 2d at 203; see Administrative Office of Illinois Courts, Administrative Regulations Governing Reporters of the Illinois Courts 10, 11.) The Labor Relations Board, which enforces the Labor Relations Act, is an arm of the executive branch. The Act’s enforcement with respect to official reporters would touch on judicial branch administration, matters constitutionally entrusted to this court alone. (Ill. Const. 1970, art. VI, § 16; see also County of Kane, 116 Ill. 2d at 208.) Second, this court could find itself subject to an inferior court’s jurisdiction, for the Labor Relations Act- calls for appellate court review of Board action. (5 ILCS 315/9(i), 11(e) (West 1992) (adopting the Administrative Review Law).) As if that were not problematic enough, in the end, this court might have to rule in a case affecting itself.
Employment of Official Reporters
In this case, honoring separation of judicial and executive branch authority turns on whether this court is the employer representative of the official reporters. It is a fact that the court — ultimately the Chief Justice— exercises comprehensive authority over the judicial branch. (Ill. Const. 1970, art. VI, § 16.) That authority extends even over the State’s 22 trial court systems though each circuit is separately administered by a chief judge. (Ill. Const. 1970, art. VI, § 7; Carlson, 116 Ill. 2d at 207-08.) In some sense, then, this court is the entity under which all judicial branch personnel, including official reporters, can be said to be employed.
But that is not to say that the court is then the employer representative of official reporters for labor law purposes. To be sure, that conclusion ignores the reality of the reporters’ employment as reflected in the Court Reporters Act (705 ILCS 70/1 et seq. (West 1992); see Ill. Const. 1970, art. VI, § 18 (giving the General Assembly power to provide for appointment and removal of nonjudicial court officers)). This court shares authority with the 22 chief circuit court judges over the employment of official reporters. (See, e.g., 705 ILCS 70/3, 4, 8 (West 1992) (providing that this court determines the number of court reporters but that the chief judges have authority to appoint and remove individual reporters).) The shared authority is reflected in this court’s own administrative regulations. See generally Administrative Office of Illinois Courts, Administrative Regulations Governing Reporters of the Illinois Courts 2, 10.
Does sharing authority over the reporters’ employment make the court and the circuit court chief judges joint employers for labor law purposes? Joint employer status is measured against the role each "employer” has in hiring, firing, promotion, demotion, discipline, and in setting wages and work hours. (Orenle, 127 Ill. 2d at 474-75, citing National Labor Relations Board v. Browning-Ferris Industries of Pennsylvania, Inc. (3d Cir. 1982), 691 F.2d 1117, 1124.) The court sees no reason why consideration of the chief judges’ status is necessary to the disposition of this case. (167 Ill. 2d at 188-89.) I do. The answer to the employer representative question on which the case turns is otherwise lopsided; this court’s own role in the reporters’ employment is accounted for, but that of the chief circuit court judges is not. When the roles of the court and the chief judges are both considered, it becomes clear that only the chief judges are the appropriate employer representatives of official reporters.
True, this court determines the number of court reporters which may be appointed and sets proficiency standards. (705 ILCS 70/3, 7 (West 1992).) But the chief judges — not this court — decide the actual number of reporters to appoint. (705 ILCS 70/4 (West 1992).) It is the chief judges — not this court — at whose "pleasure” the reporters "serve.” (705 ILCS 70/4 (West 1992).) So it is the chief judges — not this court — who must alone decide what action to take for a reporter’s failure to pass proficiency examinations. (705 ILCS 70/7 (West 1992).) And it is the chief judges — again, not this court— who are alone empowered to "remove[ ]” reporters from their appointments. (705 ILCS 70/4 (West 1992).) Further, though the court sees something to it, even this court’s role in determining official reporters’ salaries is removed. (See 167 Ill. 2d at 188.) True, individual salaries are computed against a schedule adopted by this court. (705 ILCS 70/8 (West 1992).) But minimum levels are legislatively determined and are paid "by the State.” 705 ILCS 70/8 (West 1992).
This court simply is not the appropriate employer representative for official reporters; the 22 chief circuit court judges are. Incidentally, that is why the court today is wrong to rely on the Michigan Supreme Court’s decision in In re Petition for a Representation Election Among Supreme Court Staff Employees (1979), 406 Mich. 647, 281 N.W.2d 299. (167 Ill. 2d at 196-97.) That case involved what this one does not: supreme court employees. Unlike official reporters here who work in the 22 circuit courts under the employ of the chief judges, the employees in In re Petition for a Representation Election were employees of the Lansing offices of the Michigan Supreme Court. (In re Petition for a Representation Election, 406 Mich, at 661, 281 N.W.2d at 300.) The separation of powers concerns underlying the decision in In re Petition for a Representation Election are not the same here.
County of Kane and Orenic
County of Kane stands for the rule that "inclusion of judicial employees within the [Labor Relations] Act does not by itself trench on the separation of powers principle or on the general administrative and supervisory authority granted by the Constitution to the judicial branch.” (County of Kane, 116 Ill. 2d at 209.) That rule was honored later in Orenic. But today, the court seeks to distance itself from the rule, offering that the cases "involved only employees at the circuit court level[ ] who were employed by the chief judge of the circuit or by the circuit clerk.” 167 Ill. 2d at 190.
The statement deserves some attention. It is certainly the case that those in County of Kane and Orenic who sought Labor Relations Act protections — among them, deputy circuit court clerks, probation officers, bailiffs, and public defenders — did perform duties at the trial level of the judiciary. But the same is, of course, true of official court reporters. And the fact of the matter is that, in County of Kane, chief circuit court judges were held to be employer representatives for probation officers who are — like official reporters — State judicial branch employees. (County of Kane, 116 Ill. 2d at 203.) The distinction the court seeks to draw between the circumstances of County of Kane and Orenic and this case is simply one of no material difference.
Further, the statement merely begs the question presented in this case; this court’s status was not, of course, directly at issue in either County of Kane and Orenic. That escapes the court for, were the statement true, it would undermine the very conclusion the court reaches. The reason: one of the joined actions in Orenic was to force the chief judge of Stephenson County to participate in labor bargaining with "clerk-stenographers and senior stenographers employed in the Stephenson County court services department”— that is, official court reporters. If, as it is suggested, this court decided in Orenic that those reporters were "employed by the chief judge of the circuit or by the clerk” there would hardly be need for this dissent.
In any event, County of Kane confirms that, despite sharing authority with this court, the chief circuit court judges are separately the sole employer representatives of official reporters for labor law purposes. In deciding who was the employer representative of deputy clerks, the court noted that the circuit court — actually the chief judge of the circuit (Ill. Const. 1970, art. VI, § 7)— controls the clerk’s office in several important respects. (County of Kane, 116 Ill. 2d at 200.) The chief judge determines when the clerk’s office is to be open. (705 ILCS 105/6 (West 1992).) The chief judge assigns duties to the office beyond those established by statute or rule. (705 ILCS 105/13 (West 1992).) And the chief judge directs the general operation of the clerk’s office upon inspection of it. (705 ILCS 105/22 (West 1992).) Nevertheless, the court concluded in County of Kane that the chief judges were not the appropriate employer representatives of deputy clerks; the circuit court clerks were. County of Kane, 116 Ill. 2d at 200-02.
The court in County of Kane keenly noted that separation of powers concerns must be viewed in a "practical light.” (County of Kane, 116 Ill. 2d at 208-09.) Board enforcement of the Act which could affect the "administrative and supervisory authority of the judiciary” had to be distinguished from that which would have but an "indirect or collateral effect.” (County of Kane, 116 Ill. 2d at 208-09.) The important point: it is possible, as the court correctly saw, for there to be such a distinguishing. In County of Kane, this court recognized, as do courts in other jurisdictions, that the judicial function simply is not compromised by every Labor Board decision which affects nonjudicial court employees. County of Kane, 116 Ill. 2d at 207-09; see also Teamsters Local 115 v. Pennsylvania Labor Relations Board (1992), 152 Pa. Commw. 394, 619 A.2d 382; Circuit Court v. American Federation of State, County & Municipal Employees, Local 502-A (1983), 295 Or. 542, 669 P.2d 314; State ex rel. O’Leary v. Missouri State Board of Mediation (Mo. 1974), 509 S.W.2d 84; see also In re Petition for a Representation Election, 406 Mich, at 674-89, 281 N.W.2d at 306-12 (Moody, J., dissenting).
And so, two years later in Orenic, the court made clear that the term "employer” for public labor law purposes had to be defined in view of separation of powers concerns and the workings of our unified court system. (Orenic, 127 Ill. 2d at 476-77.) At issue was whether counties were joint employers with the chief circuit court judges of nonjudicial circuit court employees. (Orenic, 127 Ill. 2d at 474-80.) The counties argued for joint employer status, pointing to their role in funding the court system and setting salaries. (Orenic, 127 Ill. 2d at 474-80.) The court rejected the argument and held that the chief judges were separately the sole employer representatives. Orenic, 127 Ill. 2d at 476.
This court’s authority over the judiciary was of no direct concern. Yet, as with County of Kane, the holding of Orenic unavoidably shapes this case’s disposition given the reality of that authority. In Orenic, the court held that nonjudicial judicial branch employees in the circuit courts were employed by the chief circuit court judges. What is significant is that this court’s ultimate authority over the chief judges did not preclude that conclusion.
Comportment with Separation of Powers and the Illinois Unified Court System
That the chief circuit court judges are the sole employer representatives of official reporters for labor law purposes is correct in terms of the circumstances of the reporters’ employment. The conclusion is also correct in consideration of this court’s own decisions in County of Kane and Orenic. But, above all, the conclusion must square with the intended constitutional separation of judicial and executive branch functions. (See Orenic, 127 Ill. 2d at 485 (stating that "[a]ny conflict between traditional labor law principles and constitutional principles must be resolved in favor of the latter”).) It does.
Recognizing — correctly—the chief judges as sole employer representatives honors this court’s constitutional power to check intrusion upon judicial branch administration. No decision of the Labor Relations Board affecting the chief judges as employers of the reporters could encroach on this court’s authority. (County of Kane, 116 Ill. 2d at 209.) That would be consistent with the authority this court in fact exercises over the chief judges in the administration of the circuit courts.
Honored, as well, would be the integrity of the statutory scheme for administrative review. To recognize the chief judges as the employer representatives is to cede the appellate court no more power than that commensúrate with its jurisdiction. The appellate court’s review of Board action affecting the chief judges could not result in the strange circumstance of that court’s passing on a matter affecting this one — a court superior to it. Nor could the even more absurd situation occur where this court might have to decide, on subsequent appeal, a case involving itself.
No writ of prohibition should issue to bar the Board from considering the reporters’ representation/ certification petition. But the consequence of the chief judges’ being the sole employer representatives of official reporters is that a writ should issue to bar any consideration of this court’s status in that regard. Parenthetically, that would go for the court’s administrative office, too, for it has authority only as directed by the Chief Justice. (Ill. Const. 1970, art. VI, § 16; 134 Ill. 2d R. 30.) There is, of course, some irony in that. In the end, the outcome is the same as that for which the court stretches today. The difference, however, is crucial: only in acknowledging the chief circuit court judges to be the sole employer representatives of official reporters is there a legitimate championing of separation of powers.