Illinois Appellate Court ruling allows collective bargaining amendment to remain on the ballot 

A three-judge panel of the Illinois Fourth District Appellate Court affirmed Circuit Judge Raylene Grischow’s May 2022 denial of a petition to remove Amendment 1, the Right to Collective Bargaining Measure, from the ballot. 

Background

Amendment 1 is a legislatively referred constitutional amendment that Illinois voters will decide on Nov. 8. 

The amendment would add the following language to Article I of the Illinois Constitution:

1. “Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.”
2. “The provisions of this Section are controlling over those of Section 6 of Article VII.”

In April 2022, two Chicago Public School teachers and two parents filed a petition and complaint in circuit court against the Illinois State Board of Elections, the Illinois Secretary of State, and the Illinois State Comptroller, seeking to remove the proposed amendment from the ballot.  

The petitioners claimed the amendment would violate the Supremacy Clause of the U.S. Constitution because the National Labor Relations Act (NLRA) would preempt the amendment. The petitioners said that as taxpayers, they had standing to sue to prevent state funds from being used to put an unconstitutional measure on the ballot. 

In May 2022, Circuit Judge Raylene Grischow of the Seventh Judicial Circuit Court in Sangamon County denied the petitioners’ request to have the amendment removed from the ballot, writing that “the Court has no power to restrain a referendum on the grounds that, if the proposed law were enacted, its enforcement would be unconstitutional” and that the petitioners “[offered] no basis for preventing the Amendment’s submission to the voters merely because some anticipated applications may be preempted by federal law.” 

Grischow also said the amendment had applications that federal law would not preempt: that it “would create rights for public employees,” “would restrain the power of the General Assembly to pass laws restricting union security agreements,” and “would act as a state-law failsafe to preserve rights for private-sector employees in the event the federal government ever decided to abandon the NLRA.” 

To read more about the petition and circuit court decision, see the June 10 edition of Union Station.

The court’s decision

On Aug. 26, a three-judge panel of the Illinois Fourth District Appellate Court—Justices Thomas M. Harris, John W. Turner, and Eugene G. Doherty—affirmed Grischow’s decision.

Harris wrote:

“We find the above case authority [including Fletcher v. City of Paris (1941) and Slack v. City of Salem (1964)] makes clear that courts may not act to enjoin a constitutionally authorized election. Like in Fletcher, petitioners’ challenge in this case is to the validity of Amendment 1. They seek a finding that the amendment is unconstitutional and unenforceable before it becomes effective. However, before the amendment process has been completed, their challenge is premature and not ripe for consideration. Amendment 1 may never be finally approved. As stated in Slack … the constitutional issues petitioners want resolved ‘may never progress beyond the realm of the hypothetical.’ …

“Here, because petitioners do not claim a violation of article XIV, their proposed action would seek judicial interference with a legislative process that is constitutionally authorized. Such interference is improper as expressed in Fletcher, and ultimately, there is no waste of public funds caused by the carrying out of an election that conforms to constitutional requirements. Further, petitioners’ challenge to the validity of Amendment 1 is premature until such time as it becomes effective. We note petitioners argue on appeal that even if their claim for injunctive relief may not be maintained, they could still successfully pursue declaratory relief. However, as respondents point out, Slack specifically applied its holding to a request for a declaratory judgment. Thus, like petitioners’ claim for injunctive relief, their request for declaratory relief is also premature.” 

The case name and number are Sachen v. Illinois State Board of Elections (4-22-0470). 

Perspectives

Support

Illinois Attorney General Kwame Raoul (D) said, “I am pleased with the 4th District’s decision, which will allow voters to decide whether Illinois’ constitution should be amended to include a ‘Workers’ Rights Amendment [sic]. We argued that the plaintiffs’ claims failed because the voters, not the courts, should decide whether to amend the constitution. I am happy the court agreed.” 

Opposition

Dylan Sharkey of Illinois Policy said, “[By the court’s] logic, the Illinois General Assembly could put a blatantly unconstitutional amendment on the ballot – such as prohibiting anyone from criticizing the government or outlawing a religion – and it could go on the ballot as long as it followed the right process.” 

About the Illinois Appellate Court

The Illinois Appellate Court is the intermediate appellate court in Illinois. It hears appeals from the Illinois Circuit Court, and its decisions can be appealed to the Illinois Supreme Court. The court has five districts. New judicial district maps went into effect on Jan. 1, 2022, the first time the boundaries had been redrawn since 1964. 

Judges are elected to the court in partisan elections for 10-year terms. Incumbents run in nonpartisan retention elections. The Illinois Supreme Court appoints judges to the court to fill vacancies.

What we’re reading

• Illinois Newsroom, “Ahead of amendment vote, union membership grows in Illinois,” Sept. 7, 2022
• Chicago Tribune, “Adam Schuster: Amendment 1, which faces a vote by Illinoisans in November, is a tax hike in disguise,” Sept. 7, 2022
• The Center Square, “SoCal lifeguards petition Supreme Court over union membership rule,” Sept. 7, 2022
• The Seattle Times, “Kent teachers strike ends as union ratifies contract; students head to class,” Sept. 7, 2022
• CNN, “First day of school in Seattle delayed as educators go on strike,” Sept. 7, 2022
• Richmond Times-Dispatch, “Chesterfield teachers union to campaign for collective bargaining rights,” Sept. 6, 2022
• The Gazette, “Attack on public sector workers five years later,” Sept. 5, 2022
• LancasterOnline, “How my 8-year lawsuit helped to settle public employees’ rights,” Sept. 2, 2022

The big picture

Number of relevant bills by state

We are currently tracking 149 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

• California SB931: This bill would allow a union to bring a claim before the Public Employment Relations Board against a public employer allegedly in violation of California Government Code Section 3550 and would set civil penalties for violations. Section 3550 prohibits public employers from discouraging union membership.
  • Democratic sponsorship. 
  • Enrolled and presented to the governor Sept. 6. 
• California SB1406: This bill would allow unions representing excluded state employees to request arbitration with the Department of Human Resources in certain circumstances.  
  • Democratic sponsorship.  
  • Enrolled and presented to the governor Sept. 6.
• Massachusetts H1946: This bill would allow public-sector employees to strike.
  • Democratic sponsorship.
  • Accompanied study order H.5023 Sept. 6. The order would authorize the Joint Committee on Labor and Workforce Development to study “certain House documents relative to wages, workers’ compensation and other related matters.”
• Massachusetts H2060: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions.
  • Democratic sponsorship.
  • Accompanied study order H.5023 Sept. 6.
• Massachusetts H2061: This bill would establish that the personal contact information of public-sector workers cannot be made public. It would allow such information to be disclosed to labor unions.
  • Democratic sponsorship.
  • Accompanied study order H.5023 Sept. 6.
• Massachusetts H2038: This bill would amend the laws governing public-sector worker strikes.
  • Bipartisan sponsorship.  
  • Accompanied study order H.5023 Sept. 6.

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