The opinion of the court was delivered by: Hon. Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
In this proposed class action lawsuit, Plaintiffs are individuals who provide in-home care to disabled participants in one of two Illinois Medicaid-waiver programs: (1) the Home Services Program administered by the Division of Rehabilitation Services of the Illinois Department of Human Services ("Rehabilitation Program"); or (2) the Home Based Support Services Program for Mentally Disabled Adults administered by the Division of Developmental Disabilities of the Illinois Department of Human Services ("Disabilities Program"). Plaintiffs Theresa Riffey, Susan Watts, and Stephanie Yencer-Price ("Rehabilitation Plaintiffs") provide services to disabled participants in the Rehabilitation Program and allege that Defendant SEIU Healthcare Illinois & Indiana ("SEIU HII") violated the constitutional rights of these Plaintiffs by compelling them to pay SEIU HII compulsory union fees. Plaintiffs Pamela J. Harris, Ellen Bronfeld, Michelle Harris, Carole Gulo, Wendy Partridge, and Patricia Withers ("Disabilities Plaintiffs")*fn1 provide services to disabled participants in the Disabilities Program. The Disabilities Plaintiffs allege that Defendants Governor Pat Quinn ("Governor Quinn"), SEIU Local 73, and AFSCME Council 31 ("AFSCME") violated the constitutional rights of the Disabilities Plaintiffs by threatening to compel them to financially support either SEIU Local 73 or AFSCME. The Rehabilitation Plaintiffs and the Disabilities Plaintiffs seek monetary damages, injunctive relief, and a declaratory judgment that certain conduct, portions of two Illinois Executive Orders, and an Illinois Public Act are unconstitutional. In a consolidated motion, all Defendants moved for dismissal of Counts I and II pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) respectively. (Dkt. No. 30.) Defendants SEIU Local 73 and AFSCME moved for dismissal on the additional basis that the claims against them fail to establish state action. Governor Quinn moved for dismissal of any claim seeking monetary damages against him on the additional basis of the immunity protections provided by the Eleventh Amendment. The Court conducted a hearing on the pending motion on November 5, 2010. For the reasons stated below, the Court grants Defendants' Consolidated Motion to Dismiss.
The Plaintiffs are providers of home care service to disabled individuals enrolled in either the Disabilities Program or the Rehabilitation Program.*fn2 (Dkt. No. p. 2.) Both programs are Medicaid-waiver programs administered by the Illinois Department of Human Services, which subsidize the costs of providing home-based services to individuals with severe disabilities. (Id. at ¶¶ 7, 13.) The Plaintiffs provide personal care and certain health care services to program participants to allow the participants to remain in their homes and prevent their unnecessary institutionalization. (Id.) The program participants may select and hire any provider who meets certain minimum requirements as set by the State of Illinois ("State"). (Compl. ¶¶ 10, 16.) The participants supervise, discipline, and control certain terms and conditions of the providers they hire. (Id.) The State subsidizes a participant's cost of hiring a provider, ensures that providers meet certain minimum requirements, and controls the economic terms of the providers' employment. (Compl. ¶¶ 10-11, 17.)
A. Providers in The Rehabilitation Program
In March 2003, former Illinois Governor Blagojevich issued "Executive Order on Collective Bargaining By Personal Assistants" ("EO 2003-08"), which recognized that the State was not the "sole employer" of the personal assistants who provide home services under the Rehabilitation Program. (Dkt. No. 32-1.) EO 2003-08 also recognized the importance of preserving the participants' "control over the hiring, in-home supervision, and termination of the personal assistants" while at the same time preserving the "State's ability to ensure efficient and effective delivery of personal care services and [to] control the economic terms of the personal assistants' employment." (Id.) In recognition of these twin objectives, EO 2003-08 provided that the State shall recognize a representative designated by the majority of the personal assistants as the exclusive representative of all personal assistants for the purposes of engaging in collective bargaining with the representative concerning the terms and conditions of employment "that are within the State's control." (Id.; Compl. ¶ 20.)
In July 2003, the Illinois General Assembly codified EO 2003-08 by enacting Public Act 0903-204, An Act Concerning Disabled Persons ("the 2003 Act"), which amended Section 3 of the Disabled Persons Rehabilitation Act. (Compl. ¶ 21; Dkt. No. 32-10.) Section 3(f) of the 2003 Act provided:
[P]ersonal assistants providing services under the Department's Home Services Program shall be considered to be public employees and the State of Illinois shall be considered their employer. (Dkt. No. 32-10.)
The 2003 Act also provided for a "Fair share agreement" which required all employees in a collective bargaining unit 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." (Id. at Sect. 3(g).) The fair share agreement specifically excluded payment of "any fees for contributions related to the election or support of any candidate for political office." (Id.)
Shortly after the 2003 Act was enacted, the majority of personal assistants in the Rehabilitation Program designated SEIU HII as the exclusive representative for all personal assistants and the State and SEIU HII subsequently entered into a collective bargaining agreement ("CBA") effective August 1, 2003 to December 31, 2007. (Compl. ¶¶ 22-24.) In 2008, the State and SEIU HII entered into a new CBA effective January 1, 2008 to June 30, 2012. (Id. at ¶ 24; Dkt. No. 32-3 p. 2.) The CBA allows the State, upon the written authorization of the personal assistant, to deduct union dues and initiation fees from the personal assistant's wages and remit such fees to SEIU HII. (Dkt. No. 32-3 p. 8.) The CBA also contains a fair share provision in Section 6 of Article X, which tracks the language in the 2003 Act and requires that all personal assistants who are not SEIU HII members 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." (Compl. ¶ 25; Dkt. No. 32-4 p. 7.)
The Rehabilitation Plaintiffs are personal assistants in the Rehabilitation Program who have either paid union dues or fair share fees through payroll deductions that were ultimately remitted to SEIU HII. (Compl. ¶ 38.) The Rehabilitation Plaintiffs allege that they, and other similarly situated personal assistants, are compelled to financially support SEIU HII for purposes of speaking to, petitioning, and otherwise lobbying the State with respect to the Rehabilitation Program and that the compelled association abridges their right to freedom of association, freedom of speech, and to petition the government for redress of grievances under the First Amendment to the United States Constitution, in violation of the Fourteenth Amendment and 42 U.S.C. § 1983. (Compl. ¶ 46.)
B. Providers in the Disabilities Program
On June 29, 2009, Governor Quinn issued Executive Order 2009-15 ("EO 2009-15" or "the Order") titled "Collective Bargaining By Individual Providers of Home-Based Support Services." (Compl. ¶ 31; Dkt. No 32-2.) EO 2009-15 recognized that the individual providers of home-based services under the Disabilities Program are not State employees but that the "State controls the economic terms of their provision of services." (Dkt. No. 32-2 p. 2.) The Order also recognized the fact that the State had productively dealt with an exclusive representative of personal assistants in the Rehabilitation Program for many years. (Id.) EO 2009-15 authorized the State to recognize a representative designated by the majority of the individual providers in the Home-Based Support Services Program as the exclusive representative for collective bargaining purposes. (Compl ¶ 31.)
In October 2009, Defendants SEIU Local 73 and AFSCME unsuccessfully attempted to become the exclusive representative of the individual providers in the Disabilities Program. (Id.. ¶ 32.) As a result, the individual providers in the Disabilities program are not represented by any union. (Id. at 33.) The Disabilities Plaintiffs allege that they devoted time, and in some cases money, to campaign against union representation. (Id. at 35.) These Plaintiffs also allege that SEIU Local 73 and AFSCME are continuing their efforts to become the exclusive representative pursuant to EO 2009-15 and that these ongoing efforts threaten to violate the constitutional rights of the Disabilities Plaintiffs and others similarly situated. (Id. at ¶¶ 36-37.)
A. Motion To Dismiss for Failure To ...