Correcting an Amicus Brief

Constitutional + First Amendment + Government + Litigation + Public
March 8, 2014
Read this in 5 minutes

We do our best to summarize the thrust of sources when briefing courts. Distilling fifty pages of dense, complex and often recondite research into one parenthetical is a skill all its own. Add over the layer of advocacy expected of attorneys and sometimes the mark can be missed by a bit.

The summary of a research piece I authored that was cited to the United States Supreme Court in a brief by amici curiae by the Center for Constitutional Jurisprudence, Pacific Legal Foundation, and Atlantic Legal Foundation in Harris v. Quinn (No. 11-681) does just that – misses the mark. This post corrects the record.

A snippet of background to contextualize this issue. For the purposes of this correction we only need a sense of the merits and will put the ripeness issue aside. The case concerns Medicaid waiver programs run by the State of Illinois. The state subsidizes homecare services and has implemented several laws addressing the designation of union structures to represent providers of homecare services. The homecare providers are considered to be public employees by the state, and one program’s homecare providers (the rehab providers, as opposed to the support providers) did elect union representation by majority. At least some of the residual minority opted not to join the union. But they were still obliged to pay a compulsory fair-share fee to the union for its purported representation of interests that inure to the benefit of all homecare providers – whether members of the union or not – which in this case is greater reimbursements from the state’s Medicaid programs. The fair-share fee is similar to what is known as an agency fee, which as a concept has been historically the subject of not insignificant dispute, but the fair-share fee is confined by more restrictive bounds and considerations. It prevents free-riding and the splintering of representation, which, it has been suggested, encourages labor peace.

The issue raised by the homecare providers who are paying the fair-share fee as non-members of the union is the constitutional propriety of compulsory support. They believe the union speaks to issues of public concern – namely the state’s policies on the distribution of public benefits through Medicaid programs – and that compulsory support is therefore a violation of their First Amendment rights to petition the government and pursue free association. Through a lead petitioner and homecare provider, Pamela Harris, this group sued the governor of Illinois, Pat Quinn, and the relevant unions. They argue that the State of Illinois is required to show, but has not shown, a compelling interest in support of its union policy.

The case most closely implicates Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

Now, to the correction. The article inaccurately summarized and cited to the Court is titled The Etiology of a Malfunction in Democratic Processes. It is based on a case study of a public union matter that was litigated for years and then researched and written over the course of more years. Again, putting the thrust of that work into a single sentence is challenging, but if it must be done it can be done. However, it would not read as articulated by the amici curiae (select internal cites omitted).

Another example, also concerning the California Teachers Association, highlights one reason for California’s long-term budget crisis. The union sponsored, campaigned for, and won passage of a ballot initiative compelling the state legislature to devote 40 percent of all state revenues to public schools. Teachers as employees clearly benefitted because the funding formula added $450 million to the budgets of local school districts, most of which went to teacher salaries and benefits. Teachers as citizen/taxpayers, however, may have a different point of view on a constitutional provision that ties the hands of the state legislature in allocating limited revenues among all of the competing public services the state provides. In this way public employee collective bargaining affirmatively interferes with effective governance. See Justin DuClos, The Etiology of a Malfunction in Democratic Processes, 45 Ariz. St. L. J. 53, 78 (2013). Because of the political power of this special interest group, cities and school districts are increasingly in danger of bankruptcy. Several cities have filed for bankruptcy protection in recent years, Detroit being the most recent example. This case, however, does not involve the question of whether public employee collective bargaining is a wise public policy. Instead, this Court must decide if the citizen who also happens to be an employee must continue to finance the political lobbying for the measures that cause the bankruptcy.

The correct interpretation of the article is that using quasi- and/or fully-judicial fora to write additional management restrictions into statutory collective bargaining processes could impede democratic governance, primarily because that is not the role of judicial fora, and secondarily because the particular restrictions sought in the case considered would tie the hands of elected officials where discretion is possibly an economic necessity. To say that the piece stands for the proposition that public employee collective bargaining impedes effective governance is far too broad of a take. This is important, because the latter interpretation questions the essence of public unions. The correct interpretation is more nuanced, and questions only a specific practice utilized by public unions in a specific context, i.e. suing – not lobbying – to maintain a floor on terms of employment when negotiating an expired contract during economic recession.

Update: June 30, 2018

After much anticipation that the day would inevitably come (and giving the issue something of the feel of an inbuilt sunset), the U.S. Supreme Court has finally ruled that in the public sector, agency fees are unconstitutionally violative of the First Amendment — read the opinion here, and the Massachuestts Attorney General’s notes here. The holding is, in essence, this: Illinois’ extraction of agency fees from non-consenting public sector employees violates the First Amendment, and because Abood erred in concluding otherwise stare decisis cannot support it; it is therefore overruled. The conclusion drawn from the syllabus is thus:

States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.

Did you find value in this piece? Tweet or Like it so others can, too.