Thursday, May 9, 2013
Divided Sixth Circuit Panel Upholds Michigan's Public Act 53 Regulating Public School Union Dues Collection
A Sixth Circuit panel today upheld the constitutionality of Michigan's Public Act 53 in its opinion in Bailey v. Callaghan.
Michigan’s Public Act 53, enacted in 2012, governs public school employee union dues. It provides:
A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.
As the panel explained, "Thus, under the Act, unions must collect their own membership dues from public-school employees, rather than have the schools collect those dues for them via payroll deductions."
The panel reversed the district court's grant of a preliminary injunction, holding that the challengers' First Amendment and Equal Protection claims were "without merit."
On the First Amendment claim, the panel held that the case was squarely controlled by the Supreme Court's 2009 decision in Ysursa v. Pocatello Educational Ass'n, and the distinctions urged by the challengers were inapposite. Its summary exiled the dispute from First Amendment terrain:
So Public Act 53 does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind. Instead, the Act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern.
The Equal Protection argument was dispatched with even less fanfare:
The question here is whether there is any conceivable legitimate interest in support of this classification. We hold that there is: the Legislature could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers. The plaintiffs’ equal-protection claim therefore fails.
Dissenting, Judge Jane Branstetter Stranch begins by noting that the "majority spills little ink" - - - the opinion is 5 pages - - - and then proceeds with a more robust analysis of the First Amendment challenge. She takes seriously the viewpoint discrimination argument given the Michigan legislature's specific statement that the purpose of Act 53 was to put a "check on union power." This type of viewpoint discrimination means that Ysursa does not control, and in fact "Ysursa expressly acknowledges the long-standing prohibition on viewpoint discrimination in the provision of government subsidies," although the Court held that because that law applied to all employers, there was no viewpoint discrimination. Instead, she relies on Citizens United to contend:
To the extent Act 53’s purpose is to cripple the school unions’ ability to raise funds for political speech because Michigan’s legislature finds that speech undesirable, it is plainly impermissible. Political speech, of course, is a core First Amendment activity that “must prevail against laws that would suppress it, whether by design or inadvertence.” Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010). And “restrictions distinguishing among different speakers, allowing speech by some but not others,” run afoul of the First Amendment precisely because they are “all too often simply a means to control content.” Id. at 898–99.
This doctrinal prohibition applies not only to laws that directly burden speech, but also to those that diminish the amount of speech by making it more difficult or expensive to speak. See, e.g., Citizens United, 130 S. Ct. at 897.
It does seem that Judge Stranch's dissent has the better argument, and definitely the more developed one.
[image: Central School Iron River Michigan, circa 1909, via]
What is Chinese constitutionalism? Larry Catá Backer's new article, Towards a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong’s Constitutionalism, available on ssrn, not only provides answers to that query, but develops the topic in sophisticated and important ways. As Backer (pictured right) notes,
The Chinese constitutional system does not imitate those of other developed states, because it political ideology is grounded in Marxist Leninism which suggests a different relationship between the state, the people and the manner of exercising political and economic power, which over the course of nearly a century suggested what Western theorists generally viewed as the anti-constitutionalism of Soviet Stalinism and its variants.
But Backer is not content with such simplistic dismissals. Instead, exploring the arguments of Chinese LawProf Jiang Shigong (pictured left), Backer traces different strands of Chinese constitutionalism within the context of Chinese culture and society and their possibilities for development. Backer notes that the "critical distinction for Jiang between Chinese and Western constitutionalism lies in the willingness to fold a Party-State system within notions of substantive constitutionalism—not just in terms of legitimacy but also in terms of providing a foundation for building a governmental apparatus that provides for its people in a way functionally equivalent to that in Western democracies."
For ConLaw comparativists, Backer's article is essential reading: it situates Chinese constitutionalism in global contexts and more importantly, evaluates its various aspects in comparison to each other. For ConLawProfs who may not consider themselves comparativists, Backer's article may be even more essential. Backer's exploration is theoretically sophisticated, nuanced, and guaranteed to enrich any reader's thinking about the role of any constitution in any nation, including the United States.
Wednesday, May 8, 2013
A three-judge panel of the D.C. Circuit struck the enforcement mechanisms for the NLRB rule requiring employers to post a notice of employee rights. The ruling yesterday in National Association of Manufacturers v. NLRB means that the NLRB rule is invalid.
The case strikes a blow at the NLRB effort to educate employees on their workplace rights, in an era where union membership is way down (7.3% of the private workforce) and where more and more workers enter the workplace without knowledge of their rights.
The case arose after the NLRB promulgated a rule that required employers to post a notice of employee rights in the workplace. Violation of the rule came with an unfair labor practice under Section 8(a)(1) of the NLRA. (It also came with a suspension of the running of the six-month period for filing any unfair labor practice charge, and it constituted evidence of unlawful motive in a case in which motive is an issue.)
The rule says,
[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures . . . .
29 C.F.R. Sec. 104.202(a). (Here's the single-page version of the notice poster.) But the plaintiffs argued that this violated the NLRA and free speech. The court agreed, concluding that the rule violated Section 8(a), which says:
The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.
The court said that "[a]lthough Section 8(a) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board's rule does both."
The court rejected the NLRB's argument that the required post is the Board's speech, not the employer's speech. Comparing Section 8(a) to First Amendment law, the court said that it didn't matter: dissemination of messages gets the same free speech treatment as creation of messages.
The court also rejected the NLRB's argument based on UAW-Labor Employment & Training Corp. v. Chao, (D.C. Cir. 2003), which upheld President Bush's executive order requiring government contractors to post notice at their workplaces informing employees of their rights not to be forced to join a union or to pay union dues for nonrepresentational activities. (The plaintiffs in that case argued only that President Bush's EO was preempted by the NLRA; they lodged no First Amendment claim.) The difference, according to the court: there was no prospect in UAW of a contractor's being charged with an unfair labor practice for failing to post the required notice.
(Two members of the panel, Judges Henderson and Brown, would have gone farther and ruled that the NLRB lacked authority to pomulgate the posting rule.)
The court addressed the preliminary issue whether the NLRB had a quorum when it promulgated the rule, in light of its recent ruling in Noel Canning v. NLRB that President Obama's recess appointments were invalid. But the court held that the NLRB had a quorum when the rule was filed with the Office of the Federal Register (the relevant time), even if it didn't have a quorum when the rule was published.
Tuesday, May 7, 2013
The Louisiana Supreme Court today ruled that the state's school voucher program violates the state constitution. In particular, the court ruled that the voucher program tapped the constitutionally protected per pupil state fund for public education and that the legislature passed the funding mechanism in violation of state constitutional procedural requirements.
The ruling deals a fatal blow to this funding mechanism for the state's voucher program. But the state could probably create a voucher program and fund it through a different budget mechanism (e.g., a regular line item, instead of the state's specifically reserved per pupil fund for public education). The ruling thus puts the ball back in the governor's and legislature's court--to create a new mechanism for the voucher program, and to come up with the money to fund it. (Here's Governor Jindal's statement in reaction to the ruling.) Even if this happens, the ruling underscores the constitutional protection for separately allocated per pupil fund for public education in the state.
The ruling, Louisiana Federation of Teachers v. State of Lousiana, arose out of state constitutional challenges to the state's recently encacted voucher program. That program diverted state funds separately allocated for public education (under the "minimum foundation program," or MFP) to private schools "on behalf of each student awarded a scholarship" under the voucher program. The program came in two parts: Act 2 created the voucher program; and Senate Concurrent Resolution No. 99 approved the MFP line-item but diverted MFP funds to support Act 2 vouchers.
The court ruled that the provisions violated Louisiana Constitution Article VIII, Sec. 13(B), which requires the legislature to "fully fund the current cost to the state" of "a minimum foundation program of education in all public elementary and secondary schools," and the "funds appropriated shall be equitably allocated to parish and city school systems." According to the court, Section 13(B) requires that MFP funds be used to support public education only, even if some of the students used to calculate the MFP base elected to go to private school. In short, when Section 13(B) says that MFP funds "shall" be allocated to public schools, it means they shall be allocated only to public schools--and can't be diverted to private schools.
The court also ruled that SCR 99 violated Article III, Sec. 2(A)(3)(a), which says (in relevant part):
No new matter intended to have the effect of law shall be introduced or received by either house after six o'clock in the evening of the twenty-third calendar day.
After some analysis of "the effect of law," the court concluded that SCR 99 violated this provision, because it was introduced in both houses after the twenty-third calendar day of the regular session. (The court ruled that it also violated a related provision, requiring a 2/3 vote after a certain date. Ultimately the court noted that in the House it didn't even get a "majority of the members elected," as required by Article III, Sec. 15(G).)
At the same time, the court ruled that the voucher package didn't violate the constitution's "one-object" rule, requiring each piece of legislation to deal with just one object. The court said the legislation was indeed quite lengthy, but still it all went to the same general object--promoting school choice.
Monday, May 6, 2013
The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal is the centerpiece of the new book, The Price of Justice: A True Story of Greed and Corruption by Laurence Leamer. Recall that the Court in Caperton ruled that due process required judicial recusal of a West Virginia Supreme Court of Appeals judge, Justice Brent Benjamin, in a case involving Massey Coal because of the contributions by Massey Coal to Justice Benjamin's campaign.
The starred review from Publisher's Weekly describes the book as
the riveting and compulsively readable tale of the epic battle between Don Blankenship, the man who essentially ran the West Virginia coal industry through his company Massey Energy, and two seemingly ordinary attorneys: Bruce Stanley and David Fawcett. The centerpiece of the story is a West Virginia mine owner whom Blankenship purposefully bankrupted, and on whose behalf Stanley and Fawcett won (in 2002) a $50 million dollar verdict that is still unpaid. In hopes of having the ruling overturned by the West Virginia Supreme Court, Blankenship sought to “buy” a seat on the court by contributing over $3 million to the successful campaign of a conservative judicial candidate. However, the U.S. Supreme Court eventually found that Blankenship’s contributions were too much to allow the new West Virginia justice to hear the case. Leamer has produced a Shakespearean tale of greed, corporate irresponsibility, and personal hubris on the one hand, and idealism, commitment to justice, and personal sacrifice on the other. Blankenship is a villain for all time, and Stanley and Fawcett are lawyers who bring honor to their profession.
A good addition to that summer reading list for anyone interested in constitutional law and anyone who might like a reminder that lawyers can, indeed, be heroic.