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NYPOST Editorial Board
The other day, these pages called for New York to stand up for teachers by letting them decide for themselves whether they are going to pay their union dues.
We were referring to the automatic deduction on teacher paychecks, which the city pays for and manages — and which guarantees the union money for all its political efforts whether or not its members approve.
The day The Post editorial appeared, the US Supreme Court heard arguments in a case that takes this issue far beyond teachers.
In Harris v. Quinn, plaintiff Pam Harris is an Illinois mother who cares for her developmentally disabled son, Josh, at home. Josh receives Medicaid money. Though his mom never joined the Service Employees International Union — with whose politics she disagrees — thanks to decrees by Govs. Rod Blagojevich and Pat Quinn, she was declared a public employee.
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| Rod Blagojevich |
Translation: She has to pay union dues. Which means that some of Josh’s payments from Medicaid are siphoned off and sent to the SEIU.
Harris says this is unfair, and violates her rights to both free speech and free association. She is absolutely right.
In a decision back in 1977, the high court said workers could be forced to pay dues that go to collective bargaining, but that they didn’t have to pay for money used for political activities.
But as we see in New York, when the union is a public-workers union, this line between political and non-political becomes harder to draw.
For example, when the SEIU calls on Mayor de Blasio — its choice in the last election — to raise taxes on the wealthy to fund universal pre-K, how is that not political speech?
In many ways, the Supreme Court case echoes Mayor Bloomberg’s parting warning about the labor-electoral complex that cannot function without forced dues.
Bloomberg was right. And as more and more workers like Pam Harris are effectively forced into public-sector unions they must financially support, it’s time for the Court to restore the balance in favor of their First Amendment rights to decide what organizations they want to join and which they will financially support.
U.S. justices wary of free-speech argument in union dues challenge
Jan 21 (Reuters) - The U.S. Supreme Court seemed unlikely on Tuesday to embrace a sweeping argument advanced by a group of Illinois state employees that paying mandatory union dues violates their free-speech rights.
Backed by the anti-union National Right to Work Legal Defense Foundation, the employees, who care for the disabled, have asked the court to upend a decades-old practice that lets public-sector unions collect money from workers who do not want union representation, so long as the money is not spent on political activities.
Justices on the high court expressed reluctance to reconsider its 1977 ruling in Abood v. Detroit Board of Education. That ruling said unions could collect such compulsory dues under collective bargaining agreements.
A handful of home-based personal care workers, represented by National Right to Work attorney William Messenger, is arguing that the Abood standard should be overturned. Payment of mandatory dues, they argue, is the type of forced association and speech prohibited by the U.S. Constitution's First Amendment.
But during an hour of oral arguments, Justice Elena Kagan said the court has given the government a "very wide degree of latitude" to manage its workforce. Public-sector employees can be fired for making statements in the workplace that would, on their own time, be legally protected, Kagan said.
"So you're saying, well, the government can punish somebody for saying something, but the government in the exact same position cannot compel somebody to say something they disagree with. And I want to know what's the basis for the distinction," said Kagan, one of four liberals on the nine-member court.
Conservative Justice Antonin Scalia said, "I want to hear the answer, too, because contrary to what Justice Kagan suggests, I didn't say your First Amendment argument was valid."
Several members of the court appeared more open to narrower questions raised by the Illinois case, such as when specific union activities may be political in nature.
STATE EMPLOYS MOTHER
The case - Harris v. Quinn - was brought by Pamela Harris, of Illinois, who cares for her 25-year-old son Josh Harris, who has a rare genetic syndrome and needs round-the-clock care.
In Illinois, as in many states, home-based personal care workers who assist the disabled are paid with Medicaid funds as state employees. The practice is meant to lower overall care costs by keeping disabled individuals at home and out of institutions.
For more than a decade now, home-based workers in Illinois have been represented by SEIU Healthcare Illinois-Indiana. The collective bargaining agreement between SEIU and the state provides that all such workers pay compulsory union fees.
Harris, along with other home-based workers, sued Illinois and Governor Pat Quinn, a Democrat, claiming that the compelled payment of union dues was a form of forced speech prohibited by the First Amendment.
A district court dismissed the case, citing long-standing Supreme Court precedent that mandatory union dues can be collected to support non-political activities. The 7th U.S. Circuit Court of Appeals in Chicago affirmed that ruling after concluding the workers bringing the case were state employees.
The workers asked the Supreme Court to take the case. That prompted the filing of friend-of-the-court briefs supporting the workers from several conservative groups, including the Cato Institute, the Center for Constitutional Jurisprudence and the Illinois Policy Institute.
Labor unions, the American Association of People With Disabilities and the state of California were among interests that filed briefs supporting Illinois in the case.
IDENTICAL QUESTIONS
The legal question presented by Harris v. Quinn is nearly identical to the one decided by the court in the 1977 Abood case. Observers wondered whether the court's decision to hear Harris's appeal signaled a willingness to revisit the issue.
The case also came on the heels of the Supreme Court's 2012 decision in Knox v. SEIU, a narrower case in which the justices were skeptical of the SEIU's opt-out procedures for dues payment by public employees in California.
Some of the justices on Tuesday questioned when unions representing public-sector workers may cross the line from non-political to political activity, and if and where that line could be drawn in specific cases.
Harvard University law professor Benjamin Sachs said that it is impossible to predict how the justices will decide a case. But Kagan, Scalia and other members of the court noted on Tuesday that the Supreme Court has consistently affirmed that states can dictate the terms of employment relationships, including that the First Amendment rights of employees can be circumscribed in the workplace, Sachs said.
"If you can glean anything from the oral argument today, it's that possibly a majority of the court is being careful to adhere to that long-standing precedent," Sachs said.
The case is Pamela Harris, et al v. Pat Quinn, Governor of Illinois, U.S. Supreme Court, No. 11-681.
Backed by the anti-union National Right to Work Legal Defense Foundation, the employees, who care for the disabled, have asked the court to upend a decades-old practice that lets public-sector unions collect money from workers who do not want union representation, so long as the money is not spent on political activities.
Justices on the high court expressed reluctance to reconsider its 1977 ruling in Abood v. Detroit Board of Education. That ruling said unions could collect such compulsory dues under collective bargaining agreements.
A handful of home-based personal care workers, represented by National Right to Work attorney William Messenger, is arguing that the Abood standard should be overturned. Payment of mandatory dues, they argue, is the type of forced association and speech prohibited by the U.S. Constitution's First Amendment.
But during an hour of oral arguments, Justice Elena Kagan said the court has given the government a "very wide degree of latitude" to manage its workforce. Public-sector employees can be fired for making statements in the workplace that would, on their own time, be legally protected, Kagan said.
"So you're saying, well, the government can punish somebody for saying something, but the government in the exact same position cannot compel somebody to say something they disagree with. And I want to know what's the basis for the distinction," said Kagan, one of four liberals on the nine-member court.
Conservative Justice Antonin Scalia said, "I want to hear the answer, too, because contrary to what Justice Kagan suggests, I didn't say your First Amendment argument was valid."
Several members of the court appeared more open to narrower questions raised by the Illinois case, such as when specific union activities may be political in nature.
STATE EMPLOYS MOTHER
The case - Harris v. Quinn - was brought by Pamela Harris, of Illinois, who cares for her 25-year-old son Josh Harris, who has a rare genetic syndrome and needs round-the-clock care.
In Illinois, as in many states, home-based personal care workers who assist the disabled are paid with Medicaid funds as state employees. The practice is meant to lower overall care costs by keeping disabled individuals at home and out of institutions.
For more than a decade now, home-based workers in Illinois have been represented by SEIU Healthcare Illinois-Indiana. The collective bargaining agreement between SEIU and the state provides that all such workers pay compulsory union fees.
Harris, along with other home-based workers, sued Illinois and Governor Pat Quinn, a Democrat, claiming that the compelled payment of union dues was a form of forced speech prohibited by the First Amendment.
A district court dismissed the case, citing long-standing Supreme Court precedent that mandatory union dues can be collected to support non-political activities. The 7th U.S. Circuit Court of Appeals in Chicago affirmed that ruling after concluding the workers bringing the case were state employees.
The workers asked the Supreme Court to take the case. That prompted the filing of friend-of-the-court briefs supporting the workers from several conservative groups, including the Cato Institute, the Center for Constitutional Jurisprudence and the Illinois Policy Institute.
Labor unions, the American Association of People With Disabilities and the state of California were among interests that filed briefs supporting Illinois in the case.
IDENTICAL QUESTIONS
The legal question presented by Harris v. Quinn is nearly identical to the one decided by the court in the 1977 Abood case. Observers wondered whether the court's decision to hear Harris's appeal signaled a willingness to revisit the issue.
The case also came on the heels of the Supreme Court's 2012 decision in Knox v. SEIU, a narrower case in which the justices were skeptical of the SEIU's opt-out procedures for dues payment by public employees in California.
Some of the justices on Tuesday questioned when unions representing public-sector workers may cross the line from non-political to political activity, and if and where that line could be drawn in specific cases.
Harvard University law professor Benjamin Sachs said that it is impossible to predict how the justices will decide a case. But Kagan, Scalia and other members of the court noted on Tuesday that the Supreme Court has consistently affirmed that states can dictate the terms of employment relationships, including that the First Amendment rights of employees can be circumscribed in the workplace, Sachs said.
"If you can glean anything from the oral argument today, it's that possibly a majority of the court is being careful to adhere to that long-standing precedent," Sachs said.
The case is Pamela Harris, et al v. Pat Quinn, Governor of Illinois, U.S. Supreme Court, No. 11-681.
Harris v. Quinn
| Docket No. | Op. Below | Argument | Opinion | Vote | Author | Term |
|---|---|---|---|---|---|---|
| 11-681 | 7th Cir. | Jan 21, 2014 Tr.Aud. | TBD | TBD | TBD | OT 2013 |
SCOTUS blog Coverage
| Date | Proceedings and Orders |
|---|---|
| Nov 29 2011 | Petition for a writ of certiorari filed. (Response due January 4, 2012) |
| Dec 22 2011 | Order extending time to file response to petition to and including February 3, 2012, for all respondents. |
| Dec 30 2011 | Waiver of right of respondent Pat Quinn, Governor of Illinois to respond filed. |
| Jan 4 2012 | Motion for leave to file amici brief filed by Center for Constitutional Jurisprudence, et al.. |
| Jan 4 2012 | Brief amici curiae of Cato Institute, et al. filed. |
| Feb 3 2012 | Brief of respondent SEIU Healthcare Illinois and Indiana, et al. in opposition filed. |
| Feb 15 2012 | DISTRIBUTED for Conference of March 2, 2012. |
| Feb 16 2012 | Reply of petitioners Pamela Harris, et al. filed. (Distributed) |
| Feb 29 2012 | Response Requested . (Due March 30, 2012) |
| Mar 19 2012 | Order extending time to file response to petition to and including April 30, 2012. |
| Apr 30 2012 | Brief of respondent Pat Quinn, Governor of Illinois in opposition filed. |
| May 10 2012 | Reply of petitioners Pamela Harris, et al. filed. |
| May 15 2012 | DISTRIBUTED for Conference of May 31, 2012. |
| Jun 25 2012 | DISTRIBUTED for Conference of June 28, 2012. |
| Jun 29 2012 | The Solicitor General is invited to file a brief in this case expressing the views of the United States. |
| May 10 2013 | Brief amicus curiae of the United States filed. |
| May 21 2013 | DISTRIBUTED for Conference of June 6, 2013. |
| May 22 2013 | Supplemental brief of petitioners in response to brief amicus curiae of the United States filed. (Distributed). |
| Jun 10 2013 | DISTRIBUTED for Conference of June 13, 2013. |
| Jun 17 2013 | DISTRIBUTED for Conference of June 20, 2013. |
| Jun 25 2013 | DISTRIBUTED for Conference of June 26, 2013. |
| Sep 23 2013 | DISTRIBUTED for Conference of September 30, 2013. |
| Oct 1 2013 | Motion for leave to file amici brief filed by Center for Constitutional Jurisprudence, et al. GRANTED. |
| Oct 1 2013 | Petition GRANTED. |
| Oct 22 2013 | The time to file the joint appendix and petitioners' brief on the merits is extended to and including November 22, 2013. |
| Oct 30 2013 | Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the respondent Quinn. |
| Oct 31 2013 | Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners. |
| Nov 1 2013 | Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents S.E.I.U. Healthcare Illinois & Indiana, et al. |
| Nov 4 2013 | SET FOR ARGUMENT ON Tuesday, January 21, 2014. |
| Nov 13 2013 | Record received from U.S.C.A. for 7th Circuit is electronic. |
| Nov 22 2013 | Joint appendix filed. (Statement of costs filed.) |
| Nov 22 2013 | Brief of petitioners Pamela Harris, et al. filed. |
| Nov 27 2013 | Brief amici curiae of California Public School Teachers, et al. filed. |
| Nov 27 2013 | Brief amici curiae of Cato Institute, et al. filed. |
| Nov 27 2013 | Brief amici curiae of Center for Constitutional Jurisprudence, et al. filed. |
| Nov 27 2013 | Brief amici curiae of Family Child Care Inc., et al. filed. |
| Nov 27 2013 | Brief amicus curiae of Illinois Policy Institute filed. (Distributed) |
| Nov 27 2013 | Consent to the filing of amicus cuirae briefs, in support of either party or of neither party, received from counsel for respondent AFSME Council 31. |
| Nov 29 2013 | Brief amici curiae of Albert Contreras, et al. filed. |
| Nov 29 2013 | Brief amicus curiae of Mackinac Center for Public Policy filed. (Distributed) |
| Dec 2 2013 | Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondent Local 73, S.E.I.U. |
| Dec 4 2013 | CIRCULATED. |
| Dec 23 2013 | Brief of respondent SEIU Healthcare Illinois & Indiana filed. (Distributed) |
| Dec 23 2013 | Brief of respondents AFSCME Council 31, and SEIU Local 73 filed. (Distributed) |
| Dec 23 2013 | Brief of respondent Pat Quinn, Governor of Illinois filed. (Distributed) |
| Dec 27 2013 | Brief amici curiae of American Association of People With Disabilities, et al. filed. (Distributed) |
| Dec 30 2013 | Brief amicus curiae of the United States filed. (Distributed) |
| Dec 30 2013 | Brief amici curiae of 21 Past Presidents of the D.C. Bar filed. (Distributed) |
| Dec 30 2013 | Brief amici curiae of State of New York, et al. filed. (Distributed) |
| Dec 30 2013 | Brief amici curiae of Public Safety Employees filed. (Distributed) |
| Dec 30 2013 | Brief amici curiae of Labor Law Professors filed. (Distributed) |
| Dec 30 2013 | Brief amicus curiae of The Paraprofessional Healthcare Institute (PHI) filed. (Distributed) |
| Dec 30 2013 | Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. |
| Dec 30 2013 | Brief amicus curiae of American Federation of Labor and Congress of Industrial Organizations filed. (Distributed) |
| Dec 30 2013 | Brief amici curiae of National Education Association, et al. filed. (Distributed) |
| Dec 30 2013 | Brief amici curiae of California, et al. filed. (Distributed) |
| Dec 30 2013 | Brief amici curiae of Homecare Historians filed. (Distributed) |
| Jan 10 2014 | Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. |
| Jan 14 2014 | Reply of petitioners Pamela Harris, et al. filed. (Distributed) |
| Jan 21 2014 | Argued. For petitioners: William L. Messenger, Springfield, Va. For respondents: Paul M. Smith, Washington, D. C.; and Donald B. Verrilli, Jr., Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) |
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