Category Archives: Courts

Unions and Non-Member “Fees”

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This session, the Supreme Court will hear, among other cases, Friedrichs v California Teachers Association.

On Jan 11 the court will hear arguments on whether public employees can be required to join a union or pay it a fee for collective-bargaining services.

The lawsuit contends such agreements violate First Amendment protections.

The argument is that, with public service unions, such fees also are political speech, since the unions also push for this or that domestic policy with their bargaining counterpart, the government, and there’s no way to separate out the union monies spent for bargaining outcome from those spent for political lobbying.

Such “agreements” (because paying the “fees” isn’t at all a voluntarily entered into arrangement, but a condition of having the job at all) go beyond that, though. They’re also a taking under principle of the 5th Amendment. Even though that Amendment binds the government and not private entities regarding takings, it’s not too far a stretch to apply it to the quasi-government entities of public service unions. Withal, the principle is valid, even if the Amendment itself is not strictly applicable.

Arguments in favor of the “fee” proceed from a false premise, too. “Fee” proponents argue that the payments are fair compensation for the union’s work in achieving an agreement for the nonmembers as well as the members. Of course, this is false on its face. The nonmembers are not represented by the union—that’s pretty obvious. As such, then, any arrangements between nonmembers and employers are strictly that: between the employer and the nonmember. If those arrangements look like what the union bargained for its members, oh well. They’re not required to be, and sometimes they are not.

Unions in Friedrichs also make the following argument:

If the suit prevails, public-employee unions say they could be crippled in about half the states that allow such agency shop clauses.

Couple things about that argument. One is that it may well be inconvenient to the unions (even extremely so), but that isn’t relevant. Either the “fees” are owed for the claimed services rendered, or they are not. The case should be decided on its merits, not on the basis of any supposed knock-on effects.

The other thing is this: so what?

Another Foolish Argument

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Nebraska and Oklahoma have asked the Supreme Court to strike Colorado’s 2012 marijuana initiative on the grounds that the Colorado constitutional amendment has sparked crime increases in their own states. To the extent that can be shown, it’s an argument worth having.

Enter President Barack Obama through his Solicitor General, Donald Verrilli, in Verrilli’s brief to the Supreme Court, in which Obama urged the Court to reject the case:

Entertaining the type of dispute at issue here—essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State—would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.

Here’s what our Constitution says about the Supreme Court’s role in disputes between States, which Verilli’s brief also cites:

In all Cases…in which a State shall be Party, the supreme Court shall have original Jurisdiction.

Verrilli’s brief also cited the First Judiciary Act, a hoary old law passed by the First Congress’ first session in 1789 averring, among other things, that the Supreme Court in particular has

original and exclusive jurisdiction of all controversies between two or more States.

Notice those two cites: there is nowhere contained within either any caveat or limit. There is nothing that says, “Except when it’s inconvenient to Government,” or “Except when there’s something else,” or….

Despite that, the Solicitor General, in his brief (undoubtedly written for him by that better lawyer than his lawyers—it certainly contains Obama’s depth and style of legal thinking [/snark]), made the claim that taking the case would represent a substantial and unwarranted expansion of the Court’s role in settling a dispute between States.

Nonsense. This is a textbook example of a dispute between States, and it’s directly within the Court’s constitutionally mandated function, especially as fleshed out by Congress and a President who signed the fleshing-out into law. The Court may decide it’s a bogus beef, and that would be a useful precedent to set.

But it’s entirely a Supreme Court decision. Verrilli and his boss know this full well.

SEC Dishonesty

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I’ve written before about the SEC’s internal administrative judge stacked deck system.

Judge Brenda Murray explained to [eight] brokers that the commissioners who run the SEC and approve all the civil charges filed by the agency don’t want its judges second-guessing them.

“So for me to say I am wiping it out,” Ms Murray said at the [motion to dismiss] hearing last year, “it looks like I am saying to these presidential appointee commissioners, I am reversing you. And they don’t like that.”

It doesn’t get any more blatant than that.

And yet, there’s this:

In another glimpse inside the SEC’s court, [Judge Cameron] Elliot told the defendants during settlement discussions on a case they should be aware he had never ruled against the agency’s enforcement division, said a person who was there. The judge said the defendants might therefore want to do a deal with the agency rather than fight their case at a hearing before him[.]

No extortion here. Mm, mm.

Whether this is dishonesty or rank cowardice isn’t material here. What is material is that these performances by SEC administrative judges are, by themselves, reason to do away with the SEC’s administrative judge system altogether and refer cases the SEC brings to Federal—or State—courts, where the defendants can get an actual fair trial.

These sham performances also should prompt a Congressional review of all administrative judge systems, Federal government wide, with a requirement that each entity having such a system prove it needs it and that the Federal and State court systems cannot handle the cases.

Free Speech

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Universities are struggling to balance the free exchange of ideas with students’ growing desire to be shielded from offensive views, a philosophical divide at the heart of recent protests that have roiled campuses around the country.

That’s the opening paragraph of Dan Frosch’s and Tamara Audi’s Friday piece in The Wall Street Journal. There’s no struggle here, though, except in the minds of school administrators and professors too timorous, too disrespectful of free speech to be fit to hold their positions.

While the tension between political correctness and open discourse has riven colleges for decades, a hunger strike and protests over racial incidents that forced out the University of Missouri’s president on Monday have supercharged the debate.

This is a coarse misunderstanding, and not only by Frosch and Audi, but by the precious little snowflakes at each of those universities and colleges. There is no such tension at all. What is politically incorrect is the attempt to control discourse in order to protect the self-proclaimed too-fragile from the vicissitudes of life.

Freedom of speech begins, of necessity, with protecting the most offensive, the most uncomfortable of speech. As soon as governments begin banning the most offensive or uncomfortable speech, the definition of “offensive” and of “uncomfortable” begins to be elevated. In very short order, indeed, today’s ordinary, inoffensive, comfortable (and comforting) speech becomes offensive and uncomfortable. Especially to the men in government who now are making the definitions.

Here’s an excerpt from a 6th Circuit en banc ruling on a free speech/free exercise case from Dearborn, MI [cites omitted]:

Diversity, in viewpoints and among cultures, is not always easy. An inability or a general unwillingness to understand new or differing points of view may breed fear, distrust, and even loathing. But it “is the function of speech to free men from the bondage of irrational fears.” Robust discourse, including the exchanging of ideas, may lead to a better understanding (or even an appreciation) of the people whose views we once feared simply because they appeared foreign to our own exposure. But even when communication fails to bridge the gap in understanding, or when understanding fails to heal the divide between us, the First Amendment demands that we tolerate the viewpoints of others with whom we may disagree. If the Constitution were to allow for the suppression of minority or disfavored views, the democratic process would become imperiled through the corrosion of our individual freedom. Because “[t]he right to speak freely and to promote diversity of ideas…is…one of the chief distinctions that sets us apart from totalitarian regimes,” dissent is an essential ingredient of our political process.
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The civil-rights era cases tell us that police cannot punish a peaceful speaker as an easy alternative to dealing with a lawless crowd that is offended by what the speaker has to say … The Supreme Court … has repeatedly affirmed the principle that “constitutional rights may not be denied simply because of hostility to their assertion or exercise.

It would do these children a great service to learn to read (a form of free speech…), and then to add this sort of thing to their literature lists. It would do the administrators and professors a great service to steel themselves to reading and understanding our Constitution. Their disdain for such responsibility is microaggression of monstrous proportion against these children.

To quote, sort of, another man, life is hard. It’s harder if you’re precious and fragile. Or if you’re in a position of responsibility that exceeds your courage.

“The Law Must Change”

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There are a couple of cases before the Supreme Court in this session involving questions of excessive punishment. One case involves a defendant on death row in a case where a jury rendered a majority advisory verdict applying the death penalty on the defendant’s conviction of murder, with the judge having the final say. The argument here is that this

violates a 2002 precedent that defendants are entitled to have a jury, rather than a judge, determine a death sentence.

The other case, though, is the one that interests me. In this case, a 17-year-old, a juvenile under the definitions extant at the time, was convicted in 1963 of murdering a sheriff’s deputy and given a life without parole sentence. His appeal asks the Court to make retroactive its 2012 ruling that

juveniles cannot automatically be sentenced to life imprisonment without the possibility of parole.

The government agrees with the defendant in this case, which may or may not be an appropriate thing to do in such matters, depending on the facts of a particular case.

What’s of critical importance here, though, is the government’s argument in supporting the defendant. Deputy Solicitor General Michael Dreeben argued

The law must change to accommodate the compelling interests in having the characteristics of youth that mitigate culpability considered in the sentencing process[.]

That’s absolutely true. Laws passed by our elected representatives must change to accommodate society’s changing compelling interests. But the courts cannot do that. The courts’ role is strictly limited under our social compact to striking a law down if it violates our Constitution and to applying the law as it is written if the law is Constitutional. The task of making law, or of modifying existing law, is solely within the province of our legislature, our elected representatives, since making or modifying law is purely a political matter and not at all a judicial one.

The Supremes, if they’re to be true to their oaths of office, must reject the appeal. The Justices certainly can, in their published opinion(s) on the case, advise the Congress to make changes the Justices individually or collectively think appropriate, but they may not legislate from the bench.