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Friday, September 05, 2014

Ind. Courts - Supreme Court hears right-to-work challenge yesterday

Three stories today about yesterday's oral argument in Zoeller v. Sweeney:

Niki Kelly of the Fort Wayne Journal Gazette writes:

Indiana Supreme Court justices seemed skeptical during arguments Thursday about whether the state’s right-to-work law is unconstitutional.

While Justice Steven David con­ceded that the law is anti-union, he and his colleagues said the state statute doesn’t require unions to pay for so-called “free riders.” That is a federal law.

“The remedy here is to write your congressman,” Justice Mark Massa said. “If you don’t like free riders, take it up with Congress.”

A federal court this week upheld the law un­der the U.S. Con­sti­tu­tion. But Thursday’s bat­tle focused on whether it breaches the Indiana Constitution.

The case was the first appeal of two Lake County judicial rulings that found the state’s right-to-work law violates the Indiana Constitution.

Dan Carden reports in the NWI Times:
The five justices of the Indiana Supreme Court struggled during oral arguments Thursday to pin down precisely how the state's right-to-work law is unconstitutional.

Chief Justice Loretta Rush appeared most sympathetic to Lake Superior Judge John Sedia's 2013 decision striking down the labor law that found prohibiting unions from collecting "fair share" fees from nonmembers for bargaining and grievance services they receive violates the state's constitutional guarantee of compensation for services.

Rush, a former Lake County resident, pressed Solicitor General Thomas Fisher, a Jasper County native defending the law on behalf of Republican Attorney General Greg Zoeller, to explain why right-to-work isn't an uncompensated state demand for particular services.

Fisher argued right-to-work simply is a general regulation of business practices and not a situation where the state is forcing someone to do something without pay. The requirement that unions provide services to nonmembers at a unionized workplace is in federal law, he said.

"The particular services clause was not intended to eliminate all free rider issues," Fisher said. "This (right-to-work law) protects the voluntary aspect of what union membership is supposed to be about."

Justice Steven David was skeptical of that claim. He said there clearly is a demand for services and suggested the state is relying on a "nod, nod, wink, wink" argument by putting the origin of that demand on the federal government.

"Let's cut to the chase. This is clearly anti-union legislation," David said. "It's certainly not pro-union legislation."

David advanced and repeatedly returned during the 45-minute court session to the idea that the state is reallocating union funds without the union's consent, since unions forced to spend their members' dues representing nonmembers cannot spend that money on other things.

But when David asked Dale Pierson, attorney for the International Union of Operating Engineers, Local 150, the union challenging the right-to-work law, why that was unconstitutional, it took Pierson several tries to tie it to a state constitutional claim.

"The right-to-work law itself is the state demanding and taking money from the union," Pierson said.

Rush then wondered whether the union might be better off bringing an "as applied" challenge to the law once the union has been compelled to pay attorney fees and other costs associated with representing a nonmember, rather than arguing the law is unconstitutional on its face.

Justice Mark Massa, the former attorney for Republican Gov. Mitch Daniels, who signed right-to-work into law immediately upon its passage by the Republican-controlled General Assembly in 2012, left no doubt he believes the law is constitutional.

Massa pointed out federal law permits unions to be "members-only," which frees them from the obligation to represent nonmembers as "exclusive-agency" unions must.

As a result, unions seeking the additional federal protections of exclusive-agency also must consent to the cost of additional state requirements relating to that designation, Massa said.

Pierson responded by pointing out that members-only unions are fiction. They theoretically can exist under federal law but the National Labor Relations Board has not approved one in years.

Also, employers are not required to bargain with members-only unions as they must with exclusive-agency unions, Pierson said.

But Justice Robert Rucker, a Gary native, said so long as members-only unions are a possibility, the Operating Engineers' challenge to Indiana's right-to-work law "must fail" since exclusive-agency unions are choosing to put themselves at the mercy of right-to-work.

Near the end of the court's session, Justice Brent Dickson, a Hobart native, expressed his reluctance to overturn a law enacted by the Legislature, absent a clear violation of the Indiana Constitution.

While Dickson acknowledged right-to-work might force unions to provide services without compensation, he too noted it was federal law forcing unions to do so. The state's bill of rights cannot be used to defend Indiana unions from federal action, he said.

Rush ended oral arguments — her first since replacing Dickson as chief justice Aug. 18 — with the promise, "We will take this under advisement and issue an order in due course."

The Indianapolis Star story by Barb Berggoetz revealed some unfamiliarity with oral arguments - some quotes:
The 45-minute hearing over the 2012 law in the court’s packed Statehouse chambers pitted the state attorney general’s office against lawyers representing union members.

The state of Indiana appealed a Lake County judge’s ruling that the law, passed by a Republican-controlled legislature, violates Indiana’s constitutional prohibition against forcing anyone to provide a service — union representation in this case — for free.

Testimony by Solicitor General Thomas Fisher, representing Attorney General Greg Zoeller, and Dale Pierson, representing the International Union of Operating Engineers Local 150, was interrupted frequently by questions from Supreme Court members, as is common. They asked skeptical questions about exactly how the law violates Indiana’s constitution and the impact of the federal requirement for unions to represent all members of bargaining units.

Posted by Marcia Oddi on September 5, 2014 10:09 AM
Posted to Indiana Courts