consultants are sandburs

Friday, January 22, 2016

Friedrichs v. California Teachers Assn. [MORE]

The amicus brief to which Abeler lent his name was filed by the Constitutional Accountability Center, which has a Ballotpedia page. Below are the first three substantive pages of that brief, presented as clickable thumbnail images for reader convenience.

There is enough content there for rudimentary analysis. First, what the pages do not say, the motivations of any or all of the "47 Republican" amici are unstated as to political winds of consistency or change. Whether any signatory amicus has political motives related to electability this year would need case by case research of web content where reliability would be problematic, and content would likely be more opinion than fact.

What is apparent, clearly so, is a "states rights" argument, and a denial of any Constitutional issue for the Roberts Court to manufacture out of puffery, sophism and pure gossamer, which may happen anyway, given the Roberts Court majority's will and capabilities.

Leaving distant criticism aside, the clear argument is that each state has its own unique balance (be that political, historical, or otherwise) so that each state should be left alone by federal fiat and instead be allowed to follow its own forces and counterforces in keeping or altering an existing balance.

Abeler's signing onto the brief, and readers please don't rely on the short preceding paragraphs but read the pages, allies his position with that of 46 other Republicans advocating federal restraint vs federal exercise of power; unlike the Freedom Club - Hinderaker - Meeks faction wanting the federal boot applied, their way.

Federal labor law exists, the NLRB and its rules and its changing makeup over time is part of what we all know. Early in the twentieth century one of the first business powers' effort against labor unions was to claim they were combinatorial things in violation of the Sherman Antitrust Act, and the then existing Supreme Court interpreted that statute against union collective bargaining rights, and Congress quickly passed legislation exempting unions from allegations of antitrust dimensions; in effect saying, "Supremes, we did NOT mean that and you should know better." Beyond that, labor law and its history is a vast subject, largely apart from current SD35 considerations.

The states rights argument of the "47 Republicans" is procedural, not substantive, in that it takes no stance on the compelling substantive question, of constraining or allowing union powers of the kind challenged in the pending case. In effect it is a keep-the-powder dry until the shooting starts in my state, then shoot-as-I-will; with that potential shooting being as we may find out, or a moot question if no shooting starts; in Minnesota or in any state in which the other 46 Republicans may reside and act.

Roger Johnson is clear on the issue, pro-union, so it is a what you see is what you get question; Roger being the see-and-get certainty; Abeler being the wait-and-see-and-for-now-hope one way or the other uncertainty.

It is interesting that a wait-and-see position on union cohesiveness and bargaining rights/powers issue was anathema to Freedom Club, so that they hitched their venom to the Aplikowski wagon, ignoring Abeler except to call him "liberal Jim Abeler" which is a pile few stepped in, knowing better and perceiving the smell.

BOTTOM LINE: Abeler is keeping substantive options open, Johnson is committed pro-union on any issue arising involving unions. It seems fair to say that but little more. Abeler is not an intransigent committed anti-unionist, yet. How he'd vote on union issues is something he'd prefer seeing in whatever complexity and dress they present themselves, which is not an unreasonable outlook.

However, in advocating states' powers to rule their own affairs, there is uncertainty on substantive positions with wait-and-see, vs Roger Johnson's what-you-see-is-what-you-get. Abeler is not entirely a mystery, given his many years in the Minnesota House, but an uncertainty short of a mystery does exist.

CAVEAT: Because a labor issues case is pending before the Roberts Court it is easy to be myopic. That is why in favoring Roger Johnson I believe looking at the broader picture, for him and for Abeler also, but in favoring Johnson and in that context, again for reader convenience, thumbnails to disclose the broader Johnson platform (a single webpage presented in three thumbnail/image items, for best readability - and readers should note that in defining a platform Roger leaves labor considerations out because his position there is already clear):

"Roger on Record" is how I characterize that. Roger is not saying, you know me, I've been a representative for over a decade (because he hasn't been), but he is laying out a platform. Favoring Johnson and intending to cast an early vote - "absentee" ballot for him before the Feb. 9 election day, the fairest thing is to note that Abeler mainly is saying you've seen me in action for years, and then stating whatever platform on his campaign site he chooses to.

Leaving it to undecided readers to track down an Abeler link and study "Abeler's platform" is unfair, so the Abler campaign website link is given, along with the Ballotpedia page link on Abler. The latter catalogs Abeler positions in ways his website may gloss over, and any reader believing Ballotpedia mistates an Abeler position is urged to contact Abeler (per his campaign site "contact" page); just as any reader wanting to know more about Roger Johnson should contact Johnson, (per his site "contact" page).

An intent here was to redirect reader attention to the YouTube posting of the LWV pre-primary candidate forum. However, the link posted in the sidebar appears to not be working any longer. As if QCTV pulled the video. If so, QCTV screwed up big time. However, while having pulled the YouTube HTML5 version, QCTV does have the LWV forum posted on their website, but only in Adobe Flash format, where many dislike Adobe Flash and for security reasons do not use it. The video, with one of the GOP pre-primary candidates now out of the running, IS prominently featured at the QCTV website (but in a restricted Flash format only). It's not an improvement, it's a throwback. Why QCTV does not support HTML5 is a mystery; not a technologically limited thing, but likely a thing of will, and/or lassitude.

__________FURTHER UPDATE____________
Readers please tolerate the UPDATE rant, the main point being that the item still is online and will be the only situation where candidates together discuss issues in a retrievable video.

Back to the Friedrichs case; all briefing is accessible online, this ABA link, which opens stating:


California law requires every teacher working in most of its public schools to financially contribute to the local teachers’ union and the union’s state and national affiliates in order to subsidize expenses the union claims are germane to collective bargaining. California law also requires public school teachers to subsidize expenditures unrelated to collective bargaining, unless a teacher affirmatively objects and renews his or her opposition in writing every year.

The questions presented are:

1- Should Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977), be overruled, and should public sector “agency shop” arrangements be invalidated under the First Amendment?

2- Does requiring public employees to affirmatively object to subsidizing nonchargeable speech by public sector unions, rather than requiring employees to affirmatively consent to subsidizing such speech, violate the First Amendment?

A hope would be some semblance of judicial restraint, even from the fearless finagling five obsessed with tampering badly with existing law, to the extent that the separate characterization of bargaining dues shares apart from any advocacy dues portion should not be stricken since all members of a bargaining unit attain benefit from leadership's bargaining, subject always to a membership ratification; and that the speech element of advocacy is apart from the basic, main bargaining share.

Thus the question of opt-in vs opt-out is hoped to be the only thing truly at issue, and how any fool could view that as a constitutional speech issue vs a procedural rule left to state-by-state fancy -- as to where inattentiveness to maintain requisite levels of notice, (i.e., not speech but compliance with a rule of administrative convenience), cuts one way or the other. But, five fools is the worry. Roberts Court after all.

Again, I digress.

From the ABA page for the case, extensive amicus participation is apparent. has a case page linking among other things to a transcript of oral argument, and the audio, online here and here, respectively. Some regard the focus of questioning by individual justices as potentially indicative of where final opinions may fall, but while that's generally a consideration of seasoned court-watcher speculation there is no suggestion here that interested readers should ignore any resource if the questions presented seem personally or intellectually important.

Look for further updating if additional links are encountered that seem to possibly be interesting to readers.

__________FURTHER UPDATE_____________
The Atlantic, this beginning to an item of substantial length:

Will the U.S. Supreme Court Gut Public-Employee Unions?
The justices consider a challenge to labor organizations without weighing the practical implications of their decision.
Jacquelyn Martin / AP

The most important fact about Monday’s oral argument before the U.S. Supreme Court in Friedrichs v. California Teachers Association is that this case—one of the most important of the term—will be decided on the basis of no facts at all.

The petitioners in Friedrichs are asking the Court to hobble unions that represent more than 9 million public employees in 23 states and the District of Columbia. That decision will have large consequences for those employees, for the states that employ them, and for the political system. But the Court will decide the case without, apparently, serious consideration of those effects.

Representing the challengers, the conservative lawyer Michael Carvin described a public-employee union as a purely political group that “advocates an ideological viewpoint” his clients “do not approve of.” Every single thing a public-employee union does, he said, is a matter of public concern; contract negotiations with teachers’ unions, for example, affect class size, teacher promotion policies, and overall state funding—every one of them a hotly contested political issue. In contrast, the union lawyer David Frederick told the Court that many of the union’s activities are “mundane matters” without political content.
Related Story

Will ending the fees cripple or destroy public-employee unions? Who knows? Will unions become less effective in making labor-management relations harmonious? Who knows? Search the joint appendix in this case—nearly 700 pages of pleadings, docket entries, and opinions—and you won’t encounter even one piece of live testimony from union leaders or state officials. The record contains no testimony or studies by labor economists.

That’s because the challengers below—represented by the anti-union Center for Individual Rights—demanded that the lower courts rule against them on a bare record. Current Supreme Court precedent is flatly against them, and lower courts can’t overturn Supreme Court decisions. We want to hurry this case up to the high court, the challengers said; don’t slow us down with facts.

Related Atlantic coverage here.

FURTHER: HuffPo, here. This websearch, with a lot of stuff from the plaintiff rep fronting that part of the case:

Scotusblog gives multiple links, post-oral argument, here.

Do not misunderstand, this is a high stakes game of politics, so Roberts and his four confederated politicians on the wingbat wing of the court may well be inclined to screw unions into the ground. They did Citizens United and Hobby Lobby, so there likely is no end to their love of such mischief.

The amicus position of the 47 Republican legislators appears in a nutshell to be that the Court should back off and let legislators in individual states chop their own mincemeat; all politics being local, and the question is one of legislative policy balancing and not really too fit for judicial pseudo-Constitutional preemptive tampering.

They do not phrase their argument so indelicately, but it seems the nub of a hands-off and cut us slack to be ourselves if/when needed suggestion, from, after all, Republicans arguing for federal restraint and deference to state legislatures - which is not alien to past Republican outlooks.

Were Roberts and chums to hammer unions one hope would be finally awakening the citizenry to seize their torches and pitchforks to kill the beast; i.e., to vote in a sufficient Democrat majority into the Senate so it could impeach the five for egregious meritless usurpation of the legislative function. Not that that will ever happen, so Roberts and friends can hold a "Who can stop us" outlook akin to robed thuggery. Some may even say that is exactly how things stand.

FURTHER: Scotusblog again, here, linking among much, to a pair of quite helpful online items aiding understanding of the legalities and practical politics of the case, here and here.

So little time, so much to know.

FURTHER: One linking error in the above text was found and fixed. Readers finding any other dead, absent, or incorrect links in the post should submit a comment.

FURTHER: Two links, here and here. So the Birchers laid impeachment hate onto Earl Warren, a former Republican governor of Caifornia, and it is likely their screeds could be put into a Word or pdf document form with a global change of "Warren" to "Roberts"and fed back to that band of esteemed gentlemen [Koch family, as Birchers, included].

_________FURTHER UPDATE__________
The Constitutional Accountability Center which submitted the amicus brief on behalf of the 47 Republican legislators has an about page and then a page on "Redefining Federalism," online respectively, here and here. Together they provide a compatible context for the amicus brief the state legislators submit through CAC. There is nothing extreme in state legislators, of either party, taking an occasion to assert some matters should be left to state-by-state resolution. The specific pending matter, and the range of potential reprecussions that "judicial lawmaking" can have in preempting a function many would say is a legislative matter, or if federal a Congressional powers matter; all that together suggests activist judges should temper their enthusiasms.

And yes, while nothing extreme, there is ambiguity in saying a question should be left to the states, but not saying "If it arises in my state, here's what I would do, where I would stand, . . .". But he who is the candidate makes the decisions on how he runs the campaign, and Roger Johnson has opted to quell ambiguity about his stance.

Last, Tea Party sympathizers should show due caution to not be used by monied interests having a separate agenda, and that should hold whether holding/seeking a judicial or a legislative position. Downsizing taxes and government size, and whacking unions are separate things, and whacking unions can be so off message as to derail Tea Party legislative ambition. Scott Walker, love or hate him, at least used the correct branches of government to whack unions when the powers were there in his state to whack them. Faint praise, but he's by that a cut above the people pushing the Friedrichs plaintiff position. And, opinions can differ, but Walker with all his faults is a cut above Roberts.

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