No. ~n ~e OFFICE OF THE CLI~RK upreme aurt at the nite tate BEN YSURSA, in his official capacity as Idaho Secretary of State, and LAWRENCE G. WASDEN, in his official capacity as Idaho Attorney General, Petitioners, V. POCATELLO EDUCATION ASSOCIATION; IDAHO EDUCATION ASSOCIATION; INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS LOCAL 743; PROFESSIONAL FIRE FIGHTERS OF IDAHO, INC.; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 687, IDAHO STATE AFL-CIO, and MARK L. HEIDEMAN, in his official capacity as Bannock County Prosecuting Attorney, Respondents. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit PETITION FOR WRIT OF CERTIORARI LAWRENCE G. WASDEN State of Idaho Attorney General CLIVE J. STRONG Deputy Attorney General Chief, Natural Resources Division CLAY R. SMITH Deputy Attorney General Counsel of Record NATURAL RESOURCES DIVISION P.O. Box 83720 Boise, ID 83720-0010 (208) 334-2400 COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831
Transcript
No.
~n ~e OFFICE OF THE CLI~RK upreme aurt at the nite tate
BEN YSURSA, in his official capacity asIdaho Secretary of State, and LAWRENCE G. WASDEN,
in his official capacity as Idaho Attorney General,
Petitioners,V.
POCATELLO EDUCATION ASSOCIATION;IDAHO EDUCATION ASSOCIATION; INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS LOCAL 743;PROFESSIONAL FIRE FIGHTERS OF IDAHO, INC.;SERVICE EMPLOYEES INTERNATIONAL UNIONLOCAL 687, IDAHO STATE AFL-CIO, and MARK L.
HEIDEMAN, in his official capacity as BannockCounty Prosecuting Attorney,
Respondents.
On Petition For A Writ Of CertiorariTo The United States Court Of Appeals
For The Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
LAWRENCE G. WASDEN
State of IdahoAttorney GeneralCLIVE J. STRONG
Deputy Attorney GeneralChief, Natural Resources DivisionCLAY R. SMITH
Deputy Attorney GeneralCounsel of RecordNATURAL RESOURCES DIVISION
Does the First Amendment to the United StatesConstitution prohibit a state legislature from remov-ing the authority of state political subdivisions tomake payroll deductions for political activities undera statute that is concededly valid as applied to stategovernment employers?
A. The Right To Work And VoluntaryContributions Acts ..............................4
II.
B. Legislative Control Over PoliticalSubdivisions ........................................8
PROCEEDINGS BELOW .........................11
A. District Court Proceedings .................11
B. Court of Appeals Proceedings .............14
REASONS FOR GRANTING THE PETITION .....18
I. THE NINTH CIRCUIT’S DECISIONCONFLICTS WITH SETTLED FIRSTAMENDMENT AUTHORITY ...................20
iii
TABLE OF CONTENTS - ContinuedPage
II. THE NINTH CIRCUIT’S "MANAGERIALINTEREST" TEST CAN BE SATISFIEDONLY THROUGH A LEGISLATURE AS-SUMING DAY-TO-DAY CONTROL OF APOLITICAL SUBDIVISION’S PAYROLLSYSTEM AND PLACES AT RISK ANYLEGISLATIVE REGULATION OF PER-MISSIBLE EMPLOYEE-AUTHORIZEDDEDUCTIONS WHERE FIRST AMEND-MENT RIGHTS ARE IMPLICATED ........30
NINTH CIRCUIT COURT OF APPEALSOPINION DATED OCTOBER 5, 2007 ........... App. 1
DISTRICT COURT MEMORANDUM DECI-SION DATED NOVEMBER 23, 2005 ........... App. 32
DISTRICT COURT JUDGMENT DATEDNOVEMBER 23, 2005 ................................... App. 46
NINTH CIRCUIT COURT OF APPEALSMEMORANDUM DATED FEBRUARY 3,2005 ................................................................ App. 49
DISTRICT COURT MEMORANDUM DECI-SION AND ORDER DATED JULY 3, 2003... App. 52
RIGHT TO WORK ACT, IDAHO CODETITLE 44, PART 20 .......................................App. 63
VOLUNTARY CONTRIBUTIONS ACT,IDAHO CODE TITLE 44, PART 26 ..............App. 68
iv
TABLE OF CONTENTS - ContinuedPage
SELECTED PROVISIONS OF CAMPAIGNCONTRIBUTIONS AND EXPENDITURES -LOBBYIST ACT, IDAHO CODE TITLE 67,PART 66 ......................................................... App. 73
V
TABLE OF AUTHORITIES
Page
CASES
Abood v. Detroit Board of Education, 431 U.S.209 (1977) ................................................................27
Ark. State Highway Employees Local 1315 v.Kelly, 628 F.2d 1099 (8th Cir. 1980) .......................22
Boy Scouts of Am. v. Wyman, 335 F.3d 80 (2dCir. 2003) .................................................................24
Brown v. Alexander, 718 F.2d 1417 (6th Cir.1983) ........................................................................28
City of Charlotte v. Firefighters Local 660, 426U.S. 283 (1976) .................................................20, 21
Coeur d’Alene Lakeshore Owners and Taxpay-ers, Inc. v. Kootenai County, 661 P.2d 756(Idaho 1983) ............................................................11
Consolidated Edison Co. v. Public ServiceCommission, 447 U.S. 530 (1980) .............. 15, 14, 26
Cornelius v. NAACP Legal Defense & Educa-tion Fund, Inc., 473 U.S. 788 (1985) .............. passim
Davenport v. Wash. Educ. Ass’n, 127 S. Ct.2372 (2007) ...................................... 25, 26, 27, 28, 29
Petitioners, the Secretary of State and the Attor-ney General of Idaho, request that a writ of certiorariissue to review the judgment of the Ninth CircuitCourt of Appeals.
OPINIONS BELOW
The opinion of the United States Court of Ap-peals for the Ninth Circuit was issued on October 5,2007, and is reproduced at App. 1-31. It is publishedat 504 F.3d 1053. The opinion of the United StatesDistrict Court for the District of Idaho was issued onNovember 23, 2005, and is reproduced at App. 32-45.It is reported unofficially at 2005 WL 3241745. A priorunpublished decision of the court of appeals addressingpetitioners’ claim of immunity from suit in federal courtwas issued on February 3, 2005, and is reproduced atApp. 49-51. It is reported unofficially at 123 Fed. Appx.765, 2005 WL 271103. The unreported district courtdecision reviewed in the earlier appeal was issued onJuly 3, 2003, and is reproduced at App. 52-62.
JURISDICTION
The court of appeals entered judgment on Octo-ber 5, 2007. Petitioners invoke this Court’s jurisdic-tion under 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL ANDSTATUTORY PROVISIONS INVOLVED
The First Amendment to the United StatesConstitution provides: "Congress shall make no lawrespecting an establishment of religion, or prohibitingthe free exercise thereof; or abridging the freedom ofspeech, or of the press; or the right of the peoplepeaceably to assemble, and petition the Governmentfor a redress of grievances."
Section 44-2004, Idaho Code, provides:
(1) It shall be unlawful to deduct fromthe wages, earnings or compensation of anemployee any union dues, fees, assessments,or other charges to be held for, transferredto, or paid over to a labor organization,unless the employee has first presented, andthe employer has received, a signed writtenauthorization of such deductions, which au-thorization may be revoked by the employeeat any time by giving written notice of suchrevocation to the employer.
(2) Deductions for political activities asdefined in chapter 26, title 44, Idaho Code,shall not be deducted from the wages, earn-ings or compensation of an employee.
(3) Nothing in this chapter shall pro-hibit an employee from personally payingcontributions for political activities as de-fined in chapter 26, title 44, Idaho Code, to alabor organization unless such payment isprohibited by law.
3
Section 44-2602(e), Idaho Code, provides: "’Po-litical activities’ means electoral activities, independ-ent expenditures, or expenditures made to anycandidate, political party, political action committeeor political issues committee or in support of oragainst any ballot measure."
Other relevant Idaho statutes appear in theAppendix.
STATEMENT
The Ninth Circuit Court of Appeals has made astriking and unprecedented incursion into the author-ity of state legislatures to control the employmentpractices of political subdivisions. The opinion belowholds that the First Amendment to the United StatesConstitution prohibits the Idaho legislature fromexcluding amounts to be used for political activitiesfrom the field of permissible employee payroll deduc-tions. The Ninth Circuit so concludes notwithstand-ing the unchallenged determination by the districtcourt that the legislature may prohibit such deduc-tions with respect to Idaho state employees andrespondent labor organizations’ concession that theseveral political subdivisions whose employees theunions represent for collective bargaining purposesmay refuse, as matter of their own discretion, to makethose deductions without First Amendment violation.To reach this anomalous result, the court of appealscreates out of whole cloth a "pervasive management"
4
standard for determining when a state legislaturemay direct a political subdivision to close a nonpublicforum - a standard that effectively requires thelegislature to assume day-to-day administrativecontrol over the forum - here the employee payrollsystems of Idaho counties, cities and school districts.
Because the Ninth Circuit’s decision conflicts withsettled First Amendment principles and severelycompromises state legislative authority, certiorari
review is warranted.
I. RELEVANT IDAHO LAW BACKGROUND
A. The Right To Work And Voluntary Con-tributions Acts
Over two decades ago, Idaho adopted the Right toWork Act which declares as state policy that "[t]heright to work shall not be infringed or restricted inany way based on membership in, affiliation with, orfinancial support of a labor organization or on refusalto join, affiliate with, or financially or otherwisesupport a labor organization." 1985 Idaho Sess. Lawsch. 2, § 1 (codified at Idaho Code § 44-2001 (Michie2003)) (App. 63). The statute implements this policyby, inter alia, prohibiting any requirement for thepayment of "dues, fees, assessments, or other chargesof any kind or amount to a labor organization" as acondition of employment. Id. (codified at Idaho Code§ 44-2003 (Michie 2003)) (App. 64). It expressly au-thorizes employers, however, to deduct from employeecompensation union dues, fees, assessments or other
charges for payment to a labor organization if pursu-ant to a signed authorization by the employee. Id.(codified as amended at Idaho Code § 44-2004(1)(Michie 2003)) (App. 64). An amendment to the lawten years later clarified that its provisions apply "toall employment, private and public, including em-ployees of the state and its political subdivisions."1995 Idaho Sess. Laws ch. 178, § 2 (codified at IdahoCode § 44-2011 (Michie 2003)) (App. 67).
The Right to Work Act’s provision related toemployee compensation deductions remained un-changed until 2003 when the Voluntary ContributionsAct (’~CA") was adopted. Idaho Sess. Laws chs. 97,340 (codified at Idaho Code §§ 44-2601 to -2605(Michie 2003)) (App. 68-72). The amendments addedsubsections (2) and (3) to § 44-2004 which now reads:
(1) It shall be unlawful to deduct fromthe wages, earnings or compensation of anemployee any union dues, fees, assessments,or other charges to be held for, transferredto, or paid over to a labor organization,unless the employee has first presented, andthe employer has received, a signed writtenauthorization of such deductions, which au-thorization may be revoked by the employeeat any time by giving written notice of suchrevocation to the employer.
(2) Deductions for political activities asdefined in chapter 26, title 44, Idaho Code,shall not be deducted from the wages, earn-ings or compensation of an employee.
6
(3) Nothing in this chapter shall pro-hibit an employee from personally payingcontributions for political activities as de-fined in chapter 26, title 44, Idaho Code, to alabor organization unless such payment isprohibited by law.
App. 64. The term "political activities" referred to inthe amendment was defined in the VCA to mean"electoral activities, independent expenditures, orexpenditures made to any candidate, political party,political action committee or political issues commit-tee or in support of or against any ballot measure."Id. § 44-2602(e) (App. 69).
More generally, the VCA imposed restrictions onlabor organization contributions for political activi-ties, These restrictions included establishing a sepa-rate segregated fund to finance political activities;imposing disclosure requirements on solicitations forcontributions to the fund; prohibiting the use of uniondues for political activities or to defray the fund’sadministrative costs; and, consistent with theamendment to § 44-2004, requiring all employeecontributions to the fund to be made by the labororganization’s members directly and not to be remit-ted by an employer. Separate segregated funds werefurther required to register as political committeesand to file financial reports under Idaho’s electioncampaign statute. Idaho Code § 44-2605 (App. 72); see
7
id. §§ 67-6601 to -6630 (Michie 2006).1 The term"labor organization" in the VCA included "each em-ployee association and union of employee of public andprivate sector employers" but excluded "organizationsgoverned by the national labor relations act, 29 U.S.C.section 151, et seq. or the railway labor act, 45 U.S.C.section 151, et seq." Id. § 2602(d)(ii) & (iii) (App. 69).Finally, an uncodified provision of the session lawmade the VCA applicable only to contracts entered
~ The legislation containing the VCA also amended oneprovision of the campaign finance statute - Idaho Code § 67-6605 (Michie 2006) - that addresses the methods by whichpolitical committees may obtain contributions. 2003 Idaho Sess.Laws ch. 97, § 3. As modified, § 67-6605 states:
Contributions shall not be obtained for a politicalcommittee by use of coercion or physical force, bymaking a contribution a condition of employment ormembership, or by using or threatening to use job dis-crimination or financial reprisals. A political committeemay solicit or obtain contributions from individuals asprovided in chapter 26, title 44, Idaho Code, or as pro-Vided in section 44-2004, Idaho Code. A Violation of theprovisions of this section shall be punished as pro-vided in subsection (b) of section 67-6625, Idaho Code.
App. 81-82. Section 67-6605 makes clear what a straightforwardreading of § 44-2004(2) indicates: The limitation imposed under§44-2004(2) extends to any payroll deduction for politicalactivities and not merely those that an employee directs to apolitical committee associated with or created by a labor organi-zation. See Idaho Code § 67-6602(p)(1) (Michie 2006) (defining"political committee" to include, inter alia, "any person specifi-cally designated to support or oppose any candidate or meas-ure"). The enforceability of § 67-6605, insofar as it refers to § 44-2004, rises or falls with the latter and therefore was not consid-ered independently below.
8
into after its effective date or renewals of then-existing contracts. 2003 Idaho Sess. Laws ch. 97, § 4.
B. Legislative Control Over Political Sub-divisions
No dispute exists that the Idaho legislaturepossesses the authority, as a matter of state law, tolimit the authority of state public employers to enterinto payroll deduction arrangements with employeesor their bargaining representatives. That conclusionfollows from the more general rule that the legisla-ture’s authority under Idaho law is plenary except tothe extent limited constitutionally. Idaho Press Club,Inc. v. State Legislature, 132 P.3d 397, 400 (Idaho2006) ("’[o]ur State Constitution is a limitation, not agrant of power, and the Legislature has plenarypowers in all matters, except those prohibited by theConstitution’"); Smylie v. Williams, 341 P.2d 451, 453(Idaho 1959) ("[i]t must be remembered that our StateConstitution is an instrument of limitation and not ofgrant and that the legislature has plenary power in allmatters of legislation except where prohibited by theconstitution"). This fundamental principle extends tocontrol over state political subdivisions - here counties,cities and school districts. See, e.g., Thompson v.Engelking, 537 P.2d 635, 644 (Idaho 1975); Fenton v.Bd. of Comm’rs, 119 P. 41, 46 (Idaho 1911).
Indeed, rather than limiting legislative authorityover such political subdivisions, the Idaho Constitu-tion explicitly recognizes legislative primacy. The
9
legislature thus is vested with the authority andresponsibility to "establish ... a system of countygovernments which shall be uniform throughout thestate[] and by general laws ... provide for townshipor precinct organizations." Idaho Const. art. XVIII,§ 5. The constitution further specifies that "[c]ounty,township, and precinct officers shall perform suchduties as shall be prescribed by law." Id. art. XVIII,§ 11. Article XII, section 1 grants power to the legisla-ture to enact general laws for the incorporation ofcities, towns and villages, and to alter, amend, orrepeal such laws at any time. See Idaho Code § 50-201 (Michie 2000) (designating all municipal entitiesas "cities"). Article IX, section 1 directs the legislatureto create and maintain a system of free, commonpublic schools. Section 2 of that article commitsimmediate supervision of such schools to the StateBoard of Education whose "membership, powers andduties ... shall be prescribed by law" - i.e., by stat-ute.2 Insofar as it vests the legislature with virtually
~ A few, but presently immaterial, limitations are placed onthese general allocations of authority to the legislature. E.g.,Idaho Const. art. XVIII, § 1 (recognizing counties in existence asof statehood); id. §§ 6, 10 (specifying county officers and compo-sition of county commissions); see also Kessler v. Fritchman, 119P. 692, 697 (Idaho 1911) (expressing agreement with the proposi-tion that, by virtue of Idaho Const. art. XII, § 1, the legislaturemay modify charters under which cities were organized prior tothe adoption of the Constitution only through special, and notgeneral, laws). Counties and cities additionally have constitu-tionally conferred power to make local police, sanitary or otherregulations, but exercise of this power may not be inconsistentwith the general laws adopted by the legislature. Idaho Const.
(Continued on following page)
10
plenary authority over such subdivisions, the IdahoConstitution anticipates the need for substantiallegislative discretion to address issues deemed ofstatewide concern and accordingly suited for uniformtreatment.
The legislature, in turn, has exercised its plenaryauthority to structure the operation of state politicalsubdivisions. A county is deemed to be "a body politicand corporate, and as such has the powers specifiedin this title or in other statutes, and such powers asare necessarily implied from those expressed." Idaho
Code § 31-601 (Michie 2006). Cities and school dis-tricts similarly are characterized under Idaho law as"bodies corporate and politic" whose powers arespecified by statute. Id. § 33-301 (Michie 2001)(school districts); id. § 50-301 (Michie 2000) (cities).Counties, cities and school districts are subject toelaborate statutory schemes that fill entire titles ofthe Idaho Code and address virtually every aspect oftheir operation. Prominent among those areas oflegislative control is contracting authority- as theIdaho Supreme Court has held in various contexts.~
art. XII, § 2; see Rowe v. City of Pocatello, 218 P.2d 695, 698(Idaho 1950).
3 See, e.g., Firefighters Local 672 v. City of Boise City, 30P.3d 940, 944-45 (Idaho 2001) (contract entered into by city withnational guard for firefighting and crash rescue services did notviolate, inter alia, the Idaho Firefighters Collective BargainingAct); Gilmore v. Bonner County Sch. Dist., 971 P.2d 323, 326-27(Idaho 1999) (state statutes control school district employmentdecisions, and building principal lacked authority to enter into
(Continued on following page)
11
The legislature also has spoken to public employee orcontractor relations in several statutes. It has author-ized, for example, cities to establish a civil servicesystem to promote employment decision-making onthe basis of merit and performance and detailingrequired elements of the system. Id. §§ 50-1601 to-1610 (Michie 2000). Of immediate relevance here, itcreated a right to collective bargaining for firefightersemployed by any political subdivision. Id. §§ 44-1801to -1812.
II. PROCEEDINGS BELOW
A. District Court Proceedings
The respondent labor organizations are fiveunions that represent public employees in Idaho andthe Idaho State AFL-CIO.4 Shortly before the VCAlegislation was to take effect in 2003, they filed suit
"extra duty" contract with teachers); Coeur d’Alene LakeshoreOwners and Taxpayers, Inc. v. Kootenai County, 661 P.2d 756,761 (Idaho 1983) (county did not violate public bidding require-ments by entering into a contract for appraisal services sincethey involved exercise of special skills or technical learning);McKay Constr. Co. v. Ada County Bd., 580 P.2d 412, 414-17(Idaho 1978) (invalidating county contract for failure to complywith statutory requirements); Reynolds Constr. Co. v. Twin FallsCounty, 437 P.2d 14, 19 (1968) (same).
4 Also named as a respondent for purposes of this petition is
Mark Heideman, who was sued below in his capacity as theBannock County Prosecutor and did not appeal from the districtcourt judgment. The term "respondents" as used in the textrefers only to the respondent labor organizations.
12
challenging the constitutionality of various provisionsof the VCA legislation, including its amendment toIdaho Code § 44-2002, and sought immediate injunc-tive relief. D.C. Doc. 1. The district court granted atemporary restraining order enjoining the legisla-tion’s implementation (App. 61), which was extendedby later order until final disposition of the case (D.C.Doc. 28). In opposing the request for a temporaryrestraining order, petitioners asserted EleventhAmendment immunity and moved to dismiss on that
basis. D.C. Doc. 19. The district denied the motion inits order granting the temporary restraining order(App. 52-62), and petitioners unsuccessfully appealedthat denial under the collateral order doctrine (App.49-51).
Following completion of the first appeal, theparties filed cross-motions for summary judgment.D.C. Doc. 54, 67. Petitioners conceded the unconstitu-tionality under the First Amendment of various VCAprovisions related to regulation of solicitations for"political activities" but not the unconstitutionality ofthe amendment to § 44-2004 regarding payroll deduc-tions. D.C. Doc. 67.1. They further limited, as a matterof statutory construction, the prohibition against "po-litical activities" deductions to employers not subject tothe National Labor Relations Act or the Railway LaborAct given, most importantly, the exclusion of suchemployers from the definition of’~labor organization" inthe VCA. D.C. Doc. 76 at 2. Although petitioners recog-nized that private employers not covered by the fed-eral acts were subject to § 44-2004(2), they contended
13
that respondents lacked standing to raise the inter-ests of those employers’ employees absent a showingthat they represented any for collective bargainingpurposes. D.C. Doc. 76 at 3. In petitioners’ view,therefore, the case narrowed to the question whether§ 44-2004(2) could be applied to the Idaho publicemployers consistently with the First Amendment.
The district court granted summary judgment inpart to petitioners and in part to respondents. App.46-48. It first held that respondents possessed stand-ing to represent the interests of private sector em-ployees by virtue of the State AFL-CIO’s participationas a plaintiff. App. 36. On the merits, it reasoned that"It]he First Amendment protects an individual’s rightto be free from government action, but does not createa right that the Government ’subsidize the exerciseof’ those First Amendment rights." App. 36 (quotingRegan v. Taxation With Representation of Wash., 461U.S. 540, 549 (1983)). Applying this "subsidization"standard, the court concluded that the payroll deduc-tion prohibition for political activities was valid withrespect to state employees "where the State is incur-ring costs to set up and maintain the program" butcould not be applied to private sector employees orthose employed by local governments since the Statedid not bear the administrative burden attendant tomaking the deductions and since petitioners had notoffered a rationale for the statute satisfying strictscrutiny standards. App. 36-38. In so holding, itacknowledged that "[c]ertainly any local governmen-tal entity could decide on its own not to subsidize
14
speech and accordingly refuse to provide a payrolldeduction program." App. 38 n.3.
B. Court of Appeals Proceedings
Petitioners appealed, challenging the districtcourt judgment to the extent that it invalidated § 44-2004(2) as applied to political subdivisions - i.e., towhat the district court referred to as "local govern-ments and school districts." App. 46. Respondents didnot appeal from the judgment insofar as it upheld thestatute’s validity as "to employees of the State ofIdaho where the State bears any part of the cost ofsetting up or maintaining the payroll deduction."App. 47. The Ninth Circuit affirmed.
The court of appeals examined the validity of thepayroll deduction prohibition against both the "sub-sidization" approach used by the district court and"forum" principles. With regard to "subsidization," itstated that "[t]he nonsubsidy doctrine is premised onthe rationale that the government is free to confer nobenefit at all and is therefore entitled to condition thereceipt of the benefit on speech or silence." App. 10-11. It observed that, although "[t]he parties appear tobe in agreement" as to the district court’s applicationof the doctrine to "payroll deductions for [state]employees[,]" the lower court correctly determinedthat "there is no subsidy by the State of Idaho for thepayroll deduction systems of local governments." App.11.
15
The Ninth Circuit’s analysis of the forum doc-trine was substantially more detailed. The courtsummarized the doctrine’s basic elements and ex-plained that, notwithstanding its roots in casesinvolving "public spaces" (App. 12), "[a] ’forum’ doesnot need to be a physical place" (App. 15). Here, itdeemed "the relevant forum ... [to] be the payrolldeduction programs of the local governments[,]"which petitioners argued were nonpublic forums andthus subject to the reasonableness test identified in,most notably, Cornelius v. NAACP Legal Defense &Education Fund, Inc., 473 U.S. 788 (1985). App. 16.Respondents countered that "forum analysis does notapply at all because neither the payroll deductionprograms nor the local workplaces are ’property’ ofthe State of Idaho in any sense." App. 17. The courtthen examined two "relationships" to decide whichparty was correct.
The first relationship considered was that "be-tween the government entity seeking to impose a freespeech relationship and the forum in which it isimposed." App. 17. The Ninth Circuit interpreted thisCourt’s precedent as "suggest[ing] that a forum maybe subject to government control where the govern-mental entity maintains a proprietary relationshipover the relevant property." App. 18. The lower courtcontrasted such proprietary control by reference toConsolidated Edison Co. v. Public Service Commis-
sion, 447 U.S. 530 (1980), which established, in itsview, the proposition that "the mere possession oflegal authority to regulate an entity, without more,
16
represents an insufficient level of control over thatproperty to claim the forum in the name of the State."App. 19. The panel next addressed the second rela-tionship - that "between the State of Idaho andworkplaces of local governments"- and held thatpetitioners had "failed to establish that the State ofIdaho is the proprietor of the local workplaces or oflocal government payroll systems" and that, instead,the relationship with political subdivisions "resem-bles that of a regulator who possesses broad powersover them" analogous to Consolidated Edison. App.20. It therefore rejected "Appellants’ assertion thatthe payroll deduction programs of local governmentsare nonpublic fora belonging to the State." App. 25.
The court of appeals concluded by consideringwhether Consolidated Edison, which involved stateregulation of a private utility’s mail communicationswith its customers, was inapposite because "theinstrumentalities of local governments are necessar-ily the instrumentalities of the State of Idaho, regard-less of who ’owns’ them." App. 25. It reasoned that"some" decisional support existed "for an alternativetheory of forum analysis which evaluates the forumin light of the degree of control exercised by thegovernment entity" and that under this theory "thequestion is not one of ownership or proprietorship butwhether the government has exercised a sufficientdegree of control over the forum such that it shouldbe granted the right to make speech-restrictiverules." App. 26. In those cases, "one can argue thatthe state has a sufficient managerial interest in the
17
resource to justify judicial deference to its rules." App.27 (citing, inter alia, USPS v. Council of GreenburghCivic Ass’ns, 453 U.S. 114 (1981)).
That theory, however, did not assist petitioners inthe court of appeals’ view, since "[i]t is clear that theState of Idaho does not pervasively manage localgovernment workplaces or local government payrolldeduction systems" and since they "cannot point toany current or previous exercise of control over localgovernments’ administration of their payroll systems,except for the subject statute." App. 29. The courtadded that "[t]he unique nature of the State’s inter-vention therefore strongly suggests that the State’spurpose here is exactly that against which the FirstAmendment protects - the denial of payroll deduc-tions for the purpose of stifling political speech." App.29. Consequently, while petitioners "establishedgenerally that the State of Idaho has ultimate powerof control over the units of government at issue[,]"they did not show "that the State actually operates orcontrols the payroll deduction systems of local unitsof government[,]" and, in light of this fact, "the Statehas a relatively weak interest in preventing Plaintiffsfrom exercising their First Amendment rights ascompared to the actual controlling entities." App. 30.The court held that under these circumstances "[t]hepublic forum doctrine does not apply to Idaho’s deci-sion to prevent local government employers fromgranting an employee’s request to make voluntary
18
contributions to political activities through a payrolldeduction program." App. 31.5
REASONS FOR GRANTING THE PETITION
Decisions from this Court and every federal courtof appeals or highest state appellate court uniformlyhold that no First Amendment right of access to thepayroll systems of governmental entities exists forpurposes of employee-authorized deductions. Thesecases have arisen in different contexts, some involv-ing requested access for union dues, others for contri-butions to nonprofit organizations with particularsocial policy objectives, and one for political contribu-tions like the situation here. The explicit analyticalbasis for these decisions has varied, but the underly-ing rationale is the same: The federal government,States and state political subdivisions have no af-firmative obligation to provide a means for the exer-cise of speech or associational rights by facilitatingemployee contributions through access to their pay-roll systems.
Even the courts below and the respondentsrecognize that, in the Ninth Circuit’s phrasing, "local
5 The court of appeals did not refer to litigation, now
pending before the Tenth Circuit, in which a quite similar Utahstatute, Utah Code § 34-32-1.1(2)(g) (2005), was invalidatedunder reasoning similar to that below. Utah Educ. Ass’n v.Shurtliff, 511 F. Supp. 2d 1106 (D. Utah 2006), appeal docketed,No. 06-4142 (10th Cir. June 7, 2006).
19
governments" - instantly Idaho counties, cities andschool districts - have discretion to decline requestsby employees or their collective bargaining represen-tative for "political activities" related payroll deduc-tions. They nonetheless draw the constitutional lineat the proverbial schoolhouse gate, contending thatstate statutory constraints on that discretion areforeclosed by the First Amendment, notwithstandingthe fact that the political subdivisions are subject toplenary legislative control under the Idaho Constitu-tion. Such a rule comports with neither commonsense nor the First Amendment as construed by thisCourt and, if allowed to stand, replaces a bright-line,long-established constitutional standard that theState may manage its political subdivisions under thesame First Amendment standards that it managesitself with an inquiry into whether the State - asopposed to the involved political subdivision - "perva-sively manages" the forum. The Court should exerciseits certiorari jurisdiction and reject the Ninth Cir-cuit’s new constitutional theory to avoid furtherdoctrinal confusion and serious impairment of legiti-mate state legislative prerogatives.6
6 Indeed, there may be federal government-related implica-tions in the Ninth Circuit’s reasoning. Congress arguably couldbe foreclosed under a "pervasive management" standard fromprescribing the same standards for payroll deductions for theemployees of quasi-government entities chartered by federalstatute that it prescribes for employees of federal agencies. Localgovernment entities, no less than myriad federally charteredcorporations, "are (for many purposes at least) part of the
(Continued on following page)
20
I. THE NINTH CIRCUIT’S DECISION CON-FLICTS WITH SETTLED FIRST AMEND-MENT AUTHORITY
A. In City of Charlotte v. Firefighters Local 660,426 U.S. 283 (1976), this Court rejected an equalprotection challenge to a city’s refusal to withholddues from the paychecks of almost 65 percent of itsuniformed fire department employees who were unionmembers. The involved union claimed discriminationbecause the city allowed payroll deductions for vari-ous other purposes. Most important here, the Courtapplied "a relatively relaxed standard of reasonable-ness" because "it is not here asserted and this Courtwould reject such a contention if it were made thatrespondents’ status as union members or their inter-est in obtaining a dues checkoff is such as to entitlethem to special treatment under the Equal ProtectionClause." Id. at 286. Implicit in the Court’s selection of
Government" insofar as they are created and carry out statesovereign functions assigned by state legislatures. Lebron v.Nat’l R.R. Passenger Corp., 513 U.S. 374, 397 (1995). Theholding below is even more problematic as to the reach ofcongressional power for entities that are federally chartered butnot deemed "part of the Government." See Hall v. Am. Nat’l RedCross, 86 F.3d 919, 922 (9th Cir. 1996) (" ’functional’ or ’federalaction’ analysis" applied in declining to find the American RedCross subject to the Religious Freedom Restoration Act as aninstrumentality of the United States); Irwin Mem’l Blood Bankv. Am. Red Cross, 640 F.2d 1051, 1057 (9th Cir. 1981) (Red Crossis not an agency subject to the Freedom of Information Act sincewhile "undoubtedly a close ally of the United States government,¯.. its operations are not subject to substantial federal control orsupervision").
21
the rational basis standard was the principle that noFirst Amendment right to payroll deductions forunion dues exists, since a fundamental right wouldhave then been implicated requiring strict scrutinyanalysis. The relationship between equal protectionand First Amendment analysis in this regard wasmade explicit in Perry Education Association v. PerryLocal Educators Association, 460 U.S. 37 (1983),where the Court held a school district’s internal mailsystem to be a nonpublic forum under the FirstAmendment and then rejected an associated equalprotection claim under rational basis review given theabsence of a fundamental right. Id. at 54 ("We haverejected this contention when cast as a First Amend-ment argument, and it fares no better in equal pro-tection garb .... PLEA did not have a FirstAmendment or other right of access to the interschoolmail system. The grant of such access to [rival] PEA,therefore, does not burden a fundamental right of thePLEA").
Three years after City of Charlotte, this Courtreturned to the area of labor relations in the publicsector, addressing the question whether the FirstAmendment imposed an affirmative obligation on aState to deal with a union over employee grievances.Smith v. Ark. State Highway Employees Local 1315,441 U.S. 463 (1979) (per curiam). It answered thequestion negatively because "the First Amendment isnot a substitute for the national labor relations laws"(id. at 464) and "does not impose any affirmativeobligation on the government to listen, to respond or,
22
in this context, to recognize the association andbargain with it" (id. at 465). Shortly thereafter, theEighth Circuit applied Smith in a controversy be-tween the same parties and rejected First Amend-ment and equal protection claims directed to thehighway commission’s termination of a payroll deduc-tion policy for union dues, drawing from the earlierdecision the general rule that "the First Amendmentdoes not impose any duty on a public employer toaffirmatively assist ... a union." Ark. State HighwayEmployees Local 1315 v. Kelly, 628 F.2d 1099, 1102
(Sth Cir. 1980).
As indicated above, this Court used traditionalFirst Amendment forum analysis in Perry EducationAssociation when resolving a claim by a labor organi-zation, a rival of the affected employees’ exclusivecollective bargaining representative, for access to aschool district’s internal mail system. It classified themailboxes and delivery system as a nonpublic forumand thus subject to access control, including accessprohibition, "as long as the regulation on speech isreasonable and not an effort to suppress expressiveactivity merely because public officials oppose thespeaker’s view." 460 U.S. at 46; see also id. at 49("[i]mplicit in the concept of a nonpublic forum is theright to make distinctions in access on the basis ofsubject matter and speaker identity").
Perry Education Association presented a mixedphysical property-governmental service situation, butthe Court relied upon forum analysis and that opinionin Cornelius v. NAACP Legal Defense & Education
23
Fund, Inc., 473 U.S. 788 (1985), to uphold the exclu-sion of various groups, whose purpose was "to influ-ence public policy through ... political activity,advocacy, lobbying, or litigation on behalf of others"(id. at 793), from the federal government’s annualcharity drive that was limited by executive order to"~oluntary, charitable, health and welfare agenciesthat provide or support direct health and welfareservices to individuals or their families’" (id. at 795).In so holding, the Court accepted the advocacygroups’ characterization of the relevant forum as thefund raising drive itself, and not the "federal work-place." Id. at 801. It found forum analysis appropriatebecause "in defining the forum we have focused onthe access sought by the speaker." Id. at 802. TheCourt continued on to find the charitable drive anonpublic forum given the facts that it was "notcreate[d] for purposes of providing a forum for ex-pressive activity" and that "[t]he federal workplace,like any place of employment, exists to accomplishthe business of the employer." Id. at 805. It thenexamined the government’s proffered grounds for theadvocacy groups’ exclusion against the reasonable-ness standard and concluded, in part, that "avoidingthe appearance of political favoritism is a valid justi-fication for limiting speech in a nonpublic forum." Id.at 809.
The Ninth Circuit acknowledged Cornelius’srelevance, commenting that there "a restrictionsimilar to that at issue here passed muster as acontent-based restriction of speech in the context of a
24
nonpublic forum." App. 17 n.8. Other courts of appealalso understand Cornelius’s dispositive weight wherepayroll deduction-based First Amendment challengesare mounted. Boy Scouts of Am. v. Wyman, 335 F.3d80, 91-92 (2d Cir. 2003) (exclusion of organizationfrom participation in charitable check-off programbecause of its policy concerning homosexuals); Indep.
Charities of Am. v. Minnesota, 82 F.3d 791, 796 (8thCir. 1996) (exclusion of non-local fundraisers fromcampaign); Pilsen Neighborhood Cmty. Council v.Netsch, 960 F.2d 676, 685 (7th Cir. 1992) (challenge toIllinois Voluntary Payroll Deductions Act); UnitedBlack Cmty. Fund, Inc. v. City of St. Louis, 800 F.2d
758 (8th Cir. 1986) (limitation on access to charitablededuction program to organizations whose adminis-trative and fundraising costs did not exceed 25 per-cent of gross contributions); see also S.C. Educ. Ass’nv. Campbell, 883 F.3d 1251, 1256 (4th Cir. 1989)("[n]either party disputes that the state is empoweredto legislate in the area of payroll deductions for publicemployees") (emphasis supplied). The Ninth Circuitthus fully understood that, under settled FirstAmendment forum jurisprudence, § 44-2004(2) maybe applied without constitutional embarrassment to"state" employees and that, the statute aside, politicalsubdivisions possess authority to impose the samecondition on access to their payroll systems if they sochoose.
B. The Ninth Circuit’s decision, therefore, runssquarely contrary to the "black-letter law that, when
25
the government permits speech on government prop-erty that is a nonpublic forum, it can exclude speak-ers on the basis of their subject matter, so long as thedistinctions drawn are viewpoint neutral and reason-able in light of the purpose served by the forum."Davenport v. Wash. Educ. Ass’n, 127 S. Ct. 2372, 2381(2007) (citing Cornelius, 473 U.S. at 799-800). Theresult can be sustained only if that "black-letter law"does not apply to political subdivisions’ payroll sys-tems by virtue of the Ninth Circuit’s proprietor-regulator distinction.7 While the status of a govern-mental entity as the direct regulator of privatespeech, as opposed to its status as the manager ofpublic property, has been central in some First
7 The Ninth Circuit, as discussed above, voiced suspicionthat "It]he unique nature of the State’s intervention" in § 44-2004(2) embodied "exactly that against which the First Amend-ment protects - the denial of payroll deductions for the purposeof stifling political speech." App. 29. This observation was madenotwithstanding the fact that the statute was upheld withrespect to state employees and that political subdivisionsadmittedly can adopt the same limitation without First Amend-ment violation. Section 44-2004(2) in this regard easily satisfiesthe test against which limitations on access to public forums aremeasured, as the Cornelius Court held with respect to thecomparable limitation on permissible payroll deductions.Similarly unclear is why, as the court of appeals opined, a localgovernment prohibition on payroll deductions is less suspectthan a legislative prohibition or why a legislature’s "interest" incontrolling a specific type of payroll deduction is entitled to lessweight. Here, to illustrate, the legislature surely possessed asmuch interest in having any Idaho governmental entity divorcedfrom the appearance of partisan political involvement as aparticular political subdivision does.
26
Amendment cases - most notably Consolidated
Edison Co. v. Public Service Commission, 447 U.S.530, 539-40 (1980) - that distinction has never beendrawn previously where the "property" being "regu-lated" is concededly a nonpublic forum. No court,moreover, has ever suggested, much less held, thatthe First Amendment forbids a state legislature fromconstraining the authority of a political subdivision toopen a nonpublic forum under the subdivision’s
immediate control to associational conduct where thereasonableness test otherwise is satisfied. Instead,this Court and the Sixth Circuit Court of Appealshave upheld state legislation that had precisely thesame "regulatory" effect.
Last Term in Davenport, this Court rejected aFirst Amendment challenge to a Washington statutethat had been adopted by referendum and allowedpublic employers to enter into agency shop agree-ments with labor organizations and to remit theassociated fees through payroll deductions. However,as drafted when the litigation commenced, the lawprohibited use of fees paid by nonmembers "’to influ-ence an election or to operate a political committeeunless affirmatively authorized by the individual.’"127 S. Ct. at 2377 (quoting Wash. Rev. Code§ 42.17.760 (2006)). The litigation before the Court
arose from state court actions alleging the statute’sviolation by labor organizations representing personsemployed at public primary, secondary and highereducation facilities. See, e.g., Pet. for Writ of Cert. forState of Wash. at 7, Davenport v. Wash. Educ. Ass’n,
27
127 S. Ct. 2372 (2007) (Nos. 05-1589 & 05-1627). ThisCourt held that its decision in Abood v. Detroit Boardof Education, 431 U.S. 209 (1977), did not foreclose aState from enacting legislation that provides greaterrights to nonmembers forced to contribute agencyshop fees to a union than required under the federalconstitution; i.e., "our repeated affirmation thatcourts have an obligation to interfere with a union’sstatutory entitlement no more than is necessary tovindicate the rights of nonmembers does not implythat legislatures (or voters) themselves cannot limitthe scope of that entitlement." Davenport, 127 S. Ct.at 2379 (emphasis supplied). It then considered thelabor organizations’ contention that the statute"amount[ed] to unconstitutional content-based dis-crimination" (id. at 2380) and found various princi-ples - including the subsidization rationale in Reganv. Taxation With Representation of Washington, 461U.S. 540 (1983), and the nonpublic forum doctrine -"equally applicable to the narrow circumstances ofthese cases" (127 S. Ct. at 2381). "[T]he voters ofWashington [did not] impermissibly distort[] themarketplace of ideas," this Court reasoned, "whenthey placed a reasonable, viewpoint-neutral limita-tion on the State’s general authorization allowingpublic-sector unions to acquire and spend the moneyof government employees." Id. (emphasis supplied).The Court added that the statute, "though applicableto all unions, served [its] purpose through very differ-ent means depending on the type of union involved: Itconditioned public-sector unions’ authorization tocoerce fees from government employees at the same
28
time that it regulated private-sector unions’ collective-bargaining agreements." Id. at 2382-83.
Plainly enough, if there were a "regulator"-basedrestriction on a legislature’s control over politicalsubdivisions of the kind created by the Ninth Circuitwith regard to the exercise of their authority to confera benefit - here access to the subdivisions’ payrollsystems - both the analysis and the outcome inDavenport would have differed. Distinctions wouldhave had to be made between the statute’s applicabil-ity to collective bargaining relationships with "state"
public employers and to those with "local govern-ment" public employers - with the law upheld for oneand invalidated for the other. Those distinctions werenot made because the Ninth Circuit’s First Amend-ment restriction on legislative power does not exist.Its decision thus cannot be reconciled with Davenport.
The decision also cannot be reconciled withToledo Area AFL-CIO Council v. Pizza, 154 F.3d 307(6th Cir. 1998). There, the Sixth Circuit sustainedagainst First Amendment and equal protection attacksan Ohio statute’s prohibition on payroll deduction forpolitical purposes imposed on all public employers - alaw substantially indistinguishable from § 44-2004(2).154 F.3d at 312 (quoting statute). Rather than relyingon forum analysis, the court pointed to its own circuitlaw, Brown v. Alexander, 718 F.2d 1417 (6th Cir. 1983),which concluded that "the state may condition theprivilege of union dues checkoff upon an organizationmeeting certain requirements" (id. at 1423), andSouth Carolina Education Association v. Campbell,
29
supra, where the Fourth Circuit denied a FirstAmendment challenge by a union representing schoolteachers on the local government level to a statestatute which limited the availability of payroll
deductions to a rival union (883 F.2d at 1256-57). SeeToledo Area, 154 F.3d at 320 ("Brown and Campbellare wholly consistent with Supreme Court casesacknowledging that the protections accorded tofundamental First Amendment rights do not extendto imposing a duty on government to assist the exer-cise of First Amendment rights no matter how muchthe withdrawal of such assistance undercuts theeffect of exercising such rights"). There can be noreasonable dispute that, were the validity of a statuteidentical to § 44-2004(2) litigated in the Sixth Circuit,a three-judge panel would be obligated to find ToledoArea controlling precedent and to uphold the law.E.g., Dupont Dow Elastomers, L.L.C. v. NLRB, 296F.3d 495, 506 (6th Cir. 2002) (citing 6th Cir. R.206(c)); see also Oregon Dep’t of Fish & Wildlife v.
Klamath Tribe, 473 U.S. 753, 764 (1985) (inter-circuitconflict warranting resolution existed where a "con-flict in principle" was present).8
8 Although petitioners focus on § 44-2004(2)’s validity undertraditional forum standards, Davenport’s and Toledo Area’sdiscussion of general First Amendment principles reflects theoften interrelated nature of the subsidization line of decisionsexemplified by Regan. That decision can, and should, be under-stood as meaning that the First Amendment does not preventCongress or a state legislature from withholding affirmativesupport - economic or otherwise - to facilitate the exercise of
(Continued on following page)
3O
II. THE NINTH CHtCUIT’S "MANAGERIALINTEREST" TEST CAN BE SATISFIED ONLYTHROUGH A LEGISLATURE ASSUMINGDAY-TO-DAY CONTROL OF A POLITICALSUBDIVISION’S PAYROLL SYSTEM ANDPLACES AT RISK ANY LEGISLATIVE REGU-LATION OF PERMISSIBLE EMPLOYEE-AUTHORIZED DEDUCTIONS WHERE FIRSTAMENDMENT RIGHTS ARE IMPLICATED
In place of long-standing First Amendmentstandards, the Ninth Circuit introduces an unprece-dented "managerial interest" test for the purpose ofassessing the constitutionality of state legislativeaction with respect to nonpublic forum access. Idahofailed the court of appeals’ test because it "does notpervasively manage local government workplaces orlocal government ... payroll deduction programs."App. 29 (emphasis supplied). This conclusion ignoresthe fact that Idaho political subdivisions carry outgovernmental responsibilities assigned to them by thelegislature and that those responsibilities must bedischarged consistently with state statute. Here, the
free speech or associational rights so long as such denial doesnot embody invidious discrimination directed "at the suppres-sion of dangerous ideas" (id. at 548 (internal quotation marksomitted)) - i.e., so long as the legislative action is viewpointneutral. Forum analysis nonetheless appears more apt heregiven, most importantly, Cornelius’s recognition that a pro-grammatic benefit can constitute a forum. In any event, asDavenport reiterated, the same reasonableness review standardgoverns in a nonpublic forum and in a Regan-like subsidizationcontext.
31
involved political subdivision denies access to itspayroll system for the purpose of making deductionsfor political activities because it lacks discretion to dootherwise. Section 44-2004(2) thus "pervasivelymanages" the day-to-day administration of thatparticular labor relations decision no less than theRight to Work Act does with respect to a politicalsubdivision’s lack of authority to enter into unionsecurity arrangements. Plainly enough, much more isrequired to satisfy the court of appeals’ new standard.
The decision below leaves state legislatures, atleast in the Ninth Circuit, with no option other thanto seize control of their political subdivisions’ payrollsystems if they wish to impose limitations on em-ployee-authorized payroll deductions for politicalpurposes. The decision’s effect, however, is not re-stricted to political activity-related deductions; thenew standard extends to any deduction restrictionthat implicates associational or speech rights. Assuch, the decision has immediate ramifications forother States within the Ninth Circuit. Statutes inseveral of them authorize payroll deductions bypolitical subdivisions for union dues but limit theauthorization to the employee’s exclusive bargainingrepresentative. Alaska Stat. § 23.40.220 (2006); Haw.Rev. Stat. § 89-4 (1993 Repl. Vol.); Mont. Code Ann.§ 39-31-203 (2007); Or. Rev. Stat. §§ 243.776, 292.055(2005). Statutes in others authorize charitable deduc-tions but limit them to certain organizations or aspecified fundraising drive. Cal. Gov’t Code § 1157.2(West 1995); Wash. Rev. Code § 41.04.036 (2004). The
32
precise nature of these laws aside, their mere exis-tence reflects a settled assumption by state legisla-tures that they have authority to control the payrolldeduction practices of political subdivisions and thusto make or modify public policy on a statewide basisas they believe appropriate.
In sum, the court of appeals’ opinion cuts deeplyinto a state legislature’s power to establish social,economic and here campaign finance policy parame-ters within which subordinate local governmententities must operate. The very odd result below -prohibiting a legislature by virtue of the FirstAmendment from mandating political subdivisions totake action which the latter have discretion to engagein without violating that Amendment - injects doc-trinal confusion into an area of law which has beensettled for decades, balkanizes state governmentthrough judicial fiat, and merits summary reversal orplenary review.
The petitiongranted.
December 2007
33
CONCLUSION
for writ of certiorari shouldbe
Respectfully submitted,
LAWRENCE G. WASDEN
State of IdahoAttorney GeneralCLIVE J. STRONG
Deputy Attorney GeneralChief, Natural Resources DivisionCLAY R. SMITH
Deputy Attorney GeneralCounsel of RecordNatural Resources DivisionP.O. Box 83720Boise, ID 83720-0010(208) 334-2400
![]n tbe $upreme](https://static.documents.pub/doc/80x56/5f0d26067e708231d438e9f4/n-tbe-upreme-.jpg)
![]NT.E 8-200 FILED upreme of nite - · PDF fileNo. 08-1515 [ Supreme Coud, U.E]NT.E 8-200 FILED upreme of nite 1 lO~ o~ ~ ~ag GOLDEN GATE RESTAURANT ASSOC~TION, Petitioner, V.](https://static.documents.pub/doc/80x56/5a7185517f8b9abb538cdcfb/nte-8-200-filed-upreme-of-nite-scotusblogwwwscotusblogcomwp-contentuploads20090908pdf.jpg)
