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Pacific Legal Foundation in Support of Petitioner No. 18-719 In the Supreme Court of the United States KATHLEEN URADNIK, Petitioner, v. INTER FACULTY ORGANIZATION, ET AL., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF PETITIONER ERIN E. WILCOX Counsel of Record DEBORAH J. LA FETRA Pacific Legal Foundation 930 G Street Sacramento, California 95814 Telephone: (916) 419-7111 [email protected] [email protected] Counsel for Amicus Curiae Pacific Legal Foundation i QUESTION PRESENTED Whether it violates the First Amendment to appoint a labor union to represent and speak for public-sector employees who have declined to join the union? ii TABLE OF CONTENTS QUESTION PRESENTED .......................................... i TABLE OF AUTHORITIES ...................................... iii INTEREST OF AMICUS CURIAE ............................ 1 INTRODUCTION AND SUMMARY OF REASONS TO GRANT THE PETITION................... 2 REASONS TO GRANT THE PETITION................... 4 I. EXCLUSIVE REPRESENTATION UNCONSTITUTIONALLY SILENCES WORKERS ....................................... 4 A. The Intertwined Freedoms of Speech and Association Demand Equally Rigorous Constitutional Protection .............................. 4 B. Exclusive Representation Deprives Nonmembers of the Right to Communicate with the State ................................................ 7 II. THIS COURT SHOULD GRANT THE PETITION TO OVERRULE KNIGHT .............. 11 A. Compelled Speech is the Same as the Compelled Funding of Speech ..................... 11 B. Knight Cannot Support Infringement on Freedom of Association ............................... 13 CONCLUSION .......................................................... 15 iii TABLE OF AUTHORITIES Cases Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) ........................................... 1, 12 Am. Commc’ns Ass’n v. Douds, 339 U.S. 382 (1950) ................................................. 7 Autor v. Pritzker, 740 F.3d 176 (D.C. Cir. 2014) ............................... 13 Bierman v. Dayton, 900 F.3d 570 (8th Cir. 2018), petition for cert. filed Dec. 17, 2018 (No.18–766) .............................. 3 Bosse v. Oklahoma, 137 S. Ct. 1 (2016) ................................................. 12 Brandenburg v. Ohio, 395 U.S. 444 (1969) ................................................. 4 Bridgeport Way Cmty. Ass’n v. City of Lakewood, 203 F. App’x 64 (9th Cir. 2006) ............................. 13 Brosterhous v. State Bar of Cal., 12 Cal. 4th 315 (1995) ............................................. 1 Carey v. Brown, 447 U.S. 455 (1980) ............................................. 5, 9 Cumero v. Pub. Emp’t Relations Bd., 49 Cal. 3d 575 (1989)............................................... 1 Davenport v. Wash. Educ. Ass’n, 551 U.S. 177 (2007) ................................................. 7 Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989) ................................................. 5 Fed. Election. Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) ............................................... 14 iv Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431 (2001) ................................................. 5 Friedrichs v. Cal. Teachers Ass’n, 136 S. Ct. 1083 (2016) ............................................. 1 Harris v. Quinn, 134 S. Ct. 2618 (2014) .................................... passim Int’l Union, United Auto., Aerospace and Agric. Implement Workers of America v. Brock, 477 U.S. 274 (1986) ............................................. 5–6 Janus v. Am. Fed’n of State, Cty., and Mun. Emps., Council 31, 138 S. Ct. 2448 (2018) .................................... passim Keller v. State Bar of Cal., 496 U.S. 1 (1990) ..................................................... 1 Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298 (2012) ........................................ passim Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991) ............................................... 10 Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984) ........................................ passim N.Y. State Bd. of Elections v. Torres, 552 U.S. 196 (2008) ................................................. 6 NLRB v. Allis-Chambers Mfg. Co., 388 U.S. 175 (1967) ............................................. 7–8 Patterson v. McLean Credit Union, 491 U.S. 164 (1989) ............................................... 14 Pearson v. Callahan, 555 U.S. 223 (2009) ............................................... 14 v Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92 (1972) ................................................... 9 Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983) ................................................. 4 Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781 (1988) ................................................. 4 Shelton v. Tucker, 364 U.S. 479 (1960) ................................................. 4 Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) ................................................. 5 Thomas v. Collins, 323 U.S. 516 (1945) ............................................... 15 United States v. Associated Press, 52 F. Supp. 362 (S.D.N.Y. 1943) ........................... 11 Univ. Prof’ls of Ill., Local 4100 v. Edgar, 114 F.3d 665 (7th Cir. 1997) ................................... 6 W. Va. State Bd. of Education v. Barnette, 319 U.S. 624 (1943) ............................................... 10 Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) ............................................... 10 Whitney v. Cal., 274 U.S. 357 (1927) ................................................. 9 Wooley v. Maynard, 430 U.S. 705 (1977) ............................................... 10 Statutes Minn. Stat. § 179A.03, subd. 8 ................................... 2 Minn. Stat. § 179A.03, subd. 19 ................................. 2 Minn. Stat. § 179A.06, subd. 1 ................................... 8 Minn. Stat. § 179A.06, subd. 5 ................................... 2 vi Minn. Stat. § 179A.08 ................................................. 2 Rules Sup. Ct. R. 37.2(a) ....................................................... 1 Sup. Ct. R. 37.6 ........................................................... 1 Miscellaneous Chavez, Linda & Gray, Daniel, Betrayal: How Union Bosses Shake Down their Members and Corrupt American Politics (2004). .................................................................... 10 Hayek, Friedrich A., The Constitution of Liberty (1960) ........................ 10 Madison, James, Speech in the Virginia Ratifying Convention on Control of the Military, June 16, 1788, in History of the Virginia Federal Convention of 1788, vol. 1, (H.B. Grigsby ed. 1890) ........................................... 2 Malin, Martin H., The Legal Status of Union Security Fee Arbitration After Chicago Teachers Union v. Hudson, 29 B. C. L. Rev. 857 (1988) ..................................... 7 Rothbard, Murray N., Man, Economy, and State (Nash ed., 1970) (1962) ......................................... 10 The American Heritage Dictionary of the English Language (3d ed. 1992) ........................................... 6 1 INTEREST OF AMICUS CURIAE Pacific Legal Foundation (PLF) was founded in 1973 and is widely recognized as the largest and most experienced nonprofit legal foundation of its kind.1 Among other matters affecting the public interest, PLF has repeatedly litigated in defense of the First Amendment rights of workers. PLF attorneys were counsel of record in Keller v. State Bar of Cal., 496 U.S. 1 (1990); Brosterhous v. State Bar of Cal., 12 Cal. 4th 315 (1995); and Cumero v. Pub. Emp’t Relations Bd., 49 Cal. 3d 575 (1989). PLF has participated as amicus curiae in all of the most important cases involving the application of the First Amendment freedoms of speech and association to instances of government compulsion, from Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), to Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298 (2012), Harris v. Quinn, 134 S. Ct. 2618 (2014), Friedrichs v. Cal. Teachers Ass’n, 136 S. Ct. 1083 (2016), and Janus v. American Federation of State, County, and Municipal Employees, Local 31, 138 S. Ct. 2448 (2018). 1 Pursuant to this Court’s Rule 37.2(a), all parties have consented to the filing of this brief. Counsel of record for all parties received notice at least 10 days prior to the due date of the Amicus Curiae’s intention to file this brief. Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for any party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than Amicus Curiae, its members, or its counsel made a monetary contribution to its preparation or submission. 2 INTRODUCTION AND SUMMARY OF REASONS TO GRANT THE PETITION The idea that “there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations” is one of the primary justifications for the addition of the Bill of Rights to the U.S. Constitution. See James Madison, Speech in the Virginia Ratifying Convention on Control of the Military, June 16, 1788, in History of the Virginia Federal Convention of 1788, vol. 1, p. 130 (H.B. Grigsby ed. 1890). The present
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