Thursday, June 16, 2011

I Posted This Yesterday. Pulled it Down an Hour Later After Doing Some Deeper Research. And I Have Finally Found The Pleading.

(Not that I give a rip for Internet conventions. But I will acknowledge my error and correct the thing, at the end. With my explanation. Now here goes the repost of what I put up yesterday.)

Con law is her gig, and hell. Closest I get to dealing with actual legal issues lately is the procedural rules regarding discovery. Well, I am . . . what's the word for reverse exaggerating? But still. Point is, I haven't had to do constitutional analysis for years and years. So when I saw Ann Althouse's flip dismissal of the substantive challenge to the Wisconsin union busting law, I thought to check it out first, before accusing her of putting her politics above her education and profession. So I get to say . . . gotcha!

Yes, there's no suspect class here, with Wisconsin discriminating against one group of state workers by job classification, vs others (but that might be hard to defend on a truly rational basis. Particularly when the facts support political payback/vendetta. Nothing rational there.) But beyond that, the lawsuit is not only based on Equal Protection. They are claiming violation of First Amendment rights too. Freedom of association, and all that. So . . .

"A law attacked on equal protection grounds will be upheld if it survives rational basis review, unless the classification is drawn along suspect lines or infringes the exercise of fundamental constitutional rights, in which case it must survive heightened judicial scrutiny. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993); Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)."

City of Indianapolis, et al v. Armour, et al,
No. 49S02-1007-CV-402, ___ N.E.2d ___ (Ind., May 10, 2011).

And never forget the obvious. No matter what Walker says about the why of it, that he was deliberately going after the collective bargaining rights of only some of the workers, that was exactly what he was doing. He was going after the (First Amendment) collective bargaining rights of some of the state workers.

I don't want to go too far out here. Based on what she posts on her blog and her performances she has made on, I know she has that annoying habit of talking about shit without doing the minimal level of work. Here, I think she just relied on a bad article that missed mention of the First Amendment Claim. But ya know? The First Amendment Claim is sort of a no brainer. Particularly when the person making the mistake preaches that "Culture of Free Speech," nonsense, guessing about the First Amendment Claim should be easy as pie. After all, collective bargaining is about the right a bunch of individuals to collective speech.

Either way, it's very embarrassing.

Well, at least we will finally get to the merits of the case.

(Update and acknowledgement of my errors.)

Honestly, I had been looking for the complaint, yesterday, and did not find it until early Friday morning. At least the one AFSCME site I visited did not have it up, and the District Court has a stingy website. Without a PACER account, you aren't getting much info on the docket, what not.

And as it turned out, I was not totally sure about collective bargaining being proper grounds for claiming a fundamental right. And it turns out the current case law says no, it isn't, but right of association is. So they pass the giggle test there. But the Fed Courts are doing something of a tap dance about where freedom of association ends and collective bargaining begins. But the drafters of the complaint found a clever way to avoid that shit. Yes, the complaint's cause of action under the First Amendment mentions association, but also claims that the unions' (and by logical inclusion, the membership's) political speech rights are being impaired in an unconstitutional way.

From the complaint:

"92. As set out above, unions may lawfully expend membership dues, and all of the plaintiff unions here do expend such union dues, on political advocacy and other forms of expression protected by the First Amendment of the United States Constitution. Where a union is able to secure an agreement with the employer to permit the union to collect dues on behalf of members who authorize payroll deduction or dues check-off, such an agreement facilitates the union’s ability to finance its lawful and protected political advocacy and speech."

Clever. I suggested first time, the core Equal Protection claim is based on Gov. Walker's obvious payback against his political detractors and reward to his political supporters. So this casting of the First Amendment claim is really quite a good way to not only pass the fundamental right requirement, but it really gets to the heart of Walker's intent. The unions he went after are the traditionally Democratic unions. So making this about political speech rights is not merely clever legal drafting, but it's really getting down to the core of the controversy. And what really is going on here is a group of people are being singled out and punished by the government for their political speech.

So I now do my limited mea culpa. I had the right idea, but guessed wrong about specifically which fundamental speech right was pleaded. Whoops! My bad. But it's still about speech.

Damn. I do wish I were working on this case. It's very interesting stuff.

Oh. And I was spot on in guessing they would argue that there was nothing rational (or legitimate) in stripping one class' bargaining rights and leaving intact the other's bargaining rights. And it really was a politically motivated thing.

But I won't spike the football. Low hanging fruit, all that.

The Complaint.

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