Teachers vs Union

On Monday, May 21, 2007, the U.S. Supreme Court justices agreed to read the supplemental briefs filed by the WEA and Washington state after HB 2079 was signed by the Governor. The contradictory positions set forth in the union brief will probably amuse and outrage the justices more than enlighten them on the developing aspects of the case.

The Davenport attorneys filed a motion opposing the union’s motion here.

The Washington State Attorney General’s brief addressed the WEA’s arguments. They highlighted the contradictory argument the union is making (“Because of HB 2079, we think the law is now Constitutional, but we still want you to affirm the lower court’s decision and throw out the law.”) and pointed out that the union's preferred interpretation of the law was not constitutional under the Abood case, where the U.S. Supreme Court rejected the fraudulent accounting practice HB 2079 implemented.

A copy of the U.S. Supreme Court’s order granting review of the supplemental briefs here:

MONDAY, MAY 21, 2007, ORDERS IN PENDING CASES

A U.S. Supreme Court case pitting Washington state and some teachers against the Washington Education Association may be affected by a change to the state’s election law.

The state and the nonunion teachers sued the teachers’ union separately for allegedly violating the original statute, which barred unions from using money in political campaigns that was collected as “agency fees” from nonmember workers without first receiving their assent. The Washington Supreme Court ruled that the law was an unconstitutional infringement of the union’s free-speech rights.

Read more here.

A few quotes from a news release from the Washington House Republicans:

Deputy Republican Leader Doug Ericksen believes voter sentiment is being pushed aside by a bill signed last week that fundamentally alters a 1992 initiative preventing unions from using dues from nonmembers for political activities without their consent. The 42nd District lawmaker also believes nonmembers are being treated unfairly, while the governor approves a law that directly benefits some of her biggest campaign contributors.

“We’re seeing one-party control pre-empting a U.S. Supreme Court decision and, more importantly, ignoring the will of the voters who sent a clear message,” said Ericksen, R-Ferndale. “The governor is failing to protect the voices of people who are not union members but are directly impacted by the actions of unions.”

Read more here.

EFF’s own Joel Sorrel drew this cartoon to highlight Gregoire’s explanation of why she left the emergency clause in HB 2079.



The WEA used HB 2079, which the emergency clause put into effect immediately, in a misguided attempt to box the U.S. Supreme Court justices into a corner. The union suggested that, because of the change in the law, the Justices limit the scope of their ruling to only consider past violations, not future application of the Free Speech principals discussed during oral arguments.

In this newly released video clip, Colorado teachers share their thoughts on the U.S. Supreme Court cases Davenport v. Washington Education Association and Washington v. Washington Education Association.

Three teachers explain how they share the cause of freedom Washington state teachers are taking a stand for. Some give examples of how their local unions have affected their lives and jobs and express frustration over the cumbersome and oppressive system the union protects. One even shares how the union harassed her for questioning its illegal practices.

These are the stories of experienced, dedicated, and effective teachers who have learned by personal experience that the union is not out to help them or their students. Take a look!

The Wall Street Journal covers the union's attempt to end run the Supreme Court ruling on the Washington vs. WEA case:

Washington State Governor Christine Gregoire pulled a fast one last Friday
when she quietly signed a bill that guts a state paycheck protection law
currently being debated in a case before the U.S. Supreme Court....

"You should only be as strong as the support behind you," says Michael Reitz
of the Olympia-based Evergreen Freedom Foundation, "and it shouldn't be
artificially inflated with coerced donations." But until the courts say
otherwise, labor unions will get away with coercing cash at will.

A PDF copy of the article is available here.

We posted the recently filed briefs on the Teachers-vs-Union website. Here is a summary of the briefs.

The WEA filed two documents; 1) a Motion to File Supplemental Brief and 2) a Supplemental Brief.

WEA Motion to File Supplemental Brief – The WEA asks the U.S. Supreme Court for permission to file their supplemental brief.

WEA Supplemental Brief – The WEA says three things:

1. The WEA brings HB 2079 to the attention of the Supreme Court justices.
2. The WEA explains that they “urged the courts below to read Sections 760… along the lines of the statutory gloss provided by HB 2079…”
3. The WEA concludes by trying to put the U.S. Supreme Court Justices in a box. The union tells the High Court that, because HB 2079 changed the law the union admitted to violating, any ruling the Justices issue will only apply to past violations, not the union's future conduct.

Davenport’s Opposition to WEA’s Motion for Leave to File Supplemental Brief – The Davenport motion is simply a motion urging the Court to deny the WEA’s motion to file a supplemental brief (the union's first document). It does not address the legal issues raised by the WEA’s Supplemental Brief.

The Davenport motion simply argues that the WEA’s supplemental brief does not address any of the issues that were argued before the U.S. Supreme Court, whether in the briefs filed in November or in the oral arguments in January. It concludes:

“For these reasons, § 760 as amended has no application to Davenport, and is not relevant to any issue that is properly before this Court in this case. The Court should deny the motion and proceed to decide this case as briefed, argued and submitted.”

State of Washington’s Motion to File Supplemental Brief and Supplemental Brief – The state’s brief addresses the union's statements presented in its supplemental brief (the WEA's second document, not the first). It asks the court to deny the WEA's brief because it's statements and arguments are wrong.

The state’s brief is in three parts too.

1. The state agrees with the WEA's statement in its brief that HB 2079 does not render the case moot.
2. The state argues that the change to 760 “is not relevant to the Question presented” and that the union already admitted to violating the law.
3. The state argues that HB 2079’s changes to 760 are unconstitutional in light of Abood v. Detroit Board of Education.

The state concludes by again urging the Court to reverse the lower court’s decision.

Governor Gregoire had everything to gain and nothing to lose by vetoing the emergency clause in HB 2079. So why did she pass up the opportunity? Adam Wilson, over at The Olympian, asked and received this answer:

“Because they [the union] asked me specifically that it not be vetoed because they continue to take money in and this will relieve the cloud, with the emergency clause in place,” she said. “Rather than wait until some later date when from here ‘till there will be a cloud over what use they can make with the money.”

On its face, it sounds like the union wanted the emergency clause because it would be too inconvenient to treat agency fees collected now differently from those collected after July 22, 2007.

Keep in mind that she vetoed three emergency clauses the same day she signed HB 2079.

• HB 2118 relating to installing mobile and manufactured homes. The governor said this about the emergency clause: "We believe that the desire to avoid potential inconvenience should not be treated as a public emergency warranting an emergency clause."
• HB 1910 relating to tax incentives. The governor said, the emergency clause "is not essential to the bill’s proper and timely implementation."
• HB 1811 relating to installing automatic sprinklers in nightclubs. Regarding the emergency clause, the governor said, "The bill contains an unnecessary emergency clause... Emergency clauses should be used sparingly and only when necessary."

So putting the pieces together, convenience for a state agency (L&I) is not an emergency, but convenience for a union (the WEA) is.

Was Rep. McDermott duped or did he know all along?


The Washington Education Association (WEA) filed a supplemental brief with the U.S. Supreme Court in Washington v. Washington Education Association and Davenport v. Washington Education Association on Friday, May 11, 2007 arguing that they now believe RCW 42.17.760 is Constitutional. Of course, Friday was the day Governor Gregoire signed HB 2079, the bill that, according to the AP, will allow “labor unions to spend nonmembers' bargaining fees on political causes without first getting their permission.”


The WEA brief argues that, as amended, .760 is now constitutional and any SCOUS ruling will “control only as to the statute’s retrospective application.” The Court’s decision won’t apply to the union’s future activities.

• According to its sponsors and the union, this bill, supposedly, was not going to affect the case before the U.S. Supreme Court. For the union, either this was a classic case of “not letting the left hand know what the right hand was doing” or it was premeditated misinformation to politicians, the public, and news venues.
  
• This also explains why Gregoire left the emergency clause in the bill. Were the law not immediately in effect, the WEA could not have filed this brief. Obviously there was some behind-the-scenes planning.

During the House State Government & Tribal Affairs Committee hearing, Rep. Joe McDermott, said the bill does not affect the U.S. Supreme Court Case. (House State Government & Tribal Affairs Committee Hearing on February 20, 2007 at 6:00:00 PM at 1:37 on the recording:)

“This bill does not interfere with the court case that has recently been argued before the U.S. Supreme Court. That case, um, delves into the First Amendment, um, constitutionality of the underlying statute.

“This amendment, this addition to the existing statute, um, in no way changes, or even, um, makes more palatable to the court the First Amendment issue being argued before them.

“If the statute is struck down, what we’re adding in this bill to this statute would go down with it. It doesn’t make it any easier to defend or uphold.”

McDermott’s statement was repeated by both the House and Senate legislative committee staff, the union officials testifying in support of the bill, and the House Bill Summary: “The bill does not interfere with the Supreme Court case.”

Maybe Rep. Joe McDermott should give a declaration affirming that HB 2079 has no effect on the USSC case (We can probably get the same from the union officials who testified in committee too.).

From the Orange County Register:

The Washington state Supreme Court's WEA ruling essentially held that two wrongs – one based on a nonexistent group's constitutional rights and the other based on faulty reasoning about union rights – could take away valuable rights from those who choose not to join unions. However, we can hope that the U.S. Supreme Court's pending decision reflects the skepticism that several justices displayed during oral arguments in January, and the court will overturn this mistaken sacrifice of important worker rights.

Read more here.

OLYMPIA—Today, Governor Gregoire signed House Bill 2079. The bill amends a
statute that requires unions to get permission from nonmembers before spending their fees on political activity. The U.S. Supreme Court is currently reviewing the constitutionality of this statute in two cases brought by teachers and the state Attorney General against the Washington Education Association.

Read more here.