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Battle over RTW heats up in courts

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When Lake Superior Court Judge John Sedia handed Indiana’s right-to-work law a pink slip, conventional wisdom held that the Indiana Supreme Court would overturn that decision and put the law back to work.

Commentators noted even though Sedia entered a declaratory judgment on one count of the complaint, he dismissed four other counts.

However, Sedia knocked down Sections 8 and 10 of the right-to-work law because they violated the Indiana Constitution’s prohibition against demanding services without “just compensation.” Those two sections, most in the legal community say, are the heart of the law.

gruber Gruber

Without Section 8, which bars any requirement that an individual join a union and pay dues, and Section 10, which makes violating Section 8 a crime, Indiana does not have a right-to-work law.

If the Supreme Court affirms the Lake County order, “it could really turn (the law) on its head,” said Andrew Gruber, partner at Bingham Greenebaum Doll LLP. “Does the law survive if the decision is upheld? I don’t think so.”

Few expect Indiana’s right-to-work law would be left to die should the Supreme Court affirm. More likely, the Indiana General Assembly would again take up the measure, but some in the legal community believe for any new right-to-work law to hold muster with the courts, lawmakers will have to first rewrite the state’s constitution.

Two complaints

In James M. Sweeney, et. al. v. Gregory Zoeller, Attorney General of the State of Indiana, et. al., 45D01-1305-PL-52, Sedia provided a careful examination of state law, federal law, court precedent and the Indiana Constitution before he ruled that Indiana Code 22-6-6-8 and IC 22-6-6-10 violate Article I, Section 21 of the state’s constitution.

“There is no Court which is more loathe to declare any state statute unconstitutional than this one,” Sedia wrote in his order issued Sept. 5, 2013. “(Indiana Code) 22-6-6-8 and IC 22-6-6-10 stand clothed with the presumption of constitutionality. Debate regarding the wisdom or folly of this statute (about which the Court has purposely avoided using its title) lies in the political arena, not with the courts.”

torr Torr

Immediately after the ruling was issued, the attorney general’s office filed an appeal to the Supreme Court and vowed it would “aggressively defend the authority of the people’s elected representatives in the Legislature as we successfully defended this same statute from the same plaintiff who challenged it in federal court.”

The Sweeney complaint in state court is part of a two-pronged attack on the right-to-work law by the International Union of Operating Engineers Local 150. The union is also arguing James M. Sweeney v. Mitch E. Daniels, Jr., 13-1264, in the federal courts.

Both suits focus on Section 8, Subsections 2 and 3, of the measure but look at it through the lens of the Indiana Constitution and federal labor law.

The author of Indiana’s right-to-work law, Rep. Jerry Torr, R-Carmel, does not believe the union’s argument will convince the Supreme Court.

“We had a lot of awfully smart lawyers look at the language before we passed it,” he said. “I’m fairly confident it will be found to be constitutional.”

Torr had introduced a right-to-work bill in the Legislature since the 2004 session. He touted the benefits as attracting employers to Indiana and allowing individuals to make the choice themselves of whether or not they want to join a union.

If the Supreme Court agrees with the Lake County order, Torr said he is confident the Legislature would redraft the troubling language, using the Supreme Court’s opinion as a guide.

Rep. Ed DeLaney, D-Indianapolis, sees little chance the state’s highest court will affirm. The court has given “excessive deference” to the Legislature and passed up most opportunities to explain what the state’s constitution means to Indiana.

deLaney-ed-mug.jpg DeLaney

A strong opponent of right-to-work, DeLaney questioned how the courts could find that a corporation is a person (referring to the Citizen’s United decision by the U.S. Supreme Court) and not find that a union is a person. Instead, while federal law is requiring labor organizations to provide fair representation to all workers, even non-members, in a unit, the state is not allowing compensation for that representation.

DeLaney applauded Sedia’s decision. “I think it was well reasoned and rather courageous on the part of the judge,” he said.

Dale Pierson, general counsel for the International Union of Operating Engineers Local 150, said he was “very pleased in that the judge seemed to understand the constitutional argument we’re making.”

In the federal suit, the union is asserting the state steps outside the authority granted by Congress by not requiring employees to pay their “fair share” of the cost of collective bargaining. This section, Pierson said, allows for “free riding,” the term used to describe workers who do not pay union dues but still receive the benefits of representation.

Pierson maintained states are allowed to regulate union security clauses but that authority is limited to contractual requirements that all employees become members. Indiana’s right-to-work law goes beyond that by prohibiting any payment of dues, fees or assessments.

On the state level, the labor organization is arguing the same section violates the Indiana Constitution because the law is requiring unions to work without “just compensation.”

nierman Nieman

The U.S. District Court for the Northern District of Indiana, Hammond Division dismissed the union’s federal argument. Consequently, Local 150 appealed to the 7th Circuit Court of Appeals and presented oral arguments Sept. 12.

Pierson was cautious to read too much into the 7th Circuit judges’ questioning, but he felt they seemed to understand the union’s point that Subsections 2 and 3 are pre-empted by federal law.

Constitutional questions

Kenneth Dau-Schmidt, professor of labor and employment law at Indiana University Maurer School of Law, is not so certain the Lake County decision will be overturned. He said Sedia made such a “tightly reasoned” argument that the moderate justices on the Supreme Court might accept it.

dau schmidt Dau-Schmidt

The union’s position that the taking of a product or service cannot be done without payment mirrors conservative ideals. If he were to put money down, Dau-Schmidt said he would bet that politics will prevail and Sedia’s decision will be reversed, but he would not bet a lot.

However, if the ruling is upheld, Dau-Schmidt said the only way Indiana could get another right-to-work law to stand up in court would be to amend the state constitution. The “taking clause” in Indiana’s founding document not only covers products, like many state constitutions, but goes further to also include services.

An amendment would likely be to remove the service language. But, again, that would put conservatives in an unusual position. The Republicans would be arguing that government does have the power to take services without providing compensation — not a traditional conservative view.

Ogletree Deakins attorney Todd Nierman is not persuaded by the constitutional argument.

“With all due respect, I believe (Judge Sedia’s) decision is wrong and ultimately will be overturned,” he said.

The court held the state is demanding the union provide services for free. Nierman countered Indiana is not doing that because it is not demanding unions represent anybody. A labor organization chooses to represent workers at a particular business and if the organization decides there are too many free riders, it can leave without any consequences.

Still, should the Supreme Court affirm the Lake County order, Nierman, like Dau-Schmidt, does not see a legislative solution. He questions how the General Assembly could rewrite the law to be constitutional.

Negotiations

Although Sedia stayed his order pending appeal, his ruling could have a practical impact. Nierman said at the negotiating table unions and employers could point to the decision.

Unions may argue for a provision to be added to contracts that if the Lake County ruling is upheld, then union security language, making membership a condition of employment, is revived, he said. Employers would likely counter the right-to-work law is still valid so security language is illegal.

“It’s not practical for unions and employers to wait and see” what the Supreme Court is going to do, Nierman said.•

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

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  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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