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Lake County judge strikes down provision in Indiana’s right-to-work law

Marilyn Odendahl
September 10, 2013
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In a ruling that never used the popular term “right-to-work,” Lake Superior Court Judge John Sedia found a provision in Indiana’s 2012 labor law violated the state constitution’s ban on demanding services without just compensation.

Sedia dismissed four counts of the original complaint brought by the International Union of Operating Engineers, Local 150, and other plaintiffs. After an in-depth examination of state law, federal law, court precedent and the Indiana Constitution, however, he held that the section of the right-to-work law which requires unions to provide services at no cost to non-union employees to be unconstitutional.

“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. “(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.”

Sedia entered a declaratory judgment that IC 22-6-6-8, which prohibits an individual from being required to join a labor organization and pay dues, fees or other charges, and IC 22-6-6-10, which makes forcing employees to pay union dues a Class A misdemeanor, violate Article I, Section 21 of the Indiana Constitution.

The Indiana Attorney General’s office, calling Sedia’s ruling incorrect, stated that it immediately would file an appeal to the Indiana Supreme Court.

Bryan Corbin, spokesman for Indiana Attorney General Greg Zoeller, said the Zoeller “will 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,”  

Democratic leaders in the Indiana House of Representatives and Indiana Senate hailed the ruling as another example of failure for the right-to-work law.

“But finally, one branch of government made sense,” House Democratic Leader Scott Pelath of Michigan City said in a statement. “Hoosiers’ middle class wages lag badly behind other Americans and one judge believes our law is not just for those with money and power.”

The law sparked fierce debates in the Indiana Statehouse during the 2011 and 2012 legislative sessions. Democrats opposed the measure, staging walkouts to prevent a vote, but Republicans were able to pass the bill which former Gov. Mitch Daniels signed.

The first count of the plaintiffs’ complaint alleged the right-to-work provision that compels Local 150 to provide a particular service to the employees it represents without receiving any pay violated Article I, Section 21 of the Indiana Constitution. That section of the state constitution holds that “No person’s particular services shall be demanded without just compensation.”

Sedia pointed to Bayh v. Sonnenburg, 573 N.E. 2d 398 (Ind. 1991), for a definition of what constitutes a “demand.” Here the Indiana Justices found that “a request becomes a demand when it is backed up with the use or threatened use of physical force or legal process which creates in the citizen a reasonable belief that he is not free to refuse the request.”

He also highlighted the federal labor law which mandates unions provide services such as processing grievances and negotiating contracts on behalf of members and non-members alike.

Sedia concluded IC 22-6-6-8 and IC 22-6-6-10 criminalizes the act of a union being paid for the services the federal law demands it provides to employees.

 “…the effect of IC 22-6-6-8 and IC 22-6-6-10 under the current, long-standing federal labor law, is to demand particular services without just compensation,” he wrote. “The Court therefore has no choice but to find that IC 22-6-6-8 and IC 22-6-6-10 violate Article I, Section 21 of the Indiana Constitution.”

The five-count complaint challenging the right-to-work law on constitutional grounds was filed in Lake County on Feb. 11, 2013. Sedia dismissed the other counts, finding, under the Indiana Constitution, the right to work law did not deprive Local 150 members of equal protection, did not infringe on Local 150’s free speech rights and is not an ex post facto law.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe 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. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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