U.S. justices wary of free-speech argument in union dues challenge

WASHINGTON Tue Jan 21, 2014 5:54pm EST

WASHINGTON Jan 21 (Reuters) - The U.S. Supreme Court seemed unlikely on Tuesday to embrace a sweeping argument advanced by a group of Illinois state employees that paying mandatory union dues violates their free-speech rights.

Backed by the anti-union National Right to Work Legal Defense Foundation, the employees, who care for the disabled, have asked the court to upend a decades-old practice that lets public-sector unions collect money from workers who do not want union representation, so long as the money is not spent on political activities.

Justices on the high court expressed reluctance to reconsider its 1977 ruling in Abood v. Detroit Board of Education. That ruling said unions could collect such compulsory dues under collective bargaining agreements.

A handful of home-based personal care workers, represented by National Right to Work attorney William Messenger, is arguing that the Abood standard should be overturned. Payment of mandatory dues, they argue, is the type of forced association and speech prohibited by the U.S. Constitution's First Amendment.

But during an hour of oral arguments, Justice Elena Kagan said the court has given the government a "very wide degree of latitude" to manage its workforce. Public-sector employees can be fired for making statements in the workplace that would, on their own time, be legally protected, Kagan said.

"So you're saying, well, the government can punish somebody for saying something, but the government in the exact same position cannot compel somebody to say something they disagree with. And I want to know what's the basis for the distinction," said Kagan, one of four liberals on the nine-member court.

Conservative Justice Antonin Scalia said, "I want to hear the answer, too, because contrary to what Justice Kagan suggests, I didn't say your First Amendment argument was valid."

Several members of the court appeared more open to narrower questions raised by the Illinois case, such as when specific union activities may be political in nature.

STATE EMPLOYS MOTHER

The case - Harris v. Quinn - was brought by Pamela Harris, of Illinois, who cares for her 25-year-old son Josh Harris, who has a rare genetic syndrome and needs round-the-clock care.

In Illinois, as in many states, home-based personal care workers who assist the disabled are paid with Medicaid funds as state employees. The practice is meant to lower overall care costs by keeping disabled individuals at home and out of institutions.

For more than a decade now, home-based workers in Illinois have been represented by SEIU Healthcare Illinois-Indiana. The collective bargaining agreement between SEIU and the state provides that all such workers pay compulsory union fees.

Harris, along with other home-based workers, sued Illinois and Governor Pat Quinn, a Democrat, claiming that the compelled payment of union dues was a form of forced speech prohibited by the First Amendment.

A district court dismissed the case, citing long-standing Supreme Court precedent that mandatory union dues can be collected to support non-political activities. The 7th U.S. Circuit Court of Appeals in Chicago affirmed that ruling after concluding the workers bringing the case were state employees.

The workers asked the Supreme Court to take the case. That prompted the filing of friend-of-the-court briefs supporting the workers from several conservative groups, including the Cato Institute, the Center for Constitutional Jurisprudence and the Illinois Policy Institute.

Labor unions, the American Association of People With Disabilities and the state of California were among interests that filed briefs supporting Illinois in the case.

IDENTICAL QUESTIONS

The legal question presented by Harris v. Quinn is nearly identical to the one decided by the court in the 1977 Abood case. Observers wondered whether the court's decision to hear Harris's appeal signaled a willingness to revisit the issue.

The case also came on the heels of the Supreme Court's 2012 decision in Knox v. SEIU, a narrower case in which the justices were skeptical of the SEIU's opt-out procedures for dues payment by public employees in California.

Some of the justices on Tuesday questioned when unions representing public-sector workers may cross the line from non-political to political activity, and if and where that line could be drawn in specific cases.

Harvard University law professor Benjamin Sachs said that it is impossible to predict how the justices will decide a case. But Kagan, Scalia and other members of the court noted on Tuesday that the Supreme Court has consistently affirmed that states can dictate the terms of employment relationships, including that the First Amendment rights of employees can be circumscribed in the workplace, Sachs said.

"If you can glean anything from the oral argument today, it's that possibly a majority of the court is being careful to adhere to that long-standing precedent," Sachs said.

The case is Pamela Harris, et al v. Pat Quinn, Governor of Illinois, U.S. Supreme Court, No. 11-681.

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