Author

Janie Valentine

Janie Valentine is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Union Station: Wisconsin Employment Relations Commission issues decision on collective bargaining for UW Health nurses

This image has an empty alt attribute; its file name is bs-rp6MLFjqO8mt4iGn-WA5JPVpi4m3V7LkIeycnbynJzxZaPxnJMGE23ln-3ELE3MFJn9_8jLEEarmzbZ-oUdUje7-pFxZ0w57_zk1BdYxZ2GP_n_bDHxN8H1J_7qorQMjoA1IQ1MNK8UZhGA

Wisconsin Employment Relations Commission issues decision on collective bargaining for UW Health nurses 

The Wisconsin Employment Relations Commission (WERC) ruled on Nov. 25 that the University of Wisconsin Hospitals and Clinics Authority (UW Health) is not legally required to collectively bargain with UW Nurses United, a chapter of SEIU Healthcare Wisconsin.  

Background

SEIU Healthcare Wisconsin and UW Health filed a joint petition on Sept. 20, 2022, asking the commission for a declaratory ruling on whether Wisconsin Statutes chapter 111, subchapter 1—called the Wisconsin Employment Peace Act—applied to UW Health and its employees.

The Peace Act says, “Employees shall have the right of self-organization and the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 

According to the Wisconsin Examiner’s Erik Gunn, SEIU lawyers “[contended] that UW Health is covered by the Peace Act and as such its employees have full collective bargaining rights,” while UW Health attorneys argued the Peace Act no longer applied to UW Health after former Gov. Scott Walker (R) signed 2011 Wisconsin Act 10 into law. Act 10 limited collective bargaining rights for public sector workers.

The joint petition was part of an agreement between the parties to call off a planned nurses’ strike. To read more about the agreement in an earlier edition of Union Station, click here

WERC ruling 

WERC issued its decision on Nov. 25, finding that the Peace Act does not apply to UW Health employees. The commission’s decision said:

“The parties disagree as to whether statutory history is always to be considered when seeking the ‘plain meaning’ of a statute. SEIU asserts that it is only appropriate to look at statutory history if it confirms the ‘plain meaning’ derived from an analysis of the statutory language itself. UWHCA argues that statutory history is always to be considered. The Commission concludes that UWHCA is correct. …

“While the current version of Wis. Stat. § 111.02(7)1 is certainly susceptible to the interpretation given it by SEIU, the statutory history summarized in Findings of Fact 3 – 6 provides clear determinative evidence of the Wisconsin Legislature’s intent. Act 10’s specific deletion of all statutory references related to the UWHCA as a Peace Act ‘employer’ clearly establishes that the UWHCA is not an ‘employer’ within the plain meaning of Wis. Stat. §111.02(7). Contrary to the argument of SEIU, there are no plausible alternative explanations for the legislative deletions reflected in Act 10. 

“Given the foregoing, the Commission declares that the Wisconsin Employment Peace Act, Wis. Stat. ch. 111, subch. 1 (WEPA) does not apply to the University of Wisconsin Hospitals and Clinics Authority and its employees and their chosen representatives, if any.”

The Cap Times’ Jessie Opoien reported that it “remains unresolved … whether UW Health can voluntarily recognize the union.”

What comes next

According to the Milwaukee Journal Sentinel’s Jessica Van Egeren, “Since a ruling by the commission is not the same as a ruling by the courts, neither side ever viewed a decision by WERC as the final answer.” Representatives for both parties have said that they plan to appeal the commission’s decision.

UW Health says it will appeal to the Wisconsin Supreme Court. Press secretary Emily Kumlien said, “WERC’s decision is an important first step toward obtaining definitive answers from the Wisconsin legal system on both the question WERC addressed and whether UW Health could voluntarily recognize a union and bargain collectively. … We believe that an expedited decision on these important legal issues will best allow us to move forward.” 

UW Health nurses Mary Jorgensen, Colin Gillis, and Sarah Langland said, “We will be appealing WERC’s decision through the courts and petitioning for an election with the National Labor Relations Board (NLRB). … This is the first round in a multi-step process for nurses achieving collective bargaining rights, either through the courts, the NLRB, or through voluntary recognition by UW Health.” 

Jorgensen, Gillis and Langland also said, “Hundreds of us have already signed up to become union members and we are meeting directly with the administration to raise critical issues and create real solutions. … The opinion by the Wisconsin Employment Relations Commission (WERC) does not impact our union membership or the Meet and Discuss process at UW Health.”

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 150 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.


Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.



Incumbent Doug La Follette (D) elected to 12th term as Wisconsin secretary of state

Incumbent Doug La Follette (D) defeated Amy Loudenbeck (R), Neil Harmon (L), and Sharyl McFarland (G) in the election for Wisconsin secretary of state on Nov. 8, 2022. County canvass results published by the Wisconsin Elections Commission on Nov. 21 showed that La Follette had received 7,442 votes more than Loudenbeck, a 0.3 percentage point margin. Loudenbeck did not request a recount—an option due to the close margin—and conceded on Nov. 21.

La Follette’s new term beginning in 2023 will be his 12th term in office.

Duties of the Wisconsin secretary of state include recording the official acts of the governor and the executive department, compiling and keeping laws and resolutions adopted by the legislature, having custody of the state’s records, and authenticating certain documents. According to Wisconsin Public Radio’s Shawn Johnson, “[M]ost of the office’s responsibilities have been outsourced to other state agencies that answer to the governor.”

The responsibilities of the office were a central issue in this race, particularly concerning election administration. Wisconsin is one of five states where the secretary of state has no election-related duties. The legislature transferred election administration responsibilities from the secretary of state to a nonpartisan elections board in 1974. Since 2016, the bipartisan Wisconsin Elections Commission has overseen the state’s election administration. La Follette and Loudenbeck disagreed about whether the secretary of state should have a role in the state’s election system.

La Follette was first elected secretary of state in 1974 and served one term before an unsuccessful run for lieutenant governor in 1978. He was elected secretary of state a second time in 1982 and has since served 10 consecutive terms. La Follette said that maintaining the state’s independent election system was “[t]he critical issue in this campaign for Secretary of State.” He said, “The state of Wisconsin has been a pivotal battleground in several of the past presidential elections. … For this reason, it’s more important than ever that we elect a Secretary of State that will defend our democracy over party. As America’s longest-serving incumbent Secretary of State, I have the track record and deep well of experience to do it.” La Follette also said he wanted the secretary of state’s office to again have responsibility for business-related functions.

Loudenbeck was first elected to represent District 31 in the Wisconsin State Assembly in 2010. Her campaign website stated, “The Secretary of State’s office has fallen into disrepair and disfavor thanks to the neglect of Democrat Doug La Follette who has been in that office for forty-four years.” Loudenbeck said, “[M]y goal would be to modernize the office, to be responsive to requests for authentication of documents, to be a billion dollar board member for the Board of Commissioners of Public Lands and actively engage in the role that currently exists for the secretary of state that I see as being neglected right now.” Loudenbeck said she would advocate for abolishing the Wisconsin Elections Commission and moving election administration duties such as training, guidance, voter roll maintenance, and voter outreach to the secretary of state’s office.

In 2018, Democrats gained a state government triplex in Wisconsin when Democratic candidates defeated Republican incumbents in the elections for governor and attorney general, and La Follette was re-elected. All three offices were up for election again in 2022, and each Democratic incumbent was re-elected.

This was one of 27 secretary of state elections held in 2022.



Union Station: Checking in on public-sector union cases appealed to the Supreme Court

This image has an empty alt attribute; its file name is bs-rp6MLFjqO8mt4iGn-WA5JPVpi4m3V7LkIeycnbynJzxZaPxnJMGE23ln-3ELE3MFJn9_8jLEEarmzbZ-oUdUje7-pFxZ0w57_zk1BdYxZ2GP_n_bDHxN8H1J_7qorQMjoA1IQ1MNK8UZhGA

Checking in on public-sector union cases appealed to the Supreme Court 

Note: In observance of the Thanksgiving holiday, we will not be publishing Union Station on Nov. 25. The next edition of Union Station will arrive on Dec. 2.

So far this month, the Supreme Court has rejected three petitions in public-sector union cases we’ve been tracking and requested responses in three other cases. We’ll outline the details of both sets of cases below. 

But first, an update on our last edition. Illinois voters approved Amendment 1 on Nov. 8, establishing the right to collective bargaining in the state constitution and making Illinois the first state to ban right-to-work laws in its constitution. The measure passed 58.4% to 41.6%. 

Now, back to the Supreme Court: 

Denied petitions

The Supreme Court receives 7,000 to 8,000 petitions every year. In order for a petition to be granted, at least four of the nine justices must vote to hear the case. Between 2007 and 2021, the court issued opinions in an average of 75 cases per year. 

Since the Supreme Court’s 2018 ruling in Janus v. AFSCME, Ballotpedia has tracked close to 200 public-sector union lawsuits in federal and state courts, over 60 of which have been appealed to the Supreme Court since the 2018-2019 term. Earlier this term, the court agreed to hear a case challenging the Federal Labor Relations Authority’s jurisdiction to regulate a collective bargaining dispute between the Ohio National Guard and the American Federation of Government Employees. Aside from that case, none of the petitions we’ve tracked since Janus have been granted. 

The Supreme Court denied the following petitions in public-sector union cases on Nov. 7 and Nov. 14: 

Cooley v. California Statewide Law Enforcement Association
  • Appealed from the Ninth Circuit. 
  • Appeal docketed Sept. 9, 2022. Respondents waived the right to respond. Distributed for conference on Nov. 4, 2022.
  • Question presented in the petition: “Does the Constitution allow a public-sector union to enter into a contract with a state employer that restricts a public employee’s constitutional right to resign his union membership?”
  • Petition denied Nov. 7. 
Polk v. Yee (And Quirarte v. United Domestic Workers AFSCME Local 3930, consolidated in the appellate court)
  • Appealed from the Ninth Circuit. 
  • Appeal docketed Sept. 8, 2022. Respondents waived the right to respond. Distributed for conference on Nov. 4, 2022. 
  • Questions presented in the petition
    • “Do states and unions need clear and compelling evidence that nonmembers of a union waived their First Amendment right to refrain from subsidizing union speech in order to constitutionally seize payments for union speech from those individuals?” 
    • “When a union acts jointly with a state to seize union payments from nonmembers’ wages, is that union a state actor participating in a state action under 42 U.S.C. § 1983?”
  • Petition denied Nov. 7. 
Schaszberger v. AFSCME Council 13
  • Appealed from the Third Circuit. 
  • Appeal docketed Oct. 20, 2022. Respondents waived the right to respond. Distributed for conference on Nov. 10, 2022. 
  • Question presented in the petition: “Is there a ‘good faith’ defense under 42 U.S.C. § 1983 that shields a defendant from damages liability for depriving citizens of their constitutional rights if the defendant acted under color of a state law before this Court held the law was unconstitutional?” 
  • Petition denied Nov. 14. 

Response requested

According to the clerk of the Supreme Court’s office, “The Court will sometimes schedule a case for conference, but then request a response from the respondent(s) before the petition is actually considered at conference. Such a request will be noted on the docket, and will generally give the respondent 30 days to submit the response. Once the response is received, the Clerk’s Office will place the case on the next relevant conference list that is at least 14 days after the date that the last response is filed.”

The court requested responses in the following cases: 

File v. Hickey (formerly File v. Brost)
O’Callaghan v. Drake
  • Appealed from the Ninth Circuit. 
  • Appeal docketed Sept. 9, 2022. Respondents waived the right to respond. Distributed for conference on Nov. 4, 2022. 
  • Question presented in the petition: “Whether a union can trap a government worker into paying dues for longer than a year under Janus[.]” 
  • The court requested a response on Nov. 2 and granted the respondents’ request to extend the deadline to Jan. 3, 2023. 
Savas v. California State Law Enforcement Agency
  • Appealed from the Ninth Circuit. 
  • Appeal docketed Sept. 8, 2022. Respondents waived the right to respond. Distributed for conference on Nov. 4, 2022. 
  • Questions presented in the petition
    • “Does it violate the First Amendment for a state and union to compel objecting employees to remain union members and to subsidize the union and its speech?”
    • “To constitutionally compel objecting employees to remain union members and to subsidize the union and its speech, do states and unions need clear and compelling evidence the objecting employees waived their First Amendment rights?” 
    • Amici curiae: Goldwater Institute, Americans for Fair Treatment, Alaska, et al.
  • The court requested a response on Nov. 2 and granted the respondents’ requests to extend the deadline to Jan. 3, 2023. 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 150 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.


Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.



U.S. Rep. Vicente Gonzalez Jr. (D) defeats U.S. Rep. Mayra Flores (R) in TX-34

U.S. Rep. Vicente Gonzalez Jr. (D) defeated U.S. Rep. Mayra Flores (R) in the general election for Texas’ 34th Congressional District on Nov. 8, 2022. This election was one of two U.S. House races in which two incumbents faced off in the general election.

Texas’ congressional district boundaries were redrawn after the 2020 census. According to data from Daily Kos, voters in the redrawn 34th District backed Joe Biden (D) over Donald Trump (R) 57.3% to 41.8% in the 2020 presidential election.

Gonzalez was first elected to represent Texas’ 15th Congressional District in 2016. Gonzalez’s campaign website said, “Vicente has stood by our promise to veterans, helping constituents cut through red tape at the VA and working across the aisle to prevent the shameful deportation of our honorably discharged veterans. He’s working to lower prescription drug prices, protect the benefits and healthcare of seniors, and ensure that jobs and opportunities are there for all with the ganas to work. … As a Congressman, he is delivering billions to support our schools, families, and small businesses and continues helping South Texans recover the federal benefits they are owed.”

Flores was elected to represent the old 34th district in a June 2022 special election to fill the seat vacated by Rep. Filemon Vela (D). Flores’ campaign website stated, “As the first Mexican-born woman to serve in Congress, I am fighting for opportunity and security for all those living in our amazing district. Our America First policies resonate with the Hispanic community and others who live in this district. For over 100 years, the Democrat Party has taken for granted the loyalty and support South Texas has given them for decades. But they do nothing to earn our vote or our support. And meanwhile, President Biden is killing Texas jobs, weakening border security, and weakening our standing in the world. Enough is enough.”

The Texas Tribune‘s Matthew Choi described the race as “a high-drama, multi-month affair of desperate pleas, dashed hopes and political gamesmanship that highlighted the stakes of when national forces come into play in a hyperlocal race.”

According to Insider‘s Hanna Kang and Dorothy Cucci, “As of early November, several dozen super PACs, national party committees, politically active nonprofits, and other non-candidate groups … together spent about $10.9 million to advocate for or against candidates in this race, including during the race’s primary phase. The Congressional Leadership Fund, a national Republican hybrid PAC that backs Flores, alone [accounted] for nearly half that spending.”

All 435 House districts were up for election on Nov. 8.



U.S. Rep. Neal Dunn (R) defeats U.S. Rep. Al Lawson (D) in FL-02

U.S. Rep. Neal Dunn (R) defeated U.S. Rep. Al Lawson (D) in the general election for Florida’s 2nd Congressional District on Nov. 8, 2022. Dunn received 60% of the vote to Lawson’s 40%. This election was one of two U.S. House races in which two incumbents faced off in the general election.

Florida’s congressional district boundaries were redrawn after the 2020 census. According to data from Daily Kos, voters in the redrawn 2nd District backed Donald Trump (R) over Joe Biden (D) 55% to 44% in the 2020 presidential election.

Dunn, who was first elected to represent the old 2nd District in 2016, told the Tallahassee Democrat, “My conservative principles are more in line with the people of Florida-02. … One of the many things I would like to accomplish in the next congressional session is stopping the Biden Administration’s failed policies that are driving up inflation.” Dunn said, “The Biden administration’s decisions and actions are a reckless, unnecessary disaster, choking off opportunity for everybody in America, and Al votes with this President 100% of the time. … I have and will continue to offer this district steadfast, conservative, Republican leadership to work to unleash the potential for the American economy.”

Lawson was first elected to represent Florida’s 5th Congressional District in 2016. He said, “I have served North Florida since 1982, first in the Legislature and now Congress. I put policy ahead of politics to get results[.] … From my time in the Florida Legislature until now in Congress, I have prided myself in working across party lines to make positive change for North Florida.” According to Politico‘s Gary Fineout, Lawson “tried to appeal to north Florida voters by stressing his ability to win federal funding for hometown projects as well as hitting Dunn over his vote in opposition to a new law that expands health care benefits for veterans.”

All 435 House districts were up for election on November 8.



Union Station: Illinois voters to decide whether to adopt collective bargaining amendment

This image has an empty alt attribute; its file name is bs-rp6MLFjqO8mt4iGn-WA5JPVpi4m3V7LkIeycnbynJzxZaPxnJMGE23ln-3ELE3MFJn9_8jLEEarmzbZ-oUdUje7-pFxZ0w57_zk1BdYxZ2GP_n_bDHxN8H1J_7qorQMjoA1IQ1MNK8UZhGA

Illinois voters to decide whether to adopt collective bargaining amendment

Note: With the election around the corner, we’ll be taking a break from Union Station next week and helping support our results team efforts. The next edition of Union Station will arrive on Nov. 18. In the meantime, visit Ballotpedia for next week’s election results and ongoing analysis.

On Nov. 8, Illinois voters will decide on Illinois Amendment 1, a legislatively referred constitutional amendment stating that employees have a “fundamental right to organize and bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work” and prohibiting any law that “interferes with, negates, or diminishes the right of employees to organize and bargain collectively.” 

According to Law360, Illinois would be the first state to ban right-to-work laws in its constitution. Three other states—Hawaii, Missouri, and New York—provide a right to collective bargaining in their state constitutions. 

Let’s go through some background on the measure and see what supporters and opponents are saying about it.

Background

Amendment 1 was introduced as Senate Joint Resolution Constitutional Amendment No. 11 in May 2021. The resolution passed the Senate 49-7 and the House 80-30 that month. No Democrats voted against the resolution. Eleven Republicans in the Senate and nine Republicans in the House supported it. In Illinois, a legislatively referred constitutional amendment requires three-fifths approval from the members of both houses of the General Assembly. 

The proposed amendment would add the following language to Article I of the Illinois Constitution:

“(a) Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.

“(b) The provisions of this Section are controlling over those of Section 6 of Article VII.”

For the amendment to be ratified, either 60% of those voting on the question must approve it, or a majority of those voting in the election must approve it. 

Legal challenge

In April 2022, a group of parents and teachers filed a petition in the Seventh Judicial Circuit Court in Sangamon County to have the amendment removed from the ballot. The petitioners said the National Labor Relations Act would preempt the amendment and claimed they had standing as taxpayers to sue to prevent the state from putting an unconstitutional amendment on the ballot. 

In May, Circuit Judge Raylene Grischow denied the petition, and in August, the Illinois Fourth District Appellate Court upheld Grischow’s ruling. Read more about these decisions here and here.

The petitioners appealed to the Illinois Supreme Court, which declined to hear the case on Sept. 20. 

Perspectives

Support

  • Illinois AFL-CIO president Tim Drea said, “There’s a lot of concern about the political climate and how rights can be taken away. … People are very cognizant that everybody’s rights are at stake right now.” He also said, “[Former Republican Gov.] Bruce Rauner had a war on unions … It was quite the wake-up call. We had also seen in Wisconsin, a progressive state that led the nation in labor, Scott Walker wiped out collective bargaining for public employees.”
  • Sen. Dick Durbin (D) said, “We will make sure Illinois says clearly that our workers’ rights are going to be protected. … State after state surrounding us, we will find ourselves a blue island in a red sea and many of these states are cutting back on the basic rights of workers.”
  • Northwestern University Institute for Policy Research fellow Daniel Galvin said, “A big important state like Illinois enshrining this right to their constitution sends a signal across the country that the right to bargain collectively is a fundamental right.”
  • Chicago Teachers Union (CTU) communications director Christine Geovanis said, “The CTU enthusiastically supports the Workers’ Rights Amendment on the November ballot, which guarantees the fundamental rights of workers to organize and have a voice in their workplaces — the very rights that Republicans across the country and right here in Illinois have been trying to undermine for years.”
  • Illinois Economic Policy Institute executive director Frank Manzo IV said, “The amendment is really intended to prevent politicians from enacting laws that interfere with the private negotiations of businesses and their workers. … And by doing so the amendment would protect middle class wages and benefits, and promote workplace safety.” Manzo also said, “Similar to recent decisions on reproductive rights at the Supreme Court level that have taken away rights that have long been held by a certain segment of the population and saying it’s kind of up to the states. … Should that happen for this segment of the population called workers, and rights are taken away at the federal level, or at least removed as being a federal right, or even if Congress were to just get rid of the National Labor Relations Act in a couple months, this would be an answer at the state level.”
  • Sen. Ram Villivalam (D) said, “[Illinois becoming a right-to-work state] is not a hypothetical scenario. … This policy was [pushed] by the previous governor. Future politicians can be different than the ones we have today. We would rather have this voted on by voters than have politicians in Springfield changing the law every four years.”
  • Rep. Lance Yednock (D) said, “When workers are free to bargain collectively, it leads to safer workplaces, enhanced skill levels and better economic conditions for all workers, whether or not they’re in a union.” 

Opposition

  • The Chicago Tribune editorial board wrote, “Since federal law generally protects collective bargaining within the private sector, the principal beneficiaries of the amendment are public-sector employees. More specifically, the slippery term ‘economic welfare,’ which could mean all kinds of things and, remember, the constitution is the mighty constitution when it comes to power structure of laws, and likely would result in greatly increased power for unions even beyond their core (and legitimate) collective bargaining functions.” 
  • Liberty Justice Center president Jacob Huebert said, “They’re smuggling this in under something that might be more popular. It says, ‘We’re going to give rights to all employees,’ when really the state can only give them to public sector employees. A private sector employee might say, ‘More rights for me; I’ll vote for that.’ It’s hard to see this as anything other than deliberately deceptive.” 
  • Illinois Chamber of Commerce president and CEO Todd Maisch said, “I think it’s mostly another signal to the rest of the nation that Illinois is an outlier. … We continue to find ways to make this state unattractive to investment.”
  • Illinois Policy Institute vice president Adam Schuster said, “Amendment 1 would guarantee state and local taxes rise faster and higher than they have already. Analysis of a decade of data across all 50 states shows a strong statistical association between both: the power of government unions and a state’s average effective property tax rate, and the amount of debt owed to government unions and the overall amount of debt per taxpayer.” 
  • Illinois Policy Institute labor policy director and staff attorney Mailee Smith said, “The amendment’s extreme powers would elevate government unions’ influence in Illinois government above that of taxpayers and allow government unions’ collective bargaining agreements to override Illinois’ state law forever. … [T]hrough a provision that prevents lawmakers from ever limiting or clarifying the government unions’ collective bargaining methods, the amendment gives government union leaders a permanent right to strike to get their demands met. Government union leaders would forever hold the power to shut down critical government services until they get what they want.”
  • Illinois Republican Party chairman Don Tracy said, “This constitutional referendum grants super-legislative powers to union bosses that could only be changed by further constitutional referendums, not legislative action. … Illinois voters should reject Amendment 1 as the government union power grab and trojan horse pathway to tax increases that it is.”
  • The Wall Street Journal editorial board wrote, “Public unions already dominate government in Illinois, and Democratic lawmakers now want to amend the constitution to entrench that power and block reforms. … If you think teachers unions are powerful now, wait until this passes. Amendment 1 would bar the Legislature from passing anything that ‘interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety.’” 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 150 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.


Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.



Two seats up for election on the North Carolina Supreme Court

Two North Carolina Supreme Court seats are up for partisan election on November 8, 2022.

Heading into the election, there are four Democrats and three Republicans on the court. Two justices’ terms will expire on Dec. 31, 2022. According to The Associated Press, the election has “taken on extra significance as the outcome could flip the court’s partisan makeup during a period of political polarization.”

Justice Robin Hudson (D) did not run for re-election in 2022 because she is nearing the court’s mandatory retirement age. Lucy N. Inman (D) and Richard Dietz (R), both judges on the North Carolina Court of Appeals, are running to succeed her.

Incumbent Justice Sam Ervin IV (D) is running for re-election against Trey Allen (R). Ervin was elected to the court in 2014. Allen is general counsel for the North Carolina Administrative Office of the Courts.

The Associated Press stated, “Beyond usual legal conflicts, justices could hear challenges to policies enacted by a Republican-controlled General Assembly that could earn veto-proof majorities in November. Those could include legislation on voting, guns and abortion that [Gov. Roy Cooper (D)] has stopped by threatened or actual vetoes since 2019. Lawmakers also must redraw congressional districts, which aren’t subject to veto.” 

Following multiple legal challenges during the 2020 redistricting cycle, court-appointed special masters drew a temporary congressional map for the 2022 midterm elections. North Carolina congressional redistricting is at the center of the U.S. Supreme Court case Moore v. Harper, and redistricting litigation is also ongoing in state court.

The Carolina Journal’s Donna King wrote in October, “Partisan politics on the high court have come under scrutiny, particularly as battles over the state’s redistricting maps, voter ID, felon voting, and other partisan issues have made their way to the justices who, generally, have voted along partisan lines.”

According to Axios Raleigh’s Lucille Sherman and Danielle Chemtob, “All four candidates have emphasized that they will make decisions independent of their party. They say they aim to restore the public’s faith in the courts, as it’s become increasingly polarized in recent years.”

Spending in these two races puts North Carolina in the top three states for most expensive supreme court races in 2022. Satellite groups have spent millions of dollars on ads focusing on crime and abortion.

According to King, “In both races the Democrats are out-raising the Republicans, based in part on money raised by national Democrats with an eye on abortion law in N.C. However, in recent polling Republicans are outperforming the Democrats with likely voters.”

Heading into the 2020 election, Democrats had a 6-1 majority on the court. Republicans gained two net seats, with incumbent Associate Justice Paul Martin Newby (R) defeating incumbent Chief Justice Cheri Beasley (D) by 412 votes in the race for chief justice and Tamara Barringer (R) defeating incumbent Associate Justice Mark A. Davis (D) 51.2% to 48.8%.

North Carolina voters have elected supreme court justices in partisan elections since 2018. Supreme court justices are elected to eight-year terms.

North Carolina is one of 30 states holding elections for state supreme court in 2022. This year, 84 of the 344 seats on state supreme courts are up for election. Of those, 64 are held by nonpartisan justices, 13 are held by Republican justices, and eight are held by Democratic justices.



Four candidates running for Michigan attorney general

Incumbent Dana Nessel (D), Matthew DePerno (R), Joe McHugh (L), and Gerald T. Van Sickle (U.S. Taxpayers Party) are running for Michigan attorney general on Nov. 8, 2022.

Nessel was elected in 2018, defeating Tom Leonard (R) 49.0% to 46.3%. Before Nessel’s election, a Republican had held the office since 2002.

Detroit Free Press‘ Dave Boucher wrote on Oct. 25, 2022, “[The attorney general race is] a close contest marked by a looming criminal investigation and personal attacks. … Polls consistently show this is the tightest statewide race in Michigan[.]”

Nessel says, “I am the best candidate to be Michigan’s AG because I am committed to serving all residents as the People’s Lawyer, with a focus on safeguarding consumers and protecting the voting, reproductive and civil rights of Michiganders.” Nessel has criticized what she called DePerno’s “extreme and radical stances” on abortion and the 2020 presidential election. She says, “AGs are tasked with defending the rights of their state’s residents. Voting, reproductive, civil rights — it all hinges on who’s in the AG’s office. My opponent’s extreme views on abortion & insistence that the 2020 election was stolen make him too dangerous to be Michigan’s AG.”

DePerno, who opened his own law firm in 2005, says, “I am running for attorney general to restore integrity, justice, and morality here in Michigan. … On day one, I will restore law and order.” DePerno’s campaign website says he had been “fighting against tyranny in Michigan for many years, including protesting across the state against [Gov. Gretchen Whitmer (D)] and Nessel’s unconstitutional mask mandates, school and business lockdowns, vaccine mandates, and critical race theory.” DePerno says he will “prosecute the people who corrupted the 2020 election and allowed fraud to permeate the entire election system[.]”

According to Boucher, “In August, the Office of the Michigan Attorney General and Michigan State Police revealed details of an inquiry that show they believe there is evidence DePerno … and others violated multiple laws by accessing and tampering with election equipment.”

MLive‘s Ben Orner wrote, “DePerno faces possible criminal charges in that ballot machine investigation. Nessel requested a special prosecutor so to prevent a conflict of interest if charges are brought. DePerno has maintained his innocence and says Nessel is ‘weaponizing her office’ to attack a political opponent.”

In 2018, Democrats gained a state government triplex in Michigan, flipping the Republican-held executive offices of governor, attorney general, and secretary of state.

This is one of 30 elections for attorney general taking place in 2022. All 50 states have an attorney general who serves as the state’s chief legal officer, responsible for enforcing state law and offering the state government advice on legal matters. In 43 states, the office is an elected post. There are currently 27 Republican attorneys general and 23 Democratic attorneys general. Heading into the 2022 elections, there are 23 Republican triplexes, 18 Democratic triplexes, and nine divided governments where neither party holds triplex control.



Union Station: School counselor appeals grievance representation challenge to Ohio Supreme Court

This image has an empty alt attribute; its file name is bs-rp6MLFjqO8mt4iGn-WA5JPVpi4m3V7LkIeycnbynJzxZaPxnJMGE23ln-3ELE3MFJn9_8jLEEarmzbZ-oUdUje7-pFxZ0w57_zk1BdYxZ2GP_n_bDHxN8H1J_7qorQMjoA1IQ1MNK8UZhGA

School counselor appeals grievance representation challenge to Ohio Supreme Court 

Attorneys from The Buckeye Institute filed an appeal to the Ohio Supreme Court on behalf of a school guidance counselor who was not allowed under an exclusive collective bargaining agreement to use her own lawyer in a dispute with the school district. 

Background

The plaintiff, Barbara Kolkowski, is a high school guidance counselor in the Ashtabula Area City School District. Kolkowski is not a member of the Ashtabula Area Teachers Association. However, as an employee of the school district, Kolkowski is a member of the bargaining unit the union represents. 

In November 2020, Kolkowski wanted to use her own lawyer to represent her in arbitration with the school district. The union denied her request, saying that the collective bargaining agreement required an advocate from the union to represent her.  

In January 2021, Kolkowski sued the union and district board of education in the Ashtabula County Court of Common Pleas. Attorneys from The Buckeye Institute, which says its “mission is to advance free-market public policy in the states,” represent Kolkowski. 

Kolkowski’s lawsuit said she wanted to “choose her own counsel, make her own arguments, and present her grievance in arbitration without the intervention of the Union.” Kolkowski’s attorneys cited Ohio Revised Code 4117.03(A)(5), which says that public employees have the right to “[p]resent grievances and have them adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of the collective bargaining agreement then in effect and as long as the bargaining representatives have the opportunity to be present at the adjustment.” 

On Oct. 5, 2021, Judge David A. Schroeder ruled in favor of the union. Schroeder wrote

“First, Defendants argue that this is not a constitutional question, but a contract law question. They believe this comes down to specific language in the [collective bargaining agreement (CBA)], which is binding on [Kolkowski]. Their position is that under the CBA the union provides the representation for arbitration, and that [Kolkowski] has no right to retain her own counsel to represent her at arbitration. Defendants also argue that once [Kolkowski] asked for the [union] to become involved, the grievance was turned over to the union and [Kolkowski] lost standing. Finally, they argue that since this is a question regarding an issue with the CBA, the [State Employment Relations Board] has exclusive jurisdiction over this matter. … The Motions to Dismiss filed by the Defendants are well-taken.” 

Kolkowski’s attorneys appealed to the Ohio Eleventh District Court of Appeals on Jan. 18, 2022. They wrote, “… Ms. Kolkowski never sought Union representation. The only part that Ms. Kolkowski allowed the Union to play was that of transmitting the arbitration demand, which the Union was required to submit under the CBA. … If, as the trial court held, the mere request for arbitration amounts to Union ‘representation,’ then the guarantees provided by [Johnson v. Metro Health Medical Centr. (2001)] and [Gaydosh v. Trumbull County (2017)], codified in R.C. 4117, and protected by the U.S. and Ohio Constitutions are illusory.” 

On Sept. 6, 2022, Judges John J. Eklund, Thomas R. Wright, and Mary Jane Trapp upheld the lower court’s ruling. Eklund wrote:

“It is incongruous with the principles of collective bargaining for [Kolkowski] to argue that she has rights to free speech and due process which entitle her to be represented by the counsel of her choosing at a proceeding which she herself is not legally entitled to initiate. It would be incongruous for [Kolkowski] to possess a constitutional right to hire her own attorney for an arbitration proceeding which is an optional portion of a negotiated grievance procedure between the Association and the Board. Finally, it is incongruous for [Kolkowski] to individually assert a right to enforce the CBA in arbitration, the result of which may well affect the rights of other Association members under the CBA.” 

Supreme Court appeal

On Oct. 21, Kolkowski’s attorneys filed an appeal to the Ohio Supreme Court. 

Buckeye Institute senior litigator Jay R. Carson said, “When the United States Supreme Court issued its opinion in Janus v. AFSCME, it recognized that public employment does not require public employees to surrender their constitutional rights. Ohio has recognized that same right in its constitution and laws. … But that is just what the union—which Ms. Kolkowski is not a member of—is forcing her to do—surrender her right to hire her own lawyer, at her own expense, to represent her in a workplace arbitration dispute. Today, the Ohio Supreme Court has an opportunity to vindicate Ms. Kolkowski’s right to have her own legal counsel.”

The case name and number are Kolkowski v. Ashtabula Area Teachers Association (2022-1299). 

There are seven justices on the Ohio Supreme Court. Justices are elected to six-year terms in partisan elections. There are currently three Democrats and four Republicans on the court. 

All but one of the current justices were on the court in 2020 when we published “Ballotpedia Courts: State Partisanship,” a report evaluating justices’ partisan affiliations through their behavior before joining the court. In that report, we assigned a score of “Mild Democrat” to two of the current Democratic justices and “Strong Republican” to all four current Republican justices. In 2020, the Ohio Supreme Court heard 436 cases and decided 67% of them unanimously.   

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 150 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.


Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.



Union Station: Alaska Supreme Court hears arguments on whether Janus requires annual opt-ins for union membership

This image has an empty alt attribute; its file name is bs-rp6MLFjqO8mt4iGn-WA5JPVpi4m3V7LkIeycnbynJzxZaPxnJMGE23ln-3ELE3MFJn9_8jLEEarmzbZ-oUdUje7-pFxZ0w57_zk1BdYxZ2GP_n_bDHxN8H1J_7qorQMjoA1IQ1MNK8UZhGA

Alaska Supreme Court hears arguments on whether Janus requires annual opt-ins for union membership

The Alaska Supreme Court heard oral arguments last week in a case where the state of Alaska claims that the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME requires annual opt-ins for union membership.

Background

Alaska Gov. Mike Dunleavy (R) issued an administrative order on Sept. 26, 2019, instructing the Department of Administration and Department of Law to require state employees to submit an authorization form to affirmatively opt-in or opt-out of paying union dues or fees. In the order, Dunleavy cited an opinion former Alaska Attorney General Kevin Clarkson (R) issued on Aug. 27, 2019. Dunleavy wrote: “The Opinion explained that under Janus, the State of Alaska may no longer automatically deduct union dues and fees from an employee’s wages unless the employee affirmatively consents to waive his or her First Amendment rights. The Opinion also made clear that the State’s previous steps to implement the Janus decision did not go far enough.” 

State attorneys filed a lawsuit in the Alaska Superior Court asking the court to decide if Clarkson’s opinion was correct, and the union filed counterclaims. On Oct. 3, 2019, Anchorage Superior Court Judge Gregory Miller issued a temporary restraining order blocking Dunleavy’s order. 

On Feb. 8, 2021, Miller ruled in favor of the union, writing, “ASEA is entitled to a declaratory judgment that the First Amendment to the U.S. Constitution does not require the State to alter the union dues deduction practices in place prior to August 27, 2019, and does not require the steps set forth in Attorney General Clarkson’s August 27, 2019 legal opinion or the steps mandated in Administrative Order 312.” The court entered the final judgment in favor of the union in September 2021. 

Supreme Court appeal

Attorneys for the state of Alaska filed an appeal to the Alaska Supreme Court on Sept. 2, 2021. In their brief to the court, the state’s attorneys wrote

Janus was a landmark decision protecting the First Amendment rights of public union members and nonmembers alike. It requires the State to ensure that it does not continue to take dues from employees’ wages over their objection and without evidence that the employees waived their First Amendment rights. The superior court misread Janus and incorrectly granted summary judgment in favor of ASEA on all claims. …

“In denying the State’s requests for declaratory judgment, the superior court ignored the Supreme Court’s clear instruction to public-sector unions and states: No employee can be forced to subsidize union speech—through ‘an agency fee [or] any other payment’—unless the employee has waived his or her First Amendment rights. This Court should reverse the superior court’s decision because it leaves state employees powerless to timely stop subsidizing speech with which they disagree.” 

Attorneys from Altshuler Berzon LLP represent the Alaska State Employees Association. The union’s attorneys wrote

“The State’s current executive branch officials seek to justify their blatant violations of the State’s contract with ASEA and Alaska state law by asserting a radical misinterpretation of Janus. They contend that Janus voided all state employee union membership agreements and requires the State to impose a special heightened ‘waiver’ analysis before processing public employees’ voluntary affirmative dues deduction authorizations. … That contention has been unanimously and correctly rejected by every court to consider it. The Superior Court correctly rejected the State’s central argument, and the Superior Court’s other rulings regarding the State’s violation of its contract with ASEA and multiple state laws were all also correct. … 

“As a threshold matter, the State is barred by collateral estoppel from relitigating its

Janus-based arguments here. … The State already litigated and lost the same Janus issues in two federal lawsuits (Creed and Woods), based on the same underlying facts, against the same party (ASEA). These issues were ‘actually … determined’ in Creed and Woods ‘by a valid and final judgment,’ and the rejection of the State’s arguments regarding Janus was ‘essential to the judgment’ in both cases. Thus, collateral estoppel applies, and this Court should affirm the Superior Court’s ruling on the First Amendment issue on that threshold ground.” 

On Oct. 13, the Alaska Supreme Court heard oral arguments in the case. According to KINY’s James Brooks, Chief Justice Daniel Winfree asked Alaska solicitor general for civil appeals Jessica Alloway, “Not a single case has agreed with you, as far as I know. Is that correct?” Alloway answered affirmatively. According to Brooks, “Winfree told attorneys that the case will be taken under advisement, with a written decision to be issued at a later date.” 

The case name and number are State of Alaska v. Alaska State Employees Association/AFSCME Local 52, AFL-CIO (S-18172).

There are five justices on the Alaska Supreme Court. Republican governors appointed four of the current justices, and an independent governor appointed one. Three of the current justices were on the court in 2020 when we published our “Ballotpedia Courts: State Partisanship” report, which evaluated justices’ partisan affiliations through their behavior before joining the court. In that report, we assigned a score of “Mild Republican” to one of the current justices, and two current justices received an “Indeterminate” score. In 2020, the Alaska Supreme Court heard 138 cases and decided 92% of them unanimously.

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 150 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.


Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations.