Ivy Bailey v. Edward Callaghan

715 F.3d 956, 2013 WL 1908391, 195 L.R.R.M. (BNA) 2829, 2013 U.S. App. LEXIS 9383
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 9, 2013
Docket12-1803
StatusPublished
Cited by33 cases

This text of 715 F.3d 956 (Ivy Bailey v. Edward Callaghan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ivy Bailey v. Edward Callaghan, 715 F.3d 956, 2013 WL 1908391, 195 L.R.R.M. (BNA) 2829, 2013 U.S. App. LEXIS 9383 (6th Cir. 2013).

Opinions

KETHLEDGE, J., delivered the opinion of the court in which GIBBONS, J., joined. STRANCH, J. (pp. 961-69), delivered a separate dissenting opinion.

OPINION

KETHLEDGE, Circuit Judge.

This case presents the question whether the federal Constitution compels Michigan’s public schools to collect membership dues for unions that represent public-school employees. Enacted in 2012, Michi[958]*958gan’s Public Act 53 provides: “A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.” Thus, under the Act, unions must collect their own membership dues from public-school employees, rather than have the schools collect those dues for them via payroll deductions. The Act does not bar public employers other than schools from collecting membership dues for unions who represent their employees.

The plaintiffs here are a number of unions and union members who think that Public Act 53 violates their rights under the First Amendment and the Equal Protection Clause. The district ■ court was inclined to agree with them, and thus entered a preliminary injunction barring enforcement of the Act. The State appealed.

We measure the validity of the district court’s injunction by reference to four criteria:

(1) whether the movant has a strong likelihood of success on the merits; [ (2).] whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction.

Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir.2011). “When a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits will often be the determinative factor.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir.2012) (internal quotation marks omitted). The likelihood-of-success factor is determinative here; and because that factor presents a question of law, we review the district court’s application of it de novo. See Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir.2012).

The plaintiffs challenge Public Act 53 facially rather than as applied, which means “they confront a heavy burden in advancing their claim.” Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (internal quotation marks omitted). The theory behind their First Amendment claim runs as follows: unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.

The problem with this theory is that the Supreme Court has already rejected it. . “The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009). Here, Public Act 53 does not restrict the unions’ speech at all: they remain free to speak about whatever they wish. Moreover, “nothing in the'First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions” for union activities, id.; and payroll deductions are all that Public Act 53 denies the unions here. Seldom is precedent more binding than Ysursa is in this case.

But the plaintiffs try to circumvent Ysursa in two ways. First, citing the Court’s decision in Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), the plaintiffs say that the [959]*959schools’ payroll-deduction process is a “nonpublic forum,” from which the unions cannot be excluded. But forums, real or virtual, are places where “some form of communicative activity occurs.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). And not even the plaintiffs allege that a payroll deduction— the ministerial act of deducting a particular sum from an employee’s paycheck — is itself expressive activity. The administrative process in which that deduction occurs, therefore, is not a forum of any kind. Compare Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 892 (6th Cir.2012) (advertisement space on a city bus was a nonpublic forum).

Cornelius only illustrates what is missing from this case. Cornelius involved a challenge to the exclusion of certain groups from the federal government’s Combined Federal Campaign, through which nonprofit groups solicited donations from federal employees. Groups participating in the Campaign were allowed to disseminate 30-word written statements about their cause. If an employee decided to donate through the Campaign, the donation could be made through a lump-sum payment or through payroll deductions. But nobody in Cornelius argued that the payroll deductions were speech; the issue was whether the 30-word solicitations were. See 473 U.S. at 797, 105 S.Ct. 3439. Indeed, the Court said at the outset of its analysis that, if the 30-word solicitations were not speech, “we need go no further.” Id. at 797, 105 S.Ct. 3439. Ysursa makes clear that payroll deductions are not speech, so we need go no further with the argument here. (That Public Act 53 does not restrict speech distinguishes this case from every one of the cases relied upon by the dissent.)

The plaintiffs also assert that Public Act 53 is viewpoint-discriminatory in a way that the statute in Ysursa was not. There, the challenged statute applied to unions across the board, whereas here, the plaintiffs say, Public Act 53 applies only to unions that represent public-school employees. But there are several problems with this argument. The first — even if one assumes that viewpoint discrimination would be problematic with respect to payroll deductions — is that Public Act 53 by its terms does not discriminate based upon viewpoint. It does not, for example, grant certain unions access to the payroll-deduction process, and deny access to others, based upon whether a union supports or opposes a particular policy position. To the contrary, the Act says nothing about speech of any kind. The Act is therefore facially neutral as to viewpoint, which goes a long ways towards defeating the plaintiffs’ facial challenge. Accord Wis. Educ. Ass’n Council v. Walker, 705 F.3d 640, 648 (7th Cir.2013).

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Bluebook (online)
715 F.3d 956, 2013 WL 1908391, 195 L.R.R.M. (BNA) 2829, 2013 U.S. App. LEXIS 9383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ivy-bailey-v-edward-callaghan-ca6-2013.