Amicus Curiae Brief — Alaska, et al., Petitioners v. Alaska State Employees Association/American Federation of State, County and Municipal Employees Local 52, AFL-CIO

No. 23-179

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------STATE OF ALASKA, ET AL.,

Petitioners,

v.

ALASKA STATE EMPLOYEES ASSOCIATION/

AMERICAN FEDERATION OF STATE, COUNTY AND

MUNICIPAL EMPLOYEES LOCAL 52, AFL-CIO,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Supreme Court Of The State Of Alaska

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE MACKINAC CENTER

FOR PUBLIC POLICY AND LANDMARK LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------PATRICK J. WRIGHT

Counsel of Record

140 West Main Street

Midland, MI 48640

(989) 631-0900

wright@Mackinac.org

Counsel for Amicus Curiae

Mackinac Center for Public Policy

RICHARD P. HUTCHISON

MATTHEW C. FORYS

MICHAEL J. O’NEILL

LANDMARK LEGAL FOUNDATION

19415 Deerfield Avenue

Suite 312

Leesburg, VA 20176

(703) 554-6100

matt@landmarklegal.org

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

3

I.

II.

Janus ended compelled financial support

to public-sector unions and put the fiscal

impact of that change on those unions ......

3

Data from Michigan’s Civil Service Commission shows that many more public employees would exercise their Janus rights

if they were properly informed of them

and given an annual option to exercise

them ...........................................................

8

CONCLUSION..................................................... 17

ii

TABLE OF AUTHORITIES

Page

CASES

Abood v. Detroit Bd. of Educ., 431 U.S. 209

(1977)............................................................... 2-4, 9

Friedrichs v. California Teachers Ass’n, 136 S.Ct.

1083 (2016) ................................................................9

Harris v. Quinn, 573 U.S. 616 (2014) ...........................9

Janus v. AFSCME, 585 U.S. ___, 138 S.Ct. 2448

(2018) ............................................2-6, 8-10, 12, 14-17

Knox v. SEIU Loc. 1000, 567 U.S. 2277 (2012) .............9

State v. Alaska State Emp. Ass’n, 529 P.3d 547

(Alaska 2023) ........................................................ 5-7

UAW v. Green, 870 N.W.2d 867 (Mich. 2015) ......... 8, 11

CONSTITUTIONAL PROVISIONS

Mich. Const. of 1963, art. XI, § 5 ..................................8

STATUTES

29 U.S.C. § 151 ..............................................................6

29 U.S.C. § 152(9) ..........................................................6

29 U.S.C. § 158(d) ..........................................................6

29 U.S.C. § 159(a) ..........................................................6

2012 Mich. Pub. Act 349 ...............................................8

Mich. Comp. Laws § 423.210(4)(a) .............................11

Mich. Comp. Laws §§ 423.201-217 ...............................8

iii

TABLE OF AUTHORITIES – Continued

Page

RULES

Mich. Civ. Serv. Comm’n Rule 6-1.2 .............................8

Mich. Civ. Serv. Comm’n Rule 6-7.2 ......................... 8, 9

OTHER AUTHORITIES

Debra J. La Fetra, Miranda for Janus, The

Government’s Obligation to Ensure Informed

Waiver of Constitutional Rights, 55 Loy. L.A.

L. Rev. 405 (2020) ......................................................7

https://www.bls.gov/news.release/union2.nr0.htm ....... 15

https://www.michigan.gov/documents/mdcs/WF

_2013_2nd_Quarter_Complete_417855_7.pdf .......11

https://www.michigan.gov/documents/mdcs/WF

_2015_3rd_Quarter_Complete_496483_7.pdf ........11

https://www.michigan.gov/documents/mdcs/WF

_2020_3rd_Quarter_Complete_697389_7.pdf ........11

https://www.michigan.gov/mdcs/-/media/Project/

Websites/mdcs/workforce/21-22/43rd_AWFR_

Complete.pdf?rev=48b5108724434a36934ea3

da1cbea93d&hash=04AF7A141365D90028F1

DAF15C62DC8A ............................................... 11, 12

https://www2.census.gov/programs-surveys/cps/

techdocs/questionnaires/Labor%20Force.pdf .........15

Jarrett Skorup, The Janus Effect: The Impact of

the 2018 Supreme Court Decision on Public

Sector Unions (2023) ...............................................16

iv

TABLE OF AUTHORITIES – Continued

Page

Patrick J. Wright, Finding Quality Evidence of

Union Survivability in the Absence of Agency

Fees: Is the Current Population Survey’s

Public Sector Unionism Data Sufficiently

Reliable? 2017 U. Chi. Legal F. 563 ........................15

1

INTEREST OF AMICI CURIAE1

The Mackinac Center for Public Policy is a Michigan-based, nonpartisan research and educational institute advancing policies fostering free markets,

limited government, personal responsibility, and respect for private property. The Center is a 501(c)(3) organization founded in 1987.

Amicus Curiae Landmark Legal Foundation

(“Landmark”) is a national public-interest law firm

committed to preserving the principles of limited government, separation of powers, federalism, originalist

construction of the Constitution and individual rights.

Landmark has a unique perspective on this case because of our history of studying the political activity

of public-sector unions. Landmark has compiled instances of apparently unreported political activity by

national teachers’ unions and their state affiliates in

referrals to the Internal Revenue Service and other

federal and state administrative agencies.

Michigan passed both private-sector and publicsector right-to-work legislation in December 2012. The

Mackinac Center has played a prominent role in studying and litigating issues related to mandatory collective bargaining laws, and its research regarding the

impact of right-to-work laws on union membership

1

All parties received less than 10 days notice and have not

objected to the filing of this brief. No counsel for a party authored

the brief in whole or in part, nor did any person or entity other

than amici curiae, their members, or their counsel make a monetary contribution to the preparation or submission of this brief.

2

was cited in this Court’s Janus v. AFSCME, 585 U.S.

___, 138 S.Ct. 2448 (2018) decision. Id. at 2466, n.3.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

This Court’s Janus v. AFSCME, 585 U.S. ___, 138

S.Ct. 2448 (2018) decision eliminated forced subsidization of unions by public-sector employees. This was a

reversal of Abood v. Detroit Board of Education, 431

U.S. 209 (1977), which had allowed nonmembers to be

charged agency fees. In Janus, this Court indicated

that there would be “unpleasant transition costs” as

the unions “make adjustments in order to attract and

retain members,” but this would have to be borne by

the unions as they have had a “considerable windfall

. . . under Abood.” Janus, 138 S.Ct. at 2485-86.

This Court held that compelled support of a union

through an agency-fee procedure “violates the First

Amendment and cannot continue.” Id. at 2486. An

“agency fee or any other payment to the union” could

not be deducted or collected “unless the employee affirmatively consents to pay.” Id. A payment constitutes

a “waiver of First Amendment rights” and “such a

waiver cannot be presumed,” but instead must be

“freely given and shown by clear and compelling evidence.” Id.

Most states were passive regarding Janus’ waiver

language (or enacted legislation to blunt the case’s impact). Alaska was not passive. It took affirmative steps

so that it could determine that all financial support for

3

public-sector unions was “freely given” and supported

by “clear and compelling” evidence. The Alaska Supreme Court held that this was neither required by

Janus nor the First Amendment, and therefore, these

steps violated the state’s public-employee-bargaining

statute. The Alaska Supreme Court was wrong.

There is evidence of the practical effect of this error. In Michigan, the Michigan Civil Service Commission enacted a system like the one proposed by Alaska

Attorney General. It significantly increased the number of employees who left the union and stopped

providing financial support. It may be that up to an additional 1.75 million public employees would exercise

their Janus rights if given an annual, clear recitation

of those rights.

---------------------------------♦---------------------------------

ARGUMENT

I.

Janus ended compelled financial support

to public-sector unions and put the fiscal

impact of that change on those unions.

In Janus v. AFSCME, 585 U.S. ___, 138 S.Ct. 2448

(2018), this Court held that forcing “public employees

. . . to subsidize a union, even if they choose not to

join and strongly object to the positions the union

takes in collective bargaining and related activities”

violates the First Amendment. Id. at 2459-60. Janus

overruled Abood v. Detroit Board of Education, 431

U.S. 209 (1977), wherein “a similar law” had been upheld. Janus, 138 S.Ct. at 2460.

4

This Court indicated that:

Neither an agency fee nor any other payment

to the union may be deducted from a nonmember’s wages, nor may any other attempt be

made to collect such a payment, unless the

employee affirmatively consents to pay. By

agreeing to pay, nonmembers are waiving

their First Amendment rights, and such a

waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and

shown by “clear and compelling” evidence.

Unless employees clearly and affirmatively

consent before any money is taken from them,

this standard cannot be met.

Id. at 2486 (cleaned up).

This Court recognized that the anticipated financial impact of the change caused by Janus must fall on

the public-sector unions, and indicated that they would

be forced to adjust in order to “attract and retain members”:

We recognize that the loss of payments

from nonmembers may cause unions to experience unpleasant transition costs in the short

term, and may require unions to make adjustments in order to attract and retain members.

But we must weigh these disadvantages

against the considerable windfall that unions

have received under Abood for the past 41

years. It is hard to estimate how many billions

of dollars have been taken from nonmembers

and transferred to public-sector unions in violation of the First Amendment. Those

5

unconstitutional exactions cannot be allowed

to continue indefinitely.

Id. at 2485-86.

Yet, those exactions have continued for over five

years and will continue unless and until this Court enforces its waiver language. Alaska attempted to faithfully follow that language by making certain that

employees who are having money withdrawn to support a public-sector union actually waived their Janus

right not to do so.

In essence, the Alaska Supreme Court held that

an employee signature on the following constituted

clear-and-compelling evidence of a waiver:

This voluntary authorization and assignment shall be irrevocable, regardless of

whether I am or remain a member of ASEA,

for a period of one year from the date of execution or until the termination date of the collective bargaining agreement . . . whichever

occurs sooner, and for year to year thereafter

unless I give [the State] and [ASEA] written

notice of revocation not less than ten (10) days

and not more than twenty (20) days before the

end of any yearly period.

State v. Alaska State Emp. Ass’n, 529 P.3d 547, 552 n.19

(Alaska 2023); see also App. 156. At another point, the

Alaska Supreme Court discussed this same post-Janus

dues-authorization form:

ASEA’s union dues authorization forms

emphasized that employees do not have to pay

6

union dues, and forms used since 2018 emphasized that joining the union is optional.

For example, the version revised in September 2019, reads: “Yes, I choose to be a Union

member. . . . I understand my membership

supports the organization advocating for my

interests . . . and paying union dues is not a

condition of employment.”

Id. at 552; see also App. 156 (September 18, 2019 form).

The Alaska Supreme Court justified its narrow

construction of Janus. First, it held Janus “expressly

dealt only with charging union agency fees to nonmember employees.” State v. Alaska State Emp. Ass’n, 529

P.3d at 555. In that same paragraph, it emphasized

that the “labor practice challenged and ultimately prohibited by Janus was that of charging compulsory

agency fees to nonmember public employees, as a condition of employment, to support union bargaining activities.” Id. at 555 (emphasis in original).

The Alaska Supreme Court cited 138 S.Ct. 2460

for the condition-of-employment proposition. See State

v. Alaska State Emp. Ass’n, 529 P.3d at 555 n.32. Janus

does not mention “condition of employment” on that

page.2 The court seemed to use the term as a basis for

its second point related to Janus: “the State’s reading

of Janus imagines compulsion when none exists.” State

v. Alaska State Emp. Ass’n, 529 P.3d at 555. Specifically, it noted that the 2019-2022 collective bargaining

2

The term is important in labor law as a statutory matter.

See 29 U.S.C. §§ 151, 152(9), § 158(d), and § 159(a).

7

agreement “did not contain a requirement for agency

fees deductions from nonmembers’ paychecks.” Id. at

552.3 With the elimination of agency fees from the collective-bargaining agreement, it opined: “no public employee had to choose between a job or unwillingly

subsidizing union speech.” Id. at 556.

Third, the Alaska Supreme Court held that it

“may be that a public employee waives First Amendment free speech rights by voluntarily joining a union

and agreeing to pay dues; but, if so, that action itself is

clear and compelling evidence that the employee has

waived those rights.” Id. at 556.4

The State’s efforts to satisfy the clear-and-convincing-evidence standard were proper. The Alaska Supreme Court erred. See generally Petition at pp. 21-27;

and Debra J. La Fetra, Miranda for Janus, The Government’s Obligation to Ensure Informed Waiver of Constitutional Rights, 55 Loy. L.A. L. Rev. 405 (2020).

3

Such requirements are one of the subcategories of union security and that portion of a collective bargaining agreement dealing with dues and fees is generally known as a union-security

clause.

4

The Alaska Supreme Court did not discuss which (if any)

words would be necessary for a public employee to join a union

and thereby waive their First Amendment rights. Would “I join

the union” and a signature suffice as clear and compelling evidence of waiver? It certainly implies that the September 2019 revision language would be adequate.

8

II.

Data from Michigan’s Civil Service Commission shows that many more public employees would exercise their Janus rights

if they were properly informed of them

and given an annual option to exercise

them.

Michigan’s Civil Service Commission is a state

constitutional entity that manages the state’s civil

service employees (generally executive-branch employees). Mich. Const. of 1963, art. XI, § 5. By rule, it

allows collective bargaining. Mich. Civ. Serv. Comm’n

Rule 6-1.2. Local employee collective bargaining is addressed in Michigan’s Public Employment Relations

Act. Mich. Comp. Laws §§ 423.201-217. When Michigan enacted public-sector right to work in 2012,5 there

was some question whether it would apply to state

employees.

In UAW v. Green, 870 N.W.2d 867 (Mich. 2015), the

Michigan Supreme Court held that agency fees for

state employees were unconstitutional under Michigan’s constitution.

Effective July 13, 2020, the Michigan Civil Service

Commission issued Michigan Civil Service Commission Rule 6-7.2, which states:

The director shall establish the exclusive

process for employees to authorize or deauthorize deduction of dues or fees. An authorization will expire at the start of the first full

pay period each fiscal year unless it was

5

2012 Mich. Pub. Act 349.

9

authorized or reauthorized during the previous fiscal year. The director shall provide annual notice to all exclusively represented

employees of the right to join or not join an

exclusive representative without affecting

employment status, the right not to maintain

membership in an exclusive representative to

retain employment, an exclusive representative’s duty of fair representation to all bargaining-unit members, and the prohibition on

union activities during actual duty time.

Id.

For its state employees, Michigan tracks the number of employees covered by a contract and the number

of those employees that join the union. Until very recently, this information was tracked quarterly (it is

now annual). The report is titled “Annual Workforce

Report.”

The questions surrounding public-sector agency

fees and the soundness of Abood have been discussed

in a number of this Court’s recent decisions. See Knox

v. SEIU Local 1000, 567 U.S. 2277 (2012); Harris v.

Quinn, 573 U.S. 616 (2014); Friedrichs v. California

Teachers Ass’n, 136 S.Ct. 1083 (2016); and Janus. One

key question that arose over the course of these cases

was whether a public-sector union’s status as an exclusive bargaining agent and the need for agency fees

were “inextricably linked.”

In both Friedrichs and Janus, the Mackinac Center filed briefs at the amicus and merits stage. These

four briefs looked at various methods of quantifying

10

the union-membership percentage as a means of determining whether unions in a right-to-work environment could survive and function as an exclusivecollective-bargaining agent. This work was cited by

this Court in Janus. Janus, 138 S.Ct. at 2466, n.3.

The briefs attempted to focus on the union-membership percentage, which is simply the number of union members covered by a collective bargaining

agreement divided by the total number of employees –

both union members and nonmembers – covered by a

collective-bargaining agreement. This figure provides

a ratio of support per worker covered.

The Michigan Civil Service Commission’s “Annual

Workforce Report” allows union-membership rates to

be determined with precision. It provides the numerator (employees in bargaining unit who are union members) and the denominator (size of the bargaining unit)

and particularly when quarterly did so in a timely

manner so that the reported data would not lag events

on the ground. The reports are formulaic. Each cited

report contains the relevant data on collective bargaining coverage and union membership at table 5-1.

There are five relevant unions: (1) Michigan State

Employees Association (MSEA); (2) UAW Local 6000;

(3) Michigan Corrections Organization, SEIU Local

11

526M (MCO); (4) SEIU Local 517M6; and (5) AFSCME

Council 25.7

There are four relevant reports: (1) the report immediately before the law in which Michigan banned

agency fees took effect (Fiscal 2012-13 Second Quarter

– ending March 30, 2013);8 (2) the report immediately

before UAW v. Green9 was decided (Fiscal 2014-15

Third Quarter – ending June 20, 2015);10 (3) the report

immediately before the MCSC amended its rules to

require that state employees annually opt-in to paying

dues (Fiscal 19-20 Third Quarter – ending June 27,

2020);11 and the final report is the most recent annual

one. (Fiscal 21-22 – ending September 30, 2022).12

6

The report contains three branches of this union, which

numbers will be combined here.

7

The Michigan State Police Troopers Association – a state

employees’ union – is excluded here because Michigan’s agencyfee ban did not apply to police and fire employees. Mich. Comp.

Laws § 423.210(4)(a).

8

This document is available at the following link:

https://www.michigan.gov/documents/mdcs/WF_2013_2nd_Quarter_

Complete_417855_7.pdf.

9

Again, that decision made it clear that agency fees were

banned for most state employees too.

10

This document is available at the following link:

https://www.michigan.gov/documents/mdcs/WF_2015_3rd_Quarter_

Complete_496483_7.pdf.

11

This document is available at the following link:

https://www.michigan.gov/documents/mdcs/WF_2020_3rd_Quarter_

Complete_697389_7.pdf.

12

This document is available at the following link:

https://www.michigan.gov/mdcs/-/media/Project/Websites/mdcs/

workforce/21-22/43rd_AWFR_Complete.pdf ?rev=48b5108724434

12

The first report sets a baseline before Michigan

passed right to work. The second report occurs after it

became clear that right to work applied to state employees. The third shows what impact five years of

right to work had. The final report shows that when

annually and clearly informed of their rights under Janus, more employees exercise those rights.

MSEA

Date

Members Unit Size Membership

Rate

March 30, 2013

3,079

3,329

92.5%

June 20, 2015

3,363

4,654

72.3%

June 27, 2020

2,220

4,161

53.4%

September 30, 2022

1,664

4,117

40.4%

UAW 6000

Date

Members Unit Size Membership

Rate

March 30, 2013

15,673

17,147

91.4%

June 20, 2015

14,662

16,904

86.7%

June 27, 2020

12,674

16,446

77.1%

September 30, 2022

10,798

15,586

69.3%

a36934ea3da1cbea93d&hash=04AF7A141365D90028F1DAF15C

62DC8A.

13

MCO

Date

Members Unit Size Membership

Rate

March 30, 2013

6,598

6,890

95.8%

June 20, 2015

6,232

6,633

94.0%

June 27, 2020

5,368

5,863

91.6%

September 30, 2022

4,457

5,110

87.2%

SEIU Local 517

Date

Members Unit Size Membership

Rate

March 30, 2013

3,532

3,679

96.0%

June 20, 2015

3,259

3,764

86.6%

June 27, 2020

2,666

3,963

67.3%

September 30, 2022

2,534

4,099

61.8%

AFSCME Council 25

Date

Members Unit Size Membership

Rate

March 30, 2013

1,736

1,769

98.1%

June 20, 2015

1,282

1,357

94.5%

June 27, 2020

1,318

1,650

79.9%

907

1,472

61.6%

September 30, 2022

Aggregating these state-employee-union numbers

at the four signposts, shows 32,814 represented state

14

employees constituted of 30,618 members and 2,196

nonmembers immediately prior to Michigan’s agencyfee ban. This was a membership rate of 93.3%. By June

2015, those numbers had changed to 33,312 represented state employees constituted of 28,798 members

and 4,514 nonmembers for a membership rate of

86.4%. In June 2020, the state employee unions represented 32,083 state employees constituted of 24,246

members and 7,837 members for a membership rate of

75.6%. Finally, in September 2022, these unions represented 30,384 state employees and had 20,360 members. This is a union-membership rate of 67.0%13

Thus, despite right to work having been the law of

the land for five years (2015-2020), when Michigan

gave annual clear recitations to state employees about

their Janus rights, a significant number of employees

chose to leave the union and no longer financially support it.

The most commonly cited data on union membership and worker representation comes from the U.S.

Bureau of Labor Statistics (BLS). As part of the Current Population Survey (CPS), the BLS releases an annual union membership survey every January for the

prior year, which is based on three months of surveying. This year’s release was January 19, 2023, and indicates “the data on union membership are collected as

13

Another benefit to this data set is that it sets out both the

total state employees and the total state employees covered by

union contracts. The consistency of these numbers alleviates any

concern that changes in membership rates are due to fluctuations

in the employee pool.

15

part of the Current Population Survey (CPS), a

monthly sample survey of about 60,000 eligible households that obtains information on employment and

unemployment among the nation’s civilian noninstitutional population age 16 and over.”14 The questionnaire

asks whether at their job, the individual is “a member

of a labor union or of an employee association similar

to a union” and whether that job is “covered by a union

or employee association contract.”15

There is some question whether those surveyed

understand the nuances of coverage under a collectivebargaining agreement and membership. Still, according to the January 19, 2023 BLS release, there are

around 7,835,000 public employees represented by unions and around 7,062,000 were union members for a

union membership rate of 90.13%. But if Michigan’s

(and Alaska’s) approach of requiring employees to be

informed of their right under Janus is adopted, the

number of union members might be expected to drop

14

https://www.bls.gov/news.release/pdf/union2.pdf.

https://www2.census.gov/programs-surveys/cps/techdocs/

questionnaires/Labor%20Force.pdf. These questions have consistently been used since 1977. Patrick J. Wright, Finding Quality

Evidence of Union Survivability in the Absence of Agency Fees: Is

the Current Population Survey’s Public Sector Unionism Data

Sufficiently Reliable? 2017 U. Chi. Legal F. 563.

In that article, the undersigned questioned the reliability of

some of the results from these CPS questions when compared to

other data sources. Id. at 573-91. These same concerns were discussed in the amicus brief this Court cited in Janus at n.3. While

that brief was cited, this Court also referred to CPS data in notes

1 and 2, thereby indicating that CPS data is of interest. Janus,

138 S.Ct. at 2466 nn.1, 2.

15

16

to around 5,250,000. This would mean that a little over

1.75 million more employees would be exercising their

Janus rights.

Amicus put out a recent report wherein it used

other methods like payroll information to see how

many employees have had union dues removed. Jarrett

Skorup, The Janus Effect: The Impact of the 2018 Supreme Court Decision on Public Sector Unions (2023).

In that document, it was estimated that the national

public-sector unionization rate was 77.8%.16 Assuming

this rate is more accurate than the BLS, there would

be 6,095,630 unionized employees (.778 x 7,835,000

employees). Thus, to get to that 5,250,000 figure that

would align with a 67% unionization rate, there would

still have to be around 800,000 additional employees

who chose not union members and not to financially

supporting the union.

The point of this is relatively simple. If this Court’s

requirement of clear and convincing evidence of waiver

were being enforced, perhaps up to 1.75 million more

public employees might choose to exercise their rights

under Janus. If this Court is not going to enforce its

waiver requirement, the public-sector union windfall

will continue based solely on employee’s ignorance of

their First Amendment rights. Public-sector employees

should not have to be constitutional scholars to exercise their rights – they should have an informed,

16

That document focused on the employees who opted out.

Essentially it is 100% minus the unionization rate percentage.

For sake of clarity, that opt out percentage (22.2%) was converted

to a unionization rate (100%-22.2%=77.8%).

17

voluntary choice about whether to support a union.

This Court should clarify what is required by the

waiver language of Janus.

The above data suggests that the Alaska Supreme

Court’s rejection of informed-consent requirements

has prevented the likely impact of this Court’s Janus

decision from being fully realized. As such, over a million public-sector employees could be continuing to financially subsidize political speech with which they

may disagree, sheerly out of ignorance of their own

constitutional rights. This must end.

---------------------------------♦---------------------------------

CONCLUSION

For the reasons stated above, this Court should

grant certiorari in this matter.

Respectfully submitted,

PATRICK J. WRIGHT

Counsel of Record

140 West Main Street

Midland, MI 48640

(989) 631-0900

wright@Mackinac.org

Counsel for Amicus Curiae

Mackinac Center for

Public Policy

RICHARD P. HUTCHISON

MATTHEW C. FORYS

MICHAEL J. O’NEILL

LANDMARK LEGAL

FOUNDATION

19415 Deerfield Avenue

Suite 312

Leesburg, VA 20176

(703) 554-6100

matt@landmarklegal.org