Appendix — Knight v. Heaney (No. 79-75)

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Supreme Court, U. &

FILED

16 1979

PETITIONERS’ APPENDICES

IN THE

MICHAEL RODAK, JR., CLERK

Supreme Court of the United 5

Octoser Term, 1979

No. 79-%5™

Leon W. Kniourt, et al., Petitioners,

Vv.

Tue Honornasce Geratp W. Heaney, Unirep Srares Cracurr

Jupez or THe Unirep Srares Cracurr Court ror THE

ErountH Circuit, anp Eart R. Larson anp Donaxp D.

Ausop, Untrep States District Jupcrs or tHe District

Court ror THe District or Minnesota, Respondents.

MOTION FOR LEAVE TO FILE

AND PETITION FOR WRIT OF

MANDAMUS AND/OR PROHIBITION

Epwin Viera, Jr.

12408 Greenhill Drive

Silver Spring, Maryland 20904

Joun J. Focasty

8316 Arlington Boulevard

Fairfax, Virginia 22038

Attorneys for Petitioners

Of Counsel:

Raymonp J. LaJgunessz, Jn.

8316 Arlington Boulevard

Fairfax, Virginia 22038

TL ARLE ESAS aaa a Sa ETEE

FANNON PRINTING CENTER, ALEXANDRIA, VIRGINIA 22302 (703) 5486-3220

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TABLE OF CONTENTS

APPENDIX B

Order Of The United States District Court For The

District Of Minnesota, dated 16 October 1978 ....

APPENDIX C

Plaintiff's Motion To Rescind The Court’s Order Of

13 October 1978, And For An Order Commanding

The Production Of Certain Files Maintained By, The

The Depositions Of Certain Staff-Personnel Of, And

The Payment Of Certain Costs And Fees By De-

fendants National Education Association, Minnesota

Education Association, Minn. sota Community Col-

lege Faculty Association, And Independent Minnesota

Political Action Committee For Education, dated 30

EPOGSMENGR BOTS 2 ccc ccccccesccocccvesssocces

APPENDIX D

Memorandum Of Points And Authorities In Support

Of Plaintiffs’ Motion To Rescind The Court’s Order

Of 13 October 1978, And For An Order Command-

ing The Production Of Certain Files Maintained By,

The Depositions Of Certain Staff-Personnel Of, And

The Payment Of Certain Costs And Fees By De-

fendants National Education Association, Minnesota

Education Association, Minnesota Community Col-

lege Faculty Association, And Independent Minnesota

Political Action Committee For Education, dated 17

PURGES GOES. occ vc cndeconendécrcavccceseveas

APPENDIX E

Defendants’ Memorandum In Opposition To Plain-

tiffs’ Motion To Reopen Discovery ..............

APPENDIX F

Plaintiffs’ Reply Memorandum To Defendants’ Memo-

randum In Opposition To Plaintiffs’ Motion To Re-

open Discovery, dated 2 February 1979 ..........

(wt)

Table of Contents Continued

Page

APPENDIX G

Plaintiffs’ Memorandum Explaining the Interrelation-

ship Among Further Discovery, Stipulations, And

Trial, dated 22 February 1979 ....... 6-66-0555: 399

APPENDIX H

Statement Of Defendant Labor Organizations, dated

B® Blaehh BOTD . oc cc ccccceccccctccevecsececse 407

APPENDIX I ;

Plaintiffs’ Supplemental Memorandum In Reply To

Defendants’ Responsive Memorandum And To The

Statement Of Defendant Labor Organizations, dated

OO Diets BOFD co ccccccccvccnccetdaceecsesones 4ll

APPENDIX J

Order Of The United States District Court For The

District of Minnesota, dated 4 Aprig].1979 ........ 421

APPENDIX K

Plaintiffs’ Motion For Dissolution Or Stay Of The

Court’s Order Of 4 April 1979, And For Reconsider

ation And Hearing On Plaintiffs’ Motion To Rescind

The Court’s Order Of 13 October 1978, dated 19

Apell 1979 .....cccccccccces WEeTTTTrrT 427

APPENDIX L

Defendant Labor Organizations’ Statement In Oppo-

sition To Plaintiffs’ Motion For Dissolution, Stay,

Reconsideration And Hearing ............+++++> 433

APPENDIX M

Transcript of Hearing Of 13 October 1978 ....... 437

APPENDIX N

Transcript of Hearing Of 2 February 1979 ....... 459

APPENDIX O

Order Of The United States District Court For The

District Of Minnesota, dated 20 June 1979 ...... 471

IN THE

Supreme Court of the United States

Octoser Term, 1979

Leon W. Knicur, et al., Petitioners,

Tue HonorasBce Geratp W. Heaney, Untrep States Cracurr

Jupcg or THE Unitep Srares Crrcurr Court ror THE

Eicutx Circuit, anp Eart R. Larson ann Donatp D.

Ausop, Unitep States District Jupces or THE District

Court ror THE District or Minnesota, Respondents.

MOTION FOR LEAVE TO FILE

AND PETITION FOR WRIT OF

MANDAMUS AND/OR PROHIBITION

PETITIONERS’ APPENDICES

RELEVANT DOCKET ENTRIES

Date

APPENDIX A

RELEVANT DOCKET ENTRIES

Entry

12-19-74 Filed Complaint.

1-17-75

1-30-75

Issued summons and 35 copies.

Case assigned to 4th Judge, case card #235.

Filed notice of motion returnable 2-28-75 at 9:00

AM and motion of defts NEA, MEA, MCCFA,

IMPACE and the named officers, directors and

members to stay or dismiss with aff. of service by

mail on 1-16-75.

* -_ * *

Filed amended complaint and request for a three-

judge district court with aff. of service by mail

on 1-30-75.

2-13-75 Filed notice of motion returnable 2-28-75 at 9:00

AM and motion of plitfs to convene a statutory

three-judge court with aff. of service by mail on

2-13-75.

Filed plaintiffs’ first set of interrogatories to de-

fendant unions with aff. of service by mail on

2-13-75.

3-3-75 Entered record of hearing (Alsop, J) (Lindberg,

R) motion of corporate defts to stay or dismiss. |

Argued, submitted & taken under advisement. Mo-

tion of pitfs to convene three judge court. Argued,

submitted & taken under advisement. Motion of

state official defts to suspend discovery. Counsel

to stipulate & submit proposed order. Mr. Miller

Date

3-17-75

3-31-75

10-24-75

11-6-75

12-23-75

Entry

to submit responsive brief in 2 wks. Mr. Mullin

may submit brief if he desires. Mr. Mark indi-

cated he would not submit a brief.

Filed reporter’s transcript of proceedings re: mo-

tion (Alsop, J) on 2-28-75 (Lindberg, R) (sep-

arate).

Filed stipulation and Order (Alsop, J) that all

discovery is suspended pending final resolution

of the motion to stay or dismiss. The parties may

serve interrogatories, requests for admissions and

schedule depositions, however, the responses

thereto or the taking of depositions shall not occur

until a r.asonable time agreed to by the parties

herein afte~ final resolution of the motion to stay

or dismiss.

Filed pltfs’ second set of interrogatories to deft

unions with aff. of serv. by mail on 3-28-75.

Filed notice of motion returnable 11-3-75 at 9:00

AM with pltfs’ motion to reopen discovery with

aff. of serv. by mail on 10-21-75.

Filed Order (Magistrate Cudd) that. plaintiffs’

motion to vacate a stipulation and order suspend-

ing discovery pending final resolution of a motion

to stay or dismiss is denied. (Dated 11-5-75).

Mailed notice to counsel.

Filed Memorandum and Order (Alsop, J) dated

12-22-75 as follows: Ir Is Onperep that plaintiffs’

motion to convene a three-judge court be, and the

same hereby is denied. Ir Is FurtHer ORDERED

that defendants’ motion to stay or dismiss be, and

the same hereby is denied.

Mailed notice to counsel.

Date

2-11-76

3-18-76

3-23-76

3-31-76

5-20-76

5-26-76

Entry

Answer of MCCFA, MEA, IMPACE, NEA, Nor-

man, Durham, Bell, Minke, Chesebrough, Holman,

Mondale, Rosasco, Provo, Gallop, Klinkerfues,

Morgan, Schutt, Harris, Wise, Barett, Herndon,

and Lembert.

Notice of mot.on and motion of pltfs for order

directing defts to file objections and answers to

pitfs’ interrogatories, ret. 3-26-76 at 9:00 AM.

Notice and motion of deft-State officials to con-

tinue the suspension of discovery returnable at

3-26-76 at 9:00 AM.

Affidavit of Richard G. Mark.

Order (Magistrate Cudd) that plaintiffs’ motion

to compel discovery is denied; defendants’ mo-

tion to continue the suspension of discovery is

granted.

Notice to counsel.

Opinion from the Eighth Circuit Court of Appeals

granting petition for writ of mandamus to -ompel

the convention of a three-judge court.

Notice to counsel.

Order (Floyd R. Gibson, Chief Judge, U.S. Court

of Appeals for the 8th Cireuit) hereby designates

the Honorable Gerald W. Heaney, United States

Circuit Judge, and the Honorable Ear! R. Larson,

United States District Judge for the District of

Minnesota to serve with the Honorable Donald D.

Alsop, United States District Judge for the Dis-

trict of Minnesota to hear and determine the

action.

Notice to counsel.

Date

Entry

6-10-76 Minutes of Proceedings (Alsop, J) (Lindberg, R)

pltfs’ motion that defts be directed to submit ob-

jections to interrogatories and for production by

7-9-76 and attorneys be directed to meet on 7-15-76

to discuss any differences that may arise, etc.,

argued & ordered that the court’s order of 3-17-75

be vacated and Magistrate Cudd’s order of 3-31-76

be vacated, defts shall furnish to pltfs on 7-9-76

objections to interrogatories, if there are no ob-

jections, defts shall answer on 8-9-76 & parties

shall meet on 7-15-76 to discuss the objections and

work out any problems with Mag. Cudd. Mr.

Mullin to prepare order and submit to counsel and

to the Court.

6-28-76 Order (Alsop, J) dated 6-24-76 as follows:

1. That the Order of the Court of March 17, 1975,

signed by the undersigned, and the Orders of the

Court of November 6, 1975 and March 31, 1976

signed by the Honorable Earl J. Cudd, Magistrate,

are hereby vacated.

2. That defendants shall file and serve objections

to the interrogatories and requests for documents

previously served by the plaintiffs on or before

July 9, 1976.

3. That attorneys for the parties shall meet on

or about July 15, 1976 to resolve any differences

among the parties raised by such objections.

4. That defendants shall answer all interroga-

tories and requests for documents not objected to

by August 9, 1976.

Notice to counsel.

Date

7-14-76

8-17-76

1-10-77

1-26-77

Entry

Defendant employee organizations and their offi-

cers objections to pltfs’ first set of interrogatories.

Deft. employee organizations and their officers ob-

jections to pltfs’ second set of interrogatories.

Stipulation and Protective Order (Magistrate

Cudd) dated 8-16-76 re: production of documents

and answers to interrogatories.

Notice to counsel.

Notice and motion of pltfs for an order directing

National Education Assoc. and Minn. Education

Assoc. to answer certain interrogatories and pay

attorneys’ fees, ret. 1-4-77 at 9:00 AM, with aff.

of Wm. E. Mullin.

Notice of taking depositions of Ralph S. Chese-

brough, Albert L. Gallop, Calvin Minke, Alfred

F, Provo, James K. Durham, Donald Hill, Fulton

B. Klinkerfues, Jonn W. Schutt, Phillip C. Hel-

land, Terry E. Herndon, John Ryor, and Treas-

urer of NEA.

MEA answers to pltfs’ first set of interrogatories.

MEA answers to pltfs’ second set of interroga-

tories.

IMPACE answers to pltfs’ first set of interroga-

tories.

IMPACE answers to pltfs’ second set of interrog-

atories.

MCCFA answers to pltfs’ first set of interroga-

tories.

MCCFA answers to pltfs’ second set of interroga-

tories.

Date

5-2-77

5-20-77

10-13-77

12-1-77

1-12-78

2-21-78

Entry

NEA answers to pltfs’ first set of interrogatories.

NEA answers to pltfs’ second set of interroga-

tories

Employee organizations and their officers answers

to pitfs’ first set of interrogatories.

MCCFA, MEA, IMPACE, NEA and officers in-

terrogatories to pltfs.—Set I.

Deposition of Fulton B. (F.B.) Klinkerfues on

3-15-77 (Ledford, R) (separate).

Pitfs’ first set of requests for admissions and in-

terrogatories with exhibits A through O. (Sep-

arate).

Stipulation and Order (Alsop, J) dated 11-30-77

that the defendant employee organizations and in-

dividual officers and the defendant state agencies

and officials shall have until December 15 to inter-

pose objections, or answer the plaintiffs’ requests

for admission.

Notice to counsel.

Stipulation and Order (Alsop, J) that defendant

employee organizations and individual officers

and the defendant state agencies and officials shall

have until February 15, 1978, to interpose objec-

tions, or answer the plaintiffs’ requests for ad-

missions.

Notice to counsel.

Notice of taking depositions of Herbert Brownell,

Gene Mammenga, Michael Sokup, Neil Sands,

Date

3-22-78

4-12-78

4-20-78

6-19-78

7-14-78

9-26-78

10-17-78

Entry

Roger Johnson, Gary Watts, Joseph Letorney,

John F. Cox, Rosalyn H. Baker, and Stanley

McFarland.

Stipulation and Order (Devitt, J) that the de-

fendant employee organizations and individual

officers and the defendant state agencies and offi-

cials shall have until March 31, 1978 to interpose

objections, or answer the plaintiffs’ requests for

admissions.

Notice to counsel.

Defts’ response to pltfs’ requests for admissions.

Pitfs’ request for production of documents to

MCCFA, MEA, NEA and IMPACE.

= * * a

Request for production of documents by plaintiffs.

MCCFA, MEA, NEA and IMPACE response to

pitfs’ request for production of documents.

NEA’s response to pltfs’ request for production

of (documents.

MCCFA, MEA and IMPACE response to pltfs’

request for production of documents.

Order for Pretrial (Alsop, J) dated 9-25-78 re-

turnable 10-13-78 at 9:30 AM before Judge Alsop.

Notice to counsel.

Order (Alsop, J) dated 10-16-78 as follows:

Ir Is Orperep that all discovery in this action be

closed as of December 31, 1978, save and except

plaintiffs’ responses to defendants’ contention in-

Date Entry

terrogatories, which responses shall be served

and filed on or before January 15, 1979.

Ir Is FurrHer Orperep that on or before January

30, 1979, the parties prepare, execute, and file with

the court a stipulation of undisputed facts.

Ir Is Frvatty Orperep that a further pretrial

corference be had in the above action on Febru-

ary 2, 1979 at 9:30 o’clock AM.

Notice to counsel.

10-26-78 Notice of taking deposition of James A. Harris.

Pitfs’ interrogatory to deft. labor organizations.

Notice of taking deposition of Susan Lowell.

Notice of taking deposition of Robert Harman.

Notice of taking deposition of Ken Pratt.

Notice of taking deposition of Sue Zagrabelny.

Notice of taking deposition of Ken Bresin.

Notice of taking deposition of R. Dick Vander

Woude.

e s * °

Bae. eae

Pitfs’ request to Minn. Education Assoc. for pro-

duction, inspection and copying of documents.

Pitfs’ request to National Education Assoc. for

production, inspection and copying of documents.

Pitfs’ request to Minn. Community College Fac-

ulty Assoc. et al. for production, inspection, and

copying of documents.

Pitfs’ request to Independent Minn. Political Ac-

tion Committee for Education for production, in-

spection, and copyiag of documents.

Date Eniry

12-5-78 Notice of taking deposition of Alice Morton.

Notice of taking deposition of Matthew Reese.

* * * e

12-20-78 Amended notice of taking deposition of Matthew

Reese.

12-21-78 Notice and motion of National Education Assoc.,

its affiliates and its officials and staff personnel, to

quash a certain subpoe..\ issued against Mr. Mat-

thew Reese, ret. 12-20-78 at 8:30 AM.

Notice and motion of National Education Assoc.,

its affiliates and its officials and staff personnel to

quash a certain subpoena issued against Ms. Alice

Morton, ret. 12-20-78 at 8:30 AM.

Minutes of Proceedings (Renner, Magistrate)

(McNulty, R) deft MEA’s motion to quash sub-

poena duces tecum of Alice Morton and Matthew

Reese. MEA withdrew motion to quash subpoena

of Matthew Reese. Pitf entered an objection to

withdrawal of the motion. Pitf moved for an order

extending discovery to allow depositions of Reese

and Morton to be taken after December 31, 1978,

if necessary, Arguments of counsel heard. Mat-

ter submitted and taken under advisement. Dated

12-20-78.

12-22-78 Order (Magistrate Renner) denying National Ed-

ucation Association’s motion to quash subpoenas

issued to Matthew Reese and Alice Morton.

| Notice to counsel.

| eo o o .

1-12-79 Notice of pltfs’ motion to rescind order of 10-13-78

| and granting other relief ret. 2-2-79 at 9:30 AM.

Date

Entry

1-22-79 Affidavit of Karen Crutcher.

2-1-79

Affidavit of Edwin Vieira, Jr.

Affidavit of Barbara Yezek.

Affidavit of Thomas D. Logie.

Affidavit of Teresa R. Silzer.

Affidavit of Edwin Vieira, Jr., Re: Non-production

of correspondence file of Bresin.

Affidavit of Raymond J. LaJeunesse, Jr.

Affidavit of Edwin Vieira, Jr. Re: Production of

correspondence file of Letorney.

Affidavit of Teresa R. Silzer Re: Production of

correspondence file of Letorney.

Affidavit of Edwin Vieira, Jr. Re: Production of

correspondence file of Vander Wouade.

Affidavit of John J. Fogarty.

Affidavit of Edwin Vieira, Jr. Re: Production of

correspondence file of Watts.

Affidavit of Emily Pitts Dixon.

Affidavit of Teresa R. Silzer Re: Production of

correspondence file of Watts.

Affidavit of Raymond J. LaJeunesse, Jr. Re: Pro-

duction of documents in Seay v. McDonnell Doug-

las Corp.

. . > o

Notice and motion of pltfs to rescind Court’s or-

der of 10-13-78 and for an order commanding pro-

duction of certain files maintained by, the depo-

sitions of certain staff-personnel of, and the pay-

ment of certain costs and fees, ret. 1-26-78 at 2:00

PM.

Date

Entry

2-5-79 Deposition of John E. Ryor taken 5-10-77 (Mat-

2-13-79

2-16-79

tingly, R) (Separate).

Deposition of John E. Ryor, Volume II, taken

5-11-77 (Mattingly, R) (Separate).

Deposition of Terry E. Herndon taken 4-26-77

(Mattingly, R) (Separate).

Deposition of Terry Herndon, Volume II, taken

5-18-77 (Mattingly, R) (Separate).

Deposition of Terry Herndon, Volume ITI, taken

5-19-77 (Mattingly, R) (Separate).

Affidavit of Alice Morton.

Deposition of John Michael Sokup taken 8-28-78

(Wandzel, R) (Volume I) (Separate).

Deposition of Kenneth Victor Bresin taken 11-16-

78 (Belkengren, R) (Separate).

Deposition of Sue Ellen Zagrabelny taken 11-17-78

(Belkengren, R) (Separate).

Deposition of A.L. (Bud) Gallop taken 2-24-77

(Ledford, R) (Separate).

Deposition of Herbert R. Brunnell taken 4-19-78

(Ledford, R) (Separate).

Continued deposition of Gene Mammenga taken

6-13-78 (Wandzel, R) (Separate).

Deposition of Kenneth L. Pratt taken 11-21-78

(Manke, R) (Separate).

Deposition of R. Dick VanderWoude taken 11-20-

78 (Ledford, R) (Separate).

Deposition of Neil Frederick Sands taken 6-14-78

(Manke, R) (Separate).

Date

3-5-79

3-8-79

Entry

Deposition of Roger I. Johnson taken 9-7-78 (Led-

ford, R) (Separate).

Continued deposition of Roger I. Johnson taken

9-8-78 (Ledford, R) (Separate).

Pitfs’ supplemental answers to United Teaching

Profession’s interrogatories.

Deposition of Gene Mammenga taken 6-12-78

(Wandzel & Ledford, R) (Separate).

4-9-79 Order (Heaney, Larson, Alsop, J) dated 4-4-79 as

follows:

Ir Is Onperep that the motion of the plaintiffs

as hereinabove set forth be and the same hereby

is in all things denied.

Ir Is FurrnHer Orperep that the motion of the

defendants National Education Association, Min-

nesota Education Association and their officers

and staff as hereinbefore set forth be and the

same hereby is in all th*gs denied.

Ir Is Furrner Onverep that on or before May 7,

1979 each of the parties meet, prepare, and enter

into a stipulation of undisputed facts. On or be-

fore May 21, 1979 counsel for each party shall

prepare, file and serve upon opposing counsel

a statement setting forth all facts in issue which

remain unresolved and which it proposes to sub-

mit to the court for determination. On or before

June 4, 1979 counsel for each party shall prepare,

serve and file a schedule of all exhibits which will

be offered in evidence at the trial as part of its

case in chief. On or before June 4, 1979 counsel

for each party shall make for idenitfication in the

oe ee

Date

Entry

sequence proposed to be offered all exhibits in-

tended to be offered at trial. On or before June

4, 1979 counsel for each party shall prepare, serve

and file a schedule of depositions or portions

thereof it proposes to offer in evidence. On or be-

fore June 4, 1979 counsel for each party shall pre-

pare, serve and file a schedule of interrogatories

and answers to interrogatories that it proposes to

offer in evidence. On or before June 4, 1979 coun-

sel for each party shall prepare, serve and file a

full and complete statement of the facts it pro-

poses to prove as part of its case in chief. On or

before June 18, 1979 each party shall file a de-

tailed written brief setting forth certain things.

Ir Is Frvatty Onverep that a further hearing be

conducted by the Court on the 29th day of June,

1979 at 9:30 AM at the Federal Courts Building

in St. Paul.

Notice to counsel.

Notice and Motion of Plaintiffs for Dissolution or

Stay of Court’s Order of 4-4-79 and for Recon-

sideration and Hearing on Plaintiffs’ Motion to

Rescind Court’s Order of October 13, 1978.

* > > >

Deposition of John F. Cox, taken 7-26-78.

Deposition of Gary D. Watts, taken 7-18-78.

Resumed Deposition of Gary D. Watts, taken

7-19-78.

Deposition of Joseph A. Letorney, Volume I,

taken 7-24-78.

Resumed Deposition of Joseph A. Letorney, taken

7-25-78.

Date

5.8.79

5-11-79

5-21-79

6-5-79

6-8-79

Entry

Labor Organizations’ Statement in Opposition to

Plaintiffs’ Motion for Dissolution, Stay, Recon-

sideration and Hearing.

. o . *

Deposition of Donald Hill, taken 3-9-77.

Deposition of Phillip C. Helland, taken 7-12-77.

Continued Deposition of Phillip C. Helland, taken

7-12-77.

Reporter's Transcript of Proceedings re: Motion

of February 2, 1979. Alsop, Judge; Lindberg, Re-

porter.

Deposition of Ralph 8S. Chesebrough, taken 2-22-77.

Continued Deposition of Ralph 8. Chesebrough,

taken 2-23-77.

Deposition of James M. Durham, taken 3-7-77.

Continued Deposition of Donald Hill, Volume II,

taken 3-11-77.

Continued Deposition of Donald Hill, Volume III,

taken 3-12-77.

Deposition of Calvin Minke, taken 3-4-77.

Deposition of Alfred Provo, taken 3-31-77.

Deposition of John W. Schutt, taken 3-18-77.

Deposition of Stanley McFarland, taken 10-17-78.

Continued Deposition of Stanley McFarland,

taken 10-18-78.

Deposition of Rosalyn H. Baker, Volume II, taken

10-19-78.

Continued Deposition of Rosalyn H. Baker, Vol-

ume II, taken 10-20-78,

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA

Dated 16 October 1978

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

4-74 Civ. 659

Leon W. Knicut, et al., Plaintiffs,

Minnesota Community Co.tuece Facuity Association, et al.,

Defendants.

ORDER

Wiuuiam E. Mutuin, Esq., Mullin, Weinberg & Daly, Min-

neapolis, Minnesota, and Epwin Vieira, Jr., Esq., Washing-

ton, D. C., appeared for plaintiffs.

Eric R. Mitier, Esq., Oppenheimer, Wolff, Foster, Shep-

ard and Donnelly, St. Paul, Minnesota, appeared for de-

fendants MCCFA, NEA, MEA, IMPACE and the named

officers, directors and members.

Warren Spannaus, Attorney General, State of Minnesota,

by SrepHen F. Berort, Esq., Special Assistant Attorney

General, and Donatp J. Muetina, Esq., Special Assistant

Attorney Generai, appeared for defendants Crippen, Mc-

Vay, Sontorovich, Plunkett, Nycklemoe, Bruce, Helland,

Helling, Lorenz and Denison.

The above-entitled matter came on for pretrial confer-

ence before the undersigned on October 13, 1978.

Upon all files, records and proceedings herein,

Ir Is Orperep That all discovery in this action be closed

as of December 31, 1978, save and except plaintiffs’ re-

sponses to defendants’ contention interrogatories, which

responses shall be served and filed on or before January

15, 1979.

Ir Is FurtHer Orperep That on or before January 30,

1979, the parties prepare, execute, and file with the court

a stipulation of undisputed facts.

Ir Is Finatty Orperep That a further pretrial confer-

ence be had in the above action on February 2, 1979 at

9:30 o’clock a.m.

Datep: October 16, 1978.

Respectfully submitted,

/8/ Donatp D. ALsop

Donald D. Alsop

United States District Judge

APPENDIX C

PLAINTIFFS’ MOTION TO RESCIND THE COURT’S

ORDER OF 13 OCTOBER 1978, AND FOR AN ORDER

COMMANDING THE PRODUCTION OF CERTAIN

FILES MAINTAINED BY, THE DEPOSITIONS OF

CERTAIN STAFF-PERSONNEL OF, AND THE PAY-

MENT OF CERTAIN COSTS AND FEES BY DE-

FENDANTS NATIONAL EDUCATION ASSOCIATION,

MINNESOTA EDUCATION ASSOCIATION, MINNE-

SOTA COMMUNITY COLLEGE FACULTY ASSOCIA-

TION, AND INDEPENDENT MINNESOTA POLITICAL

ACTION COMMITTEE FOR EDUCATION

Dated 30 December 1978

vi cE ses ner oa eee ies ened ree:

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5 |

IN THE

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF MINNESOTA

FOURTH DIVISION

No. 4-74 Civ. 659

Leon Kniont, et al., Plaintiffs,

Minnesota Community Couiece Facu.tty Association, et al.,

Defendants.

PLAINTIFFS’ MOTION TO RESCIND THE COURT’S ORDER

OF 13 OCTOBER 1978, AND FOR AN ORDER COMMAND.-

ING THE PRODUCTION OF CERTAIN FILES MAINTAINED

BY, THE DEPOSITIONS OF CERTAIN STAFF-PERSONNEL

OF, AND THE PAYMENT OF CERTAIN COSTS AND FEES

BY DEFENDANTS NATIONAL EDUCATION ASSOCIATION,

MINNESOTA EDUCATION ASSOCIATION, MINNESOTA

COMMUNITY COLLEGE FACULTY ASSOCIATION, AND IN-

DEPENDENT MINNESOTA POLITICAL ACTION COMMITTEE

FOR EDUCATION

Because of material changes in the circumstances of the

above-captioned case since 13 October 1978, Plaintiffs Leon

Knight, et alia, hereby move this Court to rescind its Order

of that date, and to enter a new Order commanding the pro-

duction of certain files maintained by, the depositions of

certain staff-personnel of, and the payment of certain costs

and fees by defendants National Education Association,

Minnesota Education Association, Minnesota Community

College Faculty Association, and Independent Minnesota

Political Action Committee for Education.*

* Plaintiffs’ Motion refers only to defendants National Education

Association, Minnesota Education Association, Minnesota Commu-

nity College Faculty Association, Independent Minnesota Political

The Court’s Order of 13 October 1978 closed plaintiffs’

discovery in this action as of 31 December 1978, and re-

quired plaintiffs to respond to defendants’ contention inter-

rogatories by 15 January 1979. Implicit in that decision was

the presumption that prior to and following the date of the

aforesaid Order, defendants had complied and would com-

ply in good faith with plaintiffs’ requests for discovery.

However, since the entry of that Order:

1. Analysis of deposition-testimony of certain staff-per-

sonnel of certain of the defendants, and comparison of that

testimony to other evidence in the record, indicates that

several of these deponents, on numerous occasions in their

testimony under oath, have not truthfully or completely

answered questions put to them by plaintiffs. Evidence un-

covered by private detectives engaged by plaintiffs supports

this conclusion.

2. Certain defendants have withheld from production

documents that plaintiffs have requested and to the produc-

tion of which plaintiffs are entitled. These defendants have

neither notified plaintiffs that any documents have been

withheld, nor asserted any claim of privilege or other legal

excuse with respect to any document in purported justifica-

tion of defendants’ failure to produce it.

In addition, certain deponents have denied their involve-

ment in or any knowledge of the preparation or present

existence of documents, material to the proof o% plaintiffs’

case, that describe plans relating to activities of certain de-

fendants, their staff-personnel, and members in the 1976

elections. Evidence from other sources indicates those same

deponents, or other of defendants’ staff-personnel subject

to their supervision, did prepare or have reason to know of

the preparation or existence of such documents.

a _ — —— a a

Action Committee for Education, and their officials and staff-

personnel named as defendants in plaintiffs’ Amended Complaint.

The Motion does not involve the defendant State Officials; and no

relief of any kind is sought with respect to them.

RA RDI ah ASOT at

hei i ait

3. The record now indicates that defendants’ denials of

a substantial number of plaintiffs’ Requests to Admit were

either in bad faith or in willful disregard of defendants’

duty under Federal Rule of Civil Procedure 36 to make rea-

sonable inquiry of their own officials, staff-personnel, or

employees to determine whether there was a basis in fact

for any denial.

4. As a result of the conduct detailed in paragraphs 1

through 3, supra, defendants have distorted the record and

denied plaintiffs material evidence relating to the activities

of defendants, their officials, staff-personnel, and members

in the campaigns of candidates for election to public office

during the elections of 1972, 1974, 1976, and 1978.

If this Court does not take appropriate action, the afore-

said conduct of defendants will frustrate the development of

a complete and accurate pre-trial record, resulting in injus-

tice to plaintiffs, an unnecessary burden on the Court, or

both.

Wuereror:, on the basis of these and other facts known

to defendants and that plaintiffs shall present and elaborate

in detail in their Memorandum of Points and Authorities in

support of this Motion, plaintiffs request this Court:

A. To Rescrnp its Order of 13 October 1978 with respect

to defendants National Education Association, Minnesota

Education Association, Minnesota Community College Fac-

ulty Association, Independent Minnesota Political Action

Committee for Education, and their officials and staff-per-

sonnel named as defendants in plaintiffs’ Amended Com-

plaint.

B. To Orper the aforesaid defendants to supply plaintiffs

with a list of all documents and other physical recordings

of information, known to or reasonably ascertainable by de-

fendants, that relate in any way to the campaigns of candi-

dates for election to public office during the elections of

1972, 1974, 1976, or 1978; that defendants, their officials,

staff-personnel, employees, or agents have maintained on

file or in storage, at any time subsequent to 1 January 1972,

at the National Education Association headquarters at 1201

16th Street, N.W., Washington, D.C., the Minnesota. Mdu-

cation Association headquarters at 41 Sherburne Avenue,

St. Paul, Minnesota, or any other location; and that de-

fendants, their officials, staff-personnel, employees, agents,

or counsel have caused or permitted to be destroyed.

©. Furruer To Orver the aforesaid defendants to supply

plaintiffs with a list of all documents and other physical

recordings of information that defendants, their officials,

staff-personnel, employees, agents, or counsel have used to

prepare any witnesses for depositions and have not pro-

duced for inspection and copying by, or otherwise identified

to, plaintiffs.

D. Furruer To Orver the aforesaid defendants to make

available for direct inspection by plaintiffs, without the

intermediation of defendants, their staff-personnel, em-

ployees, agents, or counsel, and under the supervision of a

Master or Referee appointed by the Court, the following

files *: viz.,

1. the files of the Governmental Relations Depart-

ment of the National Education Association;

* For the purposes of this Motion, the term ‘‘files’’ means all

systems of document-storage or retention of other physical record-

ings of information that the particular Department, Goal Area,

Support System, or Committee (a) maintains in its offices or any

other location, or (b) has maintained in its offices or any other

location at any time subsequent to 1 January 1972, but has caused

or permitted to be transferred from its offices or other location to

any other location or to the custody of any person, corporation,

or unincorporated association known to or reasonably ascertainable

oy defendants, their officials, staff-personnel, employees, agents, or

counsel.

ee eee SW rere nae SN oS eee

2. the files of the Governmental Relations Depart-

ment of the Minnesota KMducation Association;

3. the files of all Departments, Goal Areas, and Sup-

port Systems of the National Education Association

under the supervision of Gary D. Watts, Director;

4. the files of the Field Operations Department of

the Minnesota Education Association ;

5. the files of the Communications Support System of

the National Education Association;

6, the files of the Communications Department of the

Minnesota Kducation Association;

7. the files of the National Education Association

Political Action Committee ;

8, the files of the Independent Minnesota Political

Action Committee for Education; and

9. the Archives of the National Education Associa-

tion.

E. Furtner To Onper the aforesaid defendants to pro-

duce for deposition, before a Magistrate or other judicial

officer appointed by the Court, the following persons: viz.,

1, Gene Mammenga, Director, Minnesota Education

Association ;

2. Stanley J. McFarland, Director, National Educa-

tion Association;

3. Robert EX. Harman, Associate Director, National

Education Association ;

4. Kenneth Bresin, Assistant Director, Minnesota

Education Association; and

5. Gary D. Watts, Director, National Education Asso-

ciation. :

F. Furtuer To Onver the aforesaid defendants to pro-

duce for deposition the following persons: viz.,

1. A. M. (‘‘Barney’’) Palmer, Assistant Executive

Director, Minnesota Education Association ;

2. Vaughn Baker, Political Education Consultant,

National Education Association ;

3. Howard Carroll, Legislative Specialist, National

Education Association;

4. Kenneth Melley, Associate Director, National Edu-

cation Association;

5. Leon Felix, Governmental Relations Consultant,

National Education Association; and

6. such other person or persons as plaintiffs may

request this Court hereafter to order defendants to

produce for deposition, and the depositions of whom

this Court shall find are warranted under the circum-

stances obtaining at that time.

G. Furrurr To Onpver the aforesaid defendants, their

counsel, or both to pay plaintiffs the reasonable costs, in-

cluding attorneys’ fees, of the following activities: viz.,

1. the prosecution of this Motion;

2. all investigations made on behalf of plaintiffs in

the State of Minnesota with respect to the activities of

certain defendants and their staff-personnel in the 1978

elections in that State;

3. the depositions already had, and to be had, of the

individuals named in paragraphs E. and F., supra; and

4. the inspection of all files identified in paragraph

D., subparagraphs 1 through 4 and 6 through 8, supra,

and copying of all documents from those files that

plaintiffs may choose to copy.

G. Anp Frnatyy To Ornper such other and additional relief

as the circumstances of this case warrant.

/8/ “pwin Viera, Jr.

Edwin Vieira, Jr.

Attorney for Plaintiffs

12408 Greenhill Drive

Silver Spring, Maryland 20904

301-622-2804

/s/ Joun J. Fooarty

John J. Fogarty

Attorney for Plaintiffs

8316 Arlington Boulevard, Suite 600

Fairfax, Virginia 22038

703-573-7010

Dated December 30, 1978

APPENDIX D

MEMORANDUM OF POINTS AND AUTHORITIES IN

SUPPORT OF PLAINTIFFS’ MOTION TO RESCIND

THE COURT’S ORDER OF 13 OCTOBER 1978, AND

FOR AN ORDER COMMANDING THE PRODUCTION

OF CERTAIN FILES MAINTAINED BY, THE DEPO.

SITIONS OF CERTAIN STAFF-PERSONNEL OF, AND

THE PAYMENT OF CERTAIN COSTS AND FEES

BY DEFEND? ‘NTS NATIONAL EDUCATION ASSOCI-

ATION, MINNESOTA EDUCATION ASSOCIATION,

MINNESOTA COMMUNITY COLLEGE FACULTY AS-

SOCIATION, AND INDEPENDENT MINNESOTA PO.-

LITICAL ACTION COMMITTEE FOR EDUCATION *

Dated 17 January 1979

*N.B, All internal page-numbers and page-references in this

dooument have been conformed to the pagination used in these

Appendices.

IN THE

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF MINNESOTA

FOURTH DIVISION

No. 4-74 Civ. 659

Leon Kniont, et al., Zlainiif's,

Minnesota Community Couiece Facutty Association, et al.,

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUP-

PORT OF PLAINTIFFS’ MOTION TO RESCIND THE

COURT’S ORDER OF 13 OCTOBER 1978, AND FOR AN

ORDER COMMANDING THE PRODUCTION OF CERTAIN

FILES MAINTAINED BY, THE DEPOSITIONS OF CERTAIN

STAFF-PERSONNEL OF, AND THE PAYMENT OF CERTAIN

COSTS AND FEES BY DEFENDANTS NATIONAL EDUCA-

TION ASSOCIATION, MINNESOTA EDUCATION ASSOCIA-

TION, MINNESOTA COMMUNITY COLLEGE FACULTY AS-

SOCIATION, AND INDEPENDENT MINNESOTA POLITICAL

ACTION COMMITTEE FOR EDUCATION

Epwin Viera, JR.

12408 Greenhill Drive

Silver Spring, Maryland 20904

Joun J. Fooarty

8316 Arlington Boulevard

Fairfax, Virginia 22038

WiuuM FE. Muni

2200 Dain Tower

Minneapolis, Minnesota 55402

Of Counsel:

Raymonp J. LaJgunesse, Jr.

8316 Arlington Boulevard

Fairfax, Virginia 22038

TABLE OF CONTENTS

Page

RUPEE TEC Te ONT EP ee Tn Pe ee 43

SUMMARY OF THE ARGUMENT .........0...00.0eeeees 45

SOUS skh i000 k0c th ka ekni teers ake denen 46

I. Although plaintiffs’ theory of the case and pre-

vious litigation in the Supreme Court on related

issues

establish the propriety of and need for com-

prehensive discovery in this action, and although

plaintiffs have diligently pursued discovery since

Fall, 1976, nevertheless defendants have improp-

erly thwarted the development of a complete fac-

CRE SOU 00's vcivnse hc iksdséoddecinascicia.

A. Its

own admissions; scholarly analysis of its

organizational structure, activities, and essen-

tial nature; and coverage in the public media

all

attest that the United Teaching Profession

is a political organization, as plaintiffs allege ..

The United Teaching Profession has regu-

larly boasted of its political intentions and

QUOTE, |i ao. cack aetsicdacckkonnes

An expert in the field of organizational

analysis has testified that the United

Teaching Profession is an integrated organ-

ization substantially and essentially in-

volved in political activism ..............

The public media have reported on the deep

involvement of the United Teaching Pro-

DORA TE NOD: 555 sc ckcuakvaceneweecs

B. Previous decisions of the Supreme Court on

issues related to those plaintiffs raise in this

Table of Contents Continued

Page

case teach that, without a complete factual

record, neither this Court at trial, nor the

Supreme Court on appeal, can properly ad-

dress plaintiffs’ constitutional claims ........

This case will be the first to provide the

Supreme Court with an opportunity to set-

tle the fundamental First- and Fourteenth-

Amendment questions surrounding ‘‘ex-

clusive representation’’ in public employ-

TOTES vice cccscccccssccccocresscceceneses

The Supreme Court’s decisions in Hanson,

Street, and Abood all indicate the neces-

sity for a detailed factual record in this case

The several opinions of the Justices in

Abood imply that, given a factual record

establishing the essentially political char-

acter of the United Teaching Profession,

the Court will overwhelmingly support

plaintiffs’ theory of the case ..............

C. To the extent a complete factual record has

not been adduced in this case, defendants’

obstinant and improper conduct is to blame ...

II. Defendants denied substantial numbers of plain-

tiffs’ Requests to Admit either in bad faith or in

willful disregard of their duty to investigate the

factual basis for any denial; and they have made

no greater effort to reach sti>ilations with plain-

tiffs in regard to defendants’ po. itical activities ..

A. Defendants’ counsel, admittediy ignorant of

the basic structure and operations of the

United Teaching Profession, attested defend-

Table of Contents Continued iii

Page

ants’ denials of plaintiffs’ Requests to Admit;

and the facts expose a substantial number of

those denials as groundless .................. 84

1. Defendants relied upon counsel, admittedly

ignorant of the nature and extent of United-

Teaching-Profession activities, and not

upon knowledgeable officials or staff-per-

sonnel, to frame their denials of plaintiffs’

Oe Wr NE 6S SG n ei ks cv bge ves scies 85

2. A cursory examination of the record ex-

poses a substantial number of defendants’

denials of plaintiffs’ Requests to Admit as

incredible on their face .................. 88

B. Defendants have refused to stipulate to facts

concerning the United Teaching Profession’s

political activity that the record in this case,

and the public record, firmly establish ....... 137

III. Defendants have withheld substantial amounts of

relevant documents that plaintiffs requested they

SUCRE TEE TIE ies vc oketth sac cebecbines 143

A. Defendants have limited their production of

certain general files, and of the National Edu-

cation Association Archives, to what they saw

fit to produce, notwithstanding plaintiffs’ re-

quests and this Court’s Order ............... 145

B. Defendants have not consulted the deponents

whose files they purported to produce with re-

spect to the completeness of the materials made

available to plaintiffs for inspection . ....... 153

C. Defendants have produced only a small propor-

tion of the files of their staff-personnel that

plaintiffs requested they produce ............ 164

Table of Contents Continued

Page

D. Defendants have withheld certain specifically

identified, and an unknown number of other,

documents from production ................. 174

E. Defendants have destroyed, or are in the proc-

ess of destroying, documents that post-date

the filing of plaintiffs’ Complaint ............ 190

. Several of defendants’ staff-personnel have testi-

fied untruthfully or incompletely regarding the

United Teaching Profession’s involvement in cam-

paigns of candidates for election to public office .. 192

A. With regard to the 1976 Carter-Mondale cam-

paign, certain of defendants’ staff-personnel

have not told the whole truth about the United

Teaching Profession’s electoral plans, the ac-

tivities of its employees and members, and the

extent of their involvement .................. 193

1. Certain of defendants’ staff-personnel have

testified falsely or incompletely concerning

the exiztence and nature of plans for

United-Teaching-Profession involvement in

the 1976 Carter-Mondale campaign ....... 195

2. Certain of defendants’ staff-personnel have

testified falsely or incompletely concerning

contacts by United-Teaching-Profession

staff-personnel with the 1976 Carter-Mon-

dale campaign, the recruitment and deploy-

ment of United-Teaching-Profession mem-

bers as campaign-workers for Carter-Mon-

dale, and the United Teaching Profession’s

‘‘member-contact program’’ on behalf of

Carter-Mondale ......... Erte ry ee ty Tee 214

Table of Contenta Continued v

Page

3. Certain of defendants’ staff-personnel have

testified falsely or incompletely concerning

evaluations by the United Teaching Pro-

fension of the extent to which its members

were active in the 1976 Carter-Mondale

campaign, and the nature of their activity .. 237

Certain of defendants’ staff- personnel have not

told the whole truth about the employment of

United-Teaching-Profession governmental-re-

lations consultants and others as ‘election

pros’’ in candidates’ campaigns ............. 2AT

1. Although oven United-Teaching-Profession

publications characterized him as an ‘‘elec-

tion pro’, one United Teaching-Profession

governmental relations consultant deposed

by plaintiffs attompted to deny or obscure

his role in a 1976 campaign .............. 247

2. Kven after private detectives engaged by

plaintiffs discovered a United-Teaching-

Profession governmental-relations conault-

ant supervising a candidates’ telephone-

bank in the 1978 Minnesota primary elec

tions, defendants still attempted to deny or

obscure his role in the campaign .......... 259

Certain of defendants’ staff-personnel have not

told the whole truth about the extent of in-

volvement of United-Teaching-Profession mem-

bers in the campaigns of candidates for elec-

SUN Do. BUG. GED sic bie Wie vain ee csee bookie 297

Certain of defendants’ staff-personnel have

not told the whole truth about the Minnesota

Kducation Association’s 1340 Club/Committee,

Table of Contents Continued

Page

or about the role of UniServ Directors in ac-

tivities of the Independent Minnesota Political

Action Committee for Education ............ 313

V. Both precedent and the necessities of the case sup-

port the relief that plaintiffs request in their

MOGI cckecncceap | RR AARGORTA SLO OW ET Sea te eee 323

A. In Seay, misconduct similar to some of that in

which defendants have engaged here justified

an Order granting the aggrieved parties direct

access to the malfactors’ files ............-...

. Each of the elements of the relief that plain-

tiffs request in their Motion is necessary to the

expeditious development of a complete factual

PUDONG sac caceesccsccccccssccececcesvccecees

1, Plaintiffs’ unhindered access to certain com-

plete files of the United Teaching Profes-

sion is necessary to inform future deposi-

tions and attempts to reach stipulations or

to compel admissions ...............++55+

2. Judicially supervised depositions of certain

of defendants’ staff-personnal are neces-

sary because of those persons’ previous un-

truthful or incomplete testimony .........

3. Depositions of other of defendants’ staff-

personnel are necessary to complete the

record of political involvement on the part

of the United Teaching Profession, its offi-

cials, staff-personnel, and members .......

. Defendants’ misconduct entitles plaintiffs to

certain costs and fees plaintiffs have incurred

323

326

Table of Contents Continued vii

Page

or will incur in connexion with prosecuting

both this Motion and past and future discov-

GOP. cvcdecicddadeteosdecctéiusdeeunesecotuess 329

Conclusion

IN THE

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF MINNESOTA

FOURTH DIVISION

No. 4-74 Civ. 659

Leon Kniout, et al., Plaintiffs,

Vv.

Minnesota Community Co.titecr Facutty Ass'n, et al.,

Defendants.

INTRODUCTION

Because of material changes in the circumstances of this

case since the hearing of 13 October 1978, plaintiffs have

moved the Court to rescind its Order of that date, and to

enter a new Order commanding the production of certain

files maintained by, the depositions of certain staff-per-

sonnel of, and the payment of certain costs and fees by

defendants National Education Association (NEA), Min-

nesota Education Association (MEA), Minnesota Com-

munity College Faculty Association (MCCFA), and Inde-

pendent Minnesota Political Action Committee for Educa-

tion (IMPACE).'

Part I. of this Memorandum, infra pp. 46-83, explains

why the instant motion is important and timely to the

proper prosecution of this case at trial and on appeal.

Parts Il. through IV., infra pp. 83-323, describe various

activities of defendants and their staff-personnel, preju-

’ Plaintiffs’ Motion and the facts and arguments set forth in this

Memoranduin refer only to defendants NEA, MEA, MCCFA,

IMPACE, and their officials and staff-personnel named as defend-

anta in plaintiffs’ Amended Complaint. Neither the Motion nor this

Memorandum involves the defendant State Officials; and plaintiffs

seek no relief of any kind with respect to them.

dicial to plaintiffs, that necessitated this Motion. And Part

V., infra pp. 323-31, details the necessity for the relief that

Motion requests.

In summary, plaintiffs’ position is that: (i) Implicit in

the Court’s Order of 13 October 1978 was the presumption

that theretofore and thereafter defendants NEA, MEA,

MCCFA, and IMPACE had complied and would comply in

good faith with plaintiffs’ requests for discovery, in terms

of responding to plaintiffs’ Requests to Admit and agree-

ing to stipulations of undisputed facts, of producing for

inspection and copying documents and other physical evi-

dence in defendants’ possession, and of making available

witnesses who would testify truthfully and completely as

to defendants’ political and other activities. (ii) The record

shows, however, that defendants’ conduct has been incon-

sistent with the Court’s presumption of good faith on

their part. And therefore, (iii) plaintiffs are entitled to

an Order commanding such further discovery as shall com-

plete and clarify the record and obviate a protracted trial

of the factual issues raised in their Amended Complaint.

In the text that follows, plaintiffs have collected and

reproduced, for the convenience of this Court, pertinent

quotations drawn from the various depositions and docu-

ments upon which they rely. For this reason, the Memo-

randum is lengthy. But its length represents a significant

saving of time and energy for the Court, which otherwise

would have to turn, again and again, to the extensive rec-

ord in this case to track down one. or another bit of evi-

dence. This Memorandum also represents a substantial

condensation and systematization of the factual material

now available in the record, which will materially aid

any other Court that might have occasion to review the

issues raised herein.

In addition, plaintiffs have collected in any Appendix of

Documents copies of all record-references they cite in the

text, again for the Court’s convenience, There is also an

Appendix of Affidavits, containing sworn statements from

plaintiffs’ counsel and their assistants concerning various

phases of the discovery-process in this case.

SUMMARY OF ARGUMENT

The defendants named in plaintiffs’ Motion constitute a

political-action organization for all purposes of constitu-

tional law under the First and Fourteenth Amendments.

The decisions of the Supreme Court in Elrod v. Burns and

Abood v. Board of Education disqualify such an organiza-

tion from purporting to act, under color of state law, as

the ‘‘spokesman’”’ for plaintiffs or any other dissenting

public employees.*

That defendants do constitute a political-action organi-

zation, their own publications and statements, the opinion

of an expert in organizational analysis, and the public

media attest. Furthermore, plaintiffs have amassed con-

siderable evidence to support their allegations. Defend-

ants’ misconduct throughout the course of discovery, how-

ever, has thwarted the development of a complete factual

record detailing the full extent of their political involve-

ment, particularly with respect to the campaigns of candi-

dates for election to public office; impeded the proper ad-

judication of plaintiffs’ constitutional claims; and thereby

delayed entry of the judgment to which plaintiffs are en-

titled under Elrod and Abood, to their considerable cost.

Defendants’ misconduct has taken several forms. First,

they have denied substantial numbers of plaintiffs’ Re-

quests to Admit in bad faith or willful disregard of their

duty under Federal Rule 36 to investigate the factual basis

* Elrod v. Burns, 427 U.S. 347 (1976) ; Abood v. Board of Educ.,

431 U.S. 209 (1977). Defendants claim to act as the ‘‘exclusive

representative’’, or ‘‘spokesman’’, for plaintiffs under color of

Minn. Stat. §§ 179.61 et seq.

for any denial. And they have refused to stipulate to facts

that the record in this case, and the public record, estab-

lish.

Second, they have withheld substantial amounts of rele-

vant documents that plaintiffs requested they produce pur-

suant to Federal Ruies 34 and 45, and have provided

plaintiffs with neither notice nor legal excuse for such

withholding.

Third, several of defendants’ staff-personnel whom

plaintiffs deposed have testified falsely or incompletely

concerning the involvement of defendants, their affiliates,

officials, staff-personnel, and members in the campaigns of

candidates for election to public office in 1972, 1974, 1976,

and 1978. Moreover, investigation by private detectives has

disclosed that this untruthful testimony is part of a design

to conceal from plaintiffs and this Court defendants’ sub-

stantial political activities.

Defendants’ misconduct entitles plaintiffs to an Order

from this Court granting them direct access to certain of

defendants’ files, compelling the depositions of certain of

defendants’ staff-personnel, and awarding plaintiffs costs

and attorneys’ fees for all expenses incurred in exposing

and correcting defendants’ malfeasance in discovery.

ARGUMENT

I. Although Plaintiffs’ Theory of the Case and Previous Liti-

gation in the Supreme Court on Related Issues Establish the

Propriety of and Need for Comprehensive Discovery in This

Action, and Although Plaintiffs Have Diligently Pursued

Discovery Since Fall, 1976, Nevertheless Defendants Have

Improperly Thwarted the Development of a Complete Fac-

tual Record.

Plaintiffs’ fundamental theory is that defendants NEA,

MEA, MCCFA, and IMPA®H, together with certain affili-

ated organizations and structures such as the National

Education Association Political Action Committee (NEA-

PAC) and UniServ [1]*, constitute a single, integrated

organization that styles itself the United Teaching Pro-

fession (UTP) and engages in myriad activities through-

out the State of Minnesota and the United States generally.

Furthermore, the UTP has been and is involved to a sub-

stantial degree in various political activities at the local,

state, and national levels, including the campaigns of can-

didates for election to public office, lobbying ond other at-

tempts to influence governmental action, propaganda and

agitation, litigation, and coalitions with sundry political

organizations, groups, and movements.’ The UTP’s politi-

cal activities are not only substantial in degree, but also

essential, in the organization’s own view, to the success of

its goals, objectives, and programs.’ Because of its sub-

stantial and essential involvement in political activism,

the UTP constitutes a political-action organization indis-

tinguishable, for purposes of constitutional law under the

First and Fourteenth Amendments, from a traditional po-

litical party. And therefore, applying the Supreme Court’s

decision in Elrod v. Burns, the Minnesota Public Employ-

ment Labor Relations Act (PELRA) is unconstitutional as

applied, in so far as it requires plaintiffs, as a condition of

employment in the Minnesota Community Colleges, to ac-

cept the UTP or any unit or level thereof as their ‘‘spokes-

man’’ for any purposes—including the negotiation of terms

***UniServ’’ is a cooperative service arrangement among the

local, state, and national levels of the United Teaching Profession.

Document [1] in the Appendix of Documents describes its struc-

ture and character. NB: All numerical references in brackets—

[—] and [—, p. —-]--refer to documents, and pages therein, col-

lected in the Appendix of Documents.

*On the characterization of these activities as ‘‘political’’, see

Vieira, ‘‘Are Publie-Sector Unions Special Interest Political Par-

ties?’’, 27 DePaul L, Rev. 293, 323-44 (1978).

* On the definitions of ‘‘substantial’’ and ‘‘easential’’ used here-

in, see id. at 344-49.

and conditions of employment and adjustment of griev-

ances with the community-college Board or its agents.°

Since, as Parts, [.A. and I.C., infra pp. 49-68 and 80-83,

demonstrate, numerous sources support their factual alle-

gations, plaintiffs are entitled under the Federal Rules of

Civil Procedure to comprehensive discovery unburdened

by any attempts on defendants’ part to impede develop-

ment of, or to distort or confuse, the record.® In addition

as Part I.B., infra pp. 69-80, discusses, previous litigation

in the Supreme Court on issues related to those plaintiffs

raise here establishes plaintiffs’ entitlement to full disclo-

sure from defendants as a matter, not only of plaintiffs’

right, but also of sound administration of judicial re-

sources.

However, Parts II. through V., infra pp. 83-331, show

that plaintiffs, through no fault of their own, have not re-

ceived full disclosure from defendants. Rather, quite the

opposite is true. And if not remedied by an Order from

this Court, defendants’ activities will have two results:

First, they will prevent plaintiffs from presenting their

* Elrod held that government could not constitutionally require

non-policymaking public employees, as a condition of their employ-

ment, ‘‘to pledge their political allegiance to the Democratic Party,

work for the election of other candidates of the Democratic Party,

contribute a portion of their wages to the Party, or obtain the

sponsorship of a member of the Party’’. 427 U.S. 347, 355 (1976)

(opinion of Brennan, J.).

*The basic philosophy of the Federal Rules is that ‘‘prior to

trial every party to a civil action is entitled to the disclosure of all

relevant information in the possession of any person, unless the

information is privileged’. 8 Wright & Miller, Federal Practice

and Procedure: Civil § 2001, at 15.

"“*These Rules * * * set up a machinery by the operation of

which a cause reaches actual trial * * ® with a record already

complete * * *.’’ Teller v. Montgomery Ward & Co., 27 F. Supp.

938, 941 (E.D. Pa. 1939).

ee ee Po

constitutional claims in the context of a factual record that

documents with particularity the extensive political activ-

ism of the UTP. Second, they will materially impede the

progress of this litigation—forcing upon this Court a

lengthy and complex trial, or requiring the Supreme Court

on appeal to remand the case for further factual findings."

A. Irs Own Apmissions; Scuotarty ANALysis oF Its

OrGANIZATIONAL Structure, ACTIVITIES, AND EssENTIAL

Nature; anp CoveraGe In THE Pusiic Mepia Aut At-

rest THat THE Unitep Tgacuino Proression Is a

PouiticaL OrGANIZATION, AS PLaintiFFs ALLEGE.

Far from being based on ‘‘speculation’’, as defendants’

counsel have contended throughout the course of this liti-

gation, plaintiffs’ allegation that the UTP is a political-

action organization rests upon the firmest of foundations,

including numerous admissions of the UTP itself, scholarly

analysis of its activities and character, and reports in the

public media.

1. The United Teaching Profession has _ regularly

boasted of its political intentions and accomplish-

ments.

The literature of the UTP is replete with references to

its substantial and essential involvement in political ac-

tivism of all kinds. For the purposes of the instant motion,

however, plaintiffs need refer the Court only to repre-

sentative organizational statements describing its inten-

tions and accomplishments in the realm of partisan poli-

* Constitutional questions are almost never ripe for decision in

the absence of a detailed factual record. F.g., Shaffer v. Heitner,

433 U.S. 186, 220-22 (1977) (Brennan, J., concurring and dissent-

ing); Wheeler v. Barrera, 417 U.S. 402, 426-27 (1974) ; Socialist

Labor Party v. Gilligan, 406 U.S. 583, 586-87 (1972) ; Cowgill v.

California, 396 U.S. 371, 372 (1970) (Brennan and Harlan, JJ.,

concurring).

tics: that is, activities relating to the internal affairs of

political parties and to the campaigns of candidates for

election to public office.

During the period 1972 through 1978, the UTP regularly

published articles in its newspapers and newsletters that

document the extent and importance of partisan politics

in and to its goals, objectives, and programs.’ For exam-

ple, MEA literature reiterates the typical organizational

slogan: ‘‘Every educational decision is a political deci-

sion.’’ [3] By this, the UTP imports that political officials

or bodies, elected or appointed, make decisions that cru-

cially affect the achievement of its goals at the local, state,

and national levels—including school boards, state boards

of education, state legislatures, governors, the United

States Congress, the President of the United States, and

even the Supreme Court. [4] Moreover, implicit in such

slogans is the organization’s intention to maximize its influ-

ence over all branches of government from the local level

to Congress, the Presidency, and the Supreme Court. [5]

This intention is also a characteristic theme in statements

of UTP leaders.

In 1972, for instance, NEA President Catharine Barrett

used the UTP News Service to inform the organization

that

[pJolitical action is my top priority as NEA presi-

dent. I believe strongly that collective political action

by teachers and their education associations is the only

way to get adequate consideration for education on the

local, state and national levels. Only through effective

political action can we have an impact on the Con-

gress * * *. [6]

* For a detailed study of the publications of the NEA alone over

the time period 1969 to 1976, see C. T. Shotts, ‘‘The Origin and

Development of the National Education Association Political Action

Committee, 1969-1976’’, Ph. D. Dissertation, Indiana University

(1976). [2]

An MEA editorial boasted that, in the 1972 elections in Min-

nesota, ‘‘teachers were there’’.

Teachers were there in precinct caucuses, county,

state and national conventions.

Teachers were there at fund raisers, at coffee parties,

on telephones calling, walking door to door canvassing

and talking.

Teachers were there in 80 percent of all legislative

campaigns.

Teachers were there when 118 legislators requested

and received substantial, badly needed financial contri-

butions for their election campaigns.

Teachers were there doing many things that teachers

have never done before. This was a new breed who were

discovering in time the realities of political survival in

a profession in which the major decisions are political

decisions. [7]

And William Schneider, Chairman of the MEA Govern-

mental Relations Council (MEA-GRC), observed that

the political activities of individual teachers, local asso-

ciations, UniServ units, the GRC and IMPACE * * ®

really made the difference in the past election. We put

it all together-—we flexed our political muscle and it

made a difference. [8]

In 1973, NEA President Helen Wise remarked that

‘*[t}he thrill of leading the NEA’’ derived from knowing

that the teacher activist movement is under way in

varying degrees in every state in the nation, and know-

ing that the NEA is really in motion. When this gigan-

tic machine starts to move, nothing will stop it. [9]

She described with excitement

the tremendous ground swell of teacher activism that is

making NEA a potent force in the political arena.

Teachers everywhere are contributing their time, tal-

ents, and money to achieve the political clout we must

have to elect candidates ° * °*. [10]

And at the National Press Club in Washington, D.C., she

warned that

{t]hose who fail to hear us * * * will pay the political

price. ° * *

The two million members of the profession that de-

pends for its life on the actions of elected politicians

have awakened, like a slumbering giant, and have de-

creed that collectively they will take steps to —

what must be changed.

In 1972, organized teachers helped elect about one-

third of the House of Representatives, and more than

one-third of the 33 candidates elected to the Senate.

That was just for openers. Perhaps we never realized

we could be so influential. But now, we have won our

spurs, we are ready to undertake massive state-by-state

grass roots campaigns that will guarantee the victories

we need in the 1974 Congressional elections, not under

party banners, but under the banner of education ° ° °.

And, come 1976 we will put a friend of education in the

White House.

For teachers have realized * * * that they are part

of the most political of all professions—everything we

do, * * * all major decisions about our profession are

made by politically elected, lay people—school boards,

legislators and congressmen.

And although we know that we can (and will if neces-

sary) put teachers on the Capitol steps and in the halls

Ee -

of every state legislature until our voice is heard, we

also know that we cannot translate that voice into leg-

islation that recognizes education as the foremost hu-

man priority of America if we continue to elect men

and women who ignore that priority.

Two million school teachers are a political force to

be reckoned with. [11]

That same year, at the state level, MEA President William

Mondale echoed similar sentiments when he asked MEA

members to consider that the organization’s

political maturation process is projecting us more and

more as a true political force at all levels, from the

local school board through the state and national legis-

latures.

& e eo 6

[T]his level of increased political effectiveness must

not be a plateau upon which we rest. There is more per-

sonal political commitment needed to complement the

financial commitment many of us made in IMPACE.

The enrolling of MEA members in IMPACE is contin-

ually growing—even in a non-election year. And the

forecast is clearly more of the same.

The combination of the growing strength of IM-

PACE and the increasing personal commitment of

teachers to pro-education legislators * * * promise the ©

further escalation of MEA’s political effectiveness.

[12]

In 1974, before the general election, NEA President

James Harris declared that

[e]ducation is in the political arena, and I intend to

keep it there. Every politician in the country now knows

that teacher power is necessary for a successful cam-

paign. This will be even more true in the future.

* * * [SJome legislators have voted against every

education measure presented to them, The direction

ahead is clear: NEA-PAC-endorsed legislators on all

levels must hold a substantial majority before we can

withstand veto power and thus achieve a major break-

through in political action. Teachers in America have

an unprecedented opportunity to influence the upcom-

ing elections. [13]

Subsequent to the elections, Harris reported that ‘‘[t)he

education profession has proven in this election that it is a

first-rate power in the political arena’’; ‘‘we consider our

successes at the polls a mandate to put a friend of educa-

tion in the White House’’. [14] Harris also paid special

tribute to the tens of thousands of UTP members who were

politically active in candidates’ campaigns:

Our political operation, like that of no other organi-

zation, is a grassroots endeavor. We are part of every

community, every precinct, in the nation. [15]

Stanley McFarland, Director of the NEA Governmental

Relations Department (NEA-GRD), concurred in predict-

ing that

[s]ometime in this decade, the NEA is going to have

more political resources, including volunteers and other

campaign contributions, than any other single union—

even more than the AFL-CIO. We may even do it by

1976. [15]

NEA Executive Director Terry Herndon also expressed his

desire for ‘‘the meaningful involvement of teachers ° * ® in

the partisan political process that makes our government

go”. [16] MEA President Mondale bragged that ‘‘MEA

exhibits ever-growing program strength and exparding

power, including: * * * education’s most effective political

machine in history—as is evident in repeated observations

by politicians and reports in the news media’’. [17] And the

MCCFA reported that the IMPACE ‘‘has helped the MEA,

and its members become a power to be reckoned with in the

legislature’’. [18]

In 1975, NEA President Harris noted that

[tjeachers are now recognized as one of the most for-

midable forces in national politics. We are rivaling—

and in some cases even surpassing—in political influ-

ence other major national organizations which have

been in this business a lot longer than teachers have.

Political action and legislation are key factors in edu-

cational strategies on the local, state, and national

levels * * *. [19]

Declared NEA Executive Director Herndon at the National

Press Club, there is ‘‘an absolute need and responsibility to

exert maximum influence on the political system’’. [20]

‘*Our political success story in the 1974 elections’’, he told

UTP members,

must repeat itself in every election year if American

public education is to be properly funded and orga-

nized. One year’s victory will fade very rapidly into

history if teachers slacken efforts in this arena. Ade-

quate funding [through UTP members’ dues-monies],

especially as we approach our first Presidential en-

dorsement in 1976, is critical. [21]

“‘Teachers shouldn’t have to apologize for being active po-

litically” was also the message conveyed by MEA President

Don Hill. Added Hill, ‘‘[t]he MEA is active and organized

and really involved in the political process in Minnesota’’.

[22] ‘‘If my comments * * * seem to belabor the need for

our political involvement’’, MEA Executive Director A. L.

Gallop told the MEA convention,

it is only because I am convinced that much of the fu-

ture of our great profession will be determined initially

at the polling places and later in the legislative and

congressional halls, and ultimately in the Oval Office

in the White House.

While the MEA is criticized on the editorial pages for

being too powerful, and by politicians for throwing our

weight around, and by school board members for want-

ing to control education, and by parents for putting

personal concerns first, I can only say that they haven’t

seen anything yet. [23]

‘We teachers’’, said Gallop, ‘‘will continue to pack the pre-

cinct halls and the county, state, and national conventions

because of our belief in the importance of both education

and the political process’’. [24]

In 1976, NEA President John Ryor emphasized that ‘‘the

movement is underway; the teachers of this country are a

major political power in America’’. [25, p. 3] ‘‘Today”’,

Ryor told UTP members,

We have more than rhetoric, more than goals. We have

the tools to solve our problems—tools such as * * °

plans of political action * * *. With these tools—devel-

oped and polished through years of work and testing—

we have the opportunity to build our profession and

make it the strongest in the nation. We can ° ® ® elect

friends of education and un-elect foes of the schools

*** We can do these things, and our heritage tells us

that we must do them. [26]

UTP newsletters also reported that the organization’s

members

are clearly emerging this election year as one of the

most powerful forces in the nation’s political process.

Responding to the fact that education is controlled by

the decisions of elected officials at all levels, teachers

are working in record numbers to elect pro-education

candidates. NEA and state and local affiliates are co-

operating through shared staffing and other programs

to provide training and organizing assistance to the

growing army of teachers now permanently hooked on

the excitement of political involvement.

The new federal election law limits NEA contributions

to $5,000 per candidate. But what teachers can really

deliver to their favorites at all levels is not money

power, but people power.

Teachers—articulate, respected, persuasive individ-

uals, perfectly distributed in every town and hamlet in

America—make uniquely effective block captains,

phone bank organizers, get-out-the-vote workers, can-

vassers. Teachers who volunteer for these and the

many other nuts-and-bolts political chores that need to

be done provide their candidate with a service money

can’t buy. The success of teacher power in 1974, when

better than four out of five teacher-backed candidates

were elected to Congress, was not lost on this year’s

hopefuls, who are now actively wooing association sup-

port. [27]

Moreover, NEA President Ryor predicted,

[o]nce again NEA will be heard through its teacher

delegates [at the national political-party conventions].

And what the politicians will hear is that we fully in-

tend to accomplish our goals, with their help or without

it, with their votes or over their vetoes. It makes no

difference any more because in the long run we are

going to achieve those goals. (25, p. 3]

Later, following the 1976 general elections, the UTP re-

ported how its members

showed their political power * * * by helping to elect

the Carter-Mondale ticket and by working to send to

Congress more than four out of five teacher backed

candidates.

In the wake of the close Presidential vote, Carter

campaign director Hamilton Jordan stressed the im-

portance of NEA’s involvement. ‘‘The Carter cam-

paign is particularly grateful for the extensive nation-

wide support received from NEA and its affiliates,’’

Jordan said. ‘‘The massive support from teachers was

critical to our winning this very close election. All over

the nation, we turned to the NEA for assistance. We

asked for their help, and they delivered.’’ [28]

And in a press release, the UTP described how ‘‘winning

candidates laud teacher power in wake of election’’. [29]

MEA Executive Director Gallop also boasted that

the teaching profession set another all-time record both

in the number of dollars collected for political activity

and for its determination to play a significant role in

deciding not only who will occupy the Oval Office in the

White House but in the election of friends of education

at both the state and the Congressional levels. In short,

the teaching profession took a giant step toward achiev-

ing political maturity.

Today, through the MEA, teachers possess power

and influence far beyond any time in Minnesota’s his-

tory. In fact, we have a reputation for getting things

done; for being aggressive; for acting when others

falter * * *. [30]

Asked about the political role of the MEA and its image,

Director of the MEA Governmental Relations Department

(MEA-GRD) Gene Mammenga responded that the MEA

has

the reputation of being a powerful organization. We

have a reputation of being an organization that can

deliver money and bodies all over the state. tins tu

But if we are characterized as being powerful, we

better be powerful. If we are accused of having muscle

—and I think the general public believes we do—then

the muscle had better be there. It can’t be there unless

it’s present all over the state. And it’s got to be there

in the sense that each local teacher knows what’s going

on.

. ° . .

The problem is to maintain the momentum * * *, No

battles are ever won politically because the chances of

facing reversal are always present; our organization

has got to remain continually strong.

[1] f we’re not at those [political-party] caucuses, some-

body else will be there and control them. If we’re not at

the district conventions helping write the platform,

somebody else will be doing that. The fight has to go

on. [31]

‘There is no realistic alternative to remaining politically

powerful and politically vigilant’’, concluded Fulton Klin-

kerfues, Chairman of the MEA’s ‘‘political-action arm’’,

IMPACE:

We must begin to do a better job of learning how to

mold and influence political opinion in our local com-

munities.

We must continue to be active in party activities

from precinct caucus to National Convention; to influ-

ence not only who is nominated for political office but

what the party stands for. We must become more ac-

tive in helping good people get elected at campaign

time. The role of interested, informed spectator is sim-

ply not enough. Legislators need bodies to get jobs

done at election time and we have the educational man-

power to do the job.

Last, we must continue to be strong financially. IM-

PACE is a symbol of that financial strength.* ** [W]e

need to push IMPACE contributions harder than we

have ever pushed them before. [32]

In 1977, NEA President Ryor spoke of ‘‘a victory for

teacher power’, when he recalled that,

[dJuring the ’76 campaign, the media referred to the

‘‘fast-rising’’? NEA. They wrote of NEA’s ‘‘ push to get

pedagogues into partisan politics’’ and of our ‘*historic

leap into Presidential politics.’? They were correct in

asserting that ‘‘the powerful National Education Asso-

ciation * * * will make its voice heard.’’

The 1976 elections were in large part victories by

teachers for educational and public employees. The

critical role played by teachers in the Carter victory

can be seen in many states, for example, Pennsylvania,

Ohio, and Florida, to name three. That success was

generated by an organization that is unique in having

well-educated, articulate, and dedicated men and women

in every voting precinct of our far-flung nation. As we

proudly review the recent past, we must keep in mind

that it is only through the responsible use of our politi-

cal strength that we will achieve our long-range goals.

[33]

And NEA Executive Director Herndon told the UTP’s

convention that the response to ‘‘regressive court deci-

sions’’ and other political problems

must be to organize, mobilize, and act; to move forward

with confidence, tenacity, and zeal; to move into the

political arena and elect office-seekers who will be re-

sponsive to education.

NEA must organize and mobilize 2 million teachers to

carry the fight into every precinct, every political cam-

paign, every school board election, every legislative

session in the nation. This can be done only through the

organizations of the united teaching profession—deci-

sive and strong. There is no other way. [34]

Finally, in 1978, the NEA Special Committee on Finan-

cial Evaluation reminded UTP leaders that ‘‘NEA has

taken giant steps—successful ones—in the political arena

in recent years”. [35] An NEA advertisement quoted NEA

President Ryor as saying that

the political clout of NEA and its affiliates is being felt

all over the country, not only as an effective lobbying

group, but also as a pivotal influence in electing friends

of education to local, state, and national legislative

posts. [36] ;

And the UTP’s national-level newspaper once again re-

ported on the role of the organization’s members through-

out the nation in the campaigns of candidates for election

to public office. [37]

In short, in each year from 1972 through 1978, the UTP

itself has admitted to substantial involvement in political

activism at the local, state, and national levels across the

country. None the less, although the foregoing admissions

establish that plaintiffs’ factual allegations as to the politi-

cal character of the UTP are sound, they only begin to docu-

ment the pervasiveness of the organization’s involvement

in electoral politics over the years. And therefore they can-

not limit plaintiffs’ right to establish in full detail what the

UTP, its officials, staff-personnel, and members have done

to aid the campaigns of candidates in the 1972, 1974, 1976,

and 1978 elections. This is particularly true in light of re-

peated threats by defendants’ counsel to repudiate the or-

ganization’s publications and to demand that plaintiffs

prove at trial the factual basis of every statement appear-

ing therein.*°

2. An expert in organizational analysis has testified that

the United Teaching Profession is an integrated orga-

nization substantially and essentially involved in po-

litical activism.

The UTP’s publications and statements of its leaders are

not the only obvious support for plaintiffs’ theory of the

case. Scholarly opinion is in accord as well. Dr. Craig E.

Schneier, Assistant Professor of Organization Behavior

and Personnel Administration at the University of Mary-

land, has testified under oath, as an expert witness retained

by plaintiffs, that the UTP is essentially a political orga-

nization.

On the basis of his academic training, his experience as

a private consultant in the area of organizational behavior

deposition of MEA-GRD Director Gene Mammenga. [38] The

colloquy is between Mr. Goodwin, counsel for defendants, and

Messrs. Vieira and Mullin, counsel for plaintiffs :

Mr. Goopwimn: We have never represented that the Advo-

cate says in any way, shape or form exactly what is going on .

in the organization. I will state for the record that a lot of

it’s puffery tor purposes of the communication with the mem-

bership.

Mr. Viera: How do you know that, Counsel? Shall we

call you as a witness or perhaps make you a defendant with

respect to this case?

Mr. Goopwin: I just made the statement. If you want to

ask Mr. Mammenga that question, go ahead.

Mr. Mutiin: We hope you will use it as puffery for pur-

poses of trial.

Mr. Goopwin: I’m sure you do. I just wanted to indicate

on the record that we do not accept any bald assertion that

everything that’s put in here is absolute truth. So don’t be

surprised if that objection is raised at trial.

and analysis, his review of the scholarly literature of orga-

nizational science, and his perusal of numerous UTP docu-

ments supplied by plaintiffs, Dr. Schneier offered his ex-

pert opinion that: (i) The UTP is a formal, complex orga-

nization consisting of various “units” or “levels”, of which

the NEA constitutes the national level, and the MEA and

the MCCFA are representatives of numerous affiliates at

the state and local levels, respectively. (ii) The UTP has

differentiated itself into units operating at the local, state,

and national levels in order to deal effectively with various

jurisdictions of government, including iocal school boards,

state legislatures, and the United States Congress. (iii)

Although geographically differentiated, each unit of the

UTP is an integral element of a single, nationwide orga-

nization; from the perspective of organizational science,

NEA, MEA, MCCFA, NEA-PAC, IMPACE and UniServ

(the cooperative service arrangement among the local,

stete, and national levels) are not separate and independ-

ent entities, but interdependent parts of the same entity.

(iv) Political activism—in terms of partisan politics, lobby-

ing, propaganda and agitation, litigation, and coalitions

with other political groups—is pervasive throughout the

UTP, constituting (for example) a substantial proportion

of all activity within each of the goal areas and support

systems of the NEA.” And (v) from the organization’s own

point of view, political activism is essential to the achieve-

ment of the UTP’s goals, objectives, and programs. [40]

‘Nevertheless, although such expert opinion bolsters

plaintiffs’ contentions as to the political character of the

UTP, it cannot substitute for the complete documentation

to which plaintiffs are entitled. Indeed, plaintiffs should

have the opportunity to discover additional facts to sup-

port the expert’s opinion, rather than relying on that opin-

“The ‘‘goal areas’’ and ‘‘support systems’’ of the NEA are

the basic organizational sub-structures through which the national

level of the UTP carries out its activities. [39]

ion alone. This is particularly true in light of defendants’

denial of plaintiffs’ Request to Admit that the UTP has

been and is substantially and essentially involved in par-

tisan politics, lobbying, propaganda and agitation, litiga-

tion, and coalitions with other political organizations,

groups, and movements. [41]

3. The public media have reported on the deep involv-

ment of the United Teaching Profession in politics.

Plaintiffs’ theory of the case finds support not only in

admissions of the UTP and scholarly opinion as to its po-

litical character, but also in public notoriety surrounding

its extensive political activism.

For example, in 1975 nationally syndicated labor-colum-

nist Victor Reisel wrote (and the NEA and MEA quoted

with approval) that the UTP “has suddenly grown into a

fiercely aggressive, heavily integrated union”, and de-

scribed it as a “conflux of coming political power, giant

membership, intense organization”. [42] That same year,

the UTP’s national-level newspaper reprinted an article by

New York Times political columnist A. H. Raskin entitled

“Teachers Now Lions in Political Arena”. “Both privately

and in public statements’’, Raskin reported,

politicians tend to put high value on campaign support

by teachers. This is partly because of the intensity with

which local teacher groups throw themselves into such

campaign chores as doorbell ringing and telephone so-

licitation and partly because, as one Democratic Con-

gressman put it, “they lend class to a campaign.”

Both of the teacher organizations intend to step up

the political fund-raising activities on a year-round

basis, both insist they would not be hurt, if Federal and

state laws were changed to cut off all campaign spend-

ing by special-interest groups.

‘*Money is the least significant aspect of what we

do,” says Mr. Shanker [President of the American

Federation of Teachers]. * * * ‘‘Our real value is in

the people we put into campaigns. In New York State

alone we had over 4,000 volunteers in 1974.”

Terry Herndon, the NEA’s executive secretary, feels

much the same way. ‘‘I am something of a fundamental-

ist,’’ he says. ‘‘Our greatest resource is people. The

more the Government shuts down on money in cam-

paigns, the better shot we'll have at electing our candi-

dates.’’ [43]

Also in 1975, the Washington Star printed an interview

with NEA President Ryor, in which the following colloquy

appeared: *

Q: How about the entry of NEA ° ° ® directly into

politics—contributions, endorsing presidential candi-

dates, trying to get teacher delegates to party conven-

tions? What do you see as the end result of that?

A: I think it’s the beginning of real power among

teachers. I think it reflects their * * * understanding of

the fact that everything they do in their life is affected

by a political decision * * °.

A year earlier, MEA President Mondale, referring to an

article in the Minneapolis Tribune that had identified the

MEA as “a commanding force in precinct caucuses”, agreed

that the MEA “organized for the caucuses and we pro-

duced’’. [44] And in 1977, NEA President Ryor wrote of

media reports describing the organization’s “push to get

pedagogues into partisan politics’’ and its ‘‘historic leap

into Presidential politics’’—and concurred in their assertion

that “the powerful National Educational Association * * °

will make its voice heard’’. [33]

12‘“NEA President on the Role of the Teacher’’, Washington

Star, 24 Jul. 1975, at A-9.

** Apparently the UTP itself provides information for much of

this media coverage. [45]

In 1976, on National Public Radio’s “Options in Educa-

tion”, NEA Executive Director Herndon answered ques-

tions about the UTP’s political involvement:

[InTERvVIEWER]: You’re saying that the public is, in

fact, influenced by teachers endorsing a certain candi-

date.

Hernvon: I believe it. A substantial portion of the

public wil] be. More importantly than that, perhaps, is

that we have an organized group of very capable peo-

ple who are well educated in virtually every commuuity

in the United States. And that represents a formidable

group of campaign workers for any candidate. [46, p.

17]

Last year, on NBC Television’s “Meet the Press”, NEA

President Ryor explained how the UTP’s participation in

the 1978 elections would differ from its earlier electoral ac-

tivities. “It is going to be a different participation,” he said,

only because it is going to be larger. * * * We have

for some time been involved in the House and Senate

races.

We have something in the neighborhood of half of the

—435 seats up this fall and something in the neighbor-

hood of 50 of the Senate seats as well.

We are going to have teachers involved in every one

of those congressional districts and teacher leaders as

well, not only in terms of canvassing the parents of

students and the community leaders, but also in making

certain that the problems of the schools are placed in

front of those congressmen and those senators and that

we get specific responses * * *.

[InTERVIEWER]: Will you be actively working for

some congressional candidates and opposing others?

Mr. Ryor: We will, indeed. [47, p. 5]

Later in the same program, the questioning touched di-

rectly on the political character of the UTP:

[INTERVIEWER]: * * ® As teachers increasingly get

into politics as the NEA is doing, * * * what is to pre-

vent citizens, taxpayers, parents from beginning to

view teachers differently, not so much as educators,

but as people constituting another pressure group out

to use power for their own interests, and a pressure

group that possibly might have to be resisted by poli-

ticians and the voters?

Mr. Ryor: There is nothing to prevent that, and in

all likelihood it will be that teachers are viewed differ-

ently once they become active in politics * * *. But that

is the nature of the political involvement aspect of

our program as well. It is risk * * * a risk I believe

teachers are willing to take. [47, p. 9])

Most recently, the November 1978 edition of Readers

Digest carried a lead story on “The NEA: A Washington

Lobby Run Rampant”. [48] “The drive for power, nation-

wide, by this huge and aggressive teachers union”, the

article summarizes, “provides a classic study of how spe-

cial-interest politics can overwhelm the public interest.”

Based upon a thorough study of the UTP," the article re-

counts how

[a] succession of NEA presidents have proclaimed its

aims:

“We are the biggest potential political striking

force in this country,” said Catharine Barrett in

% An internal NEA memorandum describes the author of the

article, E. H. Methvin, as ‘‘a persistent, sharp reporter * * ® hard-

hitting, big on the debate platform as well as in his ‘exposes’ ’’—

and notes that The Reader’s Digest research department asked

‘‘detailed questions about the organization of NEA, its UniServ

program’’, and other matters. [49]

1972. ‘*And we are determined to control the direc-

tion of education.’’

“We must reorder congressional priorities by

reordering Congress,” Helen Wise told NEA po-

litical fundraisers in 1974. “We must defeat those

who oppose our goals.”

Promised current NEA President, John Royer,

“We will become the foremost political power in

the nation.”

The article also succinctly describes how the UTP inter-

venes in the campaigns of candidates for election to public

office.

Since 1972, NEA professionals have run an esti-

mated 30,000 teachers through “political-action work-

shops” * * *. The union offers political candidates

privileged access to these trained battalions. In every

state, the NEA has set up political-action committees

(PACs). At election time, screening committees quiz

candidates, and once PAC endorses a candidate, its

chairman uses the NEA “talent-inventory” files to pro-

vide campaign managers with volunteers for every

imaginable task, from stuffing envelopes and manning

telephone banks to chauffeuring voters to the polls.

‘‘We can elect friends of education and un-elect foes,’’

boasts Ryor.

And the article identifies the UTP’s “ultimate goal” in the

blunt language of Executive Director Herndon:

To tap the legal, political and economic powers of the

U. S. Congress. We want leaders and staff with suffi-

cient clout that they may roam the halls of Congress

and collect votes to re-order the priorities of the United

States of America.

Material such as this from leading newspapers, maga-

zines, and the electronic media is sufficiently notorious to

qualify for judicial notice. But again, the Court should not

require plaintiffs to predicate their factual case upon re-

ports in the public press, particularly in light of defend-

ants’ denial of plaintiffs’ Request to Admit the mere ex-

istence of substantial press-coverage recognizing the UTP

as a powerful force in electoral politics throughout the na-

tion. [50]

B. Previous Decisions or THE Supreme Court on Issues

Rexatep to THose Puiaintirrs Raise 1x Tus Cases

Teacu Tuat, Wirnout a Compiete Factruau Recorp,

NerrHer Txis Court at TriaAL, Nok THE SUPREME

Court on APPEAL, CAN Property Appress PLaIntiFFs’

CONSTITUTIONAL CLAIMS.

The need in this case to develop a factual record that

documents with particularity the political activities of the

UTP is not a matter of plaintiffs’ desire alone—but, in ad-

dition, the course of action a series of Supreme-Court de-

cisions on related issues unequivocally mandates. More-

over, the most recent of those decisions, Abood v. Board of

Education," indicates that, given the complete record plain-

tiffs seek, the Court will sustain their constitutional argu-

ments and hold the Minnesota PELRA unconstitutional as

applied. .

1. This case will be the first to provide the Supreme

Court with an opportunity to settle the fundamental

First- and Fourteenth-Amendment questions sur-

rounding “exclusive representation” in public em-

ployment.

The Supreme Court has addressed the constitutionality

of “exclusive representation” (majority-rule) in labor re-

lations only in Carter v. Carter Coal Co."* There, the Court

** 431 U.S, 209 (1977).

** 298 U.S. 238 (1936).

held that the majority-rule provision of the Bituminous

Coal Conservation Act violated the Due Process Clause of

the Fifth Amendment. The effect of the provision with re-

spect to wages and hours, the Court held,

is to subject the dissentient minority * * °* to the will

of the stated majority * * *.

The power conferred upon the majority is, in effect,

the power to regulate the affairs of an unwilling mi-

nority. This is legislative delegation in its most ob-

noxious form; for it is not even delegation to an official

or an official body, presumptively disinterested, but to

private persons whose interests may be and often are

adverse to the interests of others in the same business.

* * * [I]n the very nature of things, one person may

not be entrusted with the power to regulate the busi-

ness of another, and especially of a competitor. And a

statute which attempts to confer such power under-

takes an intolerable and unconstitutional interference

with personal liberty and private property.”

The majority-rule provision, added Chief Justice Hughes,

concurring,

permits a group of * * * employees, according to their

own views of expediency, to make rules as to hours

and wages for other * * * employees who were not par-

ties to the agreement. Such a provision, apart from the

mere question of the delegation of legislative power,

is not in accord with the requirements of due process

cme".

Immediately thereafter, when the constitutionality of the

National Labor Relations Act was first in issue, the Labor

Board selected its test cases so as “intentionally [to]

Td. at 311.

* Td. at 318.

avoi[d] presenting the Court with the ‘touchy’ and * * *

doubtful questio[n]” of the constitutionality of majority-

rule.” Thus, when in Jones dé Laughlin a private employer

challenged the act on various constitutional theories, the

Court avoided the issue of exclusive representation by

construing the statute as “not prevent[ing] the employer

‘from refusing to make a collective contract and hiring in-

dividuals on whatever terms’ the employer ‘may by unilat-

eral action determine’ ’’.”® Similarly, in a contemporane-

ous challenge to the constitutionality of the Railway Labor

Act in Virginian Railway, the Court held that exclusive

representation under that statute did not preclude individ-

ual contracts between the employer and dissenting em-

ployees.” And, at about the same time, the Steele decision

also failed to pass on the constitutionality of majority-rule.

For there, the Court created the duty of fair representa-

tion, precisely to avoid serious constitutional questions of

due process and equal protection surrounding exclusivity.”

* 1 J. Gross, The Making of the National Labor Relations Board

187 (1974).

7° NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45 (1937)

(footnote omitted).

™ Virginian Ry. v. System Fed’n No. 40, 300 U.S, 515, 548-49

(1937). Only seven years later, in two cases raising issues of statu-

tory construction alone, did the Court re-interpret the National

Labor Relations and Railway Labor Acts so as to preclude indi-

vidual contracts in most instances. J. I. Case Co. v. NLRB, 321

U.S. 332, 334-39 (1944) (National Labor Relations Act); Order

of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S.

342, 346-47 (1944) (Railway Labor Act), Neither of these decisions,

however, reconsidered the constitutional questions raised in Jones

& Laughlin or Virginian Ry., although the statutory constructions

adopted in the latter cases formed the necessary predicates for

their constitutional holdings. See Comment, ‘‘The Mechanics of

Collective Bargaining’, 53 Harv. L. Rev. 754, 789-91 (1940).

* Steele v. Louisville & N.R.R., 323 U.S. 192, 198 (1944).

Subsequent to Steele, no other case arose that implicated

the unconstitutionality of exclusive representation until

Madison School District, which recently declared that the

device could not pre-empt the First-Amendment privilege

of a dissenting public-school teacher to address his em-

ployer at a public meeting on a matter then the subject of

collective bargaining between the teacher’s exclusive repre-

sentative and employer.” Certainly the question did not

arise—and could not legally have arisen—in Abood.™ In

that case, no challenge to exclusive representation appeared

in the complaint.” Neither did the lower court purport to

rule on the issue.” Nor did any of the parties present such

a question to the Supreme Court.” Indeed, the parties ex-

plicitly reserved argument on the constitutional merits of

majority-rule, recognizing that their “appeal * * * [did] not

raise the question”.“ Moreover, the Abood plurality opin-

™ City of Madison, Joint School Dist. No. 8 v. Wisconsin Em-

ployment Relations Comm'n, 429 U.S. 167 (1976), discussed in

Vieira, ‘‘ Exclusive Representation versus Freedom of Petition for

Nonunion Public Employees—A Study in Irreconcilable Constitu-

tional Conflict’’, 1977 Detroit College of Law Review 499, 560-99.

Plaintiffs rely strongly on Madison School District in support of

their contention that the ‘‘meet-and-confer’’ provisions of the

Minnesota PELRA are unconstitutional on their face and as ap-

_ Minn. Stat. §§ 179.63, subd. 16; 179.65, subd. 1; 179.66,

subd. 7.

* E.g., Bradstreet v. Potter, 41 U.S. (16 Pet.) 317 (1842) (Court

will not render opinion on ‘‘ulterior points’’ in case, although

parties desire it, where points not properly raised).

* Appendix to Brief for Appellants at 6-15, 39-52.

** Id. at 94-104.

™ Jurisdictional Statement at 6; Brief for Appellants at 4; Brief

for Appellees at x.

* Brief for Appellants at 148. To like effect are the following

disclaimers: ‘‘We must and shall refrain from addressing the

merits of [the exclusivity] issue, secure in the knowledge that they

will wend their tortuous way to this Court, sooner or later.’’ Jd.

ion itself defined the question for decision as the limited

one of “whether an agency shop provision in a collective-

bargaining agreement covering government employees is,

as such, constitutionally valid”.* And the record contained

no facts with respect to exclusive representation (or any-

thing else), which prompted the plurality to reiterate that

“[{a]ll we decide is that the general allegations in the com-

plaint, if proven, establish a cause of action under the First

and Fourteenth Amendments” with respect to the agency

shop.”

In sum, this case will likely be the first to provide the

Supreme Court with an opportunity to decide whether,

consistently with the First and Fourteenth Amendments, a

State may require public-school teachers, as a condition of

employment, to accept what the record proves is a political-

action organization as their “spokesman” for purposes of

negotiating the terms and conditions of their own employ-

ment. That is, the instant case will be the first to present

this highly important issue if this Court permits plaintiffs

to construct the detailed factual record necessary for

proper adjudication of the constitutional questions they

raise in their Amended Complaint.

“‘We repeat: Cur concern here is not to attack the principle of

exclusive repres:ntation as such.’’ Jd. at 149, ‘‘[T]he states are

free to adopt the federal mode of majority rule and exclusive repre-

sentation (which appellants do not challenge) * * *.’’ Brief for

Appellees at 34. ‘‘In our main brief, we recognized that the

exclusive-representation device is not immediately in issue in this

appeal.’’ Reply Brief for Appellants at 39.

* 431 U.S. at 217 (opinion of Stewart, J.). As the Eighth Circuit

has ruled here, the issue of exclusive representation is constitu-

tionally distinet from that of the agency shop. Knight v. Alsop,

535 F.2d 466, 470-71 (8th Cir, 1976).

* 431 U.S. at 237.

2. The Supreme Court’s decisions in Hanson, Street, and

Abood all indicate the necessity for a detailed factual

record in this case.

That the development of a full factual record is the sine

qua non to proper adjudication of the constitutional issues

raised here is the lesson of over twenty years of litigation

on related issues.

In Hanson, dissenting employees challenged a provision

of the Railway Labor Act authorizing compulsory union-

membership agreements, on the grounds that such agree-

ments violated the First Amendment. “Wide-ranged prob-

lems”, noted Justice Douglas for the Court,

are tendered under the First Amendment. It is argued

that the union shop agreement forces men into ideo-

logical and political associations which violate their

right to freedom of conscience, freedom of association,

and freedom of thought protected by the Bill of Rights.

It is argued that compulsory membership will be used

to impair freedom of expression. But that problem is

not presented by this record.”

Later, in Street, the Court used the technique of statutory

construction to avoid another First-Amendment challenge

to the same section of the Railway Labor Act. Dissenting,

Justice Black predicted that

[t]he constitutional question raised * * * in this case

meticulously perfect that the Court cannot escape de-

ciding it.”

* Railway Employes’ Dep’t v. Hanson, 351 U.S. 225, 236, 238

(1956) (footnote omitted).

** International Ass’n of Machinists v. Street, 367 U.S. 740, 785

(1967). One of plaintiffs’ goals is to fulfill Justice Black’s prophesy.

And most recently, in Abood, a case involving the consti-

tutionality of a compulsory-unionism provision in the

Michigan Public Employment Relations Act, the Court

heard the appeal with “no evidentiary record of any kind.’™

In Abood as in Hanson, with respect to the most im-

portant constitutional issues there were no facts as to what

collective bargaining through exclusive representation en-

tails; no facts as to how an exclusive representative ex-

pends its financial income; and no facts as to the nature

or character of the exclusive representative as an organiza-

tion, its institutional purposes, or its substantial or essen-

tial activities. Of particular interest in this regard is Jus-

tice Stevens’ comment that

(oJur knowledge of the facts is limited to a bald asser-

tion that the Union engages “in a number and variety

of activities which are economic, political, professional,

scientific and religious in nature of which Plaintiffs

do not approve.”’ * * * What, if anything, will be proved

at trial is a matter for conjecture.”

Justice Stevens’ concern for what “will be proved at

trial” is a matter, not only of interest, but also of crucial

practical importance. For, no less than twenty years

after Hanson and ten years after Street, the basic questions

those opinions failed to settle remain the subjects of pro-

tracted and expensive litigation in a United States District

Court.” And, almost two years after Abood decided that

dissenting employees have a First-and Fourteenth-Amend-

ment privilege to refrain from supporting the political ac-

* Abood v. Board of Edue., 431 U.S. 209, 236-37 (1977) (opinion

of Stewart, J.).

** Id. at 244 n. (separate opinion).

** Ellis/Fails v. Railway Clerks, 91 L.R.R.M. 2339 (S.D. Cal.

1976), modified, 93 L.R.R.M. 2976 (S.D. Cal. 1976).

tivism of an exclusive representative, the case continues,

on remand, in the state courts of Michigan.”

The history of these cases teaches the improvidence, on

the part of both litigants and trial courts, of not develop-

ing complete factual records before requesting relief and

rendering decisions that lead to review by the Supreme

Court. No lesson could be more important here, because of

the nature of plaintiffs’ constitutional claims, and the

proofs that plaintiffs have already adduced in support of

those claims. For plaintiffs have raised and documented the

very First-Amendment issue that Abood indicates the Su-

preme Court will sustain by an overwhelming majority.

3. The several opinions of the Justices in Abood imply

that, given a factual record establishing the essen-

tially political character of the United Teaching Pro-

fession, the Court will overwhelmingly support plain-

tiffs’ theory of the case.

The several opinions in Abood all show that, if the Su-

preme Court had before it a record documenting the asser-

tion that a union or other group acting as the exclusive

representative of dissenting public-school teachers is a

political-action organization, the Court would hold that the

statute authorizing the organization to act as such a repre-

sentative is unconstitutional as applied under Elrod v.

Burns."

In their opinion, Justices Stewart, White, Brennan, and

Marshall drew an implied distinction between an organiza-

tion ecting as an exclusive representative and a political

party. Indeed, had they not drawn such a distinction, it

would have been inconsistent for them to hold, on the one

** See the report of the related case, Ball v. City of Detroit, 84

Mich, App. 383 (1978).

37 427 U.S. 347 (1976).

hand, that dissenting public-school teachers may constitu-

tionally be required as a condition of employment to finance

the “collective-bargaining” activities of such a representa-

tive, and, on the other hand, to re-affirm the decision in

Kirod that dissenting public employees may not constitu-

tionally be required as a condition of employment

to pledge their political allegiance to [a political

party], work for the election of other candidates of [a

political party], contribute a portion of their wages to

[a political party], or obtain the sponsorship of a

member of [a political party].™

In Abood, this abstract distinction between an exclusive

representative and a political party was arguably sound,

for two reasons. First, there was no factual record that

established substantial or essential involvement in political

activism on the part of the defendant employee-organiza-

tion. Second, one can imagine an organization of public-

school teachers—such as a traditional faculty senate—that

engages in no political activity (other than public-sector

collective bargaining itself), and that therefore could not

be likened in any realistic sense to a political party or po-

litical-action organization.” However, where (as here)

plaintiffs did present a record proving that a defendant ex-

clusive representative was not a politically neutral faculty

** Elrod, 427 U.S. at 355. Justice Stewart referred to Elrod as a

leading freedom-of-assoriation case under the First Amendment,

and explicitly re-affirmed its holding quoted in the text. Abood,

431 U.S. at 233-24. |

*° Whether a traditional faculty senate might be disqualified from

acting as an exclusive representative on grounds other than its

political activism is not an issue in this case. Indeed, plaintiffs have

never challenged the privilege of the Community College Board or

its agents to recognize a true faculty senate as the representative

of all the teachers in the system. Plaintiffs’ complaint is that the

UTP is, for all purposes of constitutional law, essentially a special-

interest political party, or political pressure-group, not an organi-

zation akin to a faculty senate.

senate, but instead a militant, state-and nation-wide politi-

cal-action organization, the distinction adopted by Justice

Stewart and his brethren would be inapplicable. And, in

such a conte.:t, the rule of Elrod would disqualify such an

organization from purporting to act as the “spokesman” of

dissenting teachers just as Elrod disqualified a traditional

political party from demanding that dissenting public em-

ployees obtain its “sponsorship” as a condition of their em-

ployment. Therefore, if plaintiffs present the Supreme

Court with facts establishing the political character of the

UTP, at least four Justices—Stewart, White, Brennan, and

Marshall—will likely rule the Minnesota PELRA unconsti-

tutional as applied.

On the basis of their opinion in Abood, moreover, Jus-

tices Powell and Blackmun, and Chief Justice Burger, will

also concur. In his opinion for the three, Justice Powell

asked ‘‘whether a union in the public sector is * * * dis-

tinguishable from a political candidate or committee’’, and

answered that, in his view, no principled distinction exists.

The ultimate objective of a union in the public sector,

like that of a political party, is to influence public deci-

sionmaking in accordance with the views and perceived

interests of its membership. * * * [The] objective [of a

teachers’ union] is to bring school board policy and

decisions into harmony with its own views * * * to ob-

tain favorable decisions—and to place persons in posi-

tions of power who will be receptive to the union’s

‘ viewpoint. In these respects, the public sector union is

indistinguishable from the traditional political party

in this country.”

Justice Powell’s judicial notice of the political character of

public-sector unions in general may be an exaggeration—

although judicially noticeable reports in the public press

and media might be sufficient to hold that the UTP, as a

4° 431 U.S. at 256-57 (footnote omitted).

specific case, is indistinguishable from a traditional political

party. In any event, whatever the merits of Justice Powell’s

general observation, he, Justice Blackmun, and Chief Jus-

tice Burger will evidently sustain plaintiffs’ constitutional

claims if presented with a factual record specifically docu-

menting the essentially political nature of the UTP. There-

fore, given such a record, at least seven J ustices—Stewart,

White, Brennan, Marshall, Powell, Blackmun, and Burger

—will likely rule the Minnesota PELRA unconstitutional

as applied.

Justice Stevens will concur in this result as well, since he

expressed concern in Abood that any remedy fashioned in

that case should avoid imposing political conformity on dis-

senting employees ‘‘even temporarily’’.*? And requiring a

dissenting public-school teacher to accept what amounts to

a political party as his ‘‘spokesman’”’ for the purpose of

negotiating long-term employment agreements binding on

him is hardly a ‘‘temporary’’ violation of his First- and

. Fourteenth-Amendment rights. Therefore, at least eight

Justices will rule for plaintiffs, given an adequate factual

record. %

Which leaves only Justice Rehnquist. In Abood, of course,

he agreed with Justice Powell that no principled distinction

exists between an exclusive representative and a traditional

political party; but he refused to follow the holding of

Elrod that a State may not condition public employment

upon ‘‘sponsorship’’ by such a party.” Presuming, how-

ever, that Justice Rehnquist can be persuaded of the bind-

ing nature of precedent, he may yet support plaintiffs’

constitutional arguments.** In any event, he is a lone dis-

senter.

“Id. at 244 (separate opinion).

*? Id. at 242-44 (separate opinion).

“ E.g., Hudgens v. NLRB, 424 U.S. 507, 518 (1976) (‘‘institu-

tional duty [of each Justice] is to follow until changed the law as

it now is, not as some Members of the Court might wish it to be’’).

Abood, then, provides a compelling reason for enabling

plaintiffs to adduce the most complete and carefully docu-

mented factual record of which they are capable: namely,

that with such a record in hand, their victory in this litiga-

tion is assured. Indeed, this Court need only consider the

contrary proposition to realize the overwhelming force of

plaintiffs’ argument. If a traditional political party be-

lieved that exclusive representation of public employees

was an expedient means to promote its fortunes; and if it

then established ‘‘collective-bargaining’’ units or divisions

for the purpose of forcing itself as ‘‘spokesman’’ on dis-

senting employees as a condition of the latters’ employ-

ment; and if those employees then asserted Elrod as a con-

stitutional bar to compulsory sponsorship”’ by the party—

if all this were the case, could anyone expect the Supreme

Court to rule that, notwithstanding Elrod and the First and

Fourteenth Amendments, the party might constitutionally

impose itself upon dissenters anyway, for any reason? The

question answers itself.

C. To tHe Extent a Compuetre Factuaut Recorp Has NOT

Been Appucep 1n Tus Case, Derenpants’ OssTINANT

AND Improper Conpuct Is To BLame.

The diligence with which plaintiffs have pursued discov-

ery in this case reflects their confidence in its ultimate out-

come. Since Fall, 1976, plaintiffs have amassed facts show-

ing that, just as does a traditional political party, the UTP

(i) endorses candidates for election to public office at the

local, state, and national levels; (ii) solicits and collects

monies for contribution to the campaigns of such candi-

dates, to political parties, and to other political organiza-

ions, movements, and causes; (iii) attempts to maximize its

influence at party conventions, and on party governing

bodies, with respect to party rules, platforms, and nomi-

nees; and (iv) encourages, solicits, enlists, mobilizes, or-

ganizes, trains, supervises, and assists UTP officials, staff-

personnel, and members to participate in the campaigns of

candidates for election to public office throughout the coun-

try. These facts, however, make up only a part of the record

that plaintiffs are entitled to and can adduce.

To be sure, discovery has proceeded in this case for some

months—not, however, because of plaintiffs’ lethargy, but

rather because of their willingness to accede to numerous

requests for extensions of time in which to answer inter-

rogatories or requests to admit, to produce documents, or

to make witnesses available for depositions. [A-1] “* And

if, at this point, the record is not yet sufficiently detailed to

permit this Court’s consideration of the constitutional is-

sues the parties raise, it is not through plaintiffs’ laxity,

but rather because defendants throughout the course of dis-

covery have interposed one improper obstacle after another

to the development of a complete record.

As detailed in Part IL., infra pp. 83-143, defendants have

refused to respond in good faith to plaintiffs’ Requests to

Admit or to accept various stipulations of fact plaintiffs

have proposed. As described in Part III., infra pp. 143-92,

defendants have withheld from production numerous docu-

ments plaintiffs have requested, without even indicating

what these documents contain or the reason for—indeed,

even the fact of—their non-production. And as developed in

Part IV., infra pp. 192-323, the testimony of several of de-

fendants’ staff-personnel whom plaintiffs have called as wit-

nesses has been neither candid nor complete. In addition,

because of defendants’ continual refusal to acknowledge

that UTP staff-personnel do participate on a regular basis

in activities related to the campaigns of candidates for elec-

tion to public office (such as get-out-the-vote drives, tele-

phone-banks, and so on), plaintiffs have incurred extraordi-

nary expenses in hiring private detectives for the purpose

of tracking down and uncovering those very UTP staff-

“The designations [A-1], [A-2],..., [A-n] refer to Affidavits

prepared in support of this Motion that appear in the Appendix

of Affidavits,

personnel performing precisely the campaign-activities in

which plaintiffs have consistently asserted, and defendants

have consistently denied, they regularly engage.”

Unfortunately for both plaintiffs and the Court, a com-

plete dossier of defendants’ misconduct became available

only with and subsequent to the most recent series of depo-

sitions—that is, after the hearing of 13 October 1978 at

which the Court ordered that plaintiffs complete discovery

herein by 31 December 1978. At that time, plaintiffs were

prepared to bring to the Court’s attention, if absolutely

necessary, various instances of defendants’ malfeasance in

discovery. rlowever, plaintiffs were also aware that deposi-

tions of some of the UTP’s most important staff-personnel

at the national level were scheduled or anticipated, and

that, concomitant with these depositions, further document-

production might also be forthcoming. Plaintiffs chose,

therefore, to postpone any revelations to this Court, in the

hope that defendants might at last cooperate in the devel-

opment of the record in this case.“ That hope, however, the

events of the last three months have shattered.

Under normal circumstances, further discovery by plain-

tiffs would be within the Court’s discretion.’ Under the

circumstances of this case, however, involving proven

abuses by defendants that seriously prejudice plaintiffs’

rights, the interests of justice compel the exercise of that

discretion in their favor.“ Moreover, this Memorandum

documents the complexity of the factual issues in this case,

** Part IV.B.2., infra pp. 259-97.

“* Therefore, the instant Motion is unquestionably timely. Riley

v. United Air Lines, Inc., 32 F.R.D. 230, 232-33 (S.D.N.Y. 1962) ;

In re Wheat Farmers Antitrust Class Action, 440 F. Supp. 1022,

1025 n.1 (D.D.C. 1977).

* E.g., Fowler v. Wirtz, 34 F.R.D, 20, 23-24 (S.D. Fla. 1963).

“*Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 144-45 (8th

Cir. 1968).

and the substantial amount of probing that will be required

to ferret out the truth. This Court may—indeed, should—

supervise and police its docket to assure that cases are

promptly and properly tried. And a set rule limiting the

extent of pre-trial discuvery may be appropriate for routine

cases. But no rule can properly require that completeness

in exposure of the issues be sacrificed to speed in reaching

a result, perhaps erroneous, in the ultimate trial on the

merits; and no inflexible rule can deal properly with excep-

tional cases. Unnecessary and unreasonable delay should

be avoided; but adequate time must also be provided for

discovery, according to the nature of the particular cir-

cumstances. Here, what was a reasonable time-allowance on

13 October 1978, according to the presumptions the Court

then entertained, is no longer so. The very discovery the

Court permitted in its Order of that date has disclosed as

much. And therefore, this Court should reappraise the

whole situation in light of the facts that plaintiffs disclose

in this Memorandum.”

II. Defendants Denied Substantial Numbers of Plaintiffs’ Re-

quests to Admit Either in Bad Faith or in Willful Disregard

of Their Duty to Investigate the Factual Basis for Any

Denial; and They Have Made No Greater Effort to Reach

Stipulations With Plaintiffs in Regard to Defendants’ Po-

litical Activities.

At the hearing of 13 October 1978, this Court repeatedly

enjoined the parties to work towards a stipulation of un-

disputed facts in this case. Both before and after that

hearing, plaintiffs have expended significant effort to pro-

vide a set of such facts, through both requests to admit and

suggested stipulations presented to defendants. Plaintiffs’

efforts, however, have failed—because of defendants’ bad

faith.

* Freehill v. Honorable Oren R. Lewis, 355 F.2d 46, 48-49 (4th

Cir. 1966).

A. Derenpants’ Counset, ApmiTTepDLy IGNORANT OF THE

Basic Srructure aNnp OPERATIONS OF THE UNITED

Teacuinec Proression, Atrestep Derenpants’ Denials

or Piaintirrs’ Requests To ADMIT; AND THE Facts

Expose a SusstanTIAL Number or THose DENIALS As

Grou NDLESS.

Plaintiffs did everything within their power to simplify

and make palatable to defendants the task of responding to

plaintiffs’ Requests to Admit. One or more of plaintiffs’

counsel conferred frequently with defendants’ counsel con-

cerning the language of the Requests, so as to minimize

semantic misunderstandings. Plaintiffs’ counsel supplied

defendants’ counsel with a list of representative facts,

drawn from the record, that substantiated the Requests.

And, on two occasions, both of plaintiffs’ counsel met with

defendants’ counsel to exchange views on the Requests, to

hear and suggest modifications, and generally to attempt to

reach accord.” Neither Federal Rule of Civil Procedure 36

nor Local Rule 5 required these actions on the part of

plaintiffs’ counsel.

Federal Rule 36 contemplates that defendants requested

to make admissions will expend reasonable effort to deter-

mine the factual basis for any denial, rather than denying

a request on the off-chance that plaintiffs will be unable to

prove the denial untrue. If such a request is legally ob-

jectionable, defendants should object to, not deny, the re-

quest." And if they cannot object, they should seek out all

information reasonably available to them that is relevant

to the request and their answer.” Defendants may not deny

requests simply because they, or their counsel, have no in-

* The meetings were held on the 2d and 3d of February 1978,

and covered a substantial number of plaintiffs’ Requests.

*' Dulansky v. Iowa-Illinois Gas & Elec. Co., 92 F. Supp. 118,

123 (S.D. Iowa 1950).

**4A J. Moore, Federal Practice para. 36.04[6], at 36-38.

dependent knowledge of the facts plaintiffs ask them to ad-

mit, if that information is within the reasonable capability

of defendants to obtain.” Indeed, in some instances, it is

not unreasonable to require defendants to conduct inde-

pendent research to verify the accuracy of the requested

admissions plaintiffs present to them.” Especially in # case

such as this, involving an organization as large and com-

plex as the UTP, involving activities of the organization

that have occurred across the United States over the last

eight years, and involving sources of information to which

the organization and its agents alone are privy, a reason-

able effort on defendants’ part must entail inquiry made

of those individuals or records likely to know or to contain

dispositive information. This, however, is not the course

defendants followed.

1. Defendants relied upon counsel, admittedly ignorant

.of the nature and extent of United-Teaching-Profes-

sion activities, and not upon knowledgeable officials or

staff-personnel, to frame their denials of plaintiffs’

Requests to Admit.

Although defendants are aware that plaintiffs’ claims

focus upon the UTP’s political activism, and particularly

its involvement in the campaigns of candidates for public

office, defendants never called upon Stanley McFarland,

Director of the NEA-GRD, to respond to, or to consult on,

plaintiffs’ Requests to Admit. [51] Although defendants

are aware that plaintiffs’ claims focus upon the role that

UniServ plays in the UTP’s program of political activism,

defendants never called upon Gary Watts, Director of sev-

eral NEA Departments including UniServ, to respond to,

or to consult on, plaintiffs’ Requests to Admit. [52] And

** Ranger Ins. Co. v. Culberson, 49 F.R.D. 181, 193 (N.D. Ga.

1969).

* Lumpkin v. Meskill, 64 F.R.D. 673, 675-79 (D. Conn. 1974).

although defendants are aware that plaintiffs’ search for

facts has concentrated on UTP publications, defendants

called upon and consulted with Susan Lowell, Director of

the NEA Communications Department, in only the most

cursory manner. [53]

Moreover, the individual who signed defendants’ Answers

to plaintiffs’ Requests to Admit (and thereby assumed

primary responsibility for those Answers) was not Mr. Mc-

Farland, Dr. Watts, Mrs. Lowell, or any other official or

staff-person of any unit or level of the UTP who might be

knowledgeable as to that organization’s structure, activi-

ties, and goals. Quite the contrary: the signator was Mr.

Keith Goodwin, Esq., one of several counsel for defend-

ants whom the Lowell deposition exposes as peculiarly ig-

norant of the UTP’s workings:

Q. [by Dr. Vieira, for plaintiffs] * *° * you say you

have prepared some kind of time line for them and you

have developed communications-related activities to

sell the programs that have been identified by the di-

rectors of those goal areas as priority programs; is

that correct?

A. (Mrs. Lowell] Yes.

Mr. Goopwin [for defendants]: You used the term

“goal areas.” And I guess I am unfamiliar with ex-

actly what that means. I would like to have an under-

standing we are talking about the same goal areas. Is

that in the document?

Mr. Viera: No. That is a technical term used around

the NEA, I believe, to refer to activities such as signifi-

cant legislative support for public education, one of

the goals of NEA.

That is Mr. McFarland’s area.

Teacher Rights are a couple of goals. Those are Mr.

Cox’s goal area.

Instruction is Mr. Sullivan’s goal area. It is the area

of the activity under the directors, so-called, of thie

NEA.

Mr. Goopwin: Are you talking about her [Mrs.

Lowell’s] goal area in Communications, whatever that

might be?

Mr. Viera: No.

Tae Wrrwess: Technically, Communications is a

support area since we serve all the goals. But that is

the difference. [54]

In this case, for defendants’ counsel to be (as Mr. Goodwin

admitted) “unfamiliar with exactly what [the term ‘goal

area’) means’’ is equivalent to a purported American po-

litical scientist being ‘‘unfamiliar’’ with the terms ‘‘execu-

tive’’, ‘‘legislative’’, and ‘‘judicial branches’’ of govern-

ment. For the goal areas of the NEA are precisely the

major organizational branches or departments in and

around which the UTP structures its entire national-level

program. [55]

Despite his ignorance of the fundamental facts in this

case, Mr. Goodwin admits to authorship of, as well as at-

testing to, defendants’ denials of plaintiffs’ Requests to

Admit. Again, from the Lowell deposition:

| TD adi

Mr. Goopwin: Well, you [referring to Dr. Vieira]

have got about a four-part question. Talking they can

be this way, that way, and thus way.

And you are misleading the witness. She cannot

answer a question with four parts. I will indicate on

the record, as I indicated in the request for admissions,

that we will stipulate that the NEA endorsed Carter-

Mondale, and will stipulate that they encouraged their

members to support Carter-Mondale.

Mr. Viera: Well, I know.

Mr. Goopwin: I don’t know what you are trying to

do with this line of questioning.

Mr. Viera: Encourage doesn’t mean anything to me.

eee [56] os

To be sure, Mr. Goodwin also claims that defendants’ “de-

nials are based on the facts’’. [57] But the record belies

this assertion.

2. A cursory examination of the record exposes a sub-

stantial number of defendants’ denials of plaintiffs’

Requests to Admit as incredible on their face.

Comparison of a representative number of plaintiffs’ Re-

quests to Admit that defendants denied to the record

demonstrates that defendants put forward their denials

either in bad faith or in reckless disregard of their duty

under Federal Rule 36 to investigate the factual basis for

** Mr. Goodwin’s offer of a ‘‘stipulation’’ is revealing. In several

places in their Requests to Admit, plaintiffs referred to actions of

the UTP designed to ‘‘encourage, solicit, mobilize, organize, train,

or assist’’ UTP members to do certain things, particularly to serve

as campaign-workers on behalf of candidates for election to public

office. Although plaintiffs can adduce facts demonstrating that the

verbs ‘‘solicit’’, ‘‘mobilize’’, ‘‘organize’’, ‘‘train’’, and ‘‘assist’’

are apt, defendants have never indicated any willingness to admit

that the UTP does all or any of these things—or, indeed, does

anything other than ‘‘encourage’’ its members (whatever that may

mean to defendants). Thus, almost invariebiy, when the chain

‘‘encourage, solicit, . . . , assist’’ appeared in one of plaintiffs’

Requests, defendants admitted the ‘‘encouragement’’, and denied

everything else. Apparently, as the passage from the Lowell depo-

sition cited in the text implies, Mr. Goodwin treated plaintiffs’

Requests as an offer of stipulation: that is, he felt free to respond

to those Requests with that to which he would stipulate, whatever

the facts might be. Since he was willing to stipulate to ‘‘ encourage-

ment’’, he admitted that the UTP ‘‘encourages’’ its members to

perform certain activities. But since he was unwilling to stipulate

to anything beyond ‘‘encouragement’’, he blithely denied the rest.

their answers. This is particularly apparent from defend-

ants’ refusal to answer any of plaintiffs’ Interrogatories

accompanying the Requests to Admit, which Interrogator-

ies in general called upon defendants, if they denied some

Request in its entirety, to “state * * * each and every fact

which supports your denial”; and, if they denied some Re-

quest only in part, to “state the parts or phrases which you

admit and those parts or phrases you deny”. Defendants’

approach to plaintiffs’ Requests, in short, was simply to

deny them, without any explanation as to contrary facts

that supported their denials, or even any identification of

those parts or phrases in the Requests that they considered

untrue. The following are illustrative:

Example A

Request No. 11. NEA-PAC is a committee, controlled by

NEA, the major purpose of which is to assist the partisan-

political campaigns of candidates for election to public office

at the national level by making financial contributions to,

and/or endorsements of, the candidates’ campaigns.

Answer No. 11. Admit that NEA-PAC is a committee,

the major purpose of which is to provide financial assist-

ance to the campaigns of candidates for election to public

office at the national level by making financial contributions.

Except as hereinabove admitted, request 11 is denied.

Anatysis. Defendants attempted to limit their admission

of the NEA-PAC’s activities to “financial contributions”.”

* This is in keeping with one of the favorite tactics of defend-

ants’ counsel: viz., the use of trick-words and -phrases, and defi-

nitions known only to themselves. For example, in the Lowell

deposition : ’

Q. [by Mr. Fogarty, for plaintiffs] * * * These were election

victories where you supported the candidates or endorsed the

candidates?

A. (Mrs. Lowell] Well, through the PAC group, yes.

Mr. Goopwin [counsel for defendants]: So the record is

sh.

The NEA-PAC’s own organic documents, however, describe

its activities as including contributions, endorsement, and

candidate-support :

A. Support of candidates may be in the form of pub-

lie and/or internal endorsements, financial assist-

ance and campaign workers where available through

constituent groups.

B. Decisions on public endorsements shall be made

only in consultation with candidates.

C. Endorsements of a candidate may be made without

financial assistance. [59]

Example B

Requzst No. 29. One of the premisses on which the NEA

organization operates is that political decisions shape the

process of education in the public sector, because educa-

tional programs and funding are matters subject to the

control of legislative, executive, agency, or other govern-

mental officials at the local, state, and national levels.

Answer No. 29. Denied.

Anatysis. Plaintiffs have already referred the Court to

numerous examples of statements in UTP literature echo-

clear, the use of ‘‘endorsement’’ is a term that is undefined.

As you know PAC makes financial contributions to candidates.

That is, the PAC endorsements.

If you choose to call it that, we would call it a financial

contribution by NEA-PAC.

Mr. LaJeunesse [counsel for plaintiffs}: NEA puts out

letters of endorsement. ;

Mr. Goopwin: I have already made my statement. [58]

So, to Mr. Goodwin an ‘‘endorsement’’ is a ‘‘financial contribu-

tion’’. This is one way in which defendants’ counsel have endeav-

ored to make the record ‘‘clear’’ throughout the course of this

case.

ing the organizational slogan “every educational decision

is a political decision”.”

Example C

Request No. 33. The process of collective bargaining on

behalf of teachers in the public sector involves decisions

concerned with, among other things, the size and allocation

of the governmental budget, tax rates, the level and quality

of public services, and the long-term obligations of the gov-

ernment.

Answer No. 33. Denied.

Anatysis. The chief spokesman of the UTP at the na-

tional level, NEA President John Ryor, testified to the

truth of the above-quoted Request.

Mr. Viera [for plaintiffs]: Let’s * * * ask the ques-

tion whether Mr. Ryor agrees that the major decisions

made at the bargaining table for the public employees

involve questions including the size and allocation of

the budget, tax rates, level of public services and. the

long term obligations of the government.

Tae Witness [Mr. Ryor]: I do. [60]

Example D

Request No. 35. With respect to its members and to those

other teachers subject to its representation through

schemes of exclusive representation such as exist in Min-

nesota under the Public Employment Labor Relations Act,

the NEA organization is an advocate organization which

claims to act as a spokesman in collective bargaining with

school boards; lobbying to influence school boards; lobbying

to influence legislative, executive, agency, or other govern-

mental action at the state and national levels; and partisan-

** Supra pp. 50-62.

political activities such as the endorsement or financial sup-

port of candidates for election to public office at the local,

state, or national levels.

Answer No. 35. Admit that the MCCFA, with the assist.

ance of the MEA and NEA, represents, in collective bar-

gaining, all teachers employed in the Minnesota Community

College system. Except as hereinabove admitted, request

35 is denied.

Anatysis. Defendants refused to admit that the UTP

claims to act as an “advocate” or “spokesman” for its mem-

bers, and for non-member teachers such as plaintiffs, with

respect to collective bargaining, lobbying, and partisan-

political activities. The literature of the UTP, however, is

full of statements to the effect that the UTP puts itself for-

ward as a ‘‘spokesman”’ in one area or another—and, in

particular, as the “teachers’ voice in politics” or the “teach-

ers’ advocate in politics”. [61] In addition, NEA Executive

Director Terry Herndon so testified.

Q. [Dr. Vieira, for plaintiffs] So, NEA, when an ac-

tive advocate organization, is acting as a spokesman

for its members vis-a-vis the external world——

A. [Mr. Herndon] Yes.

Q. Including governmental officials, political proc-

esses?

A. Yes.

Q. Does NEA also act as an advocate association,

or organization for those teachers who are not NEA

members but who are subject to exclusive representa-

tion by NEA affiliates?

A. Many situations, yes.

Q. With respect to lobbying activities which are fi-

nanced by agency shop fees, * * * would NEA be acting

as a spokesman or advocate for the agency shop em-

ployee [i.e., non-member teachers such as plaintiffs]?

A. Yes.

Q. Is NEA through its state and local affiliates cer-

tified as the exclusive bargaining representative, a¢t-

ing as an advocate or spokesman for agency shop em-

ployees when it attempts to influence the public in

terms of political involvement with candidates’ selec-

tion or election?

A. * * * to the extent that I as a spokesperson for

NEA may be quoted in a public meeting of sorts, I be-

lieve the answer to that would be yes.

Q. NEA does in fact pub!'cize its position on candi-

dates or endorsements and selection?

A. Yes.

Q. To that extent, you would be acting as an advo-

cate for the agency shop employees?

A. I believe the answer to that is yes. * * * [62]

Example E

Request No. 36. One of the premisses on which the NEA

organization operates is that it must exercise such power

as it has in the political process, not under the banner of

any particular established political party, but under the

banner of “education” as the organization sees it.

Answer No. 36. Denied.

Request No. 37. On p. 4 of section ITI, “Political Per-

suasion”, of the NEA training manual Speaking for Teach-

ers appears the following paragraph:

Allowing political partisanship to enter into your dia-

logue will surely prejudice the outcome of your efforts.

Even if the legislator is of a different political per-

suasion or party, he may be very personable and very

capable. In spite of such differences you may be able to

discuss your bills with him and even get commitments

if you do not allow party politics to enter the discus-

sion. This kind of neutrality will also leave open oppor-

tunities for discussion on future bills and issues. Re-

member—your party is the “education party.”

Answer No. 37. Admitted.

Anatysis. Defendants’ answers to these two Requests

contradict one another, since Request No. 37 provides some

of the evidence plaintiffs have for the statement in Request

No. 36. Defendants’ treatment of these two Requests is typi-

cal of their attitude throughout this case: namely, admit

the bare fact that something was done or said by the UTP,

but deny its obvious significance. Here, they denied that

advice admittedly printed in a UTP training manual used

in political-action workshops throughout the United States

_ accurately reflects an operating premiss of the organization.

Defendants’ admission of Request No. 37 is not the sole

support for Request No. 36. As early as 1970, NEA Presi-

dent George Fischer told the NEA convention that

we in the organized teaching profession must first de-

termine that we are no longer just Republicans or

Democrats, but that we have only real overriding

party—education. [63, at 9]

NEA Executive Director Herndon testified that he meant

essentially the same thing as Fischer when he (Herndon)

urged UTP members to “continue to be partisan on behalf

of education’’. [64] And NEA President Helen Wise

voiced similar sentiments at the National Press Club, when

she reported that the UTP was

ready to undertake massive state-by-state grass roots

campaigns that will guarantee the victories we need in

the 1974 Congressional elections, not under party ban-

ners, but under the banner of education; not anti-

anyone or any party, but pro-education. [11]

MEA Executive Director Gallop has also advised UTP

members that “[iJt’s not important that teachers endorse

a Republican or a Democratic ticket. It IS important that

they endorse the ticket that will provide the best for teach-

ers and students—for education”. [65] And IMPACE

Chairman Fulton Klinkerfues has also spoken of “efforts

on our part to keep either one of the two parties in the

State of Minnesota from becoming ‘the education party’ ”

[66, p. 4]—because, of course, the position of ‘‘education

party’’ the UTP desires to retain for itself.”

Example F

Request No. 40. Participation by the NEA organization

in partisan-political campaigns of candidates for election

to public office at the state and national levels is of major

importance to the success of the organization’s legislative

program.

Answer No. 40. Denied.

Anatysis. UTP spokesmen have repeatedly emphasized

that political action is vital to the organization’s legislative

goals. For example, in 1972, NEA President Catharine

Barrett stated that

[political action is my top priority as NEA President.

I believe strongly that collective political action by

teachers and their education associations is the only

way to get adequate consideration for education on the

local, state, and national levels. Only through effective

political action can we have an impact on the Congress

on association legislative priorities * * *. [6]

**On the significance of the UTP characterizing itself as the

‘‘education party’’, see Vieira, supra note 3, 27 DePaul L. Rev

at 363-81.

In 1973, NEA President Helen Wise reported that

teachers have realized * * * that they are part of the

most political of all professions * * * all the major

decisions about our profession are made by politically

elected * * * school boards, legislators and congress-

men. And although we know that we can (and will if

necessary) put teachers on the Capitol steps and in the

halls of every state legislature until our voice is heard,

we also know that we cannot translate that voice into

legislation that recognizes education as the foremost

human priority of America if we continue to elect men

and women who ignore that priority.

Two million teachers are a political force to be reck-

oned with. [11]

In 1974, NEA President James Harris declared that

[e]ducation is in the political arena, and I intend to

keep it there.

The direction ahead is clear: NEA-PAC-endorsed

legislators on all levels must hold a substantial ma-

jority before we can withstand veto power and thus

achieve a major breakthrough in political action. [13]

In 1975, NEA Executive Director Herndon reminded the

NEA Representative Assembly that

[nJearly every speaker before this convention has

spoken of our astounding political achievements. Two

hundred ninety of 310 endorsed candidates have as-

sumed office. But in 1976 it is important that we do

even better because we have seen that ever with these

achievements, we have not had the capability to over-

ride Presidential vetoes of significant social and eco-

nomic legislation.

So I say, in 1976 we must dedicate ourselves with

full vigor to the matter of improving the Ninety-

Fourth Congress, and perhaps even better, electing the

type of President that makes it possible that we stop

worrying about the matter of overriding vetoes. [67]

In 1976, NEA President John Ryor also referred to the

UTP’s “need to assure the election of another pro-educa-

tion Congress and a President who will support our two

top legislative priorities’’. [68] ‘‘Friends in Congress are

not enough”, Ryor said; “{[wJe must have a team in the

White House which is committed to making education a

top national priority”. [69] And in 1977, NEA Executive

Director Herndon told delegates + the NEA Representa-

tive Assembly that the UTP

must mobilize to provide a 96th Congress which is not

only cordial, but actively committed to these programs.

In 1976 we endorsed and assisted 271 winners. This a

majority of the House of Representatives. Obviously,

if we do not see considerable progress on our agenda,

then we made some mistakes and it would be unthink-

able to endorse the same majority for reelection. We

need to be more aggressive but also more discriminat-

ing. * * * [W]e are equal to the task if we can organize

and mobilize two million teachers to carry the fight into

* * * every political campaign * * * . [70] ”

Most recently, NEA President Ryor testified to the con-

nexion between partisan politics and UTP lobbying efforts.

Q. [by Dr. Vieira, for plaintiffs] * * * Now is it your

view * * * that there’s a direct connection between the

* Revealingly, Mr. Herndon does not shrink from using the

verbs ‘‘organize’’ and ‘‘mobilize’’ when referring to UTP activity

and intentions relating to political campaigns. Contrast the denial

of defendants’ counsel, supra note 55.

success of NEA lobbying efforts on the one hand and

NEA political activity in terms of supporting candi-

dates at the Congressional and Presidential level?

A. [Mr. Ryor] Yes.

Q. * * * It’s correct to say that NEA views activity

in the area of electing candidates as useful or perhaps

even necessary to achieve lobbying goals in Congress?

A. That’s true.

Q. * * * So that political influence through the elec-

toral process over the legislative branch of govern-

ment * * * is necessary to the success of NEA’s legis-

lative program?

A. Yes. [71]

Example G

Request No. 41. The success of the NEA organization’s

legislative program requires that the NEA and its state

influence over the legislative, executive, and judicial

branches of the state and federal governments: namely, in

so far as it is possible, directly controlling the composition

of State legislatures and Congress, and the identity of

state governors and the President of the United States,

through intervention and participation in partisan-politi-

cal campaigns of candidates for election to public office;

and indirectly controlling the composition of the state and

federal courts through the exervise of influence or control

over executive appointments and legislative confirmations.

Answer No. 41. Denied.

Anatysis. NEA President John Ryor testified that the

success of the UTP’s legislative program at the national

level depends upon the organization’s exerting political

influence on a!l three branches of the federal government.

Q. [by Dr. Vieira, for plaintiffs] * * * It’s correct

to say that NEA views activity in the area of electing

candidates as useful or perhaps even necessary to

achieve lobbying goals in Congress?

A. [Mr. Ryor] That’s true.

Q. Because (a), Congress passes legislation, and

(b), the President either signs or vetoes it. So that

political influence through the electoral process over

the legislative branch of government and the executive

branch of government is necessary to the success of

NEA’s legislative program?

A. Yes.

that control to some extent through the political proc-

ess over the judicial branch of government is neces-

sary to the success of NEA’s legislative program!

A. Well certainly the interpretations of Judges in

Courts have an influence on what the legislation means

and says, and whether it’s Constitutional. The extent

that these decisions alter, change, reject national Con-

gressional legislation, I suspect it has some as it does

with everything.

Q. So NEA °* * * saw the election of a candidate

favorable to the NEA position for President of the

United States to be useful, not only from the point of

view of the question of vetoes of congressional legis-

lation, but also from the point of view of making Ju-

dicial appointments to the Supreme Court that would

be advantageous to interpretations of the Constitution

or other laws?

A. I think history would bear that observation out. .

I don’t think it’s any new revelation.

100

Q. ** * * that was * * * one of the goals that NEA

saw, upholding a candidate for President in 1976, that

this would have a direct influence on the United States

Supreme Court?

A. As President of the United States always has

influence on his choices.

Q. Right, in the sense of appointment?

A. Yes. [72]

Example H

Request No. 45. Paramount in furthering the cause of

publie education, as NEA, MEA, and MCCFA see it, is

political action on the part of NEA, MEA, and MCCFA

officials, staff personnel, and members, as described in

subparts 1 through 5 of Request No. 42.

Anewen No. 45. Denied.

Anaxyeis. One of the Resolutions of the MCCFA is that

that level of the UTP ‘‘believes that political action on the

part of members as well as the Association is paramount

in furthering the case of public education’’, And the

MCCFA has also expressed its conviction ‘‘of the impor-

tance of political activity on the part of its individual mem-

bers as well as the Association as a whole’’. [73] In par-

ticular, the record indicates that this ‘political activity’’

includes the provision of campaign-support to candidates

for election to public office.”

Example I

Request No. 46. Through the activities of their members

and their institutional programs, NEA, MEA, MOCFA,

Minnesota UniServ, IMPACKE, and NEA-PAC have at-

tempted, are attempting, and will attempt to exert the

* See Example N, infra pp. 106-18.

101

maximum possible influence on the political system at the

local, state, and national levels, through the activities de-

scribed in subparts 1 through 5 of Request No. 42.

Anewrn No. 46. Denied.

Anatysis. NEA Executive Director Terry Herndon tes-

tified to the accuracy of the statement set out in Request

No. 46.

Q. [by Dr. Vieira, for plaintiffs] * * * Has it been

your experience that there is an absolute need [and]

responsibility for the NEA to assert its maximum in-

fluence on the political system?

Tus Witness (Mr. Herndon]: Yes. (74]

Example J

Requests Nos. 47-56. [Not reproduced because of length. ]

Answers Nos. 47-56. Denied.

Anaryeiw. In Requests Nos. 47-56, plaintiffs sought to

determine the extent to which the UTP had employed, or

intended to employ, various types of political activism—

including partisan politics, lobbying, propaganda and agi-

tation, litigation, coalitions with other political organiza-

tions or causes, and collective bargaining—to achieve the

goals set out in its Resolutions and New Business. The

importance of this determination is two-fold. First, the

NEA Resolutions and New Business ‘‘set a policy base for

the activities of the NEA’’. The Resolutions and New

Business are what the NEA ‘‘stand{s} for’’. [75] Second,

courts have used the resolutions and new business items of

an organization as evidence of its political character and

activities.” Therefore, if defendants admitted that a sub-

stantial number of the NEA Resolutions and New Business

Items involved political activism, they would admit as well

* See Vieira, supra note 3, 27 DePaul L. Rev. at 347.

J 102

the essentially political nature of the UTP, the central

issue in this case.

One way for defendants to have answered Requests Nos.

47-56 in good faith would have been for them to compare

the language of each Resolution and New Business Item to

the definitions and descriptions of ‘‘partisan politics’’,

‘‘lobbying’’, and so on given throughout the Requests to

Admit, and to judge whether each Resolution and New

Business Item on its face implicated any kind of political

activism in its implementation. Plaintiffs have had pre-

cisely such a study done. [76]

But an even more efficacious and easy method was avail-

able to defendants. Each fiscal year, the Office of the NEA

Executive Director assigns NEA Resolutions and New

Business to various goal areas and support services for

implementation. The Directors of the goal areas and sup-

port services then delegate responsibility for action to

their subordinates, and supervise the process of imple-

mentation. [77] At the fiscal year’s end, the goal areas

and support services prepare final reports for the Exec-

utive Office, which in turn compiles an overall report for

the annual NEA Representative Assembly. [78] With

these various implementation reports in hand, it would be

relatively easy to determine how a particular Resolution

vr New Business Item had been implemented in any par-

ticular year. [79] Indeed, simply to produce these imple-

mentation reports for the years in question would be, in

effect, to answer Requests Nos. 47-56.

Defendants, however, did not produce the implementa-

tion reports. Neither did they consult with the Directors of

the NEA goal areas as to how particular Resolutions or

New Business Items assigned to those areas had been im-

plemented. [80] They simply denied what the implemen-

tation reports describe, what the Directors admit they

know [81], and what NEA Executive Director Terry Hern-

don testified to as a commonplace [82].

103

Example K

Request N. 60. As generally used by spokesmen for

NEA, MEA, MCCFA, the UniServ units in Minnesota, IM-

PACE, and NEA-PAC, the term ‘‘teacher power’’ de-

notes influence or control by NEA members over public

education policy by means of:

1. participating in collective bargaining through the de-

vice of exclusive representation such as has been estab-

lished under the Minnesota Public Employment Labor

Relations Act;

2. doing the things described in subparts 1 through 5

of Request No. 57.

Answer No. 60. Denied.

Ana.ysis. NEA President John Ryor testified that plain-

tiffs’ understanding of the term ‘‘teacher power’’ as set

out in Request No. 60 is correct.

Q. [by Dr. Vieira, for plaintiffs] * * * What does

the phrase ‘‘teacher power’’ mean to you?

A. [Mr. Ryor] To me it means the influence of the

local teachers and having some say, some control over

their own professional, economic destinies as educa-

tors.

Q. That would‘ involve collective bargaining?

A. Yes.

Q. Political action in terms of election campaigns?

A. It would involve political action.

Q. It would involve lobbying?

A. To a lesser degree, I suspect.

Q. To a lesser degree than political action!

A. Yes. [83]

104

NEA Executive Director Terry Herndon also informed the

NEA convention that ‘‘teacher power’’ includes the ‘‘ac-

quisition and consolidation of a power base for the pro-

fession’’, the ‘‘expansion and extension of effective inter-

vention techniques such as bargaining and lobbying”’,

‘‘yigilant protection of the professional and human rights

of every teacher’’, the ‘‘selling of the profession’’, ‘‘com-

pleting the unification of our state and local affiliates’,

and ‘‘organizing the unorganized teachers’’ [84]—that is,

‘‘teacher power’? means collective bargaining, lobbying,

litigation, propaganda and agitation, integration of the

various levels of the UTP, and organizing. And the UTP

national-level newspaper equates ‘‘teacher power’’ with

monies contributed to the NEA-PAC, thus including par-

tisan-political activism within the term. [85]

kaample L

Request No. 61. The various means detailed in Request

No. 60 are essential to achieve the goals, objectives, pro-

grams, policies, or priorities of NEA, MEA, and MCCFA,

and to advance the economic and professional status of

NEA, MEA, and MCCFA members.

Answer No. 61. Denied.

Anatysis. Expert witness Dr. Craig Schneier, of the Uni-

versity of Maryland, has testified that the techniques of

political activism that plaintiffs have identified—that is,

support of candidates’ campaigns, lobbying, propaganda

and agitation, litigation, and coalitions with other political

organizations and movements—are essential to the success

of the UTP’s goals, objectives, and programs. In his expert

opinion, the UTP is essentially a political organization,

precisely because it must employ these political techniques

to attain is ends. [40]

105

Example M

Request No. 62. Each of the means identified in Request

No. 60 is of equal importance to the NEA, MEA, and

MCCFA.

Answer No. 62. Denied.

Anatysis. NEA President John Ryor has testified that

the UTP considers the various political techniques, or

‘‘tools’’, identified by plaintiffs to be of equal importance

to the achievement of its goals.

Q. [by Dr. Vieira, for plaintiffs] Of these five tools

then that you have identified, collective bargaining,

lobbying techniques, plans of political action, legal aid

funds and the internal NEA training programs, could

you rank them in order of importance during the years

of your tenure as NEA President?

A. [Mr. Ryor] Yes, all five are number one.

Q. They’re all of equal importance then?

A. Yes. [86]

And on another instance:

Q. * * * can one draw from this the inference that

NEA views the collective bargaining process * * * as

one of the steps in or one of the procedures that could

be followed among the six that are given as of equal

impertance with public relations, lobbying and the

other activities that are discussed here [in Ryor Depo-

sition Exhibit No. 46] ° * * 9

A. That’s fair.

Q. ° * * What you’re saying then is that collective

bargaining is one of the tools or elements of the entire

NEA program to achieve certain goals and objectives,

and you treat it at the same level of importance as a

106

generality with such actions as public relations and

lobbying in state and national legislatures?

A. That’s true. [87]

Example N

Request No. 64. The program of intervention and par-

ticipation in partisan-political campaigns of candidates for

election to public office at the state and national levels in

which NEA, MEA, MCCFA, NEA-PAC, IMPACE, other

state and local NEA affiliates, and their political-action

committees engage, jointly or severally or in various com-

binations, through their officials, staff personnel, or mem-

bers, includes the following activities:

1. collecting, organizing, analyzing, and publishing in

the NEA Reporter, ME Advocate, and elsewhere such po-

litical data as tallies of votes by individual members of

Congress and state legislatures on major legislative issues

related to NEA policies;

2. identifying key issues and areas for NEA activity in

each general election;

3. strengthening political-action committees (PACs) of

NEA’s state affiliates, developing and administering plans

and systems to obtain money contributions from NEA

inembers to state and national PAC’s, and integrating the

operations of state and national PACs;

4. endorsing candidates for President, Vice-President,

Congress, state legislatures, and other public offices;

5. encouraging, soliciting, mobilizing, organizing, train-

ing, and assisting NEA members to seek election as dele-

gates to local, state, and national conventions of the major

political parties, or otherwise to participate in party func-

tions and activities;

6. encouraging, soliciting, mobilizing, organizing, train-

ing, and assisting officials and staff personnel of the NEA

107

organization, and NEA members generally, to participate

in partisan-political campaigns of candidates for election

to public office at the local, state, and national levels,

through financial contributions, endorsements, and the pro-

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