Jurisdictional Statement — Knight v. Minnesota Community College Faculty Ass'n

ice - Supreme Court, U.S

g2-901 bain

No. NOV $0 1982

ae ne

IN THE

Supreme Court of the United States

OcroBerR TERM, 1982

Leon W. Knicut, et al.,

Appellants,

We

MINNESOTA COMMUNITY COLLEGE Facutty ASSOCIATION,

et al.,

Appellees.

On Appeal from the United States District Court

for the District of Minnesota

JURISDICTIONAL STATEMENT

DareEL F', SWENSON

610 Twelve Oaks Center

15500 Wayzata Bouievard

Wayzata, Minnesota 55391

(612) 473-0474

EpwIn VrerrA, JR., Counsel of Record

13877 Napa Drive

Manassas, Virginia 22110

(703) 791-6780

Attorneys for Appellants

1 December 1982

i

QUESTIONS PRESENTED

I. Is the Minnesota Public Employment Labor Rela-

tions Act (PELRA) repugnant to the First Amend-

ment and the Due Process and Equal Protection

Clauses of the Fourteenth Amendment to the United

States Constitution, because it requires an agency of

the State of Minnesota to negotiate terms and condi-

tions of employment for Appellants and other of the

State’s community-college faculty with the Minnesota

Community College Faculty Association (MCCFA), a

self-interested private organization, thereby:

A. delegating to MCCFA a legislative power

to make public policies binding on Appellants;

and

B. depriving Appellants and all other non-

members of MCCFA throughout Minnesota of

legal equality of opportunity to influence the

course of public-policy decisionmaking in the

community colleges?

II. Is PELRA repugnant to the First Amendment

and the Due Process Clause of the Fourteenth Amend-

ment, because it requires Appellants as a condition

of public employment to accept MCCFA as their

‘exclusive representative’’ for the purpose of nego-

tiating terms and conditions of employment, where

the record establishes that:

A. MCCFA and its affiliates, the National Edu-

eation Association (NEA) and the Minnesota

Education Association (MEA), and those affiliates’

political-action arms, the Independent Minnesota

Political Action Committee for Education (IM-

PACE) and the National Education Association

ii

Political Action Committee (NEA-PAC), are

component-parts of an integrated organization

that styles itself the United Teaching Profession

(UTP), and operates throughout Minnesota and

the United States;

B. its substantial and essential involvement in

political activism renders the UTP a political-

action organization, indistinguishable from a po-

litical party for all relevant purposes of consti-

tutional law; and thereby,

C. PELRA imposes a political-action organiza-

tion on Appellants as their ‘“‘sponsor’’ or ‘‘spokes-

man’’?

PARTIES

Appellants are faculty-members in the Minnesota

community colleges." Appellee MCCFA is their exclu-

sive representative.’ Affiliated with MCCFA in the

UTP are Appellees NEA, MEA, and IMPACE,’ to-

? Appellants include: Leon W. Knight, Morgan Kjer, Donald A.

Dahlin, James D. Wallace, Terrence D. Florin, William B. Bauman,

Harold J. Gardner, Thomas J. Patin, Eugene D. Mielke, Dr.

Richard A, Thompson, David R. Grout, Joan M. Farkas, Gary Lee

Nelson, Ronald Lievense, Lucille Johnson, Virginia E. Lanegran,

Max A. Malmquist, Ralph G. Powell, Richard D. Isenhart, and

Cresston Gackel.

* Appellees include various past and present officials and staff of

MCCFA: James A. Norman, James K. Durham, Robert Ball, Calvin

Minke, Ralph 8. Chesebrough, and Donald Holman.

* Appellees include various past and present officials and staff of

NEA, MEA, and IMPACE: William M. Mondale, James J. Rosasco,

Alfred F, Provo, Albert L. Gallop, Fulton B. Klinkerfues, Janet R.

Morgan, John Schutt, James A. Harris, Helen D. Wise, Catherine

iii

gether with non-party NEA-PAC.* Appellee State Of-

ficials include past and present members of the Minne-

sota State Board for Community Colleges (Board) ;°

certain community-college administrators ;* and others

who have performed or perform various functions

under PELRA.’

O’C. Barrett, Terry E. Herndon, Sam E. Lambert, Willard H.

McGuire, Roger Johnson, and Donald C. Hill.

* Appellees include various past and present officials and staff of

NEA-PAC: Fulton B. Klinkerfues, Terry E. Herndon, Willard H.

McGuire, and Roger Johnson.

5 These Appellees include: Raymond Crippen, Rosemary McVay,

John Sontorovich, Hugh V. Plunkett III, Arlene Nycklemoe, Doug-

las Alan Bruce, Ronald H. Denison, Toyse Kyle, Elma Ponto,

Joseph Norquist, Nadine Chase, and Paul Brinkman.

®* These Appellees include: Phillip C. Helland, John F. Helling,

Dale A. Lorenz, and Neil Christensen.

*These Appellees include: Edward G. Ziegler, Val Bjornson,

Charles Swanson, Wayne S. Burggraaff, James Lord, and Peter

Obermeyer.

Vv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......ccccccccccccccccccccecs i

RR te enn ee eer eee ree or ii

EE ENON wis cc dkeecbsdrccbedavevastevecvans v

EE OF BIT ok ccc cscs ccccccectsrececccses vi

cen iceeeyss bb casserebs seu bacscce 1

PEE Ch dubananenés esos éenkes senescves beste. 2

CoNSTITUTIONAL AND Statutory Provisions Invotvep.. 3

STATEMENT OF THB F'ACTS ......cccccccccsccccccees 3

I. The record documents the adverse effects of

PELRA on governmental and popular sov-

WIIG bec hesccciccecccetectenesececssosess q

II. The record establishes that the UTP is an inte-

grated political-action organization. ........... 8

III. Notwithstanding the record, the District Court

upheld the constitutionality of PELRA. ........ 12

SUBSTANTIALITY OF THE QUESTIONS PRESENTED ........ 13

I. The District Court’s ruling that exclusive repre-

sentation under PELRA is constitutional ex-

punges the non-delegation doctrine from constitu-

tional law, eviscerates Schechter and Carter, per-

verts Abood, and, overall, licenses the State of

Minnesota to prostitute the political process for

the benefit of private special interest groups..... 13

II. The District Court’s ‘‘finding’’ that the UTP is

not an integrated political-action organization

travesties the facts in order to protect the UTP

from application of the Branti doctrine. ....... 27

eee ehpeeune eau 29

vi

TABLE OF AUTHORITIES

Page

Cases

Abood v. Detroit Board of Education, 431 U.S. 209

CRN DES GEE DSKUROdUG USER en ¥osb edeecveteos passim

Arizona v. California, 373 U.S. 546 (1963) .......... 18

Branti v. Finkel, 445 U.S. 507 (1980) ............. 27, 29

California Bankers Association v. Schultz, 416 U.S. 21

gt I Ay St pee 18

Carrington v. Rash, 380 U.S. 89 (1965) ............. 26

Carter v. Carter Coal Co., 298 U.S. 238 (1936) .. passim

Cipriaro v. City of Houma, 395 U.S. 701 (1969) .... 26

City of Eastlake v. Forest City Enterprises, Inc., 426

Ee cidccctrdstNedetacteeceeceoes 18

City of Madison, Joint School District No. 8 v. WERC,

4 | Es eee 20, 25

City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) . 26

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) .... 23

Crawford v. Board of Education of City of Los An-

geles, —— U.S. ——, 102 S. Ct. 3211 (1982) .... 26

Cross v. Burke, 146 U.S. 82 (1892) ..............45. 23

Currin v. Wallace, 306 U.S. 1 (1939) ............... 15

Davis v. Mann, 377 U.S. 678 (1965) ..............4.. 26

Elrod v. Burns, 427 U.S. 346 (1976) ............006. 27

Eubank v. City of Richmond, 226 U.S. 137 (1912) ... 18

Evans v. Cornman, 398 U.S. 419 (1970) ............ 26

Field v. Clark, 143 U.S. 649 (1892) ............000. 15

First National Bank of Boston v. Bellotti, 435 U.S.

Mn cain dncae o0u'e Geena scctes ce hetces 25

vii

TasLe or AuTHORITIES—continued

Page

Gray v. Saunders, 372 U.S. 368 (1963) ............. 26

Green v. United States, 355 U.S. 184 (1957) ........ 23

Harper v. Board of Elections, 383 U.S. 663 (1966) ... 26

Holmes v. Burr, 486 F.2d 55 (9th Cir. 1973) ........ 17

Industrial Union Department, AFL-CIO v. American

Petroleum Institute, 448 U.S. 607 (1980) ........ 18

Kirkpatrick v. Preisler, 394 U.S. 526 (1969) ........ 26

Knight v. Alsop, 535 F.2d 466 (8th Cir. 1976) ....... 21

Kramer v. Union Free School District, 395 U.S. 621

CRD ch Sdccneccvevestavednccccccccconcsevess 26

Lathrop v. Donohue, 367 U.S. 820 (1961) .......... 20, 21

Lucas v. Forty-fourth General Assembly, 377 U.S. 713

DT Sel ciceuieskneenuldensesbeessonbveses's 26

Mayflower Farms, Inc. v. Ten Eyck, 297 U.S. 266

SRE cvessncbosns (alipsnaseetvanesectteun nen 26

McCray v. Burrell, 516 F.2d 357 (4th Cir. 1975) .... 17

McGautha v. California, 402 U.S. 183 (1971) ....... 18

NAACP v. Claiborne Hardware Co., —— U.S. ——,

Be is SO CRUUED cadncccacccnecescccsoens 29

National Cable Television Association, Inc. v. United

States, 415 U.S. 336 (1973) .......cescccccccees 18

National League of Cities v. Usery, 426 U.S. 833 (1976) 14

New Motor Vehicle Board of California v. Orrin W.

Fox Co., 489 U.S. 96 (1978) .....ccccccccccscces 18

Patterson v. Brown, 393 F.2d 733 (10th Cir. 1968) ... 17

Powell v. Alabama, 287 U.S. 45 (1932) ............. 23

eer

Tas.e or AuTHorRITIES—continued

Page

Quincy College and Seminary Corp. v. Burlington

Northern, Inc., 328 F. Supp. 808 (N.D. Ill. 1971) . 17

Quong Wing v. Kirkendall, 223 U.S. 59 (1912) ...... 22

Railway Employes’ Department v. Hanson, 351 U.S.

Be CREED in oee ie 0 0505000064000 60,0000 0800 20-21, 22

A.L.A. Schechter Poultry Corp. v. United States, 295

Rae CREED Kec ccccsdondedeacavedseusenie passim

Simon v. Cameron, 337 F’. Supp. 1380 (C.D. Cal. 1970) 17

Snow v. United States, 118 U.S. 346 (1886) ........ 23

Tofft, Weller & Co. v. Munsuri, 222 U.S. 114 (1911) . 23

Union Bridge Co. v. United States, 204 U.S. 364 (1907) 15

United Public Workers v. Mitchell, 330 U.S. 75 (1947) 22

United States v. Crocker, 420 F.2d 307 (8th Cir. 1970). 17

United States v. Miller, 316 F.2d 81 (6th Cir. 1963) .. 17

United States v. Mitchell, 271 U.S. 9 (1926) ........ 23

United States v. Robel, 389 U.S. 258 (1967) ........ 18

United States v. Sharpnack, 355 U.S. 286 (1958) .... 18

United States v. L.A. Tucker Truck Lines, Inc., 344

A ME ROOED SaStcccecnavendodsecccsccuconnes 23

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) .. 18

Washington v. Seattle School District No. 1, —— U.S.

—, 102 S. Ct. 3187 (1982) ......... cece eeeee 25, 26

Washington ez rel. Seattle Title Trust Co. v. Roberge,

RR Se COED Gra ceeueudeGaneetcnceshesrs 18

Webster v. Fall, 226 U.S. 507 (1925) ............... 23

Williams v. Rhodes, 393 U.S. 23 (1968) ............. 26

Zemel v. Rusk, 381 U.S. 1 (1965) ......cccccccccccecs 18

ix

TasLe or AuTHORITIES—continued

United States Constitution

Page

BAGS TEE ccvcccccctincccscocescsescsassueveccses 22

Pivet AmemGmemt ..ccccccccscsscccccecccansscccce i, 3, 28

Fourteenth AmamOnemt ..c cc ccccccccvcedccccccscess i,3

Statutes

United States Code:

9B UB.C. 4 1SGE (IBIS) .cccccccccvivecscccccccvecse 3

3B UBC. GIDE CIGD) 0 ccccccccnvccscccccccessvace 2

28 U.S.C. $2101 (b) (1976) ...ccccccccccccsscccccese 3

SB UBG. 4 SEL (ISTO) oc ccccccvccccscctscccscccecs 2

4B. UB.G. GIOGB (IBID) occ ccvcccccctcecedccsscncese 2

Minnesota Statutes:

Mime. Diet. 4 SEE; GUNS. B oc cccccvcscccciccccsesece 15

Spee, TE, GS Tris GU, BD a nick cnvcccncvccveacas 14

A OE, SEGUE, 6 ncccnnthceuacsetacccacanuatans 14

Be, DRE 0. kcvevasnacevdsecuenncelainee 14

A. es DA ain dnc cnccnsadntessseenaescseus 14

Be Ts SLU is cap nncaivckicrvncvassescnies 14

Bees Te, STs OUD i. cctine cacacaccsanccees 14

Se. TK SAVE nes ceevusdensdecvnvessksnaceen 14

ee is SIRO ovecsdcicuciviadaseeasasaauage 14

TN, RATT a ova nntcndacnscnccneveve tiene 14, 15

Tasiz or Aurnorrries—continued

Page

Other Statutes:

Bituminous Coal Conservation Act, Act of 30 August

1935, ch, 824, 49 Stat. 991 ......cceeeeeeeeeeeeeees 6, 16

ES Pr orr rrr rrrrererrreeeeere. 16

DUO MMOD Sicccccccncccccccesedeccccccsvcees 16

DE MEEED suenccesecesscsrccdorcceccoccessss 16

DME Bcc decececssesessceccccccecceccss 16

TE ads Gicecsedcccvesesecscccceseces 16

CE hau sWidedderaesdaeced'cesceccsess 16

DEE END cudecdvccesevevccesccctecccocess 16

ME EEEED op6o0ccvccccescscoscsiecescsccee 16

ME MEET Scavcccccccscvsdtccecovcccecsece 16

National Industrial Recovery Act, Act of 16 June 1933,

SUPT, CID ccc cecccceccccncceccsccecece 5-6, 16

DT TAcacdyeeesssessadeeeteocscoccanceee 16

CCL CCMiecaeneueecdsaseceeccccccccevet 16

CCC cCeSHNNGNWSse aoe 600 ccc0ceCeceeees 16

CCCP UNSSGhSeaceddeorseccdecccccccceccess 16

TCC LGVspeseseccwcssdeesedescobecsccess 16

CUES Ch eke bedehssedacesovccescdccceccoees 16

CCC eb Use ees 6 oie ebd ees ecbecccceecne 16

xi

Taste or AurHorities—continued

Page

Miscellaneous

K. Davis, Administrative Law Treatise (2d ed. 1978) .. 17

The VederGs avcccccccccccvccsccsccsceccccesscces 26

G. Field, The Syndical and Corporative Institutions of

Italiam Fascism (1938) ......cccccccsccececeees

Lieberman, ‘‘Teacher Bargaining: An Autopsy’’, The

Kappan (Dec. 1981) ....cccccccccccccccccsccees

F. Pitigliani, The Italian Corporative State (1933) .. 29

C. Summers, ‘‘Public Employee Bargaining: A Politi-

cal Perspective’, 83 Yale L.J. 1156 (1974) .... 13, 24

C. Summers, ‘Public Sector Bargaining: Problems of

Governmental Decisionmaking’’, 44 Cinn. L. Rev.

GOD CITE) civcvccanccanveusecetsccedeesscctves 22, 23

R. Summers, ‘‘Public Sector Collective Bargaining

Substantially Diminishes Democracy’’, Gov’t Un-

ion Rev., Vol. 1, No. 1 (Winter 1980) .......... 24

R. Summers, Collective Bargaining and Public Bene-

fit Conferral: A Jurisprudential Critique (Insi. of

Pub. Employment, N.Y. State School of Indus, and

Lab. Rel’ns, Monograph No. 7, Nov. 1976) ...... 13

Vieira, ‘‘Compulsory Public Sector Collective Bargain-

ing: The Trojan Horse of Corporativism’’, Gov’t

Union Rev., Vol. 2, No. 1 (Winter 1981) ........ 19

E. Vieira, Jr., ‘‘T'o0 Break and Control the Violence of

Faction’’: The Challenge to Representative Gov-

ernment from Compulsory Public-Sector Collective

DOGO CDSG) ccccdctanesncsasdecveeccesses 26

Vieira, ‘‘ Are Public-Sector Unions Special Interest Po-

litical Parties?’’, 27 DePaul L. Rev. 293 (1978) . 10, 27

Wellington & Winter, ‘‘The Limits of Collective Bar-

gaining in Public Employment’’, 78 Yale L.J. 1107

CRONE Sdeccuiubacad edencsetenkebewtesveucdens 13

No.

IN THE

Supreme Cowt of the United States

Octosper TERM, 1982

Leon W. Kniaut, e¢ al.,

Appellants,

v.

Minnesota ComMMuNITY CoLLece F'acuty AssociaTION,

et al.,

Appellees.

On Appeal from the United States District Court

for the District of Minnesota

JURISDICTIONAL STATEMENT

Leon W. Knight, e¢ alia, respectfully appeal the

findings of fact and judgment of the United States

District Court for the District of Minnesota.

OPINIONS BELOW

The unreported findings of fact and opinion of the

District Court here for review appear in the separate

Appendix (A.) at 31 and 3, respectively. The unre-

ported order of that Court denying Appellants’ mo-

tions for rehearing appears in A. at 87.

The unreported earlier opinion of the District Court

denying Appellants’ motion to convene a three-judge

court appears in A, at 67. The opinion of the Court

of Appeals for the Eighth Circuit ordering conven-

tion of the three-judge court is reported at 535 F.2d

466, and reprinted in A. at 55.

JURISDICTION

On 19 December 1974, Appellants filed their com-

plaint for injunctive relief, invoking jurisdiction

under 28 U.S.C. § 1343 and 49 U.S.C. § 1983 (1970),

and requesting a three-judge court pursuant to 28

U.S.C. § 2281 (1970). On 13 February 1975, Appel-

lants moved to convene a three-judge court; but the

District Court denied this motion on 23 December

1975." On petition for mandamus, the United States

Court of Appeals for the Eighth Circuit ordered con-

vention of the panel on 17 May 1976.’ On 12 August

1976, Congress repealed 28 U.S.C. § 2281, but provided

that the repeal ‘‘shall not apply to any action com-

menced on or before [that date]’’."° On 16 November

1981 and 31 March 1982, respectively, the District

Court issued its findings of fact and conclusions of

law and judgment, denying a permanent injunction

with respect to the questions presented by this appeal."

The District Court denied Appellants’ motions for

rehearing on 13 August 1982." And Appellants filed

* A. at 67.

* Id. at 55, 535 F.2d 466. The Chief Judge of the Circuit Court

designated the panel on 26 May 1976.

Pub. L, 94-381, § 7, 90 Stat. 1119, 1120.

" A. at 31, 3, 83.

8 Id. at 87, 95.

3

their notice of appeal in that Court on 4 October 1982,

pursuant to 28 U.S.C. §2101(b) (1976).”

This Court has exclusive appellate jurisdiction un-

der 28 U.S.C. § 1253 (1976).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The appeal involves the constitutionality, under the

First and Fourteenth Amendments to the United States

Constitution, of the provisions of PELRA mandating

compulsory collective bargaining through exclusive

representation.”*

STATEMENT OF THE FACTS

Appellants sued to challenge the constitutionality of

compulsory public-sector collective bargaining through

exclusive representation. After the Court of Appeals

ruled that Appellants raised substantial constitutional

questions,” the parties entered into extensive stipula-

tions of fact, and presented evidence in hearings on

two issues: (i) whether PELRA delegates govern-

mental sovereignty to MCCFA, and thereby abridges

popular sovereignty for its benefit; and (ii) whether

PELRA requires Appellants to accept a political-

action organization as their exclusive representative.

— ae

Td. at 99.

The text of these constitutional and statutory provisions ap-

pears in id. at 105.

** For the procedural history, see ante, p. 2.

4

. The record documents the adverse effects of PELRA

on governmental and popular sovereignty.

Appellees conceded that PELRA requires the Board

to negotiate with MCCFA, a private organization, over

college employment-conditions; that MCCFA is the

only organization that can enforce this requirement;

that through these imposed negotiations MCCFA at-

tempts as much as possible to influence college em-

ployment-policies; and that MCCFA considers itself

and the Board ‘‘equal partners in [the] process [of

setting terms and conditions of employment]’’.”*

The State Officials’ expert-witness in labor and in-

dustrial relations, Professor Milton Derber, testified

without contradiction that compulsory collective bar-

gaining provides exclusive representatives such as

MCCFA with a means to influence governmental

policy-decisions not available to other private interest-

groups; and that this procedure, added to the repre-

sentatives’ participation in the normal political process

of elections and lobbying, gives them a greater ability

to influence policy than other citizens have. Derber

defined PELRA’s requirement that the Board nego-

tiate college employment-policies with MCCFA as ‘‘a

sharing of responsibility for [that] particular func-

tion’’, and explained this as the result of ‘“‘an increas-

ing conviction that * * * absolute [governmental]

sovereignty * * * was no longer an acceptable idea’’,

and that “State Legislator[s] did have the right and

the power to delegate various of these responsibilities

1° Defendant State Officials’ Stiplations, Set I, Nos. 16-20; Tran-

script of Hearings Before Special Master Leonard K, Lindquist

(T.) at 218-19, 466-71, 473-78, 774-78, 5338-46, 5381-82. See Plain-

tiffs’ Revised Stipulations (PRS) Nos. 1667-72; T. at 2140, 2579-85.

5

or to share them * * * with private groups”. Appel-

lants’ expert-witness in political economics, Dr. Philip

Bradley, testified without contradiction that ‘‘[w]hat

happens under PELRA * * * is * * * a very substantial

shift in the locus of decision making from * * * public

authorities * * * to private {collectivities]’’, and that

‘these [private] organizational groups * * * possess a

tremendous power to make decisi.xs’’, And Appel-

lants’ expert-witness in political theory, Professor

Sylvester Petro, testified without contradiction that

‘*[t]here is no way in which governmental sovereignty

can survive the existence of an absolute duty to bar-

gain with [a private organization] to which the em-

ployees of the government owe allegiance’’ as their

exclusive representative.”

Appellants’ expert-witness in political science, Pro-

fessor Gordon Tullock, testified without contradiction

that statutes enabling private special-interest groups

disproportionately to influence governmental officials

are inconsistent with the normal pattern of American

legislative representation (popular sovereignty).”

Derber, Bradley, and Appellants’ other expert-

witness in political economy, Professor Melvyn Krauss,

also testified without contradiction that collective bar-

gaining and exclusive representation under PELRA

are evolutionally derivative of, functionally equivalent

to, and structurally identical with the systems extant

under the National Industrial Recovery Act (NIRA)

T. at 5254, 5256, 5265, 5142-43, 5167; 5647, 5650, 5651-52;

1743-53, 1758-59, 1767-73, 1788-90.

** Td, at 3708-10,

6

and the Bituminous Coal Conservation Act (BCCA),”

which this Court held unconstitutional in A.L.A.

Schechter Poultry Corp. v. United States ® and Carter

v. Carter Coal Co.” Asked whether any laws enacted

after NIRA and BCCA “embodied * * * these same

principles, these same ideas’’ and ‘‘were of the same

nature’, Derber identified ‘‘public sector [collective-

bargaining] laws’’ such as PELRA, adding that the

concept of bargaining by exclusive representation in

PELRA historically evolved—without significant mod-

ification—from that concept as first applied in NIRA

and BOCA. Derber described PELRA as functionally

equivalent to NIRA and BCCA because ‘‘each of these

three Acts were concerned with * * * providing the

framework for the establishment of a system of collee-

tive bargaining’’. Krauss testified that NIRA, BCCA,

and PELRA are structurally identical with respect

to the key elements of collective bargaining and exclu-

sive representation. And Bradley confirmed these con-

clusions.”

Krauss explained how, through compulsory public-

sector bargaining, “the government is in essence

coerced to deal with * * * private groups’’. “‘[A]n

essential, critical element” of the system is exclusive

representation, ‘‘the indispensable mechanism by which

employees are collectivized”. Exclusive representation

” Respectively, Act of 16 June 1933, ch. 90, 48 Stat. 195, and

Act of 30 August 1935, ch. 824, 49 Stat. 991.

.* 295 U.S. 495 (1935).

* 298 U.S. 238 (1936).

27, at 5177, 5181-82, 5199, 5291; 1324-28, 1341-42, 1352-54;

5626, 5630-31,

7

‘timpose[s] conformity of opinion among the mem-

bers of the collectivized [private] grou[p] with respect

to the economic variables with which the group is con-

cerned’’, in order ‘‘to create a monopoly of political

influence’’. ‘‘[T]he essence of [compulsory public-

sector bargaining] is monopoly of political influence.

To have monopoly of political influence you need

unanimity of action. To have unanimity of action

you need conformity of opinion. To have conformity

of opinion you need exclusive representation.’’ ”

Finally, Derber and Bradley re-inforced the con-

nexion among NIRA, BCCA, and PELRA by ex-

plaining how PELRA involves a delegation of legis-

lative power to private groups.”

The District Court acknowledged this testimony and

Appellants’ contention that, ‘‘because MCCFA is a

private organization, it holds an impermissible power

under PELRA to make ‘economic laws’ and its func-

tion constitutes an impermissible delegation of state

sovereignty’. But it held that: (1) ‘‘Minnesota has

not impermissibly delegated its sovereign power’’, be-

cause ‘‘[nJegotiated agreements with state employees

and even arbitration awards must be ‘submitted to

the legislature to be accepted or rejected’ ’’; (2) “the

legislature’s retained authority’’ is sufficient, because

‘‘Tt]he continuing vitality of Schechter and Carter

* * * ig doubtful at best’’; (3) this Court’s decision

* Id. at 1305, 1307-08, 1313-15, 1318-19, 1326-27, 1404, 1406.

** Ante, pp. 4-5. In both Schechter and Carter, this Court’s

decisions turned on the government's delegations of power to pri-

vate groups. Schechter, 295 U.S. at 537; Carter, 298 U.S. at 311.

8

in Abood v. Detroit Board of Education” ‘‘squarely

uphalds the constitutionality of exclusive repre-

sentation bargaining in the public sector’’; and (4)

MCCFA’s ability to exercise extraordinary political

influence under PELRA has ‘‘no constitutional sig-

nificance’’.”*

Il. The record establishes that the UTP is an

integrated political-action organization.

The UTP itself stipulated that ‘‘[t]he United Teach-

ing Profession includes’? MCCFA, MEA, and NEA;

that NEA considers MCCFA and MEA “‘integral parts

of the United Teaching Profession’’; and that both

MCCFA and MEA consider themselves ‘‘integral parts

of the United Teaching Profession’. NEA’s top of-

ficials testified that affiliates such as MCCFA and MEA

are “integral parts of a larger group’’; that they all

constitute an “integrated organization that operates

cooperatively at [the local, state, and national] levels’’;

and that ‘‘[w]e are in fact three levels combined into

one organization’. MEA’s President testified that ‘‘the

IMPACE operation * * * is an integral part of the

MEA organization’; IMPACE’s Chairman admitted

that ‘‘IMPACE will continue to operate * * * in total

unison with the goals and objectives of the parent or-

ganization [MEA]”; and IMPACE’s own guidelines

recite how its contributions to candidates depend on‘

their voting-records being ‘‘consistent with * * * the

policies of the united teaching profession’’. A top staff-

person of NEA testified that NEA-PAC is ‘‘a crea-

*° 431 U.S. 209 (1977).

* A. at 5-7, 9-10 n.8,

9

ture’’ of NEA; and NEA-PAOC’s own guidelines recite

its purpose as “‘support[ing] candidates * * * in order

to achieve political decisions consistent with the aims

of the United Teaching Profession’’.” And the Dis-

trict Court found IMPACE and NEA-PAC to be the

‘‘political-action arms’’ of MEA and NEA, respec-

tively.”

Appellants’ expert-witness in organizational science,

Professor Craig Schneier, testified without contradic-

tion that NEA, MEA, MCCFA, IMPACE, and NEA-

PAC ‘‘are very highly integrated to the point of one-

ness. They act * * * as one organization. * * * [C]er-

tainly beyond any reasonable doubt * * * the units

function as one organization’’.”

And the few UTP lay-witnesses who speculated on

the alleged “separateness’’ of the units conceded their

ignorance of organizational science, how the units ac-

tually interact, or both.”

Nonetheless, the District Court found that “MCCFA,

MEA, and NEA are not a single integrated organiza-

tion’’ and that ‘‘IMPACE and NEA-PAC are * * *

not part of any single integrated organization’’.”

The District Court assigned to the UTP the burden

of proving its political activities ‘‘[r]elated to collec-

** PRS Nos. 405-09; 408a, 435a, 433a ; 674, 521, 519; 501, 503.

** A. at 37.

*°T. at 1168, 1179-83, 1190-91, 1197-1202, 1254, See id. at 5460,

5476-77 (unchallenged corroborating testimony of Appellants’ other

expert-witness in organizational science, Professor Cyril Morgan).

% Td. at 764, 858, 886, 1710-11, 2751, 2760-69, 2788, 4464-67.

"A, at 39.

10

tive bargaining’’, in the sense of being ‘‘an integral

part of the bargaining process”.” Amazingly, however,

the UTP itself admitted its substantial and essential

involvement in lobbying, propaganda and agitation,

political litigation, and political organizing—prac-

tically none of which was ‘‘an integral part of the

bargaining process’’ in the community colleges.” Fur-

thermore, the UTP admitted that substantial involve-

ment in partisan politics—which Abood held unrelated

to bargaining as a matter of law “—is essential to the

achievement of its goals.”

Moreover, Appellants’ expert-witness in political sci-

ence, Professor Tullock, described the record in this

%2 Td. at 11 & n.12, 32 & n.1. The quoted standard is that of the

Abood plurality. 431 U.S. at 236 (opinion of Stewart, J.).

3 PRS Nos. 1453-57, 1459a, 1461-64, 1468-69, 1471-1552a, 1556-

58, 1561-80, 1593-1610, 1624, 1626-28; 49-50 (no personnel from

NEA and only one staff-man from MEA have bargained on behalf

of MCCFA since 1 July 1971). On ‘‘substantial’’ or ‘‘essential’’

involvement in political activism as the defining characteristic of

a political-action organization, see Vieira, ‘‘Are Public-Sector

Unions Special Interest Political Parties?’’, 27 DePaul L. Rev.

293, 322-49 (1978).

431 U.S. at 232-37 (opinion of Stewart, J.), 244 (Stevens, J.,

concurring), 254 (Powell, J., concurring in the judgment).

* PRS Nos. 1188-1303. See especially the UTP’s slogan ‘‘every

educational decision is a political decision’’, emphasizing that it

must be involved in partisan-political activism at every level of

government, including the election or appointment of city councils,

local school boards, state boards of education, state legislatures,

state governors, Congress, the President of the United States, and

even the Justices of this very Court. Quoted in Plaintiffs’ Objec-

tions to the Court’s Findings of Fact and Motion to Amend the

Court’s Findings of Fact to Conform to the Law and to the Evi-

dence (MAF) at 104-06, in A. at 270-73.

11

case as ‘‘more complete than I have ever seen before

on any pressure group’’, and characterized the UTP

as a dominantly political organization. Tullock ex-

plained that the UTP is not a traditional political

party, because ‘‘it doesn’t run [candidates] under its

own name”, but that, in terms of its degree of po-

litical involvement, the distinction ‘‘is not very sub-

stantial’’.”

Attempting to relate its political activities to collec-

tive bargaining, the UTP introduced exhibits listing

budget-allocations of its units. However, Appellants’

expert-witness in accounting, Mr. Irving Ross, testi-

fied without contradiction that none of the UTP’s

financial documents had ‘‘a specific data base * * * so

as to yield information with respect to political ex-

penditures or collective bargaining expenditures’’, and

that none of its other evidence satisfied generally ac-

cepted accounting standards and practices respecting

the calculation of such expenditures. And the UTP’s

own lay witnesses confirmed this conclusion in every

particular.”

The UTP also interrogated some of its officials and

staff concerning their alleged allocation of ‘‘working-

time’’. However, this testimony rested on no personal

knowledge; lacked supporting documentation; was

impugned by the record; or relied on retrospective

‘‘estimates” and ‘‘guesses’’, not demonstrable facts.”

%* T. at 3698-702, 3728, 3786.

** Td. at 5560-67, 5584-86, 5605-09; 4429-39, 4472-73, 4491-93,

4504-05, 5086-96, 5107-08, 5369-73, 5376-77, 5384-85.

*° The extensively defective nature of this voluminous material

precludes more than a synopsis here. For a detailed critique, see

MAF at 131-67, in A. at 299-335.

12

Furthermore, much of it purported to analyze activi-

ties of MEA’s ‘‘UniServ Directors’’—in the face of

stipulations that neither NEA nor MEA can determine

how much money UniServ units spend on politics and

bargaining, or how much time the Directors devote

to those activities; and in the teeth of the UTP’s

own quantitative UniServ survey, showing partisan-

political activities in from 87-99% of the units nation-

wide.”

Nonetheless, the District Court determined that the

UTP “‘is predominantly engaged in activities closely

and directly related to collective bargaining’’, and that

therefore Appellants’ contention that the UTP is an

‘integrated organization that functions as a quasi-

political party * * * is without merit as a factual

matter’’.”

III. Notwithstanding the record, the District Court

upheld the constitutionality of PELRA.

Relying on these rulings, the District Court declared

that, with regard to exclusive representation, ‘‘ PELRA

as applied to the community colleges is * * * valid in

all respects”.”

Appellants objected to the District Court’s findings

of fact, and moved for rehearing; but the Court denied

their motions.“ They now seek review of the District

Court’s findings and judgment.

%° PRS Nos. 69-85, 86-102; 1629, quoted in MAF at 70-73 &

n.315, in A. at 238-40 & n.315.

A. at 12.

“Td. at 26.

*2 Td. at 87, 95.

13

SUBSTANTIALITY OF THE QUESTIONS PRESENTED

I. The District Court’s ruling that exclusive representa-

tion under PELRA is constitutional expunges the

non-delegation doctrine from constitutional law,

eviscerates Schechter und Carter, perverts Abood,

and, overall, licenses the State of Minnesota to

prostitute the political process for the benefit of

private special-interest groups.

A. Compulsory public-sector collective bargaining

through exclusive representation transfers some meas-

ure of decisionmaking authority over public policies

from public officials to private groups, thereby dele-

gating governmental sovereignty to those groups. On

this point, agreement is unanimous among commenta-

tors;” among the parties to this appeal; and even

among the Judges of the District Court and the Jus-

tices of this Court.”

* F.g., C. Summers, ‘‘ Public Employee Bargaining: A Political

Perspective’, 83 Yale LJ. 1156, 1156, 1157, 1160 (1974) (‘‘[t]he

introduction of collective bargaining * * * in the public sector

* * * restructures the political process’’); R. Summers, Collec-

tive Bargaining and Public Benefit Conferral: A Jurisprudential

Critique (Inst. of Pub. Employment, N.Y. State School of Indus,

and Lab. Rel’ns, Monograph No. 7, Nov. 1976), at 3 (‘‘!c]ollective

bargaining cannot be engrafted on to [the governmental process]

without redistributing power’’) ; Wellington & Winter, ‘‘The Limits

of Collective Bargaining in Public Employment’’, 78 Yale L.J.

1107, 1109 (1969) (‘‘a great deal of shared control is implicit in

any scheme of collective bargaining’’).

“* See ante, notes 16-17 & accompanying text. The UTP made no

attempt to challenge this expert-testimony.

** Both the District Court, and this Court in Ahbood, commented

that bargaining provides employees with ‘‘economic benefits’’ that

14

1. The District Court, however, held PELRA’s dele-

gation of sovereignty to MCCFA ‘not impermis-

sibl[e]”’, because “[nJegotiated agreements with state

employees and even arbitration awards must be ‘sub-

mitted to the legislature to be accepted or rejected’ ’’.“

Four errors vitiate this conclusion: First, it begs the

question—which is not ‘‘What power has the legisla-

ture retained?’’, but rather ‘‘What power has it dele-

gated to private groups?’’ Even if the Minnesota

Legislature itself bargained with MCCFA, it would

still have committed the State (through PELRA)

to negotiate the content of public policy in the col-

leges with a private group, subject to compulsory

arbitration of disputes and the threat of strikes.”

Under PELRA, the Legislature enjoys less ‘‘retained

justify imposing ‘‘agency fees’’ on non-members of the exclusive

representative. A, at 4-5, 8; 431 U.S, at 221-22 (opinion of Stewart,

J.). If collective bargaining creates benefits for some employees,

though, it does so only by altering the course of public-employment

policy from what it would have been absent bargaining, through

the representative’s ability to require the government to negotiate

the substance of that policy. Now, a State’s power to determine the

wages, hours, and other working-conditions of its employees is

‘*fo]ne undoubted attribute of state sovereignty’’. National League

of Cities v. Usery, 426 U.S. 833, 845 (1976). Therefore, if Abood

correctly sustained agency fees as payments for special benefits

some employees receive from and solely because of bargaining, then

(to the degree it confers such benefits) bargaining must involve a

transfer of ‘‘state sovereignty’’, from the government to private

groups. Cf. 431 U.S. at 243 ( Rehnquist, J., concurring).

“A. at 5-6.

*" See Minn, Stat. §§ 179.63, subd. 16; 179.64; 179.65-179.67;

179.68, subd, 2; 179.69-179.70; 179.74, in A, at 111-27, 129-33,

142-44,

15

authority’ then if it negotiated directly with MCCFA.“

Unless the ‘‘sharing’’ of governmental authority with

a private group by a state legislature itself is al-

ways a ‘‘permissible’’ delegation of sovereign power,

PELRA’s more egregious arrangement is self-evi-

dently unconstitutional.”

Second, the Distict Court’s reliance on ‘‘retained

authority’? myopically focusses on the Legislature’s

remote, contingent, and limited review, while blinking

MCCFA’s direct, immediate, and plenary influence over

adoption and implementation of college policies, This

Court has repeatedly held that a legislature delegates

no power by authorizing some party merely to ap-

prove, disapprove, suspend, or revive the operation

of a statute—because the legislature determines the

original substance of the law.” If a granted power to

“* The Legislature’s sole power is to ‘‘accep[t] or rejee[t]’’, but

not to modify or impose, ‘‘[t]he provisions of the negotiated

agreements and arbitration awards’’. Minn, Stat. § 179.74, subd.

5, in A. at 143. Indeed, the Legislature's own Commission on

Employee Relations ‘‘may make recommendations [concerning col-

lective bargaining] * * * but no recommendation shall impose

any obligation or grant any right or privilege to the parties’’.

Minn, Stat. § 3.855, subd. 2 (emphasis supplied). Moreover, under

some circumstances, the Commission may give ‘‘interim approval’”’

to a ‘‘proposed agreement or arbitration award’’ that has been

‘*rejected or * * * not approved by the legislature’’. Minn, Stat.

§ 179.74, subd. 5, in A. at 143-44.

See Schechter, 295 U.S. at 537 (congressional ‘‘delegation of

legislative power [to private groups] is unknown to our law and

is utterly inconsistent with the constitutional prerogatives and

duties of Congress’’).

°F .g., Currin v. Wallace, 306 U.S. 1, 15-16 (1939) ; Union Bridge

Co. v. United States, 204 U.S. 364, 377-87 (1907) ; Field v, Clark,

143 U.S. 649, 681-83 (1892).

16

approve or disapprove the operation of a law involves

no invalid delegation, such a retained power hardly

constitutes a constitutionally significant withholding

of legislative authority. Under PELRA, MCCFA and

the Board jointly negotiate the agreements the Legis-

lature must accept or reject. These agreements have

“all the attributes of legislation for the subjects with

which [they] dea[l]’’. The reai lawmaking, then,

derives from MCCFA’s negotiations, not the Legis-

lature’s tardy approval thereof.

Third, the District Court’s decision forgets that this

Court long ago rejected the ‘‘retained-authority” de-

fense. Under NIRA and BCCA, executive and admin-

istrative officials of the national government could

approve, disapprove, modify, or establish themselves

the ‘‘codes’”’ of economic law the statutes licensed pri-

vate groups to promulgate.” Nevertheless, Schechter

and Carter condemned the delegations of legislative

power to those groups as ‘‘utterly inconsistent’’ with

the Constitution and ‘‘intolerable’’.”

Fourth and last, the District Court’s ruling oblit-

erates the non-delegation doctrine. For all delegations,

as opposed to abdications, of legislative power im-

plicitly assume the legislature’s reservation of author-

ity to revoke its grant, if only by repeal of the statute

itself. An explicit statement of this ‘‘retained au-

thority’’ adds nothing. Therefore, if mere ‘‘retained

authority” immunizes any delegation of legislative

** Abood, 431 U.S. at 252-53 (Powell, J., concurring in the

judgment).

** NIRA §§ 2(a, b), 3(a, d), 4(a), 7(b, ¢), 48 Stat. at 195-96,

196, 197, 199; BCCA §§ 2(a), 4, Pt. I(a), Pt. II(a, ¢), Pt, IIT

(e-g), 49 Stat. at 992, 994-95, 995-98, 1001-02.

** Schechter, 295 U.S. at 537; Carter, 298 U.S. at 311.

17

power to private groups, then ali such delegations—

being rationally indistinguishable in this particular—

are always constitutional.

For the District Court’s decision to stand, then, this

Court must join with it in expunging the non-

delegation doctrine from constitutional law.

2. Sensing the absurdity of its “retained-authority”’

thesis in light of Schechter and Carter, the District

Court disparaged their ‘‘continuing vitality” as

‘doubtful at best’’.* A District Court, however, must

enforce this Court’s decisions when they apply to the

facts before it, not disregard them because of inap-

posite speculations about their ‘‘vitality’’.” As recent

opinions of this Court illustrate, the non-delegation

*A, at 6 & nb.

** F.g., United States v. Crocker, 420 F.2d 307, 209 (8th Cir.

1970) ; MeCray v. Burrell, 516 F.2d 357, 364-65 (4th Cir. 1975) ;

Holmes v. Burr, 486 F.2d 55, 60 (9th Cir. 1973); Patterson v.

Brown, 393 F.2d 733, 736 (10th Cir. 1968) ; United States v. Miller,

316 F.2d 81, 83 (6th Cir, 1963).

Besides, the lower-court decisions the District Court cited to

rationalize ignoring Schechter and Carter involved no delegations

of legislative authority to private groups at all. Simon v. Cameron,

337 F. Supp. 1380, 1383 (C.D. Cal. 1970) (group ‘‘with its close

state connections should be characterized as a public agency’’) ;

Quincy College and Seminary Corp. v. Burlington Northern, Inc.,

328 F. Supp. 808, 811 (N.D. Ill. 1971) (authority granted to Na-

tional Railroad Passenger Corporation [Amtrak] had ‘‘sufficient

statutory standards and safeguards’’; no claim that Amtrak a

merely private group). Moreover, the very treatise the District

Court cited emphasizes the continuing importance of the non-

delegation doctrine where private groups are concerned, and refers

to Carter as ‘‘[o]ne of the most important cases’’. 1 K. Davis,

Administrative Law Treatise (2d ed. 1978), § 3:12, at 194.

18

doctrine of Schechter and Carter remains the law.”

And the uncontradicted testimony of Professors Der-

ber and Krauss, and Dr. Bradley, proves the ma-

teriality of that doctrine to the facts of this case.”

For the District Court’s decision to stand, then, this

Court must join with it in eviscerating Schechter and

% Industrial Union Dep’t, AFL-CIO v. American Petrol. Inst.,

448 U.S. 607, 646 (opinion of Stevens, J.), 664 n.1 (Powell, J.,

concurring in part and in the judgment) (1980) ; National Cable

Television Ass’n, Inc. v. United States, 415 U.S. 336, 340-42 (1973) ;

United States v. Robel, 389 U.S. 258, 275 (1967) (Brennan, J.,

concurring in the result). See also cases in which Justices have

asserted the non-delegation doctrine in circumstances where the

majority saw no delegation problem. New Motor Vehicle Bd. of

California v. Orrin W. Fox Co., 439 U.S. 96, 125-26 (1978)

(Stevens, J., dissenting) ; California Bankers Ass’n v. Schultz, 416

U.S. 21, 90-91 (1974) (Douglas, J., dissenting); MeGautha v.

California, 402 U.S, 183, 252-54 & nn.2-3, 271-73 & n.21 (1971)

(Brennan, J., dissenting) ; Zemel v. Rusk, 381 U.S. 1, 21-22 (1965)

(Black, J., dissenting) ; Arizona v. California, 373 U.S. 546, 625-26

(1963) (Harlan, J., dissenting) ; United States v. Sharpnack, 355

U.S. 286, 297-98 (1958) (Douglas, J., dissenting).

Furthermore, two other decisions on which Carter relied, Wash-

ington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116,

121-22 (1928), and Eubank v. City of Richmond, 226 U.S. 137, 143

(1912), have also received continuing approbation. City of Eastlake

v. Forest City Enterprises, Inc., 426 U.S. 668, 677-78 (opinion of

the Court), 683 & n.5 (Stevens, J., dissenting) (1976) ; Village of

Belle Terre v. Boraas, 416 U.S. 1, 6-7 (1974) ; New Motor Vehicle

Bd. of California, ante, 439 U.S. at 125-26 n.30 (Stevens, J.,

dissenting) ; McGautha, ante, 402 U.S. at 254 n.3, 272-73 & n.22

(Brennan, J., dissenting).

‘The testimony of both Krauss and Derber rested in large

measure on review of this Court’s opinions in Schechter and

Carter. T. at 1334-35, 5189-91.

19

Carter, with all the far-reaching political-economic

consequences that action entails.”

3. Attempting to avoid Schechter and Carter alto-

gether, the District Court fantasized that “Abood

squarely upholds the constitutionality of exclusive

representation bargaining in the public sector’’.” This

is a five-fold misrepresentation: First, exclusive rep-

resentation was not at issue in Abood. The complaints

did not challenge it. The lower courts did not rule

on it.” The parties did not contest it before this Court,”

but instead agreed that the ‘‘appeal * * * does not raise

the question”.” And the Abood plurality defined the

problem as ‘‘whether [an agency-shop] arrangement

violates * * * constitutional rights’’, holding that ‘‘[a]ll

we decide is that * * * the complaint * * * establish[es]

a cause of action’’ with respect to the agency shop.”

5* See Vieira, ‘‘Compulsory Public Sector Collective Bargaining :

The Trojan Horse of Corporativism’’, Gov’t Union Rev., Vol. 2,

No. 1 (Winter 1981), at 56.

% A. at 7.

* Appendix to Brief for Appellants, Abood v. Detroit Bd. of

Edue., No. 75-1153 (U.S. Sup. Ct., filed 2 July 1976), at 6-15,

39-52. See 431 U.S. at 213 (opinion of Stewart, J.).

*! Appendix to Brief for Appellants in Abood, at 94-104. See 431

U.S. at 215 (opinion of Stewart, J.).

* Jurisdictional Statement in Abood (filed 13 Feb. 1976), at 6;

Brief for the Appellants in Abood (filed 9 July 1976) ; at 4; Brief

for Appellees in Abood (filed 10 Sept. 1976), at x.

* Brief for the Appellants in Abood, at 148. ‘‘[T]he states are

free to adopt the federal model of * * * exclusive representation

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

in Abood, at 34 (emphasis supplied).

** 431 U.S. at 211, 236-37 (opinion of Stewart, J.). Accord, id.

at 217, 224-25 (opinion of Stewart, J.).

20

Second, no opinion in Abood addressed exclusive

representation. The plurality invoked the representa-

tive’s ‘various responsibilities’ as rationalizing the

agency shop—without referring to any decision sus-

taining the delegation of bargaining-privileges to a

private organization in the public sector.” Justice

Powell noted that a ‘‘collective bargaining agreement

to which a public agency is a party * * * has all the

attributes of legislation’’, and warned that ‘‘voters * * *

could complain * * * that their voting power and in-

fluence on the [governmental] decision making process

had been unconstitutionally diluted’’ by delegation to

a private group of power to participate in making

such economic laws—but he, too, refrained from any

constitutional judgment.” Justices Rehnquist and Stev-

ens said nothing on the subject. And the parties them-

selves reserved, or remained silent on, the delegation-

question.”

Third, the sole constitutional precedent subtending

Abood’s decision on the agency shop, Railway Em-

*° 431 U.S. at 224-25 (opinion of Stewart, J.). The plurality

merely accepted as unchallenged the State’s ‘‘determin[ation] that

labor stability will be served by a system of exclusive representa-

tion’’, Id. at 229 (opinion of Stewart, J.). Indeed, except for one

decision condemning exclusive representation as ‘‘legislative dele-

gation in its most obnoxious form’’, no opinion of this Court has

squarely addressed the matter. Carter, 298 U.S. at 311 (opinion of

the Court), 318 (Hughes, C.J., concurring). See City of Madison,

Joint School Dist. No. 8 v. WERC, 429 U.S. 167, 175 (1976).

© 431 U.S. at 252-53, 262 n.15 (opinion concurring in the

judgment).

*' Appellants in Abood noted the relevance of Schechter, Carter,

and Lathrop v. Donohue, 367 U.S. 820 (1961), to the delegation-

of-power problem. But they disclaimed any intent to ‘‘advert to

21

ployes’ Department v. Hanson," had nothing to do

with exclusive representation. The Abood plurality

cited Hanson only in connexion with the agency shop.”

And the Court of Appeals heretofore in this case held

Hanson irrelevant to exclusive representation.”

Fourth, the record in Abood lacked ‘‘factual con-

ereteness and adversary presentation’’ even with re-

the controlling nature of these decisions on the issue of exclusive

representation’’, because ‘‘[i]t is not our purpose to raise the[se]

constitutional conrundrums’’, Brief for the Appellants in Abood,

at 126. Appellees’ brief contained no reference to Schechter or

Carter at all. Brief for Appellees in Abood, at iv-viii.

Not surprisingly, then, the Abood plurality also ignored Schechter

and Carter, and acknowledged Lathrop only to note that that deci-

sion ‘‘does not provide a clear holding to guide us in adjudicating

the constitutional questions here presented’’. 431 U.S. at 233 n.29

(opinion of Stewart, J.). Contrast Lathrop, 367 U.S. at 853-55

(opinion of Harlan, J.), 878 n.1 (opinion of Douglas, J.) (dis-

cussing the relevance of Schechter). This silence would depart

radically from traditional principles of constitutional adjudication

if, as the District Court erroneously implied, Abood ‘‘overruled’”’

Schechter and Carter on the delegation-issue.

** 351 U.S. 225 (1956).

* 431 U.S. at 215, 217 n.10, 222 (opinion of Stewart, J.).

«The petitioners’ constitutional challenge to the exclusive rep-

resentation scheme of the PELRA is distinct from Hanson, * * *

In contrast [to that challenge], * * * Hanson was confronted with

an attack on the [Railway Labor Act], which allows for exclusive

representation similar to that of the PELRA, but it did not resolve

the validity of such a scheme. * * * Hanson does not ‘foreclose the

subject’ of petitioners’ challenge to the exclusive representation

scheme of the PELRA.’’ Knight v. Alsop, 535 F.2d 466, 470-71

(8th Cir. 1976), in A. at 61-62.

22

spect to the agency shop." Any ‘‘holding” regarding

exclusive representation, then, could have amounted

only to an advisory opinion, improper under Article

III of the Constitution.”

Fifth and last, the Abood plurality itself com-

pellingly distinguished the agency-shop issue there

from that of exclusive representation here. Assuming

the constitutionality of exclusive representation, ap-

pellants in Abood attacked only the requirement of

financial support therefor. Because ‘‘[p]ublic em-

ployees are not basically different from private em-

ployees’’ with respect to unions, the plurality upheld

the agency shop, relying on the private-sector case,

Hanson.” Here, Appellants challenge exclusive repre-

sentation itself, because it delegates public authority

to, and abridges popular sovereignty for the benefit

of, a private group. Thus, unlike Abood, this case

hinges on ‘‘[t]he very real differences between * * *

bargaining in the public and private sectors’’, par-

ticularly that ‘‘ ‘[t]he uniqueness of public employ-

ment * * * is in the special character of the em-

ployer’’’, government.”

™ 431 U.S. at 236 (opinion of Stewart, J.). Accord, id. at 244

& n. (Stevens, J., concurring).

8 See, e.g., United Pub. Workers v. Mitchell, 330 U.S. 75, 89-91

(1947).

431 U.S. at 230-31, 232 (opinion of Stewart, J.).

Td, at 230 (opinion of Stewart, J.), quoting C. Summers,

‘*Public Sector Bargaining: Problems of Governmental Decision-

making’’, 44 Cinn. L. Rev. 669, 670 (1975). For this reason, even

if relevant, Abood would not control here. See, e.g., Quong Wing

v. Kirkendall, 223 U.S. 59, 63-64 (1912).

23

In sum, Abood is irrelevant because: the record there

did not frame the exclusive-representation issue; the

parties did not present, argue, or even contest the

matter; resolution of the question was unnecessary

for the Court’s decision; and none of the opinions

even described, let alone analyzed or solved, the legal

problems Appellants present here.” For the District

Court’s decision to stand, then, this Court must join

with it in perverting Abood beyond recognition.

B. By delegating governmental sovereignty to

MCCFA, PELRA also abridges popular sovereignty

for its benefit. On this point, too, there is unanimity

among commentators" and the parties to this ap-

™ Compare and contrast United States v. Mitchell, 271 U.S. 9, 14

(1926), and Webster v. Fall, 266 U.S. 507, 511 (1925) (previous

decision not precedent on ‘‘question not raised by counsel * * *

merely because it existed in the record and might have been

raised’’), See, e.g., United States v, L.A. Tucker Truck Lines, Inc.,

344 U.S. 33, 38 (1952); Tofft, Weller & Co, v. Munsuri, 222 U.S.

114, 119-20 (1911) ; Cross v. Burke, 146 U.S. 82, 87 (1892) ; Green

v. United Stetes, 355 U.S. 184, 197 n.16 (1957); Powell v. Ala-

bama, 287 U.S. 45, 77 (1932); Snow v. United States, 118 U.S.

346, 354-55 (1886).

In so far as they imply approbation of exclusive representation,

the remarks of the Abood plurality cited ante, note 65, constitute

merely those ‘‘ general expressions’’ that ‘‘go beyond the case’’ and

‘fought not to control the judgment in a subsequent suit, when

the very point is presented for decision’’. Cohens v. Virginia, 19

U.S. (6 Wheat.) 264, 399 (1821),

F.g., C. Summer, ‘‘Public Sector Bargaining: Problems of

Governmental Decisionmaking’’, 44 Cinn. L. Rev. 669, 674-75

(1975) (public-sector bargaining ‘‘provide[s] a special process

available only to public employees’’, and ‘‘significantly increases

the political effectiveness of public employees in determining their

24

peal.” And the members of this Court have not been

unmindful of it, either.”

The District Court, however, held that the unequal

political influence MCCFA enjoys through its unique

legal privilege to negotiate college employment-policies

has “no constitutional significance”.” Exactly the op-

posite is true: Equally foreign to the Constitution

are the notions that government may enhance the

terms and conditions of employment * * * relative to other com-

peting political interest groups’’); C. Summers, ante note 43, 83

Yale L.J. at 1193 (public employees ‘‘already have, as citizens, a

voice in decisionmaking through customary political channels, The

purpose of collective bargaining is to give them * * * a larger voice

than the ordinary citizen’’); R. Summers, ‘‘Public Sector Col-

lective Bargaining Substantially Diminishes Democracy’’, Gov’t

Union Rev., Vol. 1, No. 1 (Winter 1980), at 8, 21 (‘‘[t]he re-

distribution of governmental authority pursuant to statutes estab-

lishing collective bargaining inherently diminishes democracy’’;

‘*bargaining * * * authenticates * * * a fundamentally nondemo-

cratic mode of decisionmaking—a form of interest group syndi-

calism’’) ; Lieberman, ‘‘Teacher Bargaining: An Autopsy’’, The

Kappan (Dee, 1981), at 231, 232 (‘‘[t]hat public sector bargaining

is inconsistent with democratic government is no longer in doubt’’).

See ante, notes 16-18 & accompanying text. The UTP made no

attempt to challenge this expert-testimony.

7 Abood, 431 U.S. at 229 (opinion of Stewart, J.) (‘‘ permitting

* * * a union to bargain as [public employees’] exclusive repre-

sentative gives the employees more influence in the decisionmaking

process than is possessed by employees * * * in the private sector’’),

261 n.15 (Powell, J., concurring in the judgment) (because of

delegation of power to exclusive representatives, ‘‘voters * * *

could complain with force and reason that their voting power and

influence on the decisionmaking process ha[ve] been unconstitu-

tionally diluted’’).

A. at 9-10 n.8.

25

speech of one group in order to attenuate the relative

voices of others, or distort its decisionmaking processes

in order to benefit one group at everyone else’s ex-

pense.” Indeed, even ‘‘[t]o permit one side of a de-

batable public question to have a monopoly in ex-

pressing its views to the government is the antithesis

of constitutional guarantees”.” Yet PELRA grants

MCCFA a monopoly, not simply to express its views,

but also to compel the Board to negotiate over those

views, and to enter into agreements that have ‘“‘all

the attributes of legislation for the subjects with

which [they] dea[1]]’’.”

The essence of compulsory bargaining under PELRA

is MCCFA’s monopolistic influence over governmental

decisionmaking in the colleges. This Court, however,

has ruled repeatedly in other contexts that such po-

litical discrimination is unconstitutional, even if it

promotes or defeats ‘‘good’’ or ‘‘bad’”’ political views;

balances political power among competing interest-

groups; encourages ‘‘ political stability’’; solves ‘‘ prac-

tical [political] problems’’; aids or hinders particular

economic, social, or other nonpolitical interests; reec-

ognizes the ‘‘special pecuniary or other interest” of

some group in a governmental decision; takes employ-

ment-status into account; or even satisfies the demands

*° See, e.g., mutatis mutandis, First Nat’l Bank of Boston v.

Bellotti, 435 U.S. 765, 790-92 (1978) ; Washington v. Seattle School

Dist. No. 1, US. . , 102 S. Ct. 3187, 3193-95 (1982).

* City of Madison, Joint School Dist. No. 8 v. WERC, 429 U.S.

167, 175-76 (1976) (footnote omitted).

*2 Abood, 431 U.S. at 252-53 (Powell, J., concurring in the

judgment).

26

of majorities.” No rational—let alone legal, politically

sound, or moral—basis exists for relaxing this precept

of democratic government on behalf of a private, self-

interested organization such as MOCF A.”

For the District Court’s decision to stand, then,

this Court must join with it in prostituting the politi-

cal process in a way unknown in American history

and violently at odds with the first principles of

republicanism.”

*§ Cipriano v. City of Houma, 395 U.S. 701, 704-06 (1969) ;

Carrington v. Rash, 380 U.S. 89, 93-94 (1965); Davis v. Mann,

377 U.S. 678, 691-92 (1964); Gray v. Saunders, 372 U.S. 368,

379-80 (1963); Williams v. Rhodes, 393 U.S. 23,.31-32 (1968) ;

Kirkpatrick v. Priesler, 394 U.S, 526, 533 (1969) ; Lucas v, Forty-

Fourth General Assembly, 377 U.S. 713, 736-37, 738 & n.31 (1964) ;

City of Phoenix v. Kolodziejski, 399 U.S. 204, 208-10 (1970) ;

Evans v. Cornman, 398 U.S. 419, 422-26 (1970) ; Kramer v. Union

Free School Dist., 395 U.S. 621, 630-33 (1969); Harper v. Board

of Elections, 383 U.S. 663, 666 (1966).

*4 See, e.g., Mayflower Farms, Inc. v. Ten Eyck, 297 U.S. 266,

273-74 (1936) (naked attempt to give ‘‘economic advantage’’ to

one private group is unconstitutional discrimination). Certainly,

where political discrimination is involved, the District Court’s

‘*retained-authority’’ apology is meritless. See Washington v. Se-

attle School Dist. No. 1, US. " , 102 8. Ct. 3187, 3198-

3200 (1982) ; Crawford v. Board of Educ. of City of Los Angeles,

— US. —, —, 102 S. Ct. 3211, 3226 (1982) (Marshall, J.,

dissenting).

%° See The Federalist No. 10, applied to this issue in E. Vieira,

Jr., ‘To Break and Control the Violence of Faction’’: The Chal-

lenge to Representative Government from Compulsory Public-

Sector Collective Bargaining (1980).

27

II. The District Court’s “finding” that the UTP is not

an integrated political-action organization travesties

the facts in order to protect the UTP from appli-

cation of the Branti doctrine.

Abood held that, even though public-sector bargain-

ing is “political’’, a State may require non-members

of an exclusive representative to finance such bargain-

ing as a condition of employment. Branti v. Finkel,”

on the other hand, held that a State may not require

its non-policymaking employees to accept a political

party as their ‘‘sponsor’’, or to finance any of its

activities. Logically reconciled, Abood and Branti im-

ply that a political party (or equivalently political

organization) may not constitutionally serve as an ex-

clusive representative in the public sector.”

Appellants contend that MCCFA, MEA, IMPACE,

and NEA-PAC are component-parts of an integrated

organization, the UTP; that the UTP’s substantial

and essential involvement in political activism (other

than collective bargaining) renders it indistinguish-

able, for purposes of constitutional law, from a self-

styled political party ;" and, therefore, that the UTP’s

local unit, MCCFA, is constitutionally unfit to serve

as an exclusive representative under PELRA,. The

*6 445 U.S. 507 (1980), following Elrod v. Burns, 427 U.S, 346

(1976).

®* Compare Abood, 431 U.S. at 255-57 (Powell, J., concurring in

the judgment), 243-44 (Rehnquist, J., concurring), with Vieira,

ante note 33, 27 DePaul L, Rev. at 320-21.

**The UTP has repeatedly characterized itself as a ‘‘special-

interest group’’, a ‘‘movement’’, a ‘‘faction’’, or even ‘‘the educa-

tion party’’. PRS Nos. 1133-34, 1136-38, 1140-43; T. at 456-59,

2107-08, 2565-66, 2635-36, 2639-41, 2991-92.

28

District Court apparently accepted Appellants’ legal

analysis, but held that their ‘‘theory is without merit

as a factual matter’’ because: (1) the various units

are not integrated in the UTP; and (2) “‘even if

MCCFA, MEA and NEA were * * * ‘integrated,’

* * * each of these organizations is predominantly

engaged in activities closely and directly related to

collective bargaining’’.”

The merest highlights from the record, however,

belie the District Court’s ultimate ‘‘finding’’.”° And

careful review demolishes it utterly: First, the ‘‘find-

ing’’ rests on erroneous legal standards." Second, it

lacks support in clear and convincing evidence, al-

though evidence of that quality is requisite in First-

Amendment cases such as this.” Third, it gives no

weight to the uncontradicted expert-testimony in or-

ganizational and political science, although the issues

of the UTP’s integration and predominantly political

character are beyond the ken of laymen.” Fourth and

last, line-by-line analysis of all the District Court’s

subsidiary ‘‘findings’’ on the subject exposes them as

false, misrepresentative of the record, irrelevant, or

favorable to Appellants (not to the UTP, as that

Court pretended)."* Indeed, the District Court’s ulti-

mate ‘‘finding’’ so transparently burlesques the reali-

* A. at 12,

” Ante, pp. 8-12.

* See MAF at 88-107, in A. at 255-74.

*? See id. at 108-67, in A. at 274-335.

* See id. at 36-39, 44-77, 81-88, in A. at 204-07, 213-44, 248-55.

* See id. at 167-221, in A. at 335-89.

29

ties of this case as to suggest it was concocted solely

to aid the UTP in escaping the effect of Branti.”

Even in a case not involving fundamental con-

stitutional liberties, the District Court’s ‘‘finding”’

would be reversible as clearly erroneous. Here, where

this Court has the responsibility to examine the whole

record independently,” the need for and propriety

of reversal is even more obvious and imperative.

CONCLUSION

The District Court has ruled that, under the rubric

‘feollective bargaining’’, Minnesota may delegate leg-

islative power to a self-interested private group, there-

by discriminatorily enhancing that group’s political

influence at the expense of all other citizens in the

State. Even worse, the District Court has approved

this delegation to a predominantly political organiza-

tion. Thus, that Court has injected into the corpus of

constitutional law the toxie political tenets of the cor-

porative-state—or fascistic—system.” That such a re-

sult raises substantial questions demanding plenary

consideration by this Court is self-evident.

°° See id. at 20-23, in A. at 179-90, These aberrant actions parallel

the District Court’s repeated countenancing of the UTP’s ‘‘cover-

ups’’ during discovery and at trial. See id. at 24-27, in A. at

191-94.

* F.g., NAACP vy. Claiborne Hardware Co., US. .

& n.50, 102 S.Ct. 3409, 3427 & n.50 (1982) ; See MAF at 27-34, in

A. at 194-202,

** See MAF at 237-46, in A. at 405-14. See generally, ¢.g., G.

Field, The Syndical and Corporative Institutions of Italian Fascism

(1938), at 63, 69, 100, 138, 144; F. Pitigliani, The Italian Cor-

porative State (1933), at xi-xiii, 11-13, 16-26, 32-33, 40-47, 91-98.

30

Therefore, this Court should note probable juris-

diction, and set this case down for full briefing and

oral argument.

Respectfully submitted,

Dare F’, SWENSON

610 Twelve Oaks Center

15500 Wayzata Boulevard

Wayzata, Minnesota 55391

(612) 473-0474

Epwin Vierra, Jr., Counsel of Record

13877 Napa Drive

Manassas, Virginia 22110

(703) 791-6780

Attorneys for Appellants

1 December 1982

31

CERTIFICATE OF SERVICE

I hereby certify that, pursuant to Rule 28 of the Rules of

this Court, I have served three (3) copies of the attached

JURISDICTIONAL STATEMENT on each of the follow-

ing persons, by depositing said copies with the United

States Postal Service, first-class postage prepaid, ad-

dressed as follows:

The Honorable Gerald W. Heaney

The Honorable Earl R. Larson

The Honorable Donald D. Alsop

c/o Gerald Berquist,

Chief Deputy Clerk

United States District Court

514 United States Court House

Minneapolis, Minnesota 55401

Barbara Lindsey Sims, Esq.

Special Assistant Attorney General

515 Transportation Building

St. Paul, Minnesota 55155

Donald J. Mueting, Esq.

Special Assistant Attorney General

515 Transportation Building

St. Paul, Minnesota 55155

Eric R. Miller, Esq.

Oppenheimer, Wolff, Foster,

Shepard and Donnelly

1700 First National Bank Building

St. Paul, Minnesota 55101

Epwin Viera, Jr.

13877 Napa Drive

Manassas, Virginia 22110

(703) 791-6780

Counsel of Record for Appellants

Done this 1st day of December, 1982.