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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1048

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0002%3A1. Public record. Not legal advice.