or you may proceed the morning your honor your morning and may please the court the plaintiff appellants in this case our license family child care providers which means they operate child care businesses within their own homes and they challenge the constitutionality of a statute it calls for certifying an exclusive representative of providers now we vested with the quote right to represent family child care providers in their relations with the state unquote they challenge a statute is unconstitutional because it compels association for the very purpose of petitioning the government for redress of grievances under the first amendment the first question before the court is whether their claim is right and the key to determining that question is when will the statute first compel association when the state forces these providers to associate with ask me as their exclusive representative or only later when the state forces them to pay compulsory fees to ask me as the district court assumed in its decision i submit that it's the former exclusive representation it is the first step of petition is the first step to get a petition yes ask me has there been a petition yet no asked me has indicated they're moving towards filing a petition but they have not yet requested an election under the act if there hasn't even been a petition yet tell me a course i know we're waiting on harris versus quinn district tell me the difference between this and the harris versus quinn case the distinction in harris only challenges the constitutionality of compulsory fees so the seventh circuit in harrison now the supreme court is looking at whether or not the imposition of compulsory fees is imminent at a point during which the providers have not yet been unionized  case it which the union you have the union lost but they don't have it they've already had an election so the harm in harris is further away so when you have the unions lost the election and the question is how far away is the possibility of compulsory fees which would take steps first the uni would have to request another election then win it and then negotiate an agreement required fees here the harms as like this case help help me lucas here the parish at all challenge exclusive representation that the union being certified as their exclusive representative and not only the compulsory fee at the petition first right yes and there's not representation of the petition states that's just that's correct signatures and second you have to have the election that right the election ye s and that hadn't happened well the election never be represented right yes that's correct however it's basically once up is once the petition is filed there will be an election there will be election and then an election will be over in approximately a month and the conclusion that election will determine whether or not there exclusively represented both vote no they won't be that's correct so there is one contingency or two will a petition be filed which again asked me has said and it starts off it's moving towards following petition and then the second is will they win the election and so the question before the court can be framed as what better time is there the now should the court determine now lection in a petition yes or in the alternative does the court want to wait span while the election is ongoing while the plaintiffs in this case are trying to fight unionization while asking is spending resources trying to unionize them and while the state is busy trying to run the election i submit it makes more sense for the court to determine now before an election is called whether or not it would be constitutional to unionize them and in fact the election itself constitutes a harm to them because the entire purpose of the first member of course is to protect individual rights from the material tyranny of the majority and for the state to put your simming they're going to lose tyranny in the majority you may be the tyrannical majority you know the if they lose it means each individuals free to choose for themselves whether or not they want to associate with ask me which  almost every other working as ation is that each individual chooses whether they wish to associate with the organization or not it's only the state imposing exclusive representation that imposes the tyranny of the majority that the majority vote in an election will decide for all providers whether or not they must accept ask me as their exclusive representative and that in and of itself putting them through that their rights through that course was wrongful i mean for example if the state said let's put to a majority vote what church everyone  belong to i don't believe the court would say let's wait until the vote happens and then determine afterwards if it's constitutional some states they do wait until after the election california adopted many many years ago a provision the supreme court later declared unconstitutional but they adopted a provision that essentially reversed brown versus board of education and they let the people vote on it now some states don't do that you're correct some states cut it off the pass but within a ballot initiative it's not even law yet so you couldn't even sue there's only what can you in join it go ahead but here you have a king questions go at it but here of course you have a statue that calls for designating a exclusive representative for providers based upon a majority vote that's the sole purpose of the statute being challenged here and so i submit that the courts to decide now would it be constitutional for the state to certify a majority upon a majority vote before that vote occurs instead of letting them fight through that vote and then also even if the providers constitutionality of state election law procedures the union in that case had never invoked those election law procedures and yet the supreme court held that the challenge to that statue they could challenge that statute even though they had yet to invoke those election procedures facilitate his unionization has yet to be unionized and in fact he could never be forced to pay compulsory fees to the union because florida's a right to work state and the eleventh circuit held that his challenge to that agreement was ripe because he created a risk that he would be unionized and that unionization does create a harm because exclusive representation creates a fiduciary relationship between the individual in its case employee here of the provider and the union differences make that minnesota's not a right to work state in this case compulsory fees or even possible after the imposition of close representation here are i'm sorry in florida it wasn't so it goes to the point that exclusive representation alone is a harm and not only compulsory fees as the district court assumed because the assumption underlying the district court's opinion is that the provider's rights won't be infringed upon a lesson until they're forced to pay compulsory fees which again it happy three steps away but i submit it's exclusive representation once that alexion is over and if the commission or bureau of mentee mediation services says yes ask me is now your exclusive representative that is an injury because at that point jennifer parrish and others will be thrust into a mandatory for a relationship with ask me in which the union is granted quote the right to represent family childcare providers in their relations with the state which would effectively be a compulsory lobbyist asians that i can think of are unions with respect to true public employees which are not of course include child care businesses and then bar associations also have mandatory those are the only two compulsory associations that i'm aware of and both of which under current supreme court law are held to be justified by compelling government interest which provider submit here are absent but the state does not have a compelling interest for forcing the providers to accept ask me perp as a representative for petitioning the state over a child care public a program which is called secret or c cap rather and so here that absence of compelling state interest is what justifies distinguishes unionization of home childcare providers from the unionization of public employees and from bar associations and for that reason that i believe that the law should be preliminarily enjoined and that ultimately held unconstitutional because the plaintiffs have shown a substantial likelihood of success on the merits because the state in the union have not demonstrated that they have a compelling government interest which is required under knox to force these individuals to accept ask me as our exclusive representative for petitioning the state now one of the cases that the union relies heavily on also the state is minnesota versus night and i just like to discuss that case for a moment minnesota versus knight does not involve a claim of compelled association in fact the court so holds and footnotes eleven and thirteen instead they are the plaintiffs complained of being excluded from bargaining sessions and the supreme court held it was constitutional for the state of minnesota to exclude individual ploys from union bargaining sessions because the state has the right to choose to whom it listens individuals may have the right to speak but the government can choose whom it listens to hear however the statute is not so limited just choosing who the state will listen to the statute also calls for designating an exclusive representative again for the provider so here the state is choosing who shall speak for jennifer parish and pat against when they other provisional laws as anybody petition and goodness gracious you know the  representatives and senators in minnesota be out these people or some of these are modern pop or outfits right yes they're going to be knocking on doors and there's going to be petition at the door yes and so tell me why that doesn't say that the both the practical level and the law having the exception level because i submit it's not exculpatory because if compelled association is a violation of first amendment rights the fact the providers may have other first and rights left like they're not restricted doesn't justify the compelled  association for example a good example be the supreme court's decision early and in that case they held it unconstitutional to force a parade to include certain marchers now it's very true that parade could choose any other marchers that had a lot of first amendment associational rights left but it's still unconstitutional to compel that association so the fact that for example jennifer parish can still petition the state individually doesn't justify forcing her to associate with asked me for that same purpose so yes i submit the that interrupt self would not violate anyone's cost to tional rights the governor can choose to whom he listens but here of course a statute goes beyond that calls for pursuant to an election certified exclusive representative to speak for these individual providers and i you share a relationship which the supreme court is analogous to that between interning a client or a trustee in a beneficiary that compels association and the fact that the state can choose to whom it listens doesn't give it the right to choose who shall speak for individual providers who simply do not want to associate with asking and i see only have about a minute and a half left before i was going to reserve five minutes for a bottle so i don't want to begin something that i won't be able to finish so this court has any other r mr gilbert yes you may proceed good morning sir good morning may please the court my name is alan gilbert i'm a member of the minnesota attorney general's office and i represent to pelleas dayton justin and tilson in this matter i'd like to talk about the just disability issues first and as the court is well aware the supreme court has repeatedly stated that there is no principle that is more fundamental  proper role in our system of government than the constitutional limitation of federal court jurisdiction to actual cases or controversies and this was most recently reiterated by the united states supreme court in the clapper case just let last year and clapper also said that this scrutiny in terms of article three is especially rigorous that's the language of the clapper court when an action of one of the other two branches of government are being challenge is unconstitutional they mean federal when they said one of the other yes they were they were referring to federal the tie because it was a federal challenge more on point is harris versus quinn absolutely here on scotus blog it sounds like we may well have guidance from that  just controls this case you're on i think that is right ok tell me that i asked the other side to the relevant similarities or differences harris versus here and this case in let me just make sure that everyone's aware that in here is first square there  actually two groups of employees involved there one group there was an election where the union prevailed and as a result harris versus quinn will definitely get to the merits of the case because of that group the rightness issue was raised as to the other group where the union was not successful so necessarily the court is going to get to that issue but i have to tell you that the briefing on the issue was almost nonexistent so it's obviously a secondary  question from the seventh circuit or at least the same circuit decision on review at the supreme court that that it was based solely on this notion of compulsory fees well that's just not true the opinion in that case mentioned compulsory fees but the statute in that case or the action was challenge on the association grounds the identical association grounds that plaintiffs are asserting here but even more to the point the harm that was there was the basis for rightness in that particular case is identical to the harmless being asserted here and that is having to somehow oppose an election even though it speculative whether an election would even occur and of course the reason why is speculative why an election may not occur is precisely the analysis of the district court in this case and we have it set forth in our brief in some detail but i think it's important to emphasize what the statute provides for the statute provides for literally as a series of contingencies initially the union must submit a petition to the  that point in time the eligible provider i'm sorry the union would get a list of all d h s s employees who are eligible to vote and after that then always you mean contractors help me with what yes yes they would pursuing but after that they are and once they get the less they need to go through the list and presumably they'll be talking to different providers about whether they support them if they can get thirty percent of those providers from the list of the eligible providers then they can fall a petition with the bureau of mediation services and if the petition is for and i should mention that under the terms of the statute if that petition with thirty percent support is not filed by june thirtieth two thousand and seventeen about two years from now the statute expires so there's no authorization at the airport and translation can extend that time right that he could but again that's another speculative contingen be certified i know is well that even if the union is certified and therefore negotiates with the state on behalf of the providers by statute the state is not obligated to agree to anything or any concession whatsoever even converse that you counsel it affectively it is because you don't have to and then if an agreement is reached the legislature must then decide whether to approve the agreement and if the legislature when the union needs to decide whether approve it but but we don't even know that what the negotiations are going to entail the negotiations would focus on the subsidy there's no question about that and it might well be that subsidy the decisions  negotiations are going to result is a benefit to the providers to all providers so not only don't we have a sort of a petition with a thirty percent now only don't we have an election not only don't we notion that there's going to there may or may not be a compulsory fee at the end of all of this well that's not true either if you look on page nineteen of the court's order it says if he goes through all of these contingencies including that the court cannot predict whether an election under the act and subsequently whether an exclusive representative is likely to be certified so he pre depression basically what he's supposed to do under the law and that's what he said  not limited to the compulsory fee we cited to a number of cases from the a circuit and the supreme court the support this notion the public water supply case which ironically dealt with the petition that wasn't file the orchard words to supplement what mr gilbert said first of all the counsel's argument this morning as to why this case is ripe sounds to me more like saying well it's not right but you should decide it even though well well that's the argument your colleague made so i really it's entire the point of the texas case which has been quoted probably five six seven times by by this court is that if it is not certain certainly impending is the term that they use here your honor here there there are two things that have to happen first of all a petition has to be filed that shows with signature signed cards that at least thirty percent so that's go do it certainly doesn't mean that the union to it to us a certain the will be it will win the election in our brief we cited some data from the national labor relations board shows unions even in looking only at elections in which a petition has actually been filed the union succeeded in getting and getting an election even in those cases it's only something like two thirds or less of the cases that the union actually wins or so the union is certainly attempting to win this election we hope it will then when the election i wish it were certain that it would your honor but i'm afraid it's not the the babbitt case which coun mentioned the challenge there was to certain election procedures how the election was conducted and the allegation was that it was futile for the union to ask for an election because of the nature of the procedures what you have here is not election procedures what you have here is a contingency which will happen only if an election is held and the union wins the election it's not at all the same case as you as you have in babbitt i would commend to you i think the this the city of peculiar to the water district which we discussed at some length in our brief is exactly on point the court says even even if the this the city is working towards getting the water district disestablished the ultimate decision that the pens on the action of the electorate and the same is exactly true here and for that   is an agency fee case it addresses the issue and this issue came up at oral argument mr messenger was asked or is the issue of exclusive representation per se putting aside agency fees is the exclusive record issue of exclusive representation at issue here and mr mr correctly said no it's not it's an agency fee case i question of compelled support that issue is not present in this case and it's even though counsel has talked about it a lot in his briefs and the reason that's not present is because this is a facial challenge to the act the the the entire act everything in the act could be implemented without an agency fee ever being charged and because it's a facial challenge the plaintiff has to exclude the  possibility that that has to establish there is no set of circumstances under which the act could be constitutionally applied so the issue before the court is only the issue of exclusive representation not the question of whether  agency fee so so it's different from harris in that regard and whatever harris says certainly may well shed some light on the issue before you but it's going to address the question of whether an agency is permissible first of all of whether the court should reverse should overrule its longstanding precedent in a boot versus detroit board of education and secondly whether that precedent applies to home care workers who say one more thing on the on on that issue the home care workers in harris are not identical to the childcare workers here in harris the argument at least mr messenger disputes this but the argument is that they are public employees that there's a joint employment relationship that's what the seventh circuit said that's the basis on which the court the case was argued the court may well say agency fees are permissible for people like this that is not necessarily going to resolve the i'll talk in a moment about the the the nature of the people that we have here who are independent contractors not not we're not arguing their employees but whatever the court says about the permissib an agency fee in paris is not necessarily going to apply to the permissibility of exclusive representation pair this to a bar association and their united states supreme court said there's a compelling reason we're going to carve out part of the news but there's a compelling reason to force a representative well your honor the comparative that how this works the compelling reason there is there may well be a compelling reason but that's not the standard your honor and i'll tell you why the supreme court in a whole line of cases has made a fundamental distinction with regard to the extent to which the government can limit first amendment rights of free expression association and it's distinguished between government when it's acting in its capacity as a sovereign regulating the citizens in general and when government is acting as a proprietor of a government program that it's implementing in the former case strict scrutiny may well be required at least if there is a mandatory association which we would take issue with that here too but i'll leave that to the briefs but in the context of managing and implementing its own programs the supreme court has said that the government has far broader powers with respect to restricting a first amendment expression than it does bear i mean if a bear applies then the governor can't discriminate based on politics among these providers right which i suppose on there says you can't discriminate among contractors government bases whether republican or democrat are these supporter right that's the holding of on their well it says that you can't you can't terminate a contractor right for his criticism of the government right so that will apply here on what if you do that the tank same test that and here's the thing i'm baird says that the the deference to the government government's determination of what's in its interests as a proprietor is briefs the posies groups but not republican democrat or conservative liberal or or something like that the governor's going to have to be very careful about who the governor deals with if they are applies the way you want to apply i'm not sure i'm the government can terminate him regardless of anything the politics regardless of the military yeah person majority the majority said no they can't he has first amendment right but and here's the point where it's where it's relevant to our case the in assessing whether he's been improperly terminated and under the first amendment you apply the same kind of deferential standard as you do with regard to government employees that's the part of the holding that's that  representation is permissibly discretion to determine what persons or groups that will listen to what so what's left of the parishes of the world well i think that's right i mean that's the night  exactly what night holds and contrary to what mr messenger said the footnotes eleven and thirteen he is has made this point throughout that that distinguishes the night case what footnotes in an eleven and thirteen simply say is that the issue of compelled fees compelled financial support through the union for agency fees were not at issue in that in that case that's all they say and that is exactly the same situation we have here so knight is is directly on point holds that the state has in no way restrained a pelleas freedom to associate or not associate with whom they please including the exclusive representation representative and i'm unaware of any court in any context that has ever helped putting aside agency fees but in the context simply of whether exclusive collective bargaining through an exclusive represent representative is permissible i'm unaware of any court that has ever held that that is prohibited by the first amendment and night certainly exiting out of private bases counsel i'm sorry unless you did it on a private basis governors  or well but but governor what the government is saying what the state a saying here is that we will recognize i represented the that is selected by majority vote so there's no i don't i don't thank your arm a please the court i just like to make three points and begin with the phrase certainly impending a lot has been made of that phrase and counsel just represented certainly impending means i believe he said certain to occur that's not what it means certainly impending means that it's certainly possible or definitely possible not certain to occur so example if i said it's certainly a possibility it doesn't mean it's certainly going to happen it means it's a possibility certainly impending means it's definitely impending and proof of this can be found in the babbitt decision on page two ninety eight of that decision where the court uses the phrase certainly impending synonymously with the phrase realistic danger and there are the court said that a plaintiff challenging a statue much show a realistic danger of being affected by it at an injury of an injury present then the next line says that a plaintiff not have to wait for the consummation of injury but it's enough if the is certainly impending so why certainly impending the court means realistic danger not that it's automatically guaranteed to occur if that were the case would be zero injunctive relief be very very rare in cases where the harm has not yet occurred and also the proposition and babbitt that the plaintiff is not have to wait until they're injured has a great importance here under plaintiff's theory the case again exclusive representation is the first injury that will occur the moment the election is certified as a win for  so plaintiffs are entitled to have their case heard before that happens and so the question is when is the best time to hear this action before that time or counsel we not mention the orchard corporation case yes of this court isn't that a killer to you especially foot no one national labor relations act it doesn't provide any procedures for appealing from an election decision so the only way you can appeal from an election is to wait not bargain with the union wait for the general counsel be to file an unfair labor practice complaint for not bargaining with the union as a result of the election and then bring that up the food chain to the court of appeals so orchard deals with the unusual statutory process prescribed by the national labor relations act it's not an article three mean unusual in labor relations you must mean unusual compared to the things right because it's so why labor relations are not right ma'am any early compulsorily yes but in just in terms of the way you have to appeal action decisions under for whatever reason congress didn't allow you to appeal directly from election you have to wait for the un for labor practice procedures and then also in the same cases that the state raises is the water district case which is a city of peculiar i believe that was mentioned that case is distinguishable because before there is an election a just state court must determine if holding that election is in the public interest so their get more specific that a pro forma determination council under missouri law it probably usually happens but there is a gap there where there would be a chance to adjudicate whether it was possible to hold the election before was happened so there is one fifth of voters want to dissolve a water district it goes to the court before there's an election so with that point a plaintiff could bring a lawsuit such as the city saying of the water district there that was wrongful here you don't have that that stopgap if ascii file the petition tomorrow the election machinery will start to run there isn't a stopgap there in which the court would have time to adjudicate the issues in this case  and i think that's really goes back to the original point of if not now then when and really i think the question before this court is does the court should the district court adjudicate this issue after an election petition is filed or not before an election petition is filed because once the election happens and is over they'll be a certification right at the end so ms parrish can't wait until the election is over to bring her case because by then she may already be harmed and she's entitled to have her case heard before she is harmed and i submit it be in the issue of judicial economy to decide this issue now when there's plenty of time rather than during the crucible of an election and city of peculiar there was that time because of the way it was set up and then briefly to touch on the issue of a compelling government interest after his council represented that the state doesn't need to show a compelling government interest that's inconsistent with supreme court's decision knox vs knox involved true public employees which is necessarily true to a degree an internal affair for the government they are public employees and the court held the collective bargaining even for true public employees to exacting first amendment scrutiny and must be justified by a compelling state interest is the least restrictive means to satisfying that intercept labor peace is a compelling public interest right the supreme court has held that it is with respect to true employees and of course in this case the plaintiffs position is that interest does not apply to small businesses such as the licensed child care providers or to the grandparents and aunts and uncles who are the non licensed childcare providers because these individuals are not public employees and in fact i submit they're not even independent contractors vsa be the  state and most are third party recipients of a benefit that is paid to a family so the program what it does is it gives a benefit to certain families they fall under a poverty threshold to purchase child care it works much like what you speak called food stamps but it goes to child care instead of for food the individual can choose who they purchase their child care services from just like with food stamps you can choose in a grocery store no one would say that a grocery store  food stamps is a contractor of the government you have it but these providers are licensed yes they are subject to licensing the licensing isn't dependent upon seek out you just have to be licensed to run a child care business it's not because you accept th e state here is not contracting with jennifer parish for example to take care of children she and other the providers are simply willing to accept some customers who happen to pay with a public benefit and all going to the point of licensing it's also important to note that some of the providers in this case are not licensed family childcare providers they're non licensed these are relatives taking care of their own children so for example be a grandparent taking care of her grandchild in her own home those are some of the providers there would be unionized under asked me under the statute you allege that the would be covered to right yes they are covered under the definition of family child care provider and i see very brief time so i won't begin anything else unless there's a question from the court we thank you and the other side for the arguments has been well briefed and well argued the case is not submitted we will take it under consideration thank your hono