may please the court parents home for theresa bierman and eight other independent providers this case concerns the question of whether the state of minnesota may extend exclusive representation beyond the bounds of actual employment can designate a monopoly representative for citizens that has the power to lobby and contract for citizens who merely receive a government subsidy the district held that the state can do so without having to satisfy any first amendment scru because it found that the individuals are not actually associated with their own representatives or ords actions as their proxy so according to the district court an exclusive representative may be imposed for any rational basis the district court's opinion should be reversed because it is both a logical and limitless it would allow the government to impose mandatory representatives who have the ability to speak for lobby and contract on behalf of people on practically anyone so first the decision is logical because the s c r you cannot have the right to contract for individual providers yet not have those providers be associated with the s c r you it's like saying a principal is not associated with his agent or that my clients would not be associated with my speech as their attorney so exclusive representation compels a forced association by collectivizing individuals which is what the eleventh circuit recognized in mall hall with respect to actual employees however unlike the actual employees and whole a state's interest in imposing an exclusive representative is not justified here because these are not actual state employees but independent providers who are not managed supervised hired or fired by the government but rather these are generally parents who receive a subsidy to take care of their own kids with disabilities from the state and so the state has a just as the court found in harris the state has no interest in collectivizing but we think this court could read night for itself and come to a very different conclusion because what was at issue in night was the claim and night was very different night never ruled on the issue of whether exclusive representation is constitutional but only whether it is permissible for a state to exclude individuals from a bargaining session so the employees in that case were faculty members of a university and they had a union and they argued they had a right to participate in these meet and confer specifically say there is no issue of compelled association in this case it's specifically in footnote thirteen in night it's us this is not dealing with an issue of compelled association this is dealing with an issue of whether or not someone can maybe be excluded under amendment and so the providers here don't argue that they have any right to participate in the bargaining sessions but rather that the union doesn't have a power shouldn't have a power under the first amendment to be able to speak for and importantly contract on their behalf and getting away from the particulars of night i think in the narrow terms of its decision it's hard to imagine that when the supreme court decided in one thousand nine hundred four that professors can be excluded from  sessions that the supreme court meant to sanction the extension of monopoly representation beyond the bounds of actual employment relationships yes leave me with the janice case and the supreme court has on its back at this point y i'm i'm one of the attorneys and so yes but what impact if any will the court's consideration of that case have on this what will janice considers a challenge to forced fees for true employees so that it's a challenge to whether or not a boot should be overruled so right now i would say that there the court on its way to deciding that issue may rule or may have some language on exclusive representation for true  employees so in this is because of the way that the court a structure of the test traditionally so if you look at knox the knox test says that mandatory associations are extremely extremely rare can only be justified by state interest in the challenge to the fee is whether or not that fee is related to the actual mandatory association so that's why it abood and that's why hudson the court said well the bill we ruled on exclusive representation that it's constitutional so janice my under janice might the question and janice does not consider whether or not exclusive representation is actually a justified by a labor peace interest but the court may say something on its way to finding fees unconstitutional if it does go but you know i think that brings about important point is that this court should also look at harris which was decided by the term couple by the court a couple of terms ago and this is why the district court's opinion also wrong because it lacks a limiting principle heris recognizes that the state has no management interest in independent providers because it doesn't have the ability to supervise hire and fire and they're the court limited the ability to pose mandatory fees only to true employees not to non employees like the providers of the issue here so if the district court is correct there's nowhere essentially to draw the line which was very important to the court in paris the court in harris said well if we don't draw the line of actual employees and oppose in imposing mandatory fees we can impose fees could be opposed on any one so the same is true here the district court is correct and individuals are not associated with the speech of their proxy proxy who can bind them through a contract then exclusive representation can be opposed upon anyone for any reason in that way that is very detrimental to the first amendment  well i propose that the state should go back to what it was doing five years ago before these providers were collectivized that individuals can be free to speak and choose who represents them to the government if the government just wants to listen to one group it can just listen to one lobby group but giving the power of the government to collectivize non employees and giving that giving that representative the power to contract on their behalf goes beyond the bounds of the first amendment so we would propose is the sci you can lobby on behalf of its own members but it shouldn't have the power to be certified as providers all providers representative nor should they have the ability to contract on their behalf unilaterally gilbert good afternoon me please the court my name is alan gilbert i'm a member of the minnesota attorney general's office the district court decision in this case should be affirmed for two reasons one is a jurisdictional reason and that is that there is no standing on the part of plaintiffs to bring this claim but secondly on the merits as several courts of appeals have already ruled there is no merit to the claim being made by the  analyzed it as with respect to the facts in this kind of case in this kind of case we actually have a situation where there has been a certified union the union has negotiated a contract and there is no harm this referred to by the plaintiff in this case with respect to that contract in particular the contract actually benefits the plaintiffs and even more importantly it benefits tens of thousands of other people who are not plaintiffs of this case so w really the plate of the appellate a saying in this case is that they don't like the public policy of the statute they don't like the fact that independent contractors can be unionized and that is not harm that's recognized under article three in terms of standing so we have a situation where the the plaintiffs can speak they are not required to sociate they don't have to join the union they don't have to financially contribute to the union none of that was analyzing say that there is some right to freedom of association where we all agree with that but what's really significant in that case is that they went further and they found that there was actual harm in that case and the reason there was actual harm in their case is because the subject of that lawsuit was in a supposedly allegedly illegal contract that was entered into by the employer and the union which provided a significant advantage to the union part and that if provided it will substantially increase the likelihood that more hall will be unionized against as well and then using the language of article three standing it says that ball injury for purposes of stand so they actually did what i'm suggesting the courts should do here and that is not take at face value that just because there is freedom of association argument that that necessarily means that there is harm you have to go one step further and that's consistent with the cases of this of this court and in particular the minnesota roundtable i'm sorry the missouri roundtable in minnesota the missouri roundtable case and the u s supreme court case and clapper which as we indicate in our brief they specifically require even in the first amendment context that there be actual injury before they are standing and in the midst of a roundtable case as well as cl again involving first amendment rights they said there wasn't an actual injury and for that reason they found that there was a stand in those cases at the pleading stage like this yes yes or were you a little bit with this argument confl had with this as well and i'm looking at the district court opinion right here this is this is on page twelve opinion and in this is the entirety of the analysis your honor it says plaintiffs claim that they are injured by the fact that is here you has been certified as the exclusive represent the bargaining unit and then it says the alleged injury to the first amendment freedom of association is caused by the state certification that's just a conclusion restatement that's all it is and it's a it's really a legal proposition it isn't a factual proposition that implicates the kind of injury that's required under the article freestanding and again if you look at all the facts we've laid them all out in our brief there is no requirement to join the union there  infringement of any right of association there is no requirement to pay a fee and most importantly the contract that was actually negotiated subsequent to the certification benefits the plaintiffs so they cannot have not pointed to anything that indicates that they actually have harmed and in that regard i do want to say as well in one of the plenary injunction orders of the district court and this is dated ten twenty two fourteen the court said plaintiffs represent that they have no objection to the state exclusively conferring with their c r u and medicaid policy and exclude excluding plaintiffs from that discussion plaintiffs are not required to join or c r u they are not required to financially support a c r u they may pete paper titian the state individually or in other groups regarding medicaid policy they may express their disagreement with  r u to the state to the public interior or else essentially saying there's no harm and then in the order that's the subject of this appeal he says as well on page nineteen similarly in the it i'm sorry it says the court said for example the state quote is not requiring plaintiff to join a c r you financially support is either you or otherwise associate with s s a you as a condition of continue the relationship on page fifteen for example the court says that under the statute plaintiffs quote remain free to petition the state on all issues relating to home care programs and vociferous way criticizers here you and as i've indicated the the contract itself actually benefits the plane as well as tens of thousands of other people so i see my time's up and my colleague from sci you can present his argument minnesota legislature decided that the best way to set certain employment terms for home care workers would be to have state officials negotiate with a representative chosen by the home care workers and if an agreement is reached to bring it back to the legislature for its consideration that process by itself doesn't impinge on anyone's first amendment rights of expressive association this would be a different case if the plaintiffs were required to do something to support or pay dues to or in doors the union or its positions but they're not they're not required to do anything this would be a different case if the plaintiffs faced some discrimination for not supporting or endorsing the union or its positions but they don't face any discrimination it would be a different case if their affirmative right essentially not that they're being required to associate with the union but that they are being associated with the union in some type of passive sense even though they don't have to do anything and the supreme court already has a test for that kind of passive association that runs throughout the supreme court's cases and the test is whether reasonable people would believe that every member of the bargaining unit necessarily he's with the union speech and as the district court observed as the courts in all of the other circuits have observed reasonable people would understand than in any kind of democratic system not everybody is going to the issues go in to the supreme court and jennison whether or not the disposition of that case could have any impact on the yes your honor janice is just a case about fees which are not present here it's a case like harris after the supreme court granted cert and janice it was faced with the petition for certiorari in hill that's the seventh circuit case that raises the same issue here the hill petitioner's has the supreme court to hold the petition and hello pending the outcome of janice the supreme court denied the petition and hell which is the third time the supreme court has denied cert on the issue here in the last two years so there is no indication that the supreme court is interested in revisiting the issue of exclusive representation and going back to the brennan stevens possession that was rejected in the night case rather the supreme court's post night cases have reaffirmed that expressive association isn't you know an infinitely malleable doctrine that someone who doesn't have to do anything and who is not being passively associated with the speech of the representative if the sense that people would believe that they agreed with the speech is not having their rights constrained in any way the government can choose who it wants to listen to night was just the flip side of the supreme court's earlier decision in arkansas state highway employees which the supreme court said the state was free to ignore the union and exclusively talk to individuals refused to listen to representatives night justice o'connor explained  was just the flip side of in which the state was interested in dealing with the union to hear its views on issues of policy and that was not a restraint on anyone's first amendment rights u nless the court house questions i know it has been a long day that the state says that my clients have not been harmed in fact they've been benefited by the contract but i think my clients feel very differently about that for three reasons one is the contract requires them to use the union for  grievances so for example if you look at section eight of the latest contract which was submitted twenty a j by mr cranleigh and the after step one of the first of the grievance procedure the union handles all grievances so they're required to use the two is the contract doesn't benefit the plaintiffs in raising the minimum wage because that reduces the amount of money that they have to spend on other services so because the money comes in a lump sum from the state so the more they have to spend on wages it reduces the amount that they can use for other services so they call in the third is the contract also has a mandatory orientation for new providers and my clients are all new providers and some new providers may not necessarily want to go to a mandatory orientation that did not exist prior so those are reasons why the contract harms them but again is the district court said without getting into any of this this really just conflates the merits with the issue of standing and as judge calls and pointed that the exclusive representation infringes upon employees this was representation is already present so in this case would be even worse or or more ripe the constitutionality of forced fees for full fledged public employees and then lastly it's kind it's kind of a an oxymoron in my opinion when when they say well the employees are represented by the union the union has the power to contract for them but no reasonable person would assume that they are so state with the union if i can give an example so for example when you go on strike and they say you know teachers go on strike people say well the teachers are going on strike in the same way that not everybody everybody may not know all the teachers don't necessarily say i really support that action but when you've collectivized everybody it's assumed that the that the union is speaking for the collective  think this case is very different from rumsfeld versus fair because in rumsfeld versus fair the the military recruiters were not given the ability to speak for the wall schools nor they've given the ability to contract for the law schools which is very different than the