representative of all registered and licensed childcare providers outside of the state of new york so as a matter of law the union is their exclusive representative for purposes of dealing with the state of your particular the office of child and family services over regulations and other i mean it's a majority vote that results in getting what you want that each individual be able to choose who represents themselves before government or the each individual would then go to the bargaining table if they wish well there would necessarily be a bargain if it would be just as most we call a lobbying of government is conducted each individual or business chooses who they want to represent them before the government and the government hears from a multitude of voices seems to me that as a first daycare providers exclusive representation for employees had been upheld in a booth at for being justified by the labor peace the distinction between employees and weighs on employees was a distinction nobody haven't told us but well prior to this will there's two answers there first these type of schemes are relatively new the idea of unionizing individuals before the government who are not actually public employees i believe the first childcare unionization statute was in illinois i believe those two thousand and two or two thousand and three and that was actually challenge for harris there was a case for the search it called parish which had this very question the case was ultimately dismissed as moot because those childcare providers were not unionized at the time so they're very much as always this question of can the government extend exclusive representation be on the workplace and designate exclusive representatives to speak for people who are not public employees and to this day only one upheld what's basis because it's the labor you were corrected of paris consider the question of compulsory fees however in deciding that issue the union in the state of illinois argued that the labor peace interest applies there the labor peace interest is what justifies exclusive that was the issue there but in the very next two paragraphs the court goes on to explain why the labor peace interest doesn't apply the first being the one i just said there is no state workplace and the second is that outside of the workplace the government has no interest in avoiding conflicting demands from various interest that's democratic pluralist i wouldn't work in practice if you were right let's say either all your clients or a few of them got together and picked a different represent that's the right no we're not claiming any right to be heard it would be much like almost any government program or even this government program before two thousand and nine the state hears from a multitude of different lobbyists some dog being a little scared to bark at the narrowing of the bargain at all or they don't get to bargain in a joint session which are used to there is no bargaining at all at all that's not what you claim you know at right the complaint is that the state has made c s e a the mandatory agent of all providers including my client whether they sleeker them all when they bargain about a contract when they bargain and also when they look for appropriations and regulatory changes to implement that or so the great harm or just take the bargaining when the other you know voted union is a bargain what is that you want your people to be able to do that's what i don't want you to not be associated with the unions bargaining position that's a legal  fact what do you want them to be able to do it's just that your honor that they don't want when c s e is speaking to the state and entering the contracts with state they're not doing it on behalf of my clients or you don't want to know under sound by what the other what the after that is that the executive order at least clarified that the order didn't have any any any impact on the ability of childcare providers here before state agencies were  you want to be heard you still have the right to speak on your own it says here that would be true in any compulsory so she action case levy may not necessarily you're not not every union member gets to go to the bargaining table well i guess that's true you do have the exclusion on how the defendants have recognised your client's right to be heard in addition to c s yea or am i missing something court held that compelling mr mccall an employee to accept the union's exclusive representative impinged on associational rights because it thrust him unwillingly into an agency relationship they had a written policy on the matter it held a very public lawsuit yet it was still held unconstitutional because it compelled association the motors miss and levy maynard you can say anything you want to he said it want to leave live free or die you can put bumper stickers on his car saying i don't want to live for your god but associate in him with that message on the license plate that was the compelled association and inability to speak doesn't justify an infringement of them are you going to address the second if i may or honor i'm sorry they do because if they don't follow the law will be sued for not following the law and damned if they don't they are libel for them yes wrong and it isn't isn't that  situation that the supreme court in ricci said was not which is completely different case it deals with racial impact and racial discrimination but the supreme court said this is one where you have two feelings that are coming this way not where somebody would be required well what then will say it's all right even both what they did was racial discrimination isn't there something of that here  statute but it is still something that may cause you to be damned if you do and damned if that would of course as noted would be the situation here here of course the union in the state in the first question argument agreed to seek legislation authoriz compulsory fees and my time is going way over so just very briefly the key to our argument in good faith is that good faith relates to whether there was a deprivation under section one hundred three it relates to elements of the claim itself it is not effectively dealt with an ex parte use of an attachment statute ex parte and the court look to the elements of that claim which the knowledge as to malicious prosecution which in turn requires proof of malice and lack of probable cause and so the analysis they're reporting that the that's different from maybe you didn't say most but with respect to whether intent is required to prove a deprivation of first amendment rights others the ninth circuit case of o s u student alliance the dicta from judge newman as you mentioned in i'd have to double check one of decorations the record leaves a couple hundred dollars per person i can find the answer only four with damages no i believe it would be a few hundred per person but again i can look to see if that's in the record  if that could be your honor again i don't want to say exactly i don't know of a top that i have actually thought it would settle after the count one was dismissed but the good faith defense came up i believe there were other issues at play at the time that may have led to th of plaintiff's first cause of action which claimed that allowing daycare providers to unionize violated plaintiffs freedom to associate the association issue is so minimal so no infinite test courts have never held exclusive representation by unions to violate nonmembers association the statute edition labor law article nineteen says imposes no burden on the  including issues that are covered c b s or collective bargain plaintiffs remain free to join a different if they were to join no at all exclusive representation in this case does not mean a closed shop all it means is that if more than fifty percent of the bargaining votes for you then under labor law section six ninety five the state must recognize that union and talk to the state may still negotiate as your honor pointed out with individuals groups or other union but it's statutorily required to recognize c s e a with no exclusive representation doesn't mean exclusive representing the blood of people in the cities and then nobody would have a new group in retrospect that might have been there that might have been stuck with that term but i did want to point out that exclusive representation here because of all the holes in the statue is not the clothes shop that your honour's might think of when you look at traditional labor in minnesota state board against not a case the judge raji pointed out the supreme court held that nonmembers association with freedom had not been impaired by the union status as exclusive representative of the bargain in the nonmembers of night were not required to join the use they remain free in the courts words to associate or not to associate with whom they please including the exclusive represented and the same is true he hear there are compelling state interest that support the statue and those interests far outweigh the minimal practically nonexistent burden on point the state has advanced three main in support of the statue first the wellbeing of the child care providers themselves second the availability of daycare to the public and third the polity of more providers into the market and that in turn would increase the amount of choice available to parents and increase the quality of daycare and those those interests i would submit the daycare workers welfare and the quality of childcare just to give one example the c v s provided for state funded grant to improve the quality of daycare in the two thousand and nine were raised to see eckstein point four million dollars over three years there's also a professional development for the two thousand and nine c b a it was half a million dollars in the two thousand and thirteen c v a it was eight point five million dollars at me ask you just one question if we were to rule against you would we be saying that the word exclusive would have to be rudeness or we wouldn't be saying that be saying that you can't have representations is you can't have representation then you're doing something to rights to associate of the majority that wants to do so i think mr res well let's let's be clear on this the bargaining which is all of the licensed and certified daycare providers in upstate new york voted by more than fifty percent margin to statute allows individuals or groups were even other unions to come in and advocate different interests if a witch but what's important here is that if more than fifty percent of the bargaining unit votes for you which they did here then the state has got a sit down with that in the goetia they may negotiate with others they may sit down with others  clear and i think that the section in section six ninety five that that the purpose of sitting down the purpose of these negotiations is for the purpose of entering into a written agreement that is six one person's benefit is another person's obligation but it would apply that to the plaintiff's facilities it would apply to them particularly if they're getting money from the state as i understand and your neighbor if they geographic area right right so when you say but they're free to have their people barred that's right so after that the designated unit bargaining gets x dollars or a benefit then they could come in and say with their designated unit that's not enough we want x plus twenty percent isn't the state going to say no you can't have that we've already negotiated a contract with respect to your first question yes they could try to negotiate something give it's hopeless has a little well that's right and it's and so so when you tell us oh they're free to bargain after a contract has been negotiate isn't that just in the losers right right and well i'm not going to say it's illusory because i don't know how that and i'm not going to speculate on how those discussions would come out but i will hold of a further point if the state has already negotiated a risk everybody in the unit you mean to say the state's going to say oh you know we might give you other people more well if they wanted something that's totally outside the contract that might be more than just more you gave us x dollars we that when there's a democratically elected union uses here to that management is going to listen to them and the management might not want to listen to anyone else and that's ok maybe before the contracts negotiate they might list of them and say well union of one proposal these people have another they're all interesting and we'll think about but once it's negotiated and sign for you to tell us they're free to negotiate i just don't understand what they're going to obligations and then a right i would say if you provide it binds all the parties but i would say doesn't put an identified burden on the providers it just gives them benefits well well there are regulations and the way they're implement is a subject of negotiation for instance for instance people who have the state comes out inspect their workplace they have certain rights to get a written forced to basically be bad out by decisions that are that are negotiated for them by someone they don't want to be their representative well it's the same as in any democratic and that applies to employees and there is no real difference between that in ways our employees never was in terms of all the benefits and that still is so despite the fact that terrorists may be cut into it with respect to pay now that's a very different argument from the argument that says that there is no binding no effect what  complaining about just the word which one of these arguments are you really well i i agree with both of you stated and i think the state you your honor and maybe i could just i'm going to speak mainly about the good faith defense but if i could let me just follow up on on the the current conversation here's what the statute says that  nothing shall interfere with the ability of any child care providers or tile care provider representatives to meet or correspond with any state agency with regard to any matter of relevance that's from the statute there are similar language in the collective bargaining agreement i think what this means is there is no bar to any individuals or through an association to talk with the state if the state is willing to listen to them but they can they can talk they could write letters they speak on the bill and agree yeah but once the contract is negotiated with the designated unit yes would you agree that they do not have the right to bargain for different terms they the state is has found itself to that contract i understand that they are they bound do you agree they no longer can bargain for different  i think they could perhaps try to but they would be unsuccessful because the state has bound itself to a contract i mean this is well just i mean maybe just all come for me they write a letter saying we'd like to bargain they get a letter and actually i think and i think where they can express themselves more they're bound also right they are bound in that the state has entered into a contract and has agreed that it is not going to to listen to other providers and why it's so hard for both of you on your side to resist the simple conclusion yes they are bound they are they are bound in the sense that the contract is negotiated on their behalf the form that's gone down i mean days before our contract they can do much more than they want to be tane to take it i don't believe so your honor i think the i think the statute provides that the i mean that's really what the is the meaning of the term exclusive that the state has agreed that if a union is chosen by the majority as it has been here that the state will negotiate with that entity over the terms and conditions of employment and it really is i agree it's not really any different from any other union representative this concept of exclusive representation is really the foundational principle of american labor law all this language from the executive orders really a bit of a red herring in the sense that it doesn't impact any ability that they may otherwise have to meet or cars bond well when the negotiations are going on they have no right to meet or correspond is that what to actually their own lounged it's a wave a flag and say we're not part of it but in terms of being bound we're pretty much as in any other new york it's not it's not significantly different from any other union station  situation i agree with you well union shop has a very specific meaning and labor law judge reggie and it which means that that not only do you have an agency fee as we did here prior to harris but that the the people are required to join the union and  and so why why do they not have a first amendment argument because now we now we're getting a little closer what only gives the only person that is going to speak that for them in negotiations with the state over the terms and conditions of their respect to employees this is no ok so unless parents goes beyond the payment to do that is still the law if harris does not go beyond that we're stuck with that whether we like it or not because the supreme court has told us don't go where we're going go where we have been and we'll tell you when you can get away so my question is how far does knight   what harris deals with is assuming you have a a a a need for the government to show a compelling interest which you did in the context of collecting agency fees what the court said in harris is that the government where you're dealing with so called nine full fledged public employees does not have the same compelling characters on its own terms did not deal with exclusi that's where we are that's where we are and we have no need to get to this issue of of of the of what harris said about compelling interest because given that there is no infringement on their first amendment rights as the court held tonight there is no need for the government to show a compelling and that would be our submission that yes yes so i think there are three problems damages and well i think the i think the teaching of first of all the the let me let me start start here with the with the supreme court because we've had at least three cases in which the court and i agree this is dicta but it's well considered victor that because of the and it's precisely in the cases where the court has declined to extend qualified immunity to private parties who are sued under section ninety three and the court in all three of these cases and luger itself in wyatt most extensively and subsequently in richardson the court has said but we are not foreclosing the possibility that private entities sued under section one thousand nine hundred eighty three can invoke a good faith defense and compelled because that may be good but judge calibration i believe you think about the the situation that you had in in pinsky and the the fifth circuit and why it indeed also in this supreme court of lugar as well these attachment garnered you know cases that arise out of attachment garnishment statutes the claims in those cases the claim that the constitution was violated did not depend on any showing of c entered either it was a claim that the litigants due process rights had been violated because his property was taken from him or attached without due process of law there is and different you know what and what the court what the court has done in some of these cases so it's not that the actual first amendment claim that is made in this case is no different than the due process claim that was made in those cases in that the constitutional claim itself the question of whether the person's constitutional rights were violated does not turn on c n n or there's no see enter element either in the due process or in in the first amendment cla some kind of a common law claim and they talk about malicious prosecution or abuse of process which do include in require c m t but i i would see two things about that first of all no where in any of these cases do any of these courts say that this is necessary in order to invoke the good faith defense to the contrary of the they in that if you look at the three separate opinions in why it particularly as well as as other cases that there is an emphasis on this is an appropriate thing to do because of the inequity so i can see the difference but you are what i want to know is you would like to say that there is a good a defense any constitutional violation because chief justice rehnquist had what i thought was a very helpful footnote in his dissent in wyatt where he says this is a bit of a misnomer but we'll use a you know as a as a helpful short him here but whatever we call it the kokesh the money is in your pocket you shouldn't have collected it and therefore we want it back now you know if this were money that had been put in a secular gated county and we knew exactly that this was  plaintiff's money i think you have a hard time saying that equity we titles to you to keep it rather than giving it back to them i asked how much money was involved because recognize it's funny you don't we're not talking about much why don't you why don't you make an offer of settlement here indeed i would think it would be in your interest make an offer of settlement rather and risk you know the attorneys fees piling up a well as we as we we thought and hoped that the case was going to be resolved once we we stopped collecting the agency fees after harris and refunded everything with interest and reinvented after yes exactly exactly did i understand in  years before harris well i think the three is the statue of liberty a midnight i now found out it is not a lot of money in principle and it is not it is not a lot of money and i think we pointed this out in a footnote in our brief  for whatever i don't recall that we've had any discussions about this but i i think the problem is we have a union here that is involved in in representing child care workers there are numerous other unions some of which are affiliated with the same parent union some of which are not that also represent child care and day care workers throughout the country that have had agency few relationships mr messenger my friend is suing all of them and there are a number of cases which have that are brought as class actions where there are tens of millions of dollars at stake on exactly the issue that we're talking about your clients anybody but let me ask you this go back to my original point s that we say that the very end of our brief there's an eighth circuit case americans united and their handlers and if you and wanted to argue to me to spend the money it's not something you can return whatever but i think you're arguing basically th was law you don't have to return it even though you now tell the collection was on and i think that's exactly what the i mean first of all let me just point out one thing this is not money that's been collected in and put in somebody is pocket this is money that has been collected to defray the costs of union representation for these people and and now know that  surface and that that is this let me let me just state a slightly different hypothetical that there's not a lot of money at stake here but if the supreme court had gone ahead with what some people thought might have happened in the friedrich's case and overruled forty years of precedent and held that public sector unions for all our young men all of the ma yeah but but it but in that case you would have had every public sector union in the country that that collects agency fees on the hook for millions and millions of dollars in damages for doing things that at the time they did them there was binding supreme court question precedent that nobody had written really question that said this is perfectly constitutional and there's really a due process question do you think your clients understand if they should lose on the obligation to return a few hundred dollars they will be liable for tourney's it is fair to say will be comes well i think they understand thank you for our own address a question from a judge tell breezy just what is the difference between a good faith defense and unity so i think it really goes to the key of a second issue here and the difference is in the stature of good faith defense relates to the underlying claim whether there was a rehnquist wanting a qualified immunity and said well but there may be something else what did they mean exactly and by saying that it wasn't an immunity what they meant i submit is that it isn't intrinsic to  hundred three itself because in immunity of course that even if you violate one nine hundred three you are immune from it so it doesn't matter what the claim is and you opposing counsel says that this defense has been recognized importance but it's a question of what are the elements for the deprivation so we're turning in one thousand nine hundred three language it provides a cause of action for deprivations constitutional rights whether what's a deprivation of constitutional rights varies depending on the right  sixth amendment claim first amendment claim nobody who crosses and it's a plain that doesn't have c n n and doesn't have anything else then why isn't it the same thing as for well if there was a due process claim that didn't require nevertheless two hundred nineteen eighty three for private actor more severely than the public actor in this area yes ron or comes down to the statutory text as defined in why and so why it noted the reason immunities are created is not because of equity three and so on to the first amendment and why is it that he stayed at church has has a greater ability to escape liability i'll we will follow the supreme court's the extent we have but in reading the supreme court's decision there may be a question as to whether they considered this circumstance and so i'm looking to see if there's any other reason you think we  to say the state actor gets more protection than the private person because the policy reason that justifies the immunity for the state actor doesn't apply to a private one that's with him that's very hard to understand when the supreme court tells us they put the immunity into the federal cause of action because they were construing the statute in light of the common law but the oh so how do they get better when it became federal when they say they started from the common law because the reason the immunity was created was because of the interest in not interfering with the government's ability to carry out its functions in interfering these are what they said i took it from the common law it was based upon common law but the interest they said was not transferable to a private party because the interest in government operation in law distinguish between the state actor in the private person is yes in why the court point out the two grounds of folk with a question are you saying the common law  amendment consequences we're not yes and in the first collective bargain when they called on the state to pass just that very law at that point no court ever held a constitutional to force non employees to pay compulsory union fees the fee this may not be required by statute but he's required by a contract to do the statute is sensually requires because it requires a union contract but isn't that a requirement just as much you know because union comes out of this contract with an obligation but both sides have an obligation but on the compulsory fee clause it was rather clear it was sought by the union the union took on the burden of actually setting up the administrative procedure what where they distinguish an immunity from a defense and say defense relates to whether a wrong occurred in immunity relates to whether someone's immune even if iran occurred so defense goes to whether there was the deprivation here it's not relevant to whether there was a dea