think your honor may please the court my name is bill messenger and i represent rebecca hill and seven other of health all who provided the child care of personal care services in their own home mostly to their own family but this case concerns whether the state of illinois can extend exclusive representation beyond its actual public employees and designate a mandatory representative to speak in contract for other cities in the relationship such as the appellate providers here now the district court that state can do so without having to satisfy first amendment scrutiny and therefore for any rational basis because individuals are supposedly not associated with their own representative or its actions as their proxy i submit that the district court should be reversed because its opinion is both the watchful and it's limitless in the sense that it would allow the government to impose an exclusive rep to their representative on practically any now first the decision is illogical because yes you you cannot have the right to compel and the reason it does is it forces individuals into a mandatory agency relationship with the s k u and that doesn't hinge on associational rights for the exact same reason that the eleventh circuit held in the hall with respect to employees state interest namely is not justified by the labor peace interest under the supreme court's holding on to so unlike with unionization of employees there is no countervailing state interest that justifies the unionization of independent providers and other individuals who are not employees and then second the district court's opinion lacks a limiting principle in the sense we give the government free reign to designate a mandatory advocate to speak for practically anyone and i submit this case represents not the top the slippery slope but it's pot i mean here illinois has imposed exclusive representation on people who run childcare businesses in their own homes people who provide personal care services to their own sons and daughters and roles and people who provide child care services to family members of their own homes all simply because they receive public aid money for so doing if that was constitutional practically anyone could be subjected to a mandatory representative for purposes of being the government and i one of the reasons harris limited compulsory fees for exclusive representation to only true public employees is because otherwise couldn't see where would you draw the line how else could that be contained and so the court decided to contain a boot and compulsory fees only two where there was a full fledged employment relationship and so for similar reasons exclusive representation should also be confined to only where there is a full fledged employment relationship and the reason being is that it's the only place where it's justified by a countervailing state interest namely the labor peace interest now the district court relied on two decisions which i like to address the first of the supreme court's decision and night night however did not address the compelled association issue presented here because that issue was decided in the blue instead a night only addressed whether excluding individuals from union bargaining sessions with their employer infringed on those employees rights the employees in that case were faculty members of the university argued they had a constitutional right to participate in these meetings between the union and the employer and the supreme court said they did not because the government is free to choose to whom it listens and so if the government chose only to invite the unions these bargaining sessions that didn't infringe on any right of those individuals to speak to the government that is not the claim here providers do not argue in any way that they have a right to attend the s c used bargaining sessions with the state of illinois or that infringes on their rights by excluding them instead their claim is one of compelled association that there be compelled to associate with the suu because it's speaking on their behalf and that is not an issue that night addressed and the reason one thousand addressed it is because  address that in one thousand nine hundred seven in a booth in a booth the supreme court held that exclusive representation of employees is justified by the labor peace interest and then compulsory fees for that representation is justified by the free rider interest  reconsider the exclusive representation holding already decided eight years earlier in a booth and then a final word on night is that beyond the narrow two terms of the decision in general it's very difficult to  believe when the supreme court side in one thousand nine hundred four whether faculty members the university of minnesota could be excluded from union bargaining sessions it meant to sanction what's happening here that a state can impose exclusive representation on small business owners and parents in care  children own homes without having to satisfy any constitutional scrutiny i think that puts far more weight on night than the case can possibly bear and then the other decision the disquiet upon was the first circuits decision and the augustine  reasons first to do augustine a court relied on a booth for holding the exclusive representation of childcare businesses is constitutional of course harris held that a labor peace interest did not extend beyond the employment relationship so that reliance on a boot was an error and secondly the dogs do you know court reasoned that the perp those childcare providers are not associated with the representative because they're the choice of representation is clearly imposed by the government and not by any free choice the providers themselves but i submit that only proves why there is a constitutional injury that it wasn't a free choice by the providers cells in any compelled association case by definition the government is making the choice for the individual of should find in favor of the appellant's on both questions the first of which courses is exclusive representation subject to exacting first minute scrutiny and i submit that at the very least the court should hold and require that exclusive representation like any other mandatory so she can satisfy that scrutiny and then moving to the second question or should find that the extension exclusive representation here does not satisfy that scrutiny for the reasons state and harris namely that the labor piece interest may please the court my name is frank yes john and i represent the state defendants this court should affirm the dismissal of plaintiff's claims because the statutes they are challenging do not impair their first amendment expressive association rights first the supreme court's decision in night alone dispose of plants claims because they're the court held that the stat that the exclusive representation system at issue just like the one that plants are challenging here did not compare the freedom of any bargaining unit members not to associate with their representative an addition tonight plaintiffs claims are also foreclosed by the supreme court's other expressive association decisions because here the plaintiffs have not been compelled to support the union in any way nor have they been compelled to accommodate the union speech much less accommodate union speech in a way that in interfered with plaintiffs own a bill on expressive activities in knight supreme court held that the exclusive representation  issue in no way restrained the unit members freedom not to associate with a representative the corps pointed out that the unit members were not required to join representative nor they were they required to support sect cities and those plants at all times remain fruits associate with whomever they chose thus as the first and second circuits have already recognized the night decision disposes of this claim and others like it where the plaintiffs have not been required to support the inner join the union and they face no restrictions on their ability to join whatever associated groups they would like to do and although play is argue that the court did not can siddur the constitutional issue presented here the court specifically addressed the issue of of whether or not they are going to your members had it been impaired in their freedom not to associate with the exclusive representative effect the court squarely helped the state has in no way restrained a police freedom to speak on any education related issue or their freedom to associate or not to assume associate with whom they please including the exclusive representatives and this wasn't just a little part of the decision use the entire second part of the opinion and it was necessary to the decision as a whole because if the court had found that there had been an impairment of the plaintiff's rights not to associate then the court would have had to move on to the second part of the analysis which is what stands for of whether or not that impairment is justified by a sufficient state interest and this is an issue that was squarely before the court because that was the basis for justice brennan the sense of justice brennan said that there had been an impairment of of the plants right not to associate with the representative and he held that and he would have decided that the abreu justification didn't apply here so this was an issue that was squarely before the court and the supreme court's subsequent decision in harris speak when does not change knight's applicability to this case  anyway because harris doesn't really apply here harris just like a booted went on to this was it was about the second part of the analysis there was a clear impairment of the freedom to associate when the plaintiffs were required to make payments to the union that's one of the clearest ways that you can impair somebody's association rights and that's what harrison him food and knox and even the united foods talk about terrorists just wants that second part of the of the analysis where you look to the states justification here as a night we never even get to that part because there's no impairment of associational rights in the first place but even in addition tonight the courts other precedents unexpress forclose plaintiff's claims those line of cases illustrate that there are century two ways in which a plaintiff freedom not to associate with an organization can be impaired the first which nobody argues that issue here a sort of direct support compelled support for that that's what you have and not or that's what you have in harris and a booth where you have a payment and you're subsidizing the speech the other the second is a more indirect support and that's where the plaintiff is required to accommodate somebody else's speech in such a way that it impairs their own to build their own expressed ability to engage in expressive it cities and so these types of cases are hurly where a parade organizer has to affirmatively allow somebody to march in their parade dale and roberts where the plaintiff has to affirmatively allow somebody into their groups in each and every one of these cases the impairment of the association freedoms occurred because the plaintiffs were forced to do something to accommodate speech of another here the plants are not required to do anything to accommodate the speech they are free to remain silent and do absolutely nothing that's what the statute for tax and but then the supreme court goes on in rumsfeld to say that even there are instances in which a plaintiff may be compelled to actively do something to accommodate the speech of another but there still is had to host military recruiters not only did they have to host them their space but then to send emails and mailers and things so they had to affirmatively do something to accommodate the speech of these recruiters but the court there held there was no note no compulsory peace there was no forced association because simply letting somebody onto your property to to recruit and sending out these millers are not expressive activities and so the plaintiffs  rumsfeld had a much stronger case than the players do here because one they're not going for required to do anything and even if they were simply providing services under the terms of a collective bargaining agreement negotiated by a union is not an expressive activity  and briefly just to touch on the long haul case there's knockers circuits what is it's not persuasive anyway because they're the mohawk case only looked at the issue of whether the plaintiff had an interest to support bargaining is an infringement that asked if you justified it by a state interest in sleep or peace the night majority rejects that argument it does so explicitly in footnote thirteen on page two ninety two of the knife decision it says the infringement in the who was the requirement that the workers pay fees to you as a more general matter the supreme court's case law provides a test for whether individuals who do not have to do or say anything to support the union or its activities are being passive the associated with the union speech which is what the plaintiffs are urging there urging an inherent dissociation between the bargaining unit workers and the speech of the union and the test is whether reasonable people would perceive that all the bargaining unit workers agree with the union or its express a back to fifty and in this case unions and exclusive representation and collective bargaining are familiar features of the landscape and reasonable people would understand that in a system like this not all the workers necessarily support the union or agree with its message so the plaintiffs here are in exactly the same position as the plaintiffs in the rumsfeld the fair case there the law schools didn't like a law that gave the military recruiters access to the campus and in a colloquial sense they were associating with the military recruiters but not enough first amendment sense because they didn't have to support to speak should the recruiters and reasonable people would understand that they didn't necessarily endorse the recruiters message i want to also address the slippery slope argument that there are no limits to because the supreme court's case law already cabin's its systems of exclusive representation so they comport to first and then one limit comes out of the city of madison joint school district and you can't have a system of exclusive representation that prevents people from expressing themselves like all other citizens and first amendment for and this system doesn't violate that principle the plaintiffs can express themselves like all other citizens the second is that if the system required bargaining unit workers to force the union worker pay fees to the union it would be subject to even scrutiny that's the approved harris line of cases the third is that if the system puts pressure on the bargaining unit workers to join or support the union that was more than what knight called the pressure people in the minority always feel to join with an authority that would likely be subject to heightened scrutiny also in other words if the state gave goodies to the people who joined or situation might be different also here we have the standard system of exclusive their freedom to left the park and used throughout the united states public sector in the private sector in other states and people understand that when you speaks it's providing with a night or said kathleen was the official collective position that's what the state is interested in meeting to hearing it's not necessarily a position  to buy the marketing workers so they're not associated with it in a first amendment sense unless the court has questions we would urge or to affirm the decision  your honor the first minute test is not whether individuals are perceived to agree with the organization or speech they're being affiliated with the questions have they been affiliated with that speech organization whether or not they agree or disagree simply shows that there has been a violation or in other words the government cannot compel someone to affiliate an organization and then say well it's obvious the person didn't actually want to therefore that's exculpatory the fact that the person didn't doesn't agree with the government compelled message or government compel organization is what shows the first minute injury so here the fact that it's clear that some providers do disagree with you including my clients only case the state relies upon knight says knight touched upon an association argument that's true but the association argument is not the one presented here is whether excluding these individuals from union bargaining sessions infringed on the first amendment rights and this is right on page two eighty eight the quote the court upheld the speech associational rights however have not been fringe by minnesota's restriction of participation in meeting confer sessions to the faculties exclusive represent the court did not contest unquote the court did not consider the compelled association issue decided or to being decided here and did discuss this issue in the context of compulsory fees union counsel mention that a boot involved compulsory fees and it certainly did however as the court held knox define a compulsory fee constitutional there's a two part test first there must be a mandatory association and that mandatory association has to be found to be justified by compelling government interest and then second fees for that mandatory association have to be the least have to be a necessary incident to that mandatory so in finding compulsory fees for employee representation constitutional  blue court had first consider is the representation justified and then if so is a fee necessary incident to that representation and that's what the abboud court did court held that the principle of exclusivity was justified by the labor peace interest and then it held that compulsory fees were necessary instant to sew a boot to decide the exclusive representation issue pursuant to its fee analysis and later supreme court cases realize that including night which refers back to abo and also in teachers vs hudson which is discussed in the briefs so night did not revisit the issue discussed in a booth then moving on to the eleventh circuit decision and all states counsel is correct that all consider a question of whether employee has standing to challenge a statutory claim however that doesn't make the court's analysis any less persuasive what the court held and eleventh circuit is exactly what appellants are arguing before you today that exclusive representation doesn't associational rights because it forces individuals into a mandatory agency relationship with an organization with use to manson principles they may disagree they're not the opponents are required to join you're right no they're not required no state would the state couldn't listen to in the collective bargaining agreement section for one of each says the state shall not meet confer discuss with anyone other than the sci you on the policies that are within the subjects of representation however the doesn't change the fact that it's agency status and hinges on the first amendment rights and the move whole court actually said exactly that the hall rose in florida which is a right to work state and so mr maule cannot be forced to join the union there or forced to pay fees and the court said justified by state interest and again the state interest that they found in the hall does not apply here because the labor peace interest and then final point your honor a limiting principle to exclusive representation has still not been suggested b cranleigh notes that explicit representation has to have certain aspects for example the union representative has to have a fiduciary duty to represent everyone it speaks for but that doesn't limit exclusive representation always saying that the same exclusive representation that can be imposed on public employees can be imposed on everyone else and that's something i submit that the court should not adopt or sponsor thank you or thanks meserve thanks to all counsel cases taken