Blog Bierman v. Dayton

David R. Osborne

On December 13, 2018, eight homecare workers from Minnesota, including Teresa Bierman, asked the United States Supreme Court to hear their case.1 Under Minnesota law, these homecare workers are forced to accept an exclusive representative to speak and contract with the state over issues affecting their employment, and the lower courts have thus far signed off on the arrangement.2

But the cert petition, filed by Bill Messenger at the National Right to Work Legal Defense Foundation, urges the Supreme Court to take the case, generally because:

If the First Amendment prohibits anything, it prohibits the government from dictating who speaks for citizens in their relations with the government. This form of compelled speech and association not only infringes on individual liberties, but distorts the political process the First Amendment protects.3

More technically, the case raises the following issues:

1. Can the government designate an exclusive representative to speak for individuals for any rational basis, or is this mandatory expressive association permissible only if it satisfies heightened First Amendment scrutiny?

2. If exclusive representation is subject to First Amendment scrutiny, is it constitutional for the government to compel individuals who are not government employees to accept an organization as their exclusive representative for dealing with the government?4

Because the Fairness Center has clients who may be affected by a Supreme Court decision in this area, it filed an amicus brief in support of Ms. Bierman on January 16, 2019. Full text can be found here.

 


1 See Petition for Writ of Certiorari, Bierman v. Dayton, No. 17-1244.

2 See Bierman v. Dayton, 900 F.3d 570 (8th Cir. 2018).

3 Id. at 7.

4 Id. at (i).