Last Friday, lawyers representing two government officials petitioned the U.S. Supreme Court to hear arguments over whether former a 2002 state decision to layoff only union personnel violated those employee’s constitutional rights.
Back in June 2013, you may recall that the Second Circuit ruled that such layoffs did violate the right of association. I’ve discussed the background of the case (and my very early involvement in it) in several prior posts.
In asking the Supreme Court to review the case, the officials state that there are two questions for the court to consider:
1. Are a governor’s subjective motives for exercising a state’s inherent power and contractual right to reduce the size of its unionized workforce legally relevant when a court is asked to determine the constitutionality of that legislative act?
2. Did the Second Circuit err in requiring strict scrutiny of a governor’s decision to reduce the size of a state’s unionized workforce by falsely analogizing that decision to firing state employees based on their political party affiliation?
You can download the filing here.
Part of the officials’ argument is that there should be a difference between an executive order to eliminate positions (a “legislative” act, according to the officials) versus a directive to fire specific employees. Moreover, the motive of state officials performing such legislative acts should be irrelevant as well, says the petition, arguing — in likely a direct appeal to the court’s more conservative wing — that “The growth in motive-based constitutional torts must be reined in.”
The state has filed a separate petition as well.
The court is expected to rule on the petitions by December or January.
Despite the meatiness of the issues presented, the petitions still face a significant uphill battle for two reasons. One is pure numbers. The court refuses to hear the overwhelming majority of cases that it is asked to hear. But second, the brief fails to highlight any significant split of authorities that exists in the lower courts. Without such a split, the Court typically rejects such challenges unless the issues presented are of such significance that it cannot wait for that split to develop.
What happens if the petitions are rejected? Well, the petition does suggest that the fight may not be over for the government officials since the case will be sent back to a lower court. In a footnote, the officials state that they remain free to assert an “absolute legislative immunity defense” if the claims are ultimately remanded to the district court for trial.
The case continues on.