Right-to-work ruling faces rough road
BY CHRISTIN NANCE LAZERUS email@example.com September 14, 2013 11:24PM
State Rep. Jerry Torr, R-Carmel, isconfident the Indiana Supreme Court will overturn a Lake County judge and uphold the Right-to-Work law he helped pass in the General Assembly last year. | Associated Press
Updated: October 16, 2013 6:32AM
They couldn’t stop it in the General Assembly, and they failed in federal court.
But last week, opponents of Indiana’s right-to-work law finally had reason to celebrate, when Lake Superior Court Judge John Sedia ruled the law unconstitutional.
It was only one battle, though, and the ruling already has been appealed to the Indiana Supreme Court, which some think is likely to overturn Sedia’s decision.
That ruling held that the law violates Article I, Section 21 of the state constitution, which reads: “No person’s particular services shall be demanded without just compensation.”
And that’s what the law does, Sedia decided. The law says workers represented by labor unions cannot be required to pay dues — cannot be required to compensate unions for representing them.
The law will remain effect while the case is on appeal.
Robert Brookins, an employment law professor at the Indiana University School of Law in Indianapolis, said it’s unlikely the court will uphold the ruling.
“That part of the constitution has always been interpreted to mean individuals, but the judge took it a step further and applied it to unions, which are organizations,” Brookins said. “I doubt that our Supreme Court is going to honor that appeal because they would not want to expand the way the constitutional provision is written to include organizations.”
The state’s “red to the point of maroon” conservatism also argues against the ruling being upheld, Brookins said.
Unions are required by federal law to provide services to their members regardless of whether a member pays dues.
“Unions are caught between a rock and hard place,” Brookins said. “If the court wants to uphold the ruling, there is room to do that. It was put in the constitution as a cure for inequity.”
The law was sponsored by Rep. Jerry Torr, R-Carmel.
“We have very smart lawyers who helped draft the language and I feel fairly confident it will be upheld,” Torr said. “I don’t have a law degree and I haven’t read the opinion, but if that is the state taking labor without compensation, then corporations can make the same argument for the time and effort spent complying with tax law.”
Rep. Ed DeLaney, D-Indianapolis, was troubled by attacks on Sedia.
“I found the decision reasoned, measured and it makes a lot of sense,” said DeLaney, who is a lawyer. “I’m not optimistic it will be sustained, but it merits serious consideration. It’s a fundamental rule of market capitalism and unions that you can’t be forced to give something up without compensation. The U.S. Supreme Court just decided corporations are people in Citizens United.”
Joel M. Schumm, a clinical professor at the IU School of Law in Indianapolis, said the justices will look at the history and context of when the provision was written in 1851.
“I don’t think unions were around in 1851, and it dealt with the claims of individuals,” Schumm said. “I think it will be a major challenge to convince the court otherwise.”
The court tends to take a deferential view on moves by the legislature, including recent decisions to uphold the school voucher law and fines on House members who walked out in 2011.
DeLaney said the court does and should show deference to the legislature, but not at the expense of finding meaning in the state constitution.
“If all we do is say it can never grow, then that’s sort of where we’re at,” DeLaney said. “It’s remarkable how little it has grown and the courts have not, in my view, used the constitution for the purposes for which it was established.”
For the Indiana General Assembly, 2012 wasn’t the first session spent grappling with right-to-work legislation. The law was passed in 1957 by a Republican-dominated Statehouse, but was so unpopular a Democratic legislature and governor repealed the law in 1965.
Rep. Vernon Smith, D-Gary, said it may take a similar shift to change the law at the legislative level, and that isn’t likely for awhile.
“It will be a long time before the Democrats will be in control again, so I don’t see the law being overturned anytime soon,” Smith said. “The only way to get some relief is through the courts at this time.”