CBS13 Interview David P. Mastagni About #Calexit

On Thursday, CBS13 interviewed Mastagni Holstedt partner David P. Mastagni about growing talks about California's possible secession from the union, popularly called #Calexit.  The article noted Calexit supporters gather at the state Capital Wednesday calling for California to secede.  "There's no provision in the U.S. Constitution that allows secession, Mastagni said.  He went on to explain that secession requires a Constitutional amendment approved by two-thirds of the Senate and House of Representatives and three-quarters of the States.

“Anything a state does during a period of secession is a nullity, it means nothing unless a secession is successful,” Mastagni said.  Mastagni also says if Californians continue pushing for a secession knowing it’s unconstitutional, “the federal government would come in like they did in reconstruction era and reestablish California as a state.”  Watch the full video here.

U.S. Supreme Court: Demotion of Police Officer for Perceived Political Activity Violated First Amendment

The U.S. Supreme Court recently ruled that a government employer violates the First Amendment when it demotes an employee for what it perceives as political activity, even if it is mistaken. A government employer cannot punish an employee for participating in political activity protected by the First Amendment.

In 2005, Jeffrey Heffernan was a police officer in Paterson, New Jersey. At that time, the city mayor was running for re-election against Lawrence Spagnola, a personal friend of Heffernan. The Police Chief and Heffernan's direct supervisor had both been appointed by the current mayor.

During the campaign, Heffernan's mother, who was bedridden, asked him to pick up a large Spagnola sign for her to replace one that had been stolen from her yard. Heffernan went to a Spagnola campaign office and picked up the sign. While there, he spoke for a time to Spagnola's campaign staff. Other members of the police force saw him holding the sign and talking to campaign staff.

The next day, Heffernan's supervisors demoted him from detective to patrol officer. They did this to punish Heffernan for what they thought was his overt involvement in Spagnola's campaign. However, he was not actually involved in the campaign. His supervisors had made a factual mistake.

Heffernan then filed a federal lawsuit against the city for violating his First Amendment rights. The city attempted to defeat his lawsuit by pointing to its factual mistake. It argued that because Heffernan was not actually involved in any political activity, it did not violate his constitutional rights.

The Supreme Court ruled in Jefferson v. City of Paterson (2016) that the city's reason for demoting Heffernan is what matters. Even though Heffernan was not actually involved in any political activity, the city could not punish him for what it wrongly believed to be political activity. And Heffernan actually suffered harm because the city demoted him. That was enough to bring a First Amendment lawsuit. Also, allowing the city to escape liability in this case would likely discourage other employees from actually engaging in political activity.

Thus, a government employer cannot punish an employee for what it believes to be the employee's political activity. This is true even if it is mistaken and the employee has not actually engaged in protected First Amendment activity.

Judge Strikes Down "Right to Work" Law as Unconstitutional

On April 8, 2016, a Circuit Court in Wisconsin held its “right to work” law was an unconstitutional taking of the Plaintiff-Union’s property without just compensation. (International Association of Machinists District 10, Local Lodge 1061 v. State of Wisconsin (Apr.8, 2016) Case No. 2015CV000628.)

Approximately 26 states have adopted “right to work” laws, which prohibit union security agreements requiring employees to pay union dues as a condition of employment. As the Wisconsin court noted, the “duty of fair representation” prevents a union from declining to represent non-paying members.

The Wisconsin Constitution, like the California and federal Constitutions, prevents the taking of property for public use without just compensation. A taking requires (1) a property interest (2) that has been taken (3) for the public use (4) without just compensation.

The Wisconsin court found the Unions had a property interest in the services they perform for their members and non-members and that the “right to work” statute was a regulatory taking. While the “right to work” laws were determined to be for the “public use,” the court found the State had not compensated the Unions with money for their services. The State argued the Unions had been justly compensated for their compelled labor with the privilege of “exclusive representation.” However, the court rejected this argument, noting “just compensation” requires the payment of money, not a grant of special privileges or other non-monetary benefits.

In a recent California case, Friedrichs v. California Teachers Association, plaintiffs argued that requiring union dues as a condition of employment violated their First Amendment right to free speech. Had the lawsuit been successful, California would have become a “right to work” state, barring agency-shop agreements and "fair share fees." After the death of Justice Scalia, however, the Supreme Court issued a 4-4 decision in the case. With no majority holding, California “fair share fees” were safe. Plaintiffs have already filed a petition for rehearing asking the Supreme Court to reconsider the case when a new, ninth Justice is confirmed.

Under the takings rationale, however, right to work states would either have to pay unions to provide services to all employees or allow unions to decline representation for non-paying members. 

U.S. Supreme Court Rules President Obama Invalidly Appointed National Labor Relations Board Members

On June 26, 2014, the U.S. Supreme Court decided NLRB v. Noel Canning. The Court set aside a National Labor Relations Board ("Board") order because the Board lacked a quorum when it issued the order. The Court ruled the Board lacked a quorum because President Obama invalidly appointed three of the five Board members. This decision may impact other cases decided by the unlawfully appointed Board members.

The case began as a labor dispute between a labor union and Pepsi-Cola distributor Noel Canning. The Board ruled the distributor unlawfully refused to execute a collective-bargaining agreement with the labor union. The Board ordered the distributor to execute the agreement and compensate employees for any losses. The distributor challenged the Board's order, arguing the Board could not take legal action because the President invalidly appointed three of the five Board members. Three lawfully appointed Board members are required for the Board to take any action.

President Obama appointed the three Board members on January 4, 2012 during a three-day Senate recess. Interpreting the Constitution's Recess Appointments Clause, the Court held a three-day recess is too short to trigger the President's recess-appointment power. Since the President invalidly appointed three of the five Board members, the Board lacked a quorum when it ordered the distributor to execute the collective-bargaining agreement and compensate employees for any losses.

This ruling may have far-reaching consequences. Many cases decided by the invalidly appointed Board members could be affected. The Board Chairman, Mark Gaston Pearce, stated the Board now has a quorum of validly appointed Board members and the agency is analyzing the impact of the Court's decision on other cases.