Misrule of Law

In the Lone Star State, a long-running legal challenge to “release time” in public-employee union contracts approaches its finale. Justice at last?

This article originally appeared in Law & Liberty on February 12, 2024 (here). Thanks to Ace of Spades HQ!

In the post-Janus age, it is just a matter of time before taxpayers successfully challenge, on First Amendment grounds, government subsidies to public-employee unions in the form of “release time,” “official time,” “service time,” or “association business leave.” These terms all describe the same thing: provisions in union contracts between government entities and public-employee unions pursuant to which government employers pay the salary and/or benefits of government employees serving as union officials even though they exclusively perform union duties. Coercing these payments from taxpayers is no different in principle than requiring—as in Janus—workers to remit agency fees to the union as a condition of government employment.

Depending on the particular union contract and the size of the “bargaining unit” represented by the union, one or more (and sometimes many) union officers receive full pay and benefits from the taxpayers even though they spend 100 percent of their time performing union business—often directly contrary to the interest of the taxpayers forced to subsidize their efforts. For example, American Federation of Teachers President Randi Weingarten has been accruing pension benefits for decades from Brooklyn’s Clara Barton High School, based on her brief tenure long ago as a social studies teacher, even though she is a full-time union activist. Weingarten hasn’t been a working teacher in more than a quarter century, but the taxpayers are expected to pretend she is. This is the same as putting partisan political activists on the government payroll.

Release time is fairly common in private-sector union contracts, but businesses can spend their money in ways that government employers cannot. This was the landmark holding of Janus—distinguishing between private and state action while overruling Abood v. Detroit Board of Education (1977). The cost of release time—at the federal, state, and local levels—is enormous, with estimates as high as $1 billion annually.   

The First Amendment proscription of “compelled speech” in favor of inherently-political unions representing government workers, recognized in the Supreme Court’s 2018 decision in Janus v. AFSCME, is not the only possible legal objection to “release time,” which amounts to compelled taxpayer support for union activities. Most state constitutions prohibit the use of tax monies to benefit non-public purposes, which has spawned litigation in many states challenging release time provisions as an unconstitutional “gift” of taxpayer funds. The Goldwater Institute has taken the lead in filing legal challenges on this basis, bringing lawsuits in Arizona, New Jersey, and Texas. I happen to be involved in the pre-Janus Texas lawsuit, which will be heard by the Texas Supreme Court on February 21.

In September 2016, when the Texas lawsuit was filed in Travis County District Court, I was living in Austin. As a property owner and taxpayer, I had “standing” to object to a provision in the union contract—Article 10–between the city of Austin and Austin Firefighters Association, Local 975. Release time for Local 975 officials was costing Austin taxpayers by some estimates hundreds of thousands of dollars annually. The lawsuit was filed by lawyers working for the Goldwater Institute and the Texas Public Policy Foundation. Goldwater had previously litigated this issue in Arizona under that state’s constitution. Naïvely, I assumed the case would be disposed of quickly. One policy analyst deeply versed on the issue, affiliated with the Competitive Enterprise Institute, opined that the lawsuit “should be a slam dunk.”

After all, the Texas Constitution forbids the payment of “public money or thing of value in aid of, or to any individual, association or corporation whatsoever.” The Texas Supreme Court has interpreted that language to mean that payments to private parties must have a predominantly public purpose, be subject to adequate government control, and ensure a clear public benefit. Union release time fails on all counts. Unsupervised union officials pursue the selfish objectives of the union and its members, not those of the general public. A Democrat Texas Attorney General, Mark White, had issued an opinion in 1979 finding that a release time provision in a school district’s policy violated the state’s “gift clause.” Moreover, shortly after the lawsuit was filed, in October 2016, Texas Attorney General Ken Paxton intervened in the lawsuit on behalf of the challengers. In a constitutional challenge, the intervention of the Attorney General, representing the state of Texas, is a big deal.

General Paxton declared that the union contract with Local 975 “violates the Texas Constitution anti-gift clause provisions that prohibit governments from giving taxpayer funds to private entities without a public purpose. Under the agreement, taxpayers are paying approximately three full-time firefighters each year to do nothing but engage in union business, including engaging in partisan political activity on behalf of the union and against the interests of taxpayers.” Paxton explained that

The city of Austin has abused its taxing power and with it the public trust. The city is siphoning money that should go to vital emergency services and redirecting it towards a labor union’s political activity. It is a basic tenet of democratic government that tax money be oriented towards a common good. An agreement that enriches a private organization at the cost of Austin residents’ health and safety cannot be allowed to stand.

More than seven years of laborious litigation later, with procedural delays, adverse results, interlocutory appeals at every stage of the case, and multiple reassignments to different trial judges, the “slam dunk” proved to be illusory. As explained below, the lawsuit turned into the legal equivalent of the Bataan Death March. What happened? In a word, politics.

In Texas, all judges are elected. Every trial court judge in bright-blue Travis County is a Democrat, many of whom are far left of center. During the pendency of the litigation, the once majority-Republican composition of the intermediate appellate court flipped to become completely Democrat. Elections have consequences, even in court. To left-wing activist judges, labor unions can do no wrong.

Not only did Local 975 prevail in a bench trial, but one politically-ambitious trial judge, Travis County District Judge Amy Clark Meachum, scorched the earth against the plaintiffs. (Meachum, a Democrat, unsuccessfully ran against Texas Supreme Court Chief Justice Nathan Hecht, a Republican, in 2020.) The newly-reformulated Third Court of Appeal, in a decision written by another aspiring SCOTX Justice, the Hon. Gisela D. Triana, upheld the dubious verdict. (Triana, a Democrat, unsuccessfully ran against Texas Supreme Court Justice Brett Busby, a Republican, in 2020.)

The trial court risibly ruled that the city of Austin’s grant of 5,600 hours a year of paid leave for the Local 975 officers to conduct union business did not the violate the “no-gift” clause of the state constitution. The payment of hundreds of thousands of dollars to union officers benefited the public, the trial court concluded, by being part and parcel of an overall labor agreement that provided “fire safety and emergency services” and contributed to “labor peace.” Since Article 10 was “bargained for” and “agreed to” by the city during contract negotiations, “consideration” for the release time must be assumed to exist. Ergo, the city’s payments to Local 975 officers are not “gratuitous.”

This is a mere tautology. Just because the city of Austin improperly agreed to Article 10 doesn’t mean release time confers a public benefit. (It plainly doesn’t.) Otherwise, any “negotiated” gift of taxpayer funds would circumvent the explicit protections of the Texas Constitution.

Moreover, and shockingly, Judge Meachum imposed almost $200,000 in sanctions and attorneys’ fees against the plaintiffs under the Texas anti-SLAPP statute! “SLAPP” stands for Strategic Lawsuit Against Public Participation. The term was coined in the 1980s when powerful, well-funded organizations used lawsuits to silence citizens and consumers expressing their First Amendment rights. Many states, including Texas, passed laws penalizing such vindictive tactics. Like many well-intentioned laws, anti-SLAPP statutes can be abused—putty in the hands of activist judges.

Texas’s version of an anti-SLAPP statute is called the Texas Citizens Participation Act (TCPA). Texas courts have interpreted the purpose of the TCPA in these terms: “The TCPA protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them…. The TCPA’s purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits.” Commentators have stated that “the TCPA is arguably the broadest anti-SLAPP law in the nation.” Unfortunately, the TCPA “launched a new and very expensive motions practice, clogging the dockets of trial and appellate courts with expensive, complicated, and time-consuming litigation.” The unwieldy TCPA was weaponized in the Local 975 case, against the plaintiffs.

Judge Meachum ruled, in Through-the-Looking-Glass fashion, that two citizens challenging the city’s unconstitutional payment of taxpayer funds to a powerful labor organization violated the union’s rights under the TCPA! In other words, the attempt to protect the public fisc from illicit payments to union bosses infringed on the union’s “right of association.” This, of course, begs the question whether the union had a right to receive thousands of hours of taxpayer-funded release time—the very subject of the lawsuit. Judge Meachum’s ruling, upheld by the Third Court of Appeal, makes it impossible for taxpayers to challenge release time and similar provisions in public-sector union contracts because doing so purportedly impairs the protected “right of association” of union members.

In a bizarre—and revealing—twist, after Local 975 sought and obtained dismissal as a defendant pursuant to the TCPA, the union intervened back into the lawsuit, belying the “intimidation” that the TCPA is intended to prevent.

The lawsuit did not challenge Local 975’s right to engage in collective bargaining per se, an activity authorized by Texas law. The objection was solely to Article 10—a specific provision of the union contract that required taxpayers to pay for the full-time activities of union officers engaged in lobbying, negotiations, grievance adjustment, and so forth. Taxpayers cannot be forced to pay for these inherently political activities. The logic of Janus, if not the precise holding, takes Article 10 out of the realm of “free association.” It is the compelled subsidy of political activity. Unions have a right to bargain collectively, but not to negotiate illegal terms in union contracts.

In an Orwellian flourish, the trial court cited some of my published writings and philosophical objections to public-sector unionism in support of the award of sanctions under the TCPA. So much for freedom of expression!  

The opinion of the Third Court of Appeal rubber stamped the trial court’s rulings in all respects.  The case will be argued before the Texas Supreme Court on February 21. Local 975 is asking the Texas Supreme Court to not only ignore—or negate—the no-gift clause of the state constitution, but also to uphold a plainly-nonsensical ruling under the participation-friendly TCPA that unionized government employees in Texas have legal rights that trump those of taxpayers seeking to vindicate the Texas Constitution. In the hands of woke judges in Austin, the protections of the TCPA have been turned into a weapon to be used against ordinary citizens.

As the saying goes, “The wheels of justice turn slowly, but grind exceedingly fine.” Seven and a half years into the lawsuit, we know how slowly the wheels grind. How fine remains to be seen. Stay tuned.