D.Ariz: Grants Preliminary Injunction Against Law Burdening Political Speech of Unions

Finding that a group of unions were likely to succeed on their claim that a recently passed Arizona law violates the Free Speech Clause of the First Amendment, a district court entered a preliminary injunction preventing the law from going into effect. United Food and Commercial Workers Local 99 v. Brewer, No. CV-11-921-PHX-GMS, 2011 WL 4434043 (D. Ariz. Sept. 23, 2011). Judge Murray Snow, a George W. Bush nominee, wrote the opinion

Under Arizona law, employees may authorize their employers to withhold certain amounts from their paychecks and transfer those funds to other organizations, such as charitable organizations, insurance companies, and unions. In April 2011, Arizona Governor Janice Brewer modified this practice by signing into law Senate Bill 1365, known as the “Protect Arizona Employees’ Paychecks from Politics Act.” Ariz. Sess. Laws § 23-361.02. Bill 1365 requires organizations who receive funds withheld from employees’ paycheck to affirm to their employers that none of the funds are being used for political purposes or to specify the percentage of their general funds that are used for political purposes. Id. § 23-361.02(B). Although the law is written to have general application to all payroll deductions, it explicitly excludes a number of deductions. Id. § 23-361.02(E). For instance, deductions for organizations that provide employee health care, retiree, or welfare benefits are excluded. Id. The law also exempts public safety employees, including firefighters and peace officers. Id. § 23-361.02(H). Consequently, public employee unions are not required to comply with the law, despite the fact that unions without public employees are required to comply with the law. See id. § 23-361.02(A).

In May 2011, Plaintiffs United Food & Commercial Workers 99 filed a lawsuit challenging SB 1365’s companion legislation, SB 1363, as unconstitutional. The Plaintiffs later amended their complaint to allege that 1365 is unconstitutional as well, and moved for a preliminary injunction to prevent SB 1365 from going into effect. The American Education Association and other unions (“Plaintiff-Intervenors”) later intervened and also moved for a preliminary injunction.

In its Order, the court addressed the Plaintiffs’ and the Plaintiff-Intervenors’ Motions for Preliminary Injunction. Before addressing the merits of those Motions, though, the court summarily dismissed the Defendants’ arguments that the court lacked subject-matter jurisdiction and that the case was not ripe.  The court also held that the Eleventh Amendment to the U.S. Constitution does not bar a suit for “injunctive relief against the Attorney General to prevent him from enforcing an allegedly unconstitutional state law.”

Moving on to the merits of the Plaintiffs’ and Plaintiff-Intervenors’ claims, the court outlined the arguments the parties made, but noted that it would only discuss their First Amendment claims given their likelihood of success on those claims. The court began its preliminary injunction analysis by discussing why the parties were likely to succeed on their First Amendment claims.  Because SB 1365 imposes burdens on the political speech of some unions while not imposing the same burdens upon similarly-situated unions, the court concluded that the law is underinclusive and discriminates according to the speaker, which subjects the law to strict scrutiny review. Given the fact that the Defendants did not argue that SB 1365 can survive strict scrutiny review, the court held that the Plaintiffs are likely to succeed on their claim that SB1365 is unconstitutional because it violates the First Amendment. The court also concluded that severing the unconstitutional exceptions to the law would make SB1365 a much broader regulation than the legislature had intended to enact. Based on that reason, the court declined to sever the sections of SB 1365 that make it likely that the parties will succeed on their First Amendment claims.

After concluding that the parties are likely to succeed on their First Amendment claims, the court discussed the remaining three requirements necessary to issue a preliminary injunction. First, the court concluded that because the “claim[s] implicate[] the core protections offered by the First Amendment, the harms they would suffer should SB1365 go into effect are irreparable per se.” Turning to the balance of equities, the court held that the Defendants’ hardship associated with delay in implementing the law should it ultimately found to be constitutional does not outweigh the parties’ likely loss of core First Amendment rights. Finally, the court held that there is a significant public interest in avoiding the implementation of a law that discriminates according to the speaker’s viewpoint.

–Scott Herrig, University of California, Berkeley-School of Law 2012

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