Does Janus Invalidate Mandatory Bar Association Membership Fees

Several lawyers are challenging mandatory bar dues requirements after Janus. Until Janus, the law in most, if not all, jurisdictions was that the state could mandate that lawyers join bar associations. Janus, of course, held that state agency fee statutes which required public employees to pay an agency fee if they did not want to become union members violated the First Amendment.

I was recently quoted in the Washington Times in a story that was picked up by the AP. As you can see, my view is that state regulation of lawyer is different from the regulation of unions as the police power of the state is implicated. A copy of that article can be found here.

Mitchell Rubinstein

Union Membership Declines (Again!)

On January 18, 2019, the BLS released its annual report on union membership in the United States.
Overall union membership declined .2% to 10.5% of the workforce.
Union membership in the public sector was 33.9% and 6.4% in the private sector.
These numbers vary widely by state and industry and readers would need to review the entire report for more detail.

No matter where one stands on unionization, what is surprising to me is that the BLS, a federal government agency, is continuing to operate during the current federal government partial shutdown.

Court Issues Rare Order Vacating Arbitrator's Decision

Matter of Browne v. N.Y.C. Dep't. of Education, 2018 N.Y. Slip Op. 33131(U) (N.Y.Co.  Dec. 8, 2018), representing the rare case where the court vacated an Arbitrator's decision. In Browne, the Arbitrator found the teacher guilty of inflicting corporal punishment on a student. In vacating the penalty of termination, the Court reasoned:

"An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter oflaw." Matter of Idahosa v Farmingdale State Coll., 97 AD3d 580, 581 (2d Dept 2012). As set forth below, under the circumstances, the Court finds "that the penalty of termination of employment is shockingly disproportionate to petitioner's misconduct." Matter of Brito v Walcott, 115 AD3d at 546. As noted by petitioner, this situation bears a striking similarity to Matter of Principe, where a DOE employee, in his role as dean of discipline in a middle school, was charged with two incidents of corporal punishment and was terminated after a hearing held pursuant to Education Law§ 3020-a. The hearing officer had issued the penalty of termination based on three factors: the seriousness of the behavior, the lack of remorse and the lack of petitioner's credibility. Due to the three factors, the hearing officer found a likelihood that this behavior would continue. The court agreed with the DOE's contentions that there had been no violation of any specific section of article 75 of the CPLR and that there had been a rational evidentiary basis for the hearing officer's findings. However, while acknowledging that the court "does not support corporal punishment," the court found that the hearing officer failed to "realize that these were not in any way premeditated acts." Matter of Principe v New York City Dept. of Educ., 2010 NY Misc LEXIS 7050 at *9. The court continued that the circumstances should have been taken into consideration, namely; difficult children with records of violent behavior, difficult situations and his job responsibility of maintaining order. Next, the court addressed the "difficult situation," of expecting the petitioner to "show remorse while still denying that he had done anything wrong." Id. at * 10. Lastly, the court noted that "an individual should have a right to give his own recount." Id. Among other things, the court also stated that petitioner had an unblemished record and had never been warned or disciplined about aggressive behavior. Finally, the court did not agree with the hearing officer that due to the three factors, the behavior is likely to be repeated, especially after imposing a "lesser penalty such as suspension with perhaps an anger management course .... 

                                                 *        *        *
With respect to fashioning the penalty, Burrell specifically stated that petitioner's "denial precludes remorse, and therefore causes me to question whether remedial steps such as a fine or suspension and anger management training would be effective." Award at 33. Under the circumstances, it was unreasonable for Burrell to implement the harshest penalty of termination based on petitioner's lack of remorse and his denial of any wrongdoing. Petitioner consistently denied striking Student A and reiterated that he had an obligation to protect his classroom. Burrell then describes petitioner as an honest person and states that petitioner may not actually even remember striking Student A because it was in the heat of the moment. By expressly indicating that petitioner's denial precludes remorse, the Court finds that Burrell "placed petitioner in a very difficult situation, when he expected petitioner to show remorse," given that petitioner denied any wrong doing. Matter of Principe v New York City Dept. of Educ., 94 AD3d at 434 (internal quotation marks omitted). Moreover, while Burrell ultimately found that petitioner did strike Student A, petitioner should not be subjected to a harsher penalty because he provided his version of the incident. In light of petitioner's unblemished record, lack of disciplinary history and the underlying circumstances, the penalty of termination is excessive and shocking. Furthermore, Burrell found that Student A did not experience any pain to his head or face.

Mitchell Rubinstein

Important Education Law Section 3020-a Procedural Decision Concerning Time Limits

The First Department recently issued a short, but important, Education Law Section 3020-a procedural decision. Education Law Section 3020-a requires that the hearing be completed within 125 days and that a decision be rendered within 30 days of the final hearing. But, what if these time requirements are not met? In Martin v. Department of Education, ___A.D. 3d___(1st Dep't. Dec. 27, 2018), the First Department held that the failure to comply with these statutory requirements is not jurisdictional in the absence of prejudice. However, the court also held that the failure to commence an appeal within 10 days is jurisdictional.  As the court explained:

             "The petition is untimely, since plaintiff failed to commence this CPLR article 75 proceeding within 10 days of her receipt of the Hearing Officer's decision (Education Law § 3020-a[5][a]).

           Although the hearing was not completed within 125 days (Education Law § 3020-a[3][c][vii]) and the arbitration award was not issued within 30 days of the last day of the hearing (Education Law § 3020-a[4][a]), petitioner has not shown that she suffered prejudice as a result (see Matter of Leon v Department of Educ. of the City of N.Y., 115 AD3d 435, 436 [1st Dept 2014], lv denied 24 NY3d 903 [2014]; Scollar v Cece, 28 AD3d 317 [1st Dept 2006])."

       So, if the plaintiff teacher fails to file her appeal within 10 days, she is procedurally barred and the Department does not have to show prejudice. But, the fact that the decision was not timely issued is not a defense unless prejudice is shown. This decision makes no sense. Clarification of this issue is needed from the NYS Court of Appeals.

Mitchell Rubinstein

The Discipline Book

Harvey and Eric Randall just updated their wonderful treatise called "The Discipline Book" which is available on Amazon now. https://www.amazon.com/DISCIPLINE-BOOK-Essentials-Discipline-Employees/dp/1632639459.

The description from Amazon is as follows:

This comprehensive handbook has been written for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees employed by New York State and its political subdivisions, under various State laws, including the Civil Service Law, the Education Law and contract disciplinary grievance procedures negotiated pursuant to the Taylor Law. Also a valuable resource for those involved in disciplinary actions taken against public officers and employees serving with other states.

But, the book is much more than this. It spans 674 pages and it is an everything you wanted to know book about public employee discipline in New York. For example, it covers Education Law Section 3020-a and CIvil Service Section 75 hearings in detail. It also discusses the leading appellate cases.

It is a "must" purchase for anyone who practices in this area. What is really nice about the book is that it is in electronic form and it is searchable. That will save readers a lot of time.

Judge Kavanaugh Made Some News About The Right to Privacy During His Confirmation

I was again quoted in the Washington Times about Judge Kavanaugh's confirmation hearings; this time about his views with respect to the right to privacy. Brett Kavanaugh's Digital Privacy Revelation Intrigues Senators, Advocates (Washington Times Sep't. 10, 2018).  

As reporter Alex Swoyer, esq. notes, Judge Kavanaugh previously indicated that bulk collection of telephone digital data would not violate the right to privacy, but his decision may no longer be good law because of the Carpenter Supreme Court decision. He also appears willing to apply Carptenter to other areas of the law. Specifically, I was quoted as follows:

But Mitchell Rubinstein, a New York-based lawyer, said the exchange between Judge Kavanaugh and Mr. Leahy was important because the nominee called the Carpenter case a “game changer.” “It appears that a Justice Kavanaugh will recognize the importance of privacy in many different areas that are likely to come up because of the explosive use of technology in this country,” he said.
 Mr. Rubinstein noted that Sen. Ben Sasse, Nebraska Republican, praised Mr. Leahy’s questioning.
 He said it may have been the “most striking and perhaps the most significant part” of the confirmation hearing. “There was a discussion about the past and the future and not about the political left or right,” Mr. Rubinstein said.

Accusations Fly Against Judge Kavanaugh During His Confirmation Hearings

The Constitution, of course, requires the advice and consent of the Senate to confirm all federal judges, including Supreme Court Justices.

Unfortunately, the Senate confirmation hearings for Judge Kavanaugh are becoming somewhat of a circus. An interesting article documenting all of this appears in the September 6, 2018, Washington Times entitled Accusations Fly Against Kavanaugh In Craziest Supreme Court Confirmation in Decades.  In that article, I am quoted as stating:

“I never before saw observers in the hearing room physically removed by the police,” said Mitchell H. Rubinstein, a New York-based lawyer.

“The Democrats do not have the votes to stop the nomination and never did. I do not think their strategy changed and the vitriolic nature of some of the comments demonstrates how frustrated they feel,” he said.

No matter what your politics are. The confirmation of a Supreme Court Justices is critically important to this nation. The process needs to be dignified and respectful because, in the end, we all need to respect our judicial system and the law.

Will Judge Kavanaugh Be Confirmed and What Type of Justice Will He Be?

Next month Judge Kavanaugh confirmation hearings will start and you can expect political bickering and argument from both sides of the aisle. This is President Trump's second appointment and because Judge Kavanaugh will, if confirmed, be replacing a moderate, this appointment will likely swing the court far to the right. 

But, just who is Judge Kavanaugh? We know he worked in the Bush Administration and on the Kenneth Star Report and he sits on the D.C. Circuit. Senator Schumer has been widely quoted as stating that the best predictor of how he will rule as a Supreme Court Justice is by examining how he ruled while sitting on the D.C. Circuit. I disagree. I was quoted in theAugust 19, 2018, Washington Times as stating:

“He is a prolific writer and not afraid to dissent from the majority,” said Mitchell Rubinstein, a New York based lawyer...Mr. Rubinstein said those rulings suggest the judge is a strong supporter of national security but has been bound by precedent, so dissecting his rulings won’t necessarily predict opinions if he is confirmed to the high court.

It is, therefore, much more important to examine Judge Kavanaugh's non-judicial writings. Thus, in my view, his legal scholarship and his speeches are much more important than what he said in a judicial opinion, whether it be a majority or dissenting opinion-though those opinions do have some value. I just do not believe that they are as important as Senator Schumer believes that they are. 

As for whether he will be confirmed, of course, he will. It is all about the numbers. 

Is The Janus Ruling Retroactive?

The Supreme Court recently held that an Illinois agency fee statute which mandated that non-union members pay an amount equivalent to union dues violated the First Amendment. Janus v. AFSCME, 585 U.S. ___(June 27, 2018).  Query whether this case is retroactive, i.e., can agency fee payers seek to collect fees they previously paid? The Court did not discuss this issue.

The Supreme Court has, however, repeatedly recognized:

Elementary considerations of fairness dictate that individuals
should have an opportunity to know what the law is and
to conform their conduct accordingly; settled expectations
should not be lightly disrupted. For that reason, the principle
that the legal effect of conduct should ordinarily be
assessed under the law that existed when the conduct took
place has timeless and universal appeal.  Landgraf v. USI Fim Prods.511 U.S. 244, 265-266 (1994), quoting, Kaiser Aluminum and Chemical Corp. v. Bonjorno, 494 U.S. 827, 855 (Scalia, concurring).

There are also, however, decisions that have been found to be retroactive. See, Kay, Retroactivity and Prospectivity of Judgements in American Law, 62 Am. J. Comp. L. 37 (2014) (discussing case law). 

I was recently interviewed by the Washington Times about the issue and was quoted as explaining:

“In my view, it’s very unlikely that there will be any retroactivity with respect to this decision, and the reason for that is the Janus decision overruled 41-year-old precedent,” said Mitchell Rubinstein, a New York-based lawyer. “It changed existing law.”  Alex Swoyer, In Wake of Supreme Court's anti-union ruling, non-members seek repayment of dues, Washington Times, August 12, 2018.

If the ruling is retroactive then how far back can courts go? The answer is that it depends on the applicable statute of limitations. Most of these cases are brought as 42 U.S.C. 1983 lawsuits which, in states such as New York, have a 3 year statute of limitations.

A finding of retroactivity can be devasting to some unions. That is why it is likely that most unions will seek to avoid litigation and settle cases involving individual union members or involving small numbers of employees. Class action lawsuits, however, may be a different story and only time can tell what will ultimately happen.

Janus Presents Opportunities For Private Attorneys To Participate In Union Proceedings

On June 27, 2018, the Supremes held in Janus v. AFSCME, 585 U.S. ___(June 27, 2018), that agency fee statutes violated the First Amendment. Some 22 states, including NYS, have agency fee legislation which requires public employees to pay a fee instead of union dues if they do not want to join a union. Those individuals can also object to paying a portion of the agency fee that was unrelated to collective bargaining. That was the rule established in Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977) that Janus overruled.

Very significantly, in response to the argument that agency fee statutes were necessary to prevent the free rider problem (i.e., non-union members receiving union services for free), the Court stated at page 17:

"In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated through means significantly less restrictive of associational freedoms than the imposition of agency fees. Individual nonmembers could be required to pay for that service or could be denied union representation altogether.  Thus, agency fees cannot be sustained on the ground that unions would otherwise be unwilling to represent nonmembers." (emphasis added)(citations omitted).

In anticipation of this decision, New York recently amended the Taylor Law to provide that unions do NOT have a duty to represent non-members in disciplinary proceedings or in investigatory interviews. Specifically, the Taylor Law now provides:

Notwithstanding any law, rule or regulation to the contrary, an employee organization’s duty of fair representation to a public employee it represents but who is not a member of the employee organization shall be limited to the negotiation or enforcement of the terms of an agreement with the public employer. No provision of this article shall be construed to require an employee organization to provide representation to a non-member(i) during questioning by the employer,(ii) in statutory or administrative proceedings or to enforce statutory or regulatory rights, or(iii) in any stage of a grievance, arbitration or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to proceed without the employee organization and be represented by his or her own advocate.Nor shall any provision of this article prohibit an employee organization from providing legal, economic or job-related services or benefits beyond those provided in the agreement with a public employer only to its members.

Therefore, this decision may open up many opportunities for private attorneys to represent union members in proceedings which formerly were the sole province of union attorneys.

Update July 2, 2018. NEA predicts a 14% membership decline over the next 2 years. Personally, I think that number will be about double.