Ban on Public Employee Union Payroll Deductions, with Exception for Certain Unions, Violates Kentucky Constitution

From Commonwealth v. Kentucky Educ. Ass’n, decided Mar. 7 by the Kentucky Court of Appeals (Judge Susanne Cetrulo, joined by Judges Sara Walter Combs and Kelly Mark Easton):

[SB 7] prohibits public employers from allowing most employees to use payroll deductions to pay dues to labor organizations or to make contributions for political activities, such as through contributions to political committees connected to labor organizations. But Section 1(10) of SB 7 exempted labor organizations “which primarily represent public employees working in the protective vocations of active law enforcement officer, jail and corrections officer, or active fire suppression or prevention personnel.” {The only stated purpose of the final version of SB 7 was to avoid “the appearance that public resources are being used to support partisan political activity[.]“} …

“All men are, by nature, free and equal ….” Ky. Const. Section 1. “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” Ky. Const. Section 2. “All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services….” Ky. Const. Section 3.

Section 3 is the oldest continuous provision in the Kentucky Constitution. It is in all four of Kentucky’s Constitutions. While we have recognized that corporate entities are entitled to equal protection, we should not lose sight that the focus of Section 3 is on people. The Appellees complain of disparate, politically motivated treatment of labor organizations, but ultimately it is the inexplicable different treatment of individuals which most clearly illustrates the equal protection violation in this case….

[T]he legislative regulation at issue here, payroll deduction policies, is a matter of social or economic policy. It does not involve any suspect class requiring strict scrutiny or a similar heightened level of review. Rather, the question is whether there is any rational basis for the different treatment of individuals. All parties in these cases agree that rational basis is the proper level of review….

[R]ational-basis review does not give courts a license to judge the wisdom or fairness of choices made by the Legislature. The courts may not act as a “superlegislature.” By the same logic, the Legislature may not act as a “supercourt” deciding what the Kentucky Constitution prohibits. These lines are drawn by the separation of powers provisions in our Constitution in the attempt by the framers to achieve balance among three separate and equal branches of government….

“[O]ur analysis begins with the presumption that legislative acts are constitutional.” “A classification by the legislature should be affirmed unless it is positively shown that the classification is so arbitrary and capricious as to be hostile, oppressive and utterly devoid of rational basis.” “[A] statute does not have to be perfect to pass constitutional muster.” …

While any conceivable rational basis will do, “we must ask whether a rational basis exists for the General Assembly to believe that the legislation would further the government purpose.” In this instance, the exception allowed by SB 7 is in direct opposition to the stated purpose of SB 7. The language of SB 7 states that its purpose is to avoid the appearance that public resources are being used to support partisan political activity, and the OAG offers no different purpose, even though we realize that the OAG has no burden to identify and explain any rational basis.

Allowing an exception for some labor organizations with majorities of a certain type of employee does the exact opposite of the only stated purpose—it creates an appearance of favoritism for some labor organizations over others because of partisan political activity even at the expense of individual protective vocation employees, who may or may not get the benefit of the exemption. Without question, the Legislature could have disallowed payroll deductions to everyone because the state has no obligation to facilitate political speech. But favoring some speech and facilitating it alone may present a different constitutional question in the form of First Amendment viewpoint discrimination, which we need not reach in our equal protection analysis.

The Plaintiffs in the Jefferson County case properly developed the record to show the disparate treatment of individuals under SB 7. Eddie Crutcher is a Court Process Officer with the Metro Auxiliary Police Force. He is a peace officer with arrest authority and carries a weapon. He works daily in the juvenile court system. Yet he is not considered by SB 7 to be in a protective vocation like other police officers because he happens to be a member of a labor organization not primarily composed of police officers as defined.

On the other side of the equation, people in nonprotective vocations are exempted if they happen to be members of a labor organization composed primarily of people in protective organizations. Clerical employees of fire departments, who do not themselves engage in protective or hazardous work like their firefighter co-workers, none-the-less get to use payroll deduction. We will not unnecessarily lengthen this Opinion with other examples on both sides of the line drawn by SB 7.

The OAG insists that the line drawn here is valid because the Legislature has validly drawn similar lines before. For example, in KRS 61.592 retirement benefits are impacted by performing hazardous work. But everyone who performs such work gets this enhanced retirement benefit regardless of what labor organization to which they may belong.

The OAG explains that protective vocations are basically the same vocations involving hazardous work. Yet emergency medical personnel perform hazardous work and are entitled to increased retirement consideration under KRS 61.592, but they did not make the list of protective vocations. They are a protective vocation under any reasonable application of the phrase because they serve in dangerous situations to tend to those who have been often gravely injured. If the only reason for the difference is the political tendencies of whatever labor organization such employees may join, then it is hard to see the line drawn as anything but arbitrary and in violation of equal protection of the law for the employees.

Undaunted, the OAG insists that over-inclusiveness or under-inclusiveness because of lines drawn is not a problem. Under-inclusiveness alone has been held insufficient, but only when the line drawn still had a rational basis.

In the present case, the exemption is both inexplicably underinclusive and overinclusive. While not alone necessarily fatal, this imprecision in the line drawn, when considered in the context of the government goal stated, is problematic for the OAG’s position. Inability to explain inclusiveness may lead to the conclusion that the lines have been drawn for the purpose of invidious discrimination rather than because of the need to draw a rational line….

The line drawn by the Legislature in SB 7 is drawn in such a way to include protective vocation employees and other employees on both sides of the line. The exemption in SB 7 was supposed to give identified groups of employees the right to use payroll deductions, but it does not do so. It favors some labor organizations and disfavors others for no rational reason when we consider the subject of the law relates to the right of individual employees to use payroll deductions….

The exemption contained in KRS 336.180(10) (Section 1(10) of SB 7) violates the equal protection guarantee embodied in Sections 1, 2, and 3 of the Kentucky Constitution….

Amy D. Cubbage, Marc G. Farris, Alice O’Brien & Jeffrey W. Burritt represent the Association.

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