Enacting legislation may be the most common way of changing policy, but it isn’t the only one. For over a decade, the Mackinac Center Legal Foundation has been a cornerstone of our work. Here’s a brief look at a few of the things Legal Foundation staffers have been working on recently.
Last December, Carol Beth Litkouhi, a parent in the Rochester Community School District, submitted a FOIA request, asking for certain course material used in her children’s school. District officials have denied her requests several times, and the Mackinac Center Legal Foundation has launched a suit on her behalf.
The case has garnered much media attention, including an appearance on “Fox and Friends.” The case is still ongoing.
In August 2020, the Mackinac Center filed suit on behalf of Lucille Taylor, a Michigan lawyer and member of the State Bar of Michigan. This case is a follow-on to the 2018 U.S. Supreme Court case Janus v. AFSCME. In its ruling, the court granted public sector workers across the country the freedom to opt out of their union. As a result, they can’t be forced to pay money to an organization they do not agree with.
While the Janus ruling freed public workers from their unions, it did not extend to other groups of people, including lawyers, who are forced to pay money to organizations they don’t agree with. The Mackinac Center Legal Foundation has taken their cause to the federal courts, arguing that mandatory bar membership and its associated fees should be treated in the same way as mandatory union membership — as a violation of one’s First Amendment rights.
The 6th U.S. Circuit Court of Appeals ruled against the Mackinac Center Legal Foundation in July 2021. Its decision relied on a 1977 U.S. Supreme Court ruling, Abood v. Detroit Board of Education, which the Supreme Court overturned in the Janus case. The Mackinac Center Legal Foundation appealed to the Supreme Court, asking it to reconsider the circuit court’s ruling.
Unfortunately, on April 4, 2022, the Supreme Court denied the Mackinac Center’s petition for writ of certiorari, letting the circuit court’s decision stand. While this was a disappointing development, the goal of upholding each person’s First Amendment rights is still worthy, and the Mackinac Center Legal Foundation will look for other ways to uphold those rights.
In late March, the Michigan Supreme Court asked five organizations and businesses to submit an amicus brief in an upcoming labor case. The dispute would determine whether unions can charge nonmembers a fee for representing them in grievance proceedings. The Mackinac Center Legal Foundation was honored to be asked by the state’s highest court.
This marks the second time in a year that the Michigan Supreme Court has specifically asked the Mackinac Center to submit a brief to help inform its opinion on a case.
In its brief, the Mackinac Center Legal Foundation argued that workers who do not belong to a union cannot be charged grievance fees. Currently, unions hold a monopoly over negotiation and disciplinary systems. If unions can refuse to represent certain employees — such as those who do not pay fees — the consequences for those employees could be serious, including termination.
Interestingly, several unions that submitted a brief, including AFSCME, the MEA and the AFT, agreed they could not charge nonmembers for representing them in grievance proceedings. They made it clear that while employees should join and support their union, the union would still be required to represent nonmembers, free of charge, as part of its duty of fair representation. They disagreed with the Michigan Court of Appeals’ holding that such fees were inherently coercive, but their chief objection was that the court should never have reached that question.
In 2019, the Mackinac Center Legal Foundation filed suit on behalf of New Jersey resident Jody Lutter, who was trying unsuccessfully to opt out of her union. Unlike Michigan, New Jersey is a “window state,” meaning that union members have only a few days each year in which they can opt out.
Lutter’s union tried to force her into an unwanted settlement. This has raised another constitutional question around whether someone can be forced to take a settlement rather than continue a court case. Patrick Wright, the Mackinac Center’s vice president for legal affairs, joined her in Philadelphia on May 25 for oral arguments. The Mackinac Center Legal Foundation is eagerly waiting the court’s decision.
