Ysursa v. Pocatello Education Association

The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and petition the Government for a redress of grievances.” U.S. Const. amend. I. The Fourteenth Amendment incorporates the protections of the Bill of Rights against the states, limiting a state’s ability to impose restrictions on speech. U.S. Const. amend XIV. The Supreme Court can review a claim that a government is violating the First Amendment’s free speech provision using either a strict scrutiny or a rational basis standard of review. Strict scrutiny is the most exacting standard of judicial review, and requires that a state infringement on a constitutional right be narrowly tailored to serve an important state interest. See United States v. Carolene Products, 304 U.S. 144, 153 (1938). Rational basis or “reasonableness” review is less exacting, and will find a state action constitutional if it is reasonably related to achieving a legitimate state objective. See McCulloch v. Maryland, 17 U.S. 316, 324–25 (1819).

In 2003, Idaho’s legislature passed the Voluntary Contributions Act which prohibits all state public employers, including political subdivisions such as counties, municipalities, and school districts, from using payroll deductions to contribute money to political activities and organizations. Idaho Code Ann. § 44-2004(2). Because the statute restricts the ability of individuals to contribute to political activities, it may constitute an impermissible restriction on speech under the First Amendment.

Standard of Review

Pocatello Education Association (“Pocatello”) argues that the appropriate standard of review for the statute is strict scrutiny. See Brief for Respondent at 20. In Austin v. Michigan Chamber of Commerce, the Supreme Court recognized that political contributions are regarded as “speech” for the purposes of the First Amendment. See id. Pocatello argues that “singling out ‘deductions for political activities’ as the only payroll deductions for lawful purposes a local government employee may not permit an employee to make,” constitutes a content based restriction of speech.Id. at 21. A content based restriction on speech is a restriction which “singles out speech on ‘political’ or ‘controversial’ topics.” Id. at 21–22. Because it is a content based restriction, the Idaho statute is “presumptively invalid” and therefore subject to strict scrutiny. See id. at 22. Pocatello argues that though not on its face targeted at labor unions, the statute is designed to apply to their political activity and effectively outlaws the easiest method for employees to contribute to those activities, and thus reduces the ability of the unions to engage in them. See id. at 24.

Ysursa contends that the proprietary-regulatory distinction used by the United States Court of Appeals for the Ninth Circuit to hold the statute invalid is inappropriate because local governments do not stand in the same position in relation to the legislature as private actors. See Brief for Petitioner at 23. A forum exists whenever a government body has gatekeeper authority over access to it. See Id. Where, as here, the subdivisions hold a gatekeeper status and the legislature possesses the authority under state law to determine the scope of their power generally and in regard to employee relations, Rosenberger v. Rector requires the First Amendment claim be settled using forum principles. See id. at 23–24 (citing Rosenberger v. Rector, 515 U.S. 819, 830 (1995)).

For the purposes of First Amendment analysis, the Court will consider the payroll systems of the state political subdivisions fora. See Brief for Petitioner at 24. Three categories of fora exist: the traditional public forum, the public forum created by government designation, and the nonpublic forum. See id. The traditional public forum is defined as property which is assigned to assembly and debate either by long tradition or government fiat. See id. at 24–25. A government can also purposely designate a place not usually open to assembly and debate as a public forum. See id.at 25. Remaining government properties fall into the non-public forum category. See id.

Ysursa argues that under this framework, payroll systems should be deemed non-public fora, because they were created to serve an internal government administrative need, not as places for expressive activity. See Brief for Petitionerat 26–28. Ysursa further argues that the Court’s decisions in Cornelius v. NAACP Legal Defense & Education Fund, Inc.and Lehman v. City of Shaker Heights allow the Court to evaluate the Voluntary Contributions Act using reasonableness review. See Id. at 33. Both Lehman and Cornelius recognize neutrality on the part of public entities for the purposes of the First Amendment as a reasonable political objective. See id. “‘Government’s decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation,’ and “avoiding the appearance of political favoritism is a valid justification for limiting speech in a nonpublic forum’” Id. (quoting Cornelius v. NAACP, 473 U.S. 788, 808 (1985). Under this standard, Idaho’s statute is reasonable because it prevents only participation by public employers in politics, thereby avoiding the appearance that the government endorses any political group. See Id. It does not prohibit direct contributions by public employees to political activities or regulate their political activity.

Pocatello argues that applying a “reasonableness” standard in this case goes against the grain of the First Amendment. See Brief for Respondent at 27. Supreme Court precedent requires strict scrutiny for content-based restrictions on speech. See id. at 27–28. Reasonableness review is appropriate for content-based speech restrictions in a government forum only where the government entity restricts speech in its own forum while acting as a proprietor. Id. at 30. In this case, the political subdivisions, not the state legislators, are acting as proprietors. See id. at 32–33. The State is not engaged in on-going management of the local government payroll systems; since this statute constitutes the State’s only intervention into the management of such systems, it indicates that it is designed to stifle political speech. See id. at 33. Pocatello asserts that the use of a reasonableness test when considering a state’s legislative actions restricting access to local government is inconsistent with Court precedent. See id. at 35. Pocatello also argues that even under reasonableness review, the statute fails. See id. at 50. It is unlikely that members of the public would perceive a lack of impartiality in a local government which allowed employees to make political contributions, and therefore the statute is not “reasonably related” to a legitimate state interest. See id. at 51.

Driving a Wedge between a State and its Subdivisions

Ysursa argues that the Court has recognized that the “United States Constitution typically plays no role in controlling the relationship between States and their political subdivisions.” Brief for Petitioner at 47. State legislatures have the power to assign new duties or withdraw duties from political subdivisions. See id. at 52–54. Under Court precedent, Idaho’s counties, cities, and school boards, should not be equated to private entities. See id. at 54–55. Each political subdivision could pass and enforce the same regulation without contravening the First Amendment, and Idaho’s interest in not having any governmental entity associated with political activity is just as great as that of any local government. See id. at 56. Ysursa argues that it would be inappropriate to use an overly restrictive interpretation of public entity to “interpose the First Amendment between the Idaho legislature and its political subdivisions.” See id. at 55. “That the legislature has opted to effectuate a general policy against entanglement of payroll systems with the political process … represents precisely the type of public policy judgment left to the States by the Constitution.” Id.

Pocatello contends that there is no merit to the argument that the State may take the same action when the local government could take the same action without violating the First Amendment. See Brief for Respondent at 44–45. The State can refuse to facilitate political activity as applied to its own employees. See id. at 45. In this case, the state is not declining to subsidize political speech made using its facilities, but obstructing the ability of local governments to allow use of their facilities for public speech. See id. at 46. Pocatello also contends that upholding the Ninth Circuit’s decision will not use the First Amendment to “drive a wedge” between the state and local governments, as there is no question that the First Amendment applies to this state action. See Id. at 42. Pocatello argues that using strict scrutiny review would not bar a state from regulating access to subdivisions controlled by its political subdivisions. See id.at 42–43. Pocatello further concludes that there is nothing wrong with varying the “force of federal constitutional provisions…depending on the manner in which a state has structured its relationship with its local government political subdivisions.” Id. at 43.