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George Will

George F. Will: Supreme Court likely to boost public employees' rights

| Saturday, Dec. 23, 2017, 9:00 p.m.
Front row from left, U.S. Supreme Court Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Associate Justice Clarence Thomas and Associate Justice Stephen Breyer; back row from left, Associate Justice Elena Kagan, Associate Justice Samuel Alito Jr., Associate Justice Sonia Sotomayor, and Associate Justice Neil Gorsuch. They posed for this group portrait in the East Conference Room of the Supreme Court on June 1, 2017, in Washington, D.C.
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Front row from left, U.S. Supreme Court Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Associate Justice Clarence Thomas and Associate Justice Stephen Breyer; back row from left, Associate Justice Elena Kagan, Associate Justice Samuel Alito Jr., Associate Justice Sonia Sotomayor, and Associate Justice Neil Gorsuch. They posed for this group portrait in the East Conference Room of the Supreme Court on June 1, 2017, in Washington, D.C.

SEATTLE

Protected by Washington state's lopsidedly Democrat political class, the Service Employees International Union nevertheless has been so avaricious and thuggish that the small, conservative Freedom Foundation has bested it. The foundation relishes the SEIU's accusation of “tortious interference” with “business expectancy” — that the foundation is guilty of informing SEIU members and fee payers, many of them reluctant participants, of their right not to fill SEIU coffers, from which flow contributions to Democrats.

“Individual providers” (IPs) are home health-care workers employed by those receiving care, who use Medicaid stipends to pay them. In 2003, Democrat-controlled Illinois imperiously declared thousands of IPs government employees simply because their pay comes from Medicaid, and gave the SEIU and a rival union their names and addresses to facilitate herding them into a union. The SEIU prevailed, often with duplicitousness, and began collecting a portion of the Medicaid payments as dues. In 2014, however, the Supreme Court held that IPs have First Amendment rights of freedom of association and speech to choose not to support financially a union with whose activities they disagree. Washington makes IPs' receipt of Medicaid subsidies contingent on association with the SEIU as their bargaining representative. So, the foundation began notifying IPs of their right to opt out of SEIU fees.

When the foundation sought lists of recipients of public funds, state agencies “promptly” provided outdated lists 819 days later. Then the SEIU spent more than $2 million to pass a ballot initiative that carved an exemption from public-disclosure laws to keep IPs' identities secret.

Three basically identical SEIU lawsuits forced the foundation to spend $1.5 million defending itself, but the “tortious interference” argument failed in court. Now, the foundation is suing SEIU for abusing the judicial process, seeking reimbursement.

The Democratic Party and government employees' unions have a mutually lucrative relationship, so some blue states are shrouding all public employees' identities, lest they be made inconveniently aware of their rights. However, by June, the Supreme Court probably will overturn a 1977 ruling that compulsory union “agency fees” do not violate public employees' rights if the fees do not finance political activities. (A meaningless demarcation: All government-union activities are inherently political; money is fungible.) In Janus v. AFSCME , the court probably will recognize for all public employees the rights that its 2014 decision protected for less-than-“full-fledged” government workers. The unions will call this tortious interference with their business expectancies. Disinterested people will call it an affirmation of individuals' constitutional rights.

George F. Will is a columnist for Newsweek and The Washington Post.

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