Sherry Loar, Paulette Silverson and Michelle Berry
Mackinac Center Legal Foundation clients Sherry Loar, Paulette Silverson and Michelle Berry stand firm at the Michigan Supreme Court.

For an arrangement born in subterfuge, the forced unionization of Michigan's day care providers is certainly in the spotlight, thanks to Patrick Wright, director of the Mackinac Center Legal Foundation, and the Mackinac Center communications staff. The Center's battle against the unconstitutional arrangement is gaining allies in the courtroom — and in the court of public opinion.

The campaign against the arrangement began last year when Wright filed suit against the state Department of Human Services on behalf of three day care providers, demanding that the department cease withholding so-called "union dues" from state subsidies paid to the women and to other independent day care contractors — including thousands of small-business owners — for providing day care services to low-income parents. The DHS, Wright observed, could not declare private-sector day care contractors "public employees" subject to "union dues" without an act of the Michigan Legislature. After being rebuffed by the Michigan Court of Appeals, Wright appealed to the state Supreme Court.

In April, two additional groups filed "friend of the court" briefs on behalf of the Mackinac Center's clients: the 350,000-member National Federation of Independent Business and the nonprofit American Civil Rights Union. The NFIB emphasized that unionization of day care providers would mean "that any private sector business that accepts subsidies from the State could be similarly forced into a public sector union." The ACRU agreed, writing, "This [unionization] is just the beginning of the possible mischief."

On May 12, about a month later, the Department of Human Services responded to the MCLF's suit with an evasive defense that Wright later described as "a thin hodge podge of technicalities." Indeed, although the DHS was permitted 50 pages to make its case to the court, it filed just 12, and it never tried to show that the day care providers really are public employees.

Instead, the department lamely contended that the Center's clients should have challenged the union's certification with the Michigan Employment Relations Commission, which oversees labor relations with public employees. This logic was circular, and Wright drily noted in his written response to the court that as private contractors, his clients "had [no more] obligation to resort to that forum than they would have had if the issue had been brought before a Superior Court Judge in Nome, Alaska."

A Michigan Supreme Court decision could come as early as the end of July. In the meantime, media interest in the case remains high. On March 31, the Lansing State Journal editorialized against the day care unionization, observing that if the indirect receipt of state subsidies was sufficient to convert private businesses into public employees, homeowners who receive a property tax exemption could be unionized as well. On April 20, the Detroit Free Press published a lengthy, front-page, above-the-fold article on MCLF client Michelle Berry. Shortly after, Frank Beckmann of WJR AM 760 interviewed MCLF client Sherry Loar on his show and subsequently wrote about the case in his April 9 Detroit News column, decrying "the incestuous relationship between the Granholm administration and labor unions in Michigan." The Macomb Daily and Oakland Press also editorialized against the forced unionization, while The Detroit News weighed in with an editorial about legislative solutions.

Wright testified about those remedies before a Senate committee and subcommittee on three Senate bills that would end the unionization of day care providers (there are similar bills in the Michigan House). He also discussed the possibility of defunding the ersatz "employer" of the day care providers, the Michigan Home Based Child Care Council, a shell corporation cobbled together largely to give the union someone to "bargain" with.

The child care council's thin façade was exposed by Center Communications Specialist Kathy Hoekstra. Using the Freedom of Information Act, Hoekstra unearthed a lengthy e-mail exchange in which a union official stated that the council — a titular "employer" — was created "at the recommendation of Michigan AFSCME and the UAW with the support of the [governor's] Executive Office." The official also slipped by describing day care providers as "independent contractors" rather than government employees, and he admitted, "This [unionization] is an experiment with little guidance from the statute and virtually no administrative or judicial precedent to follow."

Hoekstra published the e-mail in a video she produced as part of an ongoing series on the case, and a similar story appeared in the Mackinac Center's online publication, Michigan Capitol Confidential, on May 3.

When this lawsuit began 10 months ago, the Center was the only organization objecting to the forced unionization of Michigan's independent day care contractors. But due to the hard work of Wright, Hoekstra and the entire Center staff, momentum is growing against this tragedy of politics and bureaucracy — and the Center's clients are no longer alone.