The Mackinac Center Legal Foundation officially opened in 2009 with the home day care unionization case. Before that, the Mackinac Center’s participation in legal matters — when not being sued by the Michigan Education Association (and ultimately winning) — was through amicus curiae briefs. Amicus curiae translates to “friend of the court” and allows a person or organization that is not a direct party to a lawsuit but has a strong interest in the subject matter to assist the court through providing legal arguments. In UAW v. Green, the Michigan Supreme Court adopted an argument that only we had made. As a result, over 35,000 state employees were freed from having to pay agency fees to mandatory public sector unions.
The Mackinac Center’s amicus work both before and after the creation of the legal foundation has had a significant impact of both federal and state jurisprudence. Over the last decade, the Mackinac Center has filed around 20 amicus briefs at the United States Supreme Court, other federal courts, the Michigan Supreme Court and other Michigan courts and tribunals. Oftentimes, it is difficult to directly assess the impact amicus briefs have on a case, since one of the parties to the case may make a similar argument, as may other outside groups in their amicus briefs. In addition, it is fairly rare for the courts to directly reference amicus submissions. But even where there is no direct reference, a discerning observer can trace the court’s resolution to one or another amicus brief.
UAW v. Green is the second time a major Michigan Supreme Court ruling is directly traceable to Mackinac Center submissions. The first time was in 2008’s In re Complaint of Rovas. In that case, the court accepted the Mackinac Center’s request to deny agencies deference over their interpretations of ambiguous statutes. This separation-of-powers holding made it clear that legislators, not unelected bureaucrats, would have the primary responsibility for resolving policy disputes. Further, it made it possible for Michigan’s citizens to hold legislators responsible through the ballot box. Thus, Michigan’s bureaucrats have considerably less power and discretion than their federal counterparts.
The UAW v. Green case concerned the state employees unions’ attempt to thwart right-to-work. Essentially, these unions argued that the Michigan Civil Service Commission permitted agency fees and as a constitutional body it could not be overcome by a state statute, namely, 2012’s right-to-work law. There exists a confusing line of cases exploring when the Civil Service Commission’s “plenary authority” over terms and conditions of state employment can be overcome by generally applicable statutes passed by the Legislature on matters that touch on employment — say for example, the Elliot Larsen Civil Rights Act.
Rather than focus on that difficult line-drawing question, the Mackinac Center Legal Foundation made two arguments: (1) that the Civil Service Commission lacked the power to allow mandatory public sector bargaining; and (2) that it lacked the power to allow “agency fees,” since in the instance of state employees, such fees are more akin to a tax on state employees or an illegal appropriation to the unions. The foundation was the only party to make the second argument, and it is that argument that the Michigan Supreme Court, by a 4-3 decision, relied upon. Based on the foundation’s argument, the court recognized that for decades, agency fees have been improperly taken from state employees (whether those fees can be recouped is being examined by the Mackinac Center and others). The 35,000-plus state employees in mandatory bargaining units thus are no longer compelled to support public sector unions. This makes the foundation not just a friend of the court, but of freedom as well.