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Forced Unionization of Childcare Providers: Hearing on Permanent Injunction

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I attended the child care unionization hearing yesterday in Ramsey County. The lawyers for the childcare providers (Tom Revnew and Doug Seaton) did a fine job reviewing the constitutional defects of  Governor Dayton’s executive order (separation of powers and equal protection issues;  a pre-emption issue under anti-trust law raised in an amicus brief filed by Harry Niska on behalf of parent clients was also covered).

Judge Dale Lindman found the plaintiff’s arguments persuasive enough to issue a temporary restraining order (TRO) back in December. Judge Lindman had characterized the executive order as "legislative" in nature—and made that point again several times yesterday.

It was hard to sit still while listening to the lawyers for AFSCME (Gregg Corwin) and the Governor (Alan Gilbert, an assistant state attorney general). I did not envy their task because the defects are so plain. AFSCME’s lawyer was animated (waiving his brief around and almost shouting at Lindman). Bad legal logic did not sound any better at an increased volume. Attorney Gilbert was quite earnest, though one could not imagine he would have made similar arguments for expanded executive power on behalf of Governor Tim Pawlenty.

The arguments by the governor and AFSCME can only be characterized as tortured.

Attorney Gilbert said that Governor Dayton merely directed the Bureau of Mediation Services (BMS) to "start a discussion that might lead to legislation" about an important state issue (family child care).

The court was asked to view the executive order as merely an attempt to "survey" child care providers who take the state childcare subsidy (CCAP). Judge Lindman asked attorney Gilbert, "Why did he do it that way? “ And suggested that if the governor wanted to “survey” child care providers who take state subsidies, he could still do that (and did not need an election of AFSCME and SEIU) to accomplish this. Gilbert said there were “so many” child care providers (11,000) in the state—too many for the Governor to “survey” without representatives who would merely “meet and confer” in “non-binding” discussions.  Huh?

Gilbert backed away from the notion that there was a “labor dispute” (which requires an employer and employee which we do not have here) and asked the court to view this instead as a “conflict” or “public controversy” that BMS has the expertise to solve. But where is the conflict other than in Dayton’s mind?

It’s one thing to have a public union attorney twist the constitution for raw political gain. You expect that from AFSCME. It is quite another matter—call it a  disgrace—when the attorney general’s office does the same and pretends we are talking about the same constitution.

A friend who attended the hearing with me who has a PhD in mathematics and a long career at IBM observed to me that if anyone had made those kinds of arguments (illogical, convoluted) at IBM, they would have been laughed out of the room.

A friend who attended the hearing with me who has a PhD in mathematics and a long career at IBM observed to me that if anyone had made those kinds of arguments (illogical) at IBM, they would have been laughed out of the room.

From the very beginning of this saga, it has been hard for Minnesotans to follow Dayton’s logic; he insists oddly that this is about “democracy” and elections. Fortunately, Minnesota’s independent daycare providers are a feisty, smart bunch of women who understand democracy and their rights—and decided to get organized and fight back. They packed the courtroom yesterday at great cost to themselves. Let’s pray that the legal system does not fail them.

Though I am optimistic that Lindman will stick with his logic from the TRO and issue a permanent injunction, I do not want to give the impression that this was not a serious threat to freedom (the unions have succeeded in many other states).

Also, AFSCME and SEIU have used your tax dollars to wage a 6 year campaign to unionize daycare providers (and they are working on in-home health care providers). Fighting the unions and now the governor has come at great personal cost to these childcare providers. They have set up websites, closed their businesses to attend legislative hearings and courts dates, and incurred many expenses. If the governor continues to appeal this case, the legal fees, which are not insignificant, will continue to mount. If you want to cheer them on and help, go to  .


Kim Crockett is the chief operating officer and general counsel at Center of the American Experiment, where she directs the Minnesota Free Market Institute.