SOUNDOFF
licly questioned the measure as likely pre-
empted by federal labor law.
And beyond its constitutional problems,
one may legitimately question whether Mr.
Bolick’s ballot strategy is the right way to
represent employers’ interests. Mr. Bolick
and his allies may not like it when the next
ballot initiative tells corporations they can
no longer use proxy cards to elect their
boards of directors and instead must use
secret ballots, or tells them they have to provide unions with equal time in the work-place if they want to engage in anti-union
speech. One is reminded of the Biblical caution against living by the sword.
—X. Alex Carpio
—Andrew Kahn
ARIZONA
ATTORNEY is
proud to
provide a
forum for
members to
voice their
opinions.
Send letters
to arizona.
attorney@
azbar.org.
DISTASTE FOR COLUMN NO SECRET
Clint Bolick’s “Last Word” opinion piece in the December issue of
ARIZONA ATTORNEY is a sorry example of an attorney using your opinion
page for sour grapes over his loss in some litigation. He complains about
the Arizona courts’ decision to strike down the secret ballot measure
referred to the ballot by the Legislature, but nowhere does he mention
that he helped write this measure and then was lead attorney for the intervening defendants in the case. We suggest your magazine adopt a policy
of requiring full disclosure from writers of opinion pieces—and we’ll conform to this standard by noting that we represented the plaintiff UFCW
Local 99 in that case, from which we can authoritatively explain Mr.
Bolick’s misrepresentation of the facts there.
In the case he discusses, the Arizona courts held his measure impermissible logrolling—it used the popular idea of continuing the existing
secret ballot in governmental elections as a means of persuading voters to
wade into the deep waters of federal labor law preemption by trying to
mandate use of secret ballots for union representation decisions. A conservative Republican judge in Nevada and the Colorado elections agency
had already struck down his measure as violating their states’ single-sub-ject rules—yet he and his allies in the Legislature did not correct the problem, but apparently hoped labor in Arizona was too weak to fight back.
In his article he misrepresents the facts in the case: He claims the same
union had earlier brought suit in Nevada, but UFCW Local 99 is not a
member of the Nevada AFL–CIO, which brought the Nevada case (the
local is located only in Arizona). He claims the Local tried to justify its
delay in suing on the grounds it “was too busy fighting Bashas over union-ization,” but instead the Local noted that it was preoccupied financially
and otherwise with resisting employers’ efforts to strip workers of health
care coverage and defending several suits, including an ultimately unsuccessful employer challenge to an arbitration award in favor of workers.
The trial court and the Arizona Supreme Court acted wholly within
established jurisprudence when they focused in their analysis of laches not
on the amount of time elapsed from the Legislature’s actions but on balancing the equities when an obviously unconstitutional measure was
headed for the ballot.
The problem of “late” challenges to ballot measures Mr. Bolick iden-tifies has a ready cure: The Legislature can enact a reasonable statute of
limitations, which will give litigants clearer guidance than a court ever
could in attempting to apply the nebulous laches doctrine he relied upon
in the case.
Contrary to his claim, laches is not the real threat in Arizona with
respect to “the integrity of the ballot process.” It is instead the abuse of
the ballot process as a means of punishing one’s enemies. Perhaps
Arizona should follow other states in having some administrative review
of the constitutionality of measures before they get referred to the ballot,
for Mr. Bolick’s misadventures in labor law have already resulted in one
attorneys’ fee award against the state (the one in this case), and most likely will result in another when the new measure adopted is challenged as
preempted by federal labor law. The Republican lawyer for the Chamber
of Commerce in the U.S. Supreme Court’s last preemption case publicly
stated that under established preemption principles, Mr. Bolick’s secret-ballot measure is preempted as to private-sector workers covered by the
National Labor Relations Act, which mandates that workers who wish to
unionize first sign petitions or authorization cards, and then allows
employers to treat their workers like adults and recognize a union based
on these signatures. Even the National Right to Work Committee pub-
Author Clint Bolick responds: What the let-
ter above lacks in factual accuracy it makes
up with in vitriol, almost as if a nerve were
struck.
The Legislature made laches arguments
in McLaughlin v. Bennett, while we argued
on single-amendment issues. Though the
latter was not the subject of my article, the
fact is that Arizona’s single-amendment
rules, contrary to the letter’s assertion, are
decidedly different, and have been construed decidedly differently, than the rules
in other states.
On the laches issue, the union’s excuses
for delay came from the plaintiff’s affidavit.
The Court’s apparent switch from the mandate to file election-law challenges “as soon
as possible” to doing so no later than the
last possible moment represents an ominous
sea-change in laches law. We agree that the
Legislature can and should create a statute
of limitations, but that need arises from the
Court’s failure to apply its own precedents.
Despite the unions’ best efforts, voters in
all four states who were presented with
measures protecting the right to secret ballot in union-recognition elections passed
them with margins ranging from 60 to 86
percent. Though I guess we’ll see Mr.
Carpio and Mr. Kahn in court again, I like
our odds in protecting a right that has been
enshrined in federal labor law for 75 years.
VAL CORDOVA HONORED
Thanks to Judge James P. Beene for his cov-
erage and tribute to the Gentleman, Judge
Valdemar A. Cordova (December 2010).
On Law Day, May 1, 1990, I had the
