On October 23, 2013, the Supreme Court of Ohio handed down a merit decision in Mahoning Edn. Ass’n. of Dev. Disabilities v. State Emp. Relations Bd., 2013-Ohio-4654. While the Court unanimously held that the union in this case had not committed an unfair labor practice, the court split 5-2 on the constitutional challenge to  R.C. 4117.11(B)(8), the ten day-advance picketing notice requirement of the Ohio Public Employee Collective Bargaining Act.  In the majority opinion written by Justice Kennedy, the Court held the statute did not apply to informational picketing, and therefore did not decide the case on constitutional grounds. Justices Lanzinger and O’Neill concurred in judgment only. Justice Lanzinger wrote separately, joined by Justice O’Neill. Justice Lanzinger would reach the constitutional question. She would find that the advance-notice requirement of the statute did apply in this case, and was an unconstitutional prior restraint.  The case was argued April 24, 2013.  Read the oral argument preview here and the analysis of the oral argument here.

Case Background

In 2007, while the Mahoning Education Association of Developmental Disabilities, (“the Union”) was negotiating a new contract with the Mahoning County Board of Developmental Disabilities (MCBDD), union members picketed an MCBDD evening board meeting to express their dissatisfaction with the progress of contract negotiations. MCBDD is a public employer. The Union represented MCBDD employees.

R.C. 4117.11(B)(8), a provision in Ohio’s Public Employee Collective Bargaining Act, prohibits public employees from picketing, striking or other concerted refusal to work without giving ten days’ written notice to the public employer and the State Employment Relations Board (SERB). The parties in this case agree that the union did not submit such a notice, either to SERB or to MCBDD. The parties also agreed that the picketing involved was informational picketing, not picketing related to a work stoppage.

Procedural Posture

The MCBDD filed an unfair labor practice charge with SERB. SERB concluded that the Union violated the statute and had committed an unfair labor practice. SERB also found that as an administrative agency it did not have the authority to determine the constitutionality of a statute.

The Union appealed to the trial court, challenging the constitutionality of the statute’s ten-day notice provision. The trial court upheld the constitutionality of the provision, and affirmed SERB’s decision. The Seventh District Court of Appeals reversed, finding the ten-day notice provision of the statute unconstitutional. SERB and MCBDD both appealed to the Supreme Court.

Statutory Construction

As indicated, five justices would not reach the constitutional issue in this case, writing a few old chestnuts like statutes are presumed constitutional, and that if possible courts should liberally construe statutes to “save them from constitutional infirmities,” and decide cases on non-constitutional grounds wherever possible.

R.C. 4117.11(B)(8) states that it is an unfair labor practice to fail to give ten days written note before engaging in any “picketing, striking, or other concerted refusal to work.”  Reading the word “picketing” in this context, and emphasizing the phrase “or other concerted refusal to work,” Justice Kennedy concluded that the legislature only intended for the notice requirement to apply to a specific type of picketing—the kind related to a work stoppage–and not to informational picketing.  “Had the legislature intended the notice requirement to cover general informational labor picketing, it would have omitted the word “other,”’ Kennedy wrote.  So the Court agreed with the appeals court that no unfair labor practice was committed but on a different, and non-constitutional ground.

Justice Lanzinger’s Position

Justice Lanzinger would deal with the constitutional question in the case. First, she believes the statute applies to all types of picketing, so informational picketing is included in the ten day notice requirement.

Justice Lanzinger first found that the advance-notice provision does not regulate speech based on its content, so under fundamental principles of constitutional interpretation, strict scrutiny was not required.  Nevertheless, she found that the ten-day advance notice requirement set out in the statute constituted a prior restraint on speech. Such regulations, which operate to forbid expression before it takes place, place a heavy burden on the state to justify them. Unlike statutes, which carry a presumption of constitutionality, prior restraints bear a presumption against their constitutionality,  Lanzinger wrote.  And a prior restraint may not burden substantially more speech than is necessary. Lanzinger also cited a number of federal decisions striking down notice provisions.

State’s Interest

SERB argued that the advance notice provision of the statute gives the parties time to mediate or resolve their disputes, gives a public employer time to provide security for the picketing and to respond to the media, gives unions a cooling off period to work with employers to avoid a confrontation, and gives SERB time to intervene. After considering these arguments, Lanzinger concluded that the advance-notice requirement did not meet the government’s heavy burden of justifying the prior restraint on speech. It interfered with a fundamental function of free speech, which is to invite dispute, and “disperses the drama of the moment.”

Just a Time, Place and Manner Regulation?

SERB also argued that the advance-notice requirement was only a permissible time, place, or manner regulation. But Lanzinger wasn’t buying that, writing that there was no explanation of why ten days was required—a point Justice French questioned several times during oral argument.

Conclusion

Justice Lanzinger (and Justice O’Neill) would find that SERB and MCBBD did not meet the burden necessary to meet a prior restraint on speech,  that the advance-notice requirement is not just a minimal intrusion on the right to free speech, and thus the provision at issue could not be constitutionally applied in this case.

Case Syllabus

None, although this is puzzling, and is getting to be more frequent, it seems.  The Court easily could have written that the ten day advance-notice requirement of R.C. 4117.11(B)(8) does not apply to purely informational picketing.

Concluding Observations

The majority in this case actually adopted the “third way” solution proposed by the deputy solicitor general who argued the case for SERB-which was simply to find that the advance notice provision of the statute did not apply to informational picketing. After watching the argument, while calling this one for the Union, I had written that while the Court could adopt SERB’s proposed “third way” and hold that the notice provision simply does not apply to informational picketing, that seemed like a statutory construction stretch. I still think so, and find Justice Lanzinger’s separate concurrence more persuasive.