AFSCME Iowa Council 61 v. State of Iowa and Iowa Public Employment Relations Board ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 17–1841
Filed May 17, 2019
AFSCME IOWA COUNCIL 61, JOHNATHAN GOOD, RYAN De VRIES,
TERRA KINNEY, and SUSAN BAKER,
Appellants,
vs.
STATE OF IOWA and IOWA PUBLIC EMPLOYMENT RELATIONS
BOARD,
Appellees.
Appeal from the Iowa District Court for Polk County, Arthur E.
Gamble, Judge.
Public employee union and several members appeal summary
judgment dismissing constitutional challenges to 2017 amendments to
Iowa Code chapter 20, the Public Employment Relations Act.
AFFIRMED.
Mark T. Hedberg and Sarah M. Baumgartner of Hedberg &
Boulton, P.C., Des Moines, for appellants.
Matthew C. McDermott, Michael R. Reck, Kelsey J. Knowles, and
Espnola F. Cartmill of Belin McCormick, P.C., Des Moines, for appellees.
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WATERMAN, Justice.
This appeal, submitted with Iowa State Education Ass’n v. State,
___ N.W.2d ___ (Iowa 2019), also filed today, presents constitutional
challenges to the 2017 amendments to the Public Employment Relations
Act, Iowa Code chapter 20. The amendments ended payroll deductions
for union dues and narrowed the scope of mandatory collective
bargaining topics for bargaining units comprised of less than thirty
percent “public safety employees,” defined to include most police officers
and firefighters. The new classifications result in many public employees
losing significant statutory bargaining rights compared to other public
employees with arguably similar jobs. A public employee union and
several of its members filed this action against the State of Iowa and the
Public Employment Relations Board (PERB) seeking injunctive and
declaratory relief. The plaintiffs allege the amendments violate the equal
protection clause of the Iowa Constitution and violate their right to
freedom of association. The district court granted the defendants’ motion
for summary judgment dismissing the action, and we retained the
plaintiffs’ appeal.
Our role is to decide whether constitutional lines were crossed, not
to sit as a superlegislature rethinking policy choices of the elected
branches. We conclude the 2017 amendments withstand the
constitutional challenges. The plaintiffs concede there is no
constitutional right to public-sector collective bargaining or payroll
deductions. The parties agree the equal protection claims are reviewed
under the rational basis test. The legislature could reasonably conclude
that the goal of keeping labor peace with unions comprised of at least
thirty percent public safety employees, and the greater risks faced by
emergency first responders, justified the classification. We hold the
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legislative classifications are not so overinclusive or underinclusive as to
be unconstitutional under our highly deferential standard of review. We
further hold the amendments do not violate constitutional rights of
freedom of association. Public employees remain free to belong to the
same unions. Accordingly, we affirm the district court’s summary
judgment.
I. Background Facts and Proceedings.
We begin by reviewing the statute in place before the 2017
amendments to put the constitutional challenges in context.1 In 1974,
after public employees engaged in multiple strikes, the Iowa legislature
enacted the Public Employment Relations Act (PERA), codified at Iowa
Code chapter 20. See generally Waterloo Educ. Ass’n v. Iowa Pub. Emp’t
Relations Bd., 740 N.W.2d 418 (Iowa 2007) (detailing the history of public
sector collective bargaining). PERA sought to create an orderly system of
collective bargaining for public employees by establishing rules and
procedures and by prohibiting strikes.2 Iowa Code §§ 20.6, .9, .10
(2017). PERA permitted, but did not require, public employees to join a
public employee organization (union).3 Id. § 20.8. Employees could vote
to select a union to represent them. Id. An employee who joined a union
had the option to pay dues through automatic payroll deductions. Id.
§ 20.9; id. §§ 70A.17A, .19.
1The plaintiffs do not challenge the payroll deduction prohibition, a provision we
hold withstands constitutional scrutiny in Iowa State Education Ass’n, ___ N.W.2d at
___.
2As of 2010, only one-half of the states had a comprehensive collective
bargaining statute. See Marilyn Raskin-Ortiz & Emily Martin, Bargaining in States
Without Public Sector Collective Bargaining Legislation, ABA Labor & Emp’t Law Section
Subcommittee Report, at 1 (2010) [hereinafter Raskin-Ortiz & Martin].
http://apps.americanbar.org/labor/slgbcomm/mw/papers/2010/home.shtml.
3PERA defines unions as “employee organizations.” Iowa Code § 20.3(4).
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Once employees selected a union, PERA required the union and
public employer to bargain in good faith on these topics:
wages, hours, vacations, insurance, holidays, leaves of
absence, shift differentials, overtime compensation,
supplemental pay, seniority, transfer procedures, job
classifications, health and safety matters, evaluation
procedures, procedures for staff reduction, in-service
training and other matters mutually agreed upon.
Id. § 20.9.
If a public employer and union were unable to reach an agreement
on these mandatory topics, PERA established a procedure for resolving
the impasse through mediation and binding arbitration. Id. §§ 20.20,
.22. If an impasse reached arbitration, each party submitted a final offer
to an arbitrator. Id. § 20.22(3). The arbitrator was required to consider
the following factors:
a. Past collective bargaining contracts between the
parties including the bargaining that led up to such
contracts.
b. Comparison of wages, hours and conditions of
employment of the involved public employees with those of
other public employees doing comparable work, giving
consideration to factors peculiar to the area and the
classifications involved.
c. The interests and welfare of the public, the ability of
the public employer to finance economic adjustments and
the effect of such adjustments on the normal standard of
services.
d. The power of the public employer to levy taxes and
appropriate funds for the conduct of its operations.
Id. § 20.22(7). After considering the proposals and the relevant factors,
the arbitrator “select[ed] . . . the most reasonable offer, in the arbitrator’s
judgment, of the final offers on each impasse item submitted by the
parties.” Id. § 20.22(9).
PERA imposed harsh penalties for engaging in strikes. Id.
§§ 20.10(3)(h), .12. PERA authorized courts to issue injunctions to
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restrain any actual or imminently threatened strike. Id. § 20.12(3).
Anyone who failed to comply with an injunction faced contempt
sanctions and punishment including up to six months in jail, fines, and
automatic discharge from employment for an employee, or immediate
decertification as a union. Id. § 20.12(3)–(6). See generally Iowa Code
ch. 665 (contempt). There have been no strikes by public employees in
Iowa since PERA’s enactment in 1974. The University of Iowa Labor
Center, “To Promote Harmonious and Cooperative Relationships”: A Brief
History of Public Sector Collective Bargaining in Iowa, 1966 to 2016, 7
(2016), https://www.iowaaflcio.org/system/files/history_of_ia_public_
sector_bargaining.pdf.
In February 2017, the Iowa legislature enacted House File 291,
amending PERA. 2017 Iowa Acts ch. 2 (codified in part at Iowa Code
ch. 20 (2018)). On February 17, the Governor signed House File 291 into
law. The amendments altered the scope of mandatory collective
bargaining and arbitration and eliminated payroll deductions for all
union dues. See generally Iowa Code ch. 20.
Collective bargaining laws for public employees vary by state, with
some states allowing collective bargaining rights for police and
firefighters not shared by other public employees.4 House File 291 gave
4As of 2018, twenty-eight states require collective bargaining. Eric J. Brunner &
Andrew Ju, State Collective Bargaining Laws and Public-Sector Pay, 72 ILR Rev. 480,
487 (2019) [hereinafter Brunner & Ju]. Fifteen states allow state employers to decide
whether or not to collectively bargain. Id. The range of topics public employees are able
to bargain over varies from state to state, as does the employees’ ability to compel
arbitration in the event of an impasse. Raskin-Ortiz & Martin at 4–10.
Of the states that require or permit collective bargaining, Alabama, Delaware,
Idaho, Kentucky, Oklahoma, Rhode Island, and Wyoming have separate bargaining
rights for police officers and/or firefighters. Id. Three states—North Carolina,
South Carolina, and Virginia—prohibit collective bargaining for any public employees.
Brunner & Ju at 487. Arizona and Texas limit collective bargaining to police officers
and firefighters, while Georgia limits collective bargaining rights to firefighters alone.
Id.
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public employees different bargaining rights depending on whether they
are part of a bargaining unit with at least thirty percent “public safety
employees.” Public safety employees are defined to include
a. A sheriff’s regular deputy.
b. A marshal or police officer of a city, township, or
special-purpose district or authority who is a member of a
paid police department.
c. A member, except a non-peace officer member, of
the division of state patrol, narcotics enforcement, state fire
marshal, or criminal investigation, including but not limited
to a gaming enforcement officer, who has been duly
appointed by the department of public safety in accordance
with section 80.15.
d. A conservation officer or park ranger as authorized
by section 456A.13.
e. A permanent or full-time fire fighter of a city,
township, or special-purpose district or authority who is a
member of a paid fire department.
f. A peace officer designated by the department of
transportation under section 321.477 who is subject to
mandated law enforcement training.
Iowa Code § 20.3(11). Not included in the statutory definition of public
safety employees are university police, probation or parole officers, fraud
bureau investigation officers, airport firefighters, corrections officers, and
emergency medical service providers.
If a union represents a bargaining unit with at least thirty percent
public safety employees, it may exercise broad bargaining rights on
behalf of all of its members, including those who are not public safety
employees. Id. § 20.9(1). The union continues to have the right to
bargain and, in the event of an impasse, the right to mediate and
arbitrate with public employers on the following mandatory topics:
wages, hours, vacations, insurance, holidays, leaves of
absence, shift differentials, overtime compensation,
supplemental pay, seniority, transfer procedures, job
classifications, health and safety matters, evaluation
procedures, procedures for staff reduction, in-service
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training, grievance procedures for resolving any questions
arising under the agreement, and other matters mutually
agreed upon.
Id.
In sharp contrast, for unions representing a bargaining unit with
less than thirty percent public safety employees, House File 291 limited
mandatory bargaining and, in the event of an impasse, mediation and
arbitration, to the subject of “base wages and other matters mutually
agreed upon.” Id.5 The amendment specifies that these subjects “shall
be interpreted narrowly and restrictively.” Id. The amendments allow
public employers to voluntarily bargain over formerly mandatory topics.
Longevity pay, shift differentials, and overtime compensation are still
permissive subjects of bargaining. See Iowa Code § 20.9(1), (3). This
leaves it up to the state or local government or school board whether to
negotiate on these matters. See Waterloo Educ. Ass’n, 740 N.W.2d at
421. Public employees, like all citizens in our state, have the ability to
affect those decisions. A unit of state government, a municipality, or a
school board that wishes to negotiate on these matters with the employee
organization is free to do so. But the union may not bargain over
“insurance, leaves of absence for political activities, supplemental pay,
transfer procedures, evaluation procedures, procedures for staff
reduction, and subcontracting public services.” Iowa Code § 20.9(3).
During arbitration with a bargaining unit consisting of at least
thirty percent public safety employees, the arbitrator considers most of
the same factors as before the 2017 amendments. Compare id.
5A 2010 report found that a number of states limit mandatory binding
arbitration to certain classes of employees, including police and firefighters. See
Raskin-Ortiz & Martin at 11–12 (noting Alaska, California, Illinois, Michigan, Montana,
Nevada, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island,
Washington, Wisconsin, and Wyoming limited compulsory arbitration to certain classes
of employees including firefighters and/or police officers).
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§ 20.22(7) (2018), with id. § 20.22(7) (2017). The only change House File
291 made is that the arbitrator may no longer consider “[t]he power of
the public employer to levy taxes and appropriate funds for the conduct
of its operations.” Id. § 20.22(7)(d) (2017).
For all other public employee units, the arbitrator, in reaching a
final decision, must consider
(1) Comparison of base wages, hours, and conditions
of employment of the involved public employees with those of
other public employees doing comparable work, giving
consideration to factors peculiar to the area and the
classifications involved. To the extent adequate, applicable
data is available, the arbitrator shall also compare base
wages, hours, and conditions of employment of the involved
public employees with those of private sector employees
doing comparable work, giving consideration to factors
peculiar to the area and the classifications involved.
(2) The interests and welfare of the public.
(3) The financial ability of the employer to meet the
cost of an offer in light of the current economic conditions of
the public employer. The arbitrator shall give substantial
weight to evidence that the public employer’s authority to
utilize funds is restricted to special purposes or
circumstances by state or federal law, rules, regulations, or
grant requirements.
Iowa Code § 20.22(8)(a) (2018). The arbitrator shall not consider,
(1) Past collective bargaining agreements between the
parties or bargaining that led to such agreements.
(2) The public employer’s ability to fund an award
through the increase or imposition of new taxes, fees, or
charges, or to develop other sources of revenues.
Id. § 20.22(8)(b).
Regardless of the makeup of the bargaining unit, the arbitrator
must still determine the most reasonable offer. Id. § 20.22(10)(a).
However, if the bargaining unit is made up of less than thirty percent
public safety employees and there is an impasse on base wages, the
arbitrator is prohibited from selecting an offer, even if it is reasonable,
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that provides for an increase in base wages that would exceed in any
year the increase in a specified consumer price index or three percent,
whichever is less. Id. § 20.22(10)(b)(1).
House File 291 also eliminated the right of all public employees,
including public safety employees, to bargain over union dues checkoffs
and to pay union dues through payroll deductions. Id. § 20.9(3); id.
§ 70A.19. Public employees may still make other payments through
payroll deductions, such as insurance premiums, charitable
contributions, and dues in professional associations. Id. §§ 70A.15A,
.17, .17A.
The plaintiffs in this case are a public employee union and four of
its members. Iowa Council 61 of the American Federation of State,
County and Municipal Employees (AFSCME) represents public employees
throughout Iowa. The individual plaintiffs, Johnathan Good, a
corrections officer; Ryan De Vries, a police officer; Terra Kinney, a motor
vehicle enforcement officer; and Susan Baker, a drafter, are public
employees and members of AFSCME. All of AFSCME’s bargaining units
in Iowa are comprised of less than thirty percent public safety employees.
House File 291 restricted collective bargaining rights for every AFSCME
bargaining unit, including those with public safety employees.
In February 2017, the plaintiffs filed this civil action for declaratory
and injunctive relief. The defendants, the State of Iowa and PERB,
answered, and the parties filed cross-motions for summary judgment.
The plaintiffs’ motion for summary judgment argued House File 291
violates article I, section 6, the equal protection clause of the Iowa
Constitution because it unconstitutionally deprives some public
employees of rights guaranteed to other, similarly situated public
employees. The plaintiffs also argued that House File 291 deprives all
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AFSCME-represented state public safety employees of the right to
meaningful collective bargaining, violating their fundamental right to
freedom of association, and the court should therefore evaluate the law
under a strict scrutiny standard.
The district court denied the plaintiffs’ motion for summary
judgment and granted the defendants’ motion for summary judgment.
The court rejected the plaintiffs’ freedom of association argument. With
regard to the equal protection challenge, the court applied the rational
basis test and ruled that House File 291 is constitutional. The court
concluded that while the amendments distinguish between similarly
situated people, the State’s desire to avoid public safety employee strikes
was a realistically conceivable purpose and was based in fact, and the
relationship between the classification and the purpose was not so weak
as to be viewed as arbitrary.
The plaintiffs appealed, and we retained their appeal.
II. Scope of Review.
“We review summary judgment rulings for correction of errors at
law.” Baker v. City of Iowa City, 867 N.W.2d 44, 51 (Iowa 2015). “We
view the entire record in the light most favorable to the nonmoving party,
making every legitimate inference that the evidence in the record will
support in favor of the nonmoving party.” Bass v. J.C. Penney Co., 880
N.W.2d 751, 755 (Iowa 2016).
We review constitutional claims de novo. State v. Groves, 742
N.W.2d 90, 92 (Iowa 2007). Our standard of review with regard to
constitutional challenges to statutes is well established.
We review constitutional challenges to a statute de novo. In
doing so, we must remember that statutes are cloaked with a
presumption of constitutionality. The challenger bears a
heavy burden, because it must prove the unconstitutionality
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beyond a reasonable doubt. Moreover, “the challenger must
refute every reasonable basis upon which the statute could
be found to be constitutional.” Furthermore, if the statute is
capable of being construed in more than one manner, one of
which is constitutional, we must adopt that construction.
State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005) (quoting State v.
Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002)), superseded by
statute on other grounds, 2009 Iowa Acts ch. 119, § 3 (codified at Iowa
Code § 692A.103 (Supp. 2009)), as recognized in In re T.H., 913 N.W.2d
578, 587–88 (Iowa 2018).
III. Analysis.
The plaintiffs argue that House File 291 amendments to Iowa Code
chapter 20 fail rational basis scrutiny under article I, section 6 of the
equal protection clause of the Iowa Constitution. Additionally, the
plaintiffs argue that the amendments violate their right to freedom of
association. We address each challenge in turn.
A. Iowa’s Equal Protection Analysis. The plaintiffs argue that
the amendments to Iowa Code chapter 20 violate their right to equal
protection under the Iowa Constitution because the defendants’ asserted
rationale is unsupported by the legislative facts and further because
House File 291’s extreme degrees of overinclusiveness and
underinclusiveness render the amendments arbitrary. We conclude the
plaintiffs’ equal protection challenge fails because the plaintiffs cannot
meet their burden of refuting every reasonable basis upon which the
classification could be sustained.
Article I, section 6 of the Iowa Constitution is referred to as the
equal protection clause and provides, “All laws of a general nature shall
have a uniform operation; the general assembly shall not grant to any
citizen, or class of citizens, privileges or immunities, which, upon the
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same terms shall not equally belong to all citizens.” Iowa Const. art. I,
§ 6.
Iowa’s equal protection clause “is essentially a direction that all
persons similarly situated should be treated alike.” Varnum v. Brien, 763
N.W.2d 862, 878–79 (Iowa 2009) (quoting Racing Ass’n of Cent. Iowa v.
Fitzgerald (RACI), 675 N.W.2d 1, 7 (Iowa 2004)). In Varnum, we noted,
Even in the zealous protection of the constitution’s
mandate of equal protection, courts must give respect to the
legislative process and presume its enactments are
constitutional. We understand that Iowa’s tripartite system
of government requires the legislature to make difficult policy
choices, including distributing benefits and burdens
amongst the citizens of Iowa. In this process, some
classifications and barriers are inevitable. As a result,
courts pay deference to legislative decisions when called
upon to determine whether the Iowa Constitution’s mandate
of equality has been violated by legislative action. More
specifically, when evaluating challenges based on the equal
protection clause, our deference to legislative policy-making
is primarily manifested in the level of scrutiny we apply to
review legislative action.
Id. at 879.
To prove an equal protection violation, the plaintiffs must first
establish that the statute treats similarly situated individuals differently.
McQuistion v. City of Clinton, 872 N.W.2d 817, 830 (Iowa 2015).
Generally, however, determining whether classifications involve similarly
situated individuals is intertwined with whether the identified
classification has any rational basis. State v. Dudley, 766 N.W.2d 606,
616 (Iowa 2009).
Here, House File 291 distinguishes first between public safety
employees and all other public employees, and second between
bargaining units comprised of at least thirty percent public safety
employees and all other bargaining units. The parties agree that rational
basis review applies to the plaintiffs’ equal protection challenge.
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“The rational basis test is a ‘very deferential standard.’ ” NextEra
Energy Res. LLC v. Iowa Utils. Bd., 815 N.W.2d 30, 46 (Iowa 2012)
(quoting Varnum, 763 N.W.2d at 879). Plaintiffs bear “the heavy burden
of showing the statute unconstitutional and must negate every
reasonable basis upon which the classification may be sustained.” Id.
(quoting Bierkamp v. Rogers, 293 N.W.2d 577, 579–80 (Iowa 1980)).
As we noted in Varnum,
The rational basis test defers to the legislature’s prerogative
to make policy decisions by requiring only a plausible policy
justification, mere rationality of the facts underlying the
decision and, again, a merely rational relationship between
the classification and the policy justification.
763 N.W.2d at 879.
“We will not declare something unconstitutional under the
rational-basis test unless it ‘clearly, palpably, and without doubt
infringe[s] upon the constitution.’ ” Residential & Agric. Advisory Comm.,
LLC, v. Dyersville City Council, 888 N.W.2d 24, 50 (Iowa 2016) (alteration
in original) (quoting RACI, 675 N.W.2d at 8). Nevertheless, the rational
basis standard, while deferential, “ ‘is not a toothless one’ in Iowa.”
Varnum, 763 N.W.2d at 879 (quoting RACI, 675 N.W.2d at 9). “[T]his
court engages in a meaningful review of all legislation challenged on
equal protection grounds by applying the rational basis test to the facts
of each case.” Id.
We use a three-part analysis when reviewing challenges to a
statute under article I, section 6. “First, we must determine whether
there was a valid, ‘realistically conceivable’ purpose that served a
legitimate government interest.” Residential & Agric. Advisory Comm.,
LLC, 888 N.W.2d at 50 (quoting McQuistion, 872 N.W.2d at 831). “To be
realistically conceivable, the [statute] cannot be ‘so overinclusive and
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underinclusive as to be irrational.’ ” Id. (quoting Horsfield Materials, Inc.
v. City of Dyersville, 834 N.W.2d 444, 459 (Iowa 2013)). “Next, the court
must evaluate whether the ‘reason has a basis in fact.’ ” McQuistion, 872
N.W.2d at 831 (quoting RACI, 675 N.W.2d at 7–8). “[A]lthough ‘actual
proof of an asserted justification [i]s not necessary, . . . the court w[ill]
not simply accept it at face value and w[ill] examine it to determine
whether it [i]s credible as opposed to specious.” LSCP, LLLP, v. Kay-
Decker, 861 N.W.2d 846, 860 (Iowa 2015) (alteration in original) (quoting
Qwest Corp. v. Iowa State Bd. of Tax Review, 829 N.W.2d 550, 560 (Iowa
2013)); see also King v. State, 818 N.W.2d 1, 30 (Iowa 2012) (“[W]e have
continued to uphold legislative classifications based on judgments the
legislature could have made, without requiring evidence or ‘proof’ in
either a traditional or a nontraditional sense.” (Emphasis added.)).
“Legislative facts are relevant in deciding these constitutional
issues because courts must normally analyze ‘whether there exist
circumstances which constitutionally either legitimate the exercise of
legislative power or substantiate the rationality of the legislative
product.’ ” Varnum, 763 N.W.2d at 881 (quoting 2 John W. Strong,
McCormick on Evidence § 328, at 370 (5th ed. 1999)). Legislative facts
“may be presented either formally or informally” and consist of “social,
economic, political, or scientific facts.” Id. (first quoting Welsh v.
Branstad, 470 N.W.2d 644, 648 (Iowa 1991)).
The plaintiffs ask that if we find House File 291 to be
constitutional, we reevaluate our rational basis standard. The plaintiffs
argue that courts should not be able to rely on unstated rationales in
upholding a statute. We disagree. As the foregoing authorities make
clear, we are not limited to considering only the facts stated on the
record during a legislative debate.
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Finally, “we evaluate whether the relationship between the
classification and the purpose for the classification ‘is so weak that the
classification must be viewed as arbitrary.’ ” Residential & Agric.
Advisory Comm., LLC, 888 N.W.2d at 50 (quoting McQuistion, 872 N.W.2d
at 831).
As we recently reiterated in unanimously rejecting a federal equal
protection challenge, courts have only a limited role in rational basis
review,
We many times have said, and but weeks ago
repeated, that rational-basis review in equal protection
analysis “is not a license for courts to judge the wisdom,
fairness, or logic of legislative choices.” Nor does it authorize
“the judiciary [to] sit as a superlegislature to judge the
wisdom or desirability of legislative policy determinations
made in areas that neither affect fundamental rights nor
proceed along suspect lines.” For these reasons, a
classification neither involving fundamental rights nor
proceeding along suspect lines is accorded a strong
presumption of validity. Such a classification cannot run
afoul of the Equal Protection Clause if there is a rational
relationship between the disparity of treatment and some
legitimate governmental purpose. Further, a legislature that
creates these categories need not “actually articulate at any
time the purpose or rationale supporting its classification.”
Instead, a classification “must be upheld against equal
protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the
classification.”
Baker, 867 N.W.2d at 57 (alteration in original) (quoting Heller v. Doe ex
rel. Doe, 509 U.S. 312, 319–21, 113 S. Ct. 2637, 2642 (1993)).
Our role is similarly limited under the Iowa Constitution. See
Qwest Corp., 829 N.W.2d at 560 (“[In RACI,] we made clear that actual
proof of an asserted justification was not necessary, but the court would
not simply accept it at face value and would examine it to determine
whether it was credible as opposed to specious.”); King, 818 N.W.2d at 30
(“RACI has not been the death knell for traditional rational basis review.
16
Since RACI was decided, we have continued to uphold legislative
classifications based on judgments the legislature could have made,
without requiring evidence or ‘proof’ in either a traditional or
nontraditional sense.”).
The district court found that the valid, realistically conceivable
purpose for House File 291 was a concern for labor peace, especially
among public safety employees. The State also asserts that another
purpose was the unique health and safety concerns public safety
employees face. We consider each justification.
1. Labor peace rationale. The plaintiffs argue that House File
291’s legislative history belies the labor peace justification because no
one mentioned this justification during the recorded legislative debates
as a reason for amending PERA. The plaintiffs also argue that House File
291’s definition of public safety employees includes employees who
would not be crucial to maintaining labor peace, such as park rangers,
DOT motor vehicle enforcement officers, fire marshals, and gaming
enforcement officers, while excluding employees who may be necessary to
maintain peace during a strike, including university police officers and
other emergency medical service providers. The plaintiffs note that police
officers already routinely enforce laws against union members,
neighbors, friends, and even other police officers. Finally, the plaintiffs
argue that the labor peace rationale is belied by the fact that there has
not been a strike since PERA was enacted in 1974.
The plaintiffs also argue that even if a labor peace rationale could
support House File 291, the law is so overinclusive and underinclusive
“it cannot [reasonably] be said to . . . further that goal.” LSCP, LLLP, 861
N.W.2d at 861 (alterations in original) (quoting Bierkamp, 293 N.W.2d at
584). The plaintiffs contend that the thirty percent threshold ignores the
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bargaining unit’s size, and some cities could have entire police forces
that do not have expanded bargaining rights. These public safety
employees would not have the same incentive to avoid strikes. The
plaintiffs give examples of the effect House File 291 has on public safety
employees. For example, plaintiffs identify a number of populous
counties including Tama (population 17,337), Fayette (population
20,257), Delaware (population 17,403), Dubuque (population 97,125),
Harrison (population 14,265), and Black Hawk (population 133,455) in
which sheriff’s deputies are unable to exercise the broad collective
bargaining rights guaranteed to public safety employees in House File
291 because they are in bargaining units made up of less than thirty
percent public safety employees. Yet deputies from comparably
populated counties such as Floyd (population 15,960), Woodbury
(population 102,782), Cedar (population 18,340), Webster (population
37,071), and Washington (population 22,247) are able to exercise broad
collective bargaining rights under House File 291. Plaintiffs argue this
extreme arbitrariness is not justified by any of the purported rationales
of House File 291.
The defendants argue that the thirty percent threshold is rational
because the risk from labor unrest is materially greater in a unit with a
larger percentage of public safety employees. The defendants argue this
thirty percent threshold had another rationale, protecting the public fisc.
The thirty percent threshold also provides greater assurance that in the
event of labor unrest there would be a critical mass of public safety
employees available to enforce the law and preserve public safety.
The defendants rely on Wisconsin Education Ass’n Council v.
Walker, in which the United States Court of Appeals for the Seventh
Circuit rejected a public employee challenge to recent amendments to the
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Wisconsin public collective bargaining statute. 705 F.3d 640 (7th Cir.
2013). The Seventh Circuit held there was a rational basis for the
amendments, stating,
[E]xperience has borne out the state’s fears: in the wake of
Act 10’s proposal and passage, thousands descended on the
state capital in protest and numerous teachers organized a
sick-out through their unions, forcing schools to close, while
the state avoided the large societal cost of immediate labor
unrest among public safety employees. Wisconsin was free
to determine that the costs of potential labor unrest
exceeded the benefits of restricting the public safety unions.
Id. at 655.
The plaintiffs argue Walker is unpersuasive because Wisconsin’s
collective bargaining law is fundamentally different than Iowa’s. The
Wisconsin statute treats all safety employees alike, regardless of their
unit placement, while restricting the bargaining rights of all general
public employees. The Wisconsin statute also has less onerous
antistrike penalties. Additionally, Wisconsin’s statute was evaluated
under a federal equal protection framework, while our court applies a
more stringent rational basis “with teeth” standard of review.
We hold that maintaining labor peace is a valid, realistically
conceivable purpose and has a basis in fact. The legislature could
reasonably have found that giving public safety employees expanded
bargaining rights would discourage them from engaging in strikes or
sick-outs. It is true that there have been no strikes of public employees
in Iowa since PERA was enacted in 1974. But it is also true that until
2017 there had never been legislation substantially curtailing the
collective bargaining rights of Iowa public employees. Iowa legislators in
2017 could consider what happened several years earlier in Wisconsin to
see that labor unrests and strikes may result when legislative
amendments curtail public union bargaining rights. Wisconsin public
19
employees staged mass protests in 2011, occupying the rotunda of the
state capitol with great media fanfare. See Walker, 705 F.3d at 642–43,
655; Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d
139, 144–45 (7th Cir. 2011) (discussing the political unrest occurring in
Wisconsin leading up to and after the collective bargaining amendments).
See generally Madison Teachers, Inc. v. Walker, 851 N.W.2d 337 (Wis.
2014) (rejecting union challenge to Wisconsin’s amended collective
bargaining statute).
The district court correctly concluded that Iowa legislators could
take note of that Wisconsin experience. The district court also carefully
considered Iowa’s history of labor peace in the broader context of
national developments.
Even assuming a strike is improbable, reasonable
legislators could also be rationally concerned that public
employees who experience a reduction in collective
bargaining rights will be more likely to experience low morale
and labor unrest. Labor unrest short of a strike could
reasonably be considered by legislators to contribute to
instability in the public sector workforce. Other jurisdictions
have experienced incidents of civil disobedience through
sickouts by public employees and “Blue Flu” by law
enforcement in response to less desirable terms and
conditions of employment. . . . The State cites numerous
news articles about police officers in New York City,
Memphis, Tennessee, Selma, Alabama and East Orange,
New Jersey calling in sick in large numbers in order to
protest issues such as unsafe conditions, low pay, and lack
of benefits.
We agree with the district court that legislative facts readily
available to Iowa lawmakers support concerns that labor unrest among
police could undermine public safety, if not through strikes, then
through reduced initiative or “blue flu.” Historically, police officers in
other states have used strategies such as the blue flu to protest labor
conditions and policy changes. See generally Baker v. City of Detroit, 483
20
F. Supp. 930, 943 (E.D. Mich. 1979) (discussing white officers’ use of a
blue flu and ticket strike to oppose the police department’s desegregation
efforts in 1959–60); 30 Richard A. Lord, Williston on Contracts § 77:92, at
578 (4th ed. 2004) (“The length of a work stoppage may be temporary, as
in the case of work slow downs, increasing call-ins by ‘sick’ workers or
‘blue flu,’ or a strike may persist for years.”); Illya Lichtenberg, Police
Discretion and Traffic Enforcement: A Government of Men?, 50 Clev.
St. L. Rev. 425, 444–45 (2003) (discussing how police officers have used
the blue flu as a bargaining strategy). The district court aptly observed
that in Iowa “[t]he potential for ‘Blue Flu’ or some other exhibition of
labor unrest short of a strike is realistically conceivable.”
Against that backdrop, Iowa legislators in 2017 could rationally
decide to extend more beneficial negotiating rights to bargaining units
comprised of at least thirty percent public safety employees. The public
safety rationale need not be voiced during the floor debates over House
File 291 or proven with evidence. See Qwest Corp., 829 N.W.2d at 560.
Iowa legislators individually and collectively can have multiple or mixed
motives. Courts applying rational basis review do not take testimony
from senators or representatives. See Rhoades v. State, 880 N.W.2d 431,
447 (Iowa 2016) (“In considering the statute in its full context, we do not
give weight to the affidavit submitted by Rhoades from a former state
legislator. On occasion, we have stated that a court may consider
affidavits from legislators describing the factual background of
legislation. We have consistently, however, held that affidavits from
legislators or former legislators are inadmissible on the subject of
legislative intent. We do not depart from our established precedent in
this case.” (Citations omitted.)).
21
The Fourth Circuit, in rejecting a constitutional challenge to
legislation ending payroll deductions for union dues, aptly quoted Justice
Scalia’s warning against efforts to ascertain the subjective intent of a
group of legislators.
[D]iscerning the subjective motivation of those enacting the
statute is, to be honest, almost always an impossible task.
The number of possible motivations, to begin with, is not
binary, or indeed finite. . . . [The legislator] may have
thought the bill would provide jobs for his district, or may
have wanted to make amends with a faction of his party he
had alienated on another vote, or he may have been a close
friend of the bill’s sponsor, or he may have been repaying a
favor he owed the Majority Leader, or he may have hoped the
Governor would appreciate his vote and make a fundraising
appearance for him, or he may have been pressured to vote
for a bill he disliked by a wealthy contributor or by a flood of
constituent mail, or he may have been seeking favorable
publicity, or he may have been reluctant to hurt the feelings
of a loyal staff member who worked on the bill, or he may
have been settling an old score with a legislator who opposed
the bill, or he may have been mad at his wife who opposed
the bill, or he may have been intoxicated and utterly
unmotivated when the vote was called, or he may have
accidentally voted “yes” instead of “no,” or, of course, he may
have had (and very likely did have) a combination of some of
the above and many other motivations. To look for the sole
purpose of even a single legislator is probably to look for
something that does not exist.
S.C. Educ. Ass’n v. Campbell, 883 F.2d 1251, 1261 (4th Cir. 1989)
(alteration in original) (quoting Edwards v. Aguillard, 482 U.S. 578, 636–
37, 107 S. Ct. 2573, 2605 (1987) (Scalia, J., dissenting)).
Our rational basis review is purposefully limited and does not
include evidentiary fact-finding on the motives of individual legislators or
validity of the labor peace rationale. Qwest Corp., 829 N.W.2d at 560.
A State, moreover, has no obligation to produce
evidence to sustain the rationality of a statutory
classification. “[A] legislative choice is not subject to
courtroom factfinding and may be based on rational
speculation unsupported by evidence or empirical data.” A
statute is presumed constitutional and “[t]he burden is on
the one attacking the legislative arrangement to negative
22
every conceivable basis which might support it,” whether or
not the basis has a foundation in the record. Finally, courts
are compelled under rational-basis review to accept a
legislature’s generalizations even when there is an imperfect
fit between means and ends. A classification does not fail
rational-basis review because it “is not made with
mathematical nicety or because in practice it results in some
inequality.” “The problems of government are practical ones
and may justify, if they do not require, rough
accommodations—illogical, it may be, and unscientific.”
Baker, 867 N.W.2d at 57 (alterations in original) (quoting Heller, 509 U.S.
at 319–21, 113 S. Ct. at 2643); see also FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 315, 113 S. Ct. 2096, 2102 (1993) ([B]ecause we never
require a legislature to articulate its reasons for enacting a statute, it is
entirely irrelevant for constitutional purposes whether the conceived
reason for the challenged distinction actually motivated the
legislature. . . . ‘Only by faithful adherence to this guiding principle of
judicial review of legislation is it possible to preserve to the legislative
branch its rightful independence and its ability to function.’ ” (quoting
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 365, 93 S. Ct.
1001, 1006 (1973)); see also RACI, 675 N.W.2d at 7 n.3 (discussing what
makes a justification plausible and credible as opposed to merely
specious).
We agree with the district court’s well-reasoned ruling applying our
court’s three-part test.
Potential liability resulting from a reduction of public
sector collective bargaining rights could reasonably create a
rationally credible concern regarding the effectiveness of law
enforcement in the event of an emergency. A reasonable
legislature could rationally conclude it is necessary to
preserve the rights of collective bargaining units of at least
thirty percent Public Safety Employees [(PSE)] in order to
preserve a reliable corps of law enforcement authorities to
deal with emergencies. The legislature could rationally
establish as a priority the preservation of a satisfied, well-
trained and experienced corps of [PSE]. The purpose of the
classification is realistically conceivable. It has a credible
23
basis in fact. The relationship between the classification and
the purpose of retaining a stable public safety force is not so
weak as to be arbitrary.
Applying the rigorous rational basis test of [article I,
section 6] of the Iowa Constitution, the Court concludes
AFSCME failed to negate every reasonable basis for the
classification that might support disparate treatment
between units thirty percent or more PSEs and units of less
than thirty percent PSEs. There is a rational basis for this
legislative classification. The presumption of
constitutionality prevails. H.F. 291 does not violate the
Equal Protection Clause of the Iowa Constitution.
(Citations omitted.) We affirm on that basis. We turn next to the health
and safety rationale.
2. Health and safety rationale. The main rationale advanced
during the legislative debates on House File 291 centered on the health
and safety risks that public safety employees face on the job. Because of
these risks, legislators determined that public safety employees should
retain broader bargaining rights, including on topics directly relating to
their health and safety, such as insurance. This rationale was not
reached in the district court ruling, but provides another ground for
upholding the classifications in House File 291.
We note that on November 2, 2016, just over three months before
the enactment of House File 291, two police officers were fatally shot in
their squad cars in Des Moines and Urbandale, respectively.6 And the
preceding summer, five police officers were gunned down in Dallas,
Texas,7 and another three officers were shot dead two weeks later in
6KathyA. Bolten, Police ‘Heartbroken’ After Ambush Leaves 2 Des Moines-Area
Officers Dead, Des Moines Reg. (last updated Nov. 3, 2016, 1:23 PM),
https://www.desmoinesregister.com/story/news/2016/11/02/2-police-officers-killed-
ambush-attacks/93155012/ [https://perma.cc/GC2R-ESTM].
7Manny Fernandez et al., Five Dallas Officers Were Killed as Payback, Police
Chief Says, N.Y. Times (July 8, 2016), https://www.nytimes.com/2016/07/09/
us/dallas-police-shooting.html [https://perma.cc/45T9-2FEF].
24
Baton Rouge, Louisiana.8 These legislative facts provided vivid
reminders to the Iowa General Assembly of the dangers police face on the
job. While this appeal was under submission, a firefighter died in the
line of duty in Clinton, Iowa, with another firefighter seriously injured.9
It is inarguable that the legislature could rationally conclude public
safety employees face significantly greater risks to their health and safety
than other public employees.
The plaintiffs argue House File 291 is impermissibly overinclusive
and underinclusive and denies the expanded collective bargaining rights
to many public safety employees who belong to a bargaining unit
comprised of less than thirty percent public safety employees. The
plaintiffs further argue that some public employees with public safety
functions, such as corrections officers, university police, DOT road safety
workers, and psychiatric aids, lack expanded bargaining rights under
House File 291. The plaintiffs also argue that House File 291 arbitrarily
grants certain public employees expanded bargaining rights because they
are part of a public safety bargaining unit, even if they are not public
safety employees. Finally, the plaintiffs argue that the topics over which
public safety employee units are able to bargain is not limited solely to
health and safety issues.
The defendants rely on the Seventh Circuit decision that rejected
an equivalent challenge.
8Alan Blinder, The 3 Officers Killed in Baton Rouge, N.Y. Times (July 18, 2016),
https://www.nytimes.com/2016/07/19/us/the-3-officers-killed-in-baton-rouge.html
[https://perma.cc/8DXG-F8JJ].
9Thomas Geyer & Amanda Hancock, Clinton Firefighter Killed, Another Seriously
Injured While Battling Fire Saturday, Quad City Times (Jan. 5, 2019),
https://qctimes.com/news/local/clinton-firefighter-killed-another-seriously-injured-
while-battling-fire-saturday/article_9816ef7d-415c-531b-b258-497f14a09a8b.html
[https://perma.cc/K2HY-XFFL].
25
[W]e cannot, as the Unions request, determine precisely
which occupations would jeopardize public safety with a
strike. Even if we accept that Wisconsin imprudently
characterized motor vehicle inspectors as public safety
employees or the Capitol Police as general employees,
invalidating the legislation on that ground would elevate the
judiciary to the impermissible role of supra-legislature. . . .
Distinguishing between public safety unions and general
employee unions may have been a poor choice, but it is not
unconstitutional.
Walker, 705 F.3d at 656. The Seventh Circuit specifically considered the
omission of correctional officers, explaining,
Even if we agree with the Unions that Act 10 should have
placed prison guards in the public safety category, “a
legislature need not run the risk of losing an entire remedial
scheme simply because it failed, through inadvertence or
otherwise, to cover every evil that might conceivably have
been attacked.”
Id. at n.11 (quoting McDonald v. Bd. of Election Comm’rs, 394 U.S. 802,
809, 89 S. Ct. 1404, 1409 (1969)).
3. The thirty percent threshold. In our view, the foregoing
authorities make clear the Iowa Constitution permits the State to treat
public safety employees differently from other public employees and to
treat bargaining units comprised of at least thirty percent public safety
employees better than bargaining units with a smaller percentage. The
plaintiffs nevertheless argue that the thirty percent threshold itself is
unconstitutional, even if the labor peace and public safety rationales
would permit preferential treatment of a bargaining unit comprised solely
of public safety employees. The State responds that the legislative
classifications reflect the current reality that local government bargaining
units in Iowa happen to be comprised of a mix of public safety employees
and other employees. The State notes it would be impractical to
segregate for collective bargaining purposes public safety employees and
other employees with different employers and unions. The plaintiffs fail
26
to persuasively rebut that State’s showing of the practical problems with
interunit collective bargaining. Nor do the plaintiffs suggest a different,
higher threshold that concededly passes constitutional muster. Ten
percent? Forty percent? Ninety percent? Perhaps in plaintiffs’ view
preferential treatment can be allowed only for public safety employees
isolated in their own bargaining unit with no one else, as in Wisconsin.10
It is not the court’s role under our separation of powers to redraw
the legislature’s chosen thirty percent threshold. The Seventh Circuit
recognized that “[d]efining the class of persons subject to a regulatory
requirement . . . requires that some persons who have an almost equally
strong claim to favored treatment be placed on different sides of the line
. . . [and this] is a matter for legislative, rather than judicial,
consideration.” Walker, 705 F.3d at 655 (alterations in original) (quoting
Beach Commc’ns, Inc., 508 U.S. at 315–16, 113 S. Ct. at 2102). We
reiterate that “[f]or legislation to be violative of the Iowa Constitution
under the rational basis test, the classification must involve ‘extreme
degrees of overinclusion and underinclusion in relation to any particular
goal.’ ” Ames Rental Prop. Ass’n v. City of Ames, 736 N.W.2d 255, 260
(Iowa 2007) (quoting RACI, 675 N.W.2d at 10). We hold that the thirty
percent threshold is not so extremely overinclusive or underinclusive as
to flunk our deferential rational basis review.
10Iowa public safety employees now in bargaining units below the thirty percent
threshold may be able to vote with their feet and reorganize into a new bargaining unit
to attain the preferential bargaining rights, as AFSCME’s counsel acknowledged at oral
argument.
Unlike Iowa, the Wisconsin statutory scheme separates public safety employees
by occupation into their own statewide bargaining unit. See Wis. Stat. Ann. § 111.825
(West, Westlaw current through 2017 Act 370). The Wisconsin legislature was not
confronted with bargaining units comprised of public safety employees and other
employees.
27
We decline to second-guess the legislature’s constitutional policy
choices. We conclude that the plaintiffs have failed to meet their burden
of negating every conceivable basis upon which House File 291 could be
upheld. For that reason, plaintiffs’ equal protection challenge fails.
B. Plaintiffs’ Freedom of Association Claim. The plaintiffs
claim that House File 291 unconstitutionally infringes on their right to
associate with AFSCME. The plaintiffs argue that associating with the
union of their choice is a fundamental right under the First Amendment
and House File 291 is therefore subject to strict scrutiny. The district
court correctly rejected this claim.
“The First Amendment embodies the freedom of association, the
right to ‘enter into and maintain certain intimate human relationships
[without] undue intrusion by the State.’ ” Baker, 867 N.W.2d at 52
(alteration in original) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609,
617–18, 104 S. Ct. 3244, 3249 (1984)); see also Sioux City Police Officers’
Ass’n v. City of Sioux City, 495 N.W.2d 687, 697 (Iowa 1993) (discussing
freedom of association). Strict scrutiny applies when a suspect
classification or fundamental right is involved. King, 818 N.W.2d at 31.
As the United States Supreme Court noted in Roberts,
[T]he constitutional shelter afforded such relationships
reflects the realization that individuals draw much of their
emotional enrichment from close ties with others. Protecting
these relationships from unwarranted state interference
therefore safeguards the ability independently to define one’s
identity that is central to any concept of liberty.
Roberts, 468 U.S. at 619, 104 S. Ct. at 3250.
Plaintiffs argue that public employees have a right to organize and
join labor unions. See State v. Keul, 233 Iowa 852, 855, 5 N.W.2d 849,
852 (1942) (“The right to form labor unions and by lawful means to act in
furtherance of their legitimate purposes is not open to question.”). The
28
plaintiffs note that “[w]e have traditionally followed the U.S. Supreme
Court’s guidance in determining which rights are deemed fundamental.”
King, 818 N.W.2d at 26. The plaintiffs also note that the United States
Supreme Court has found that the right to join a union is a protected
associational right. Bhd. of R.R. Trainmen v. Virginia ex rel. Va. State Bar,
377 U.S. 1, 8, 84 S. Ct. 1113, 1118 (1964) (“[T]he Constitution protects
the associational rights of the members of the union precisely as it does
those of the NAACP.”); see also Am. Fed’n of State, Cty., & Mun. Emps. v.
Woodward, 406 F.2d 137, 139 (8th Cir. 1969) (“Union membership is
protected by the right of association under the First and Fourteenth
Amendments.”).
The plaintiffs argue that House File 291 both intentionally and
incidentally infringes on their fundamental right to associate with a
union of their choice. AFSCME represents a number of state peace
officers and firefighters excluded from the definition of public safety
employee. Further, all AFSCME-represented bargaining units are
comprised of less than thirty percent public safety employees and thus
are excluded from bargaining over any matter other than base wage. For
that reason, plaintiffs argue House File 291 infringes on a fundamental
right and is subject to strict scrutiny review. Under strict scrutiny, “the
statute will survive a constitutional challenge only if it is shown that the
statute is narrowly drawn to serve a compelling state interest.” City of
Maquoketa v. Russell, 484 N.W.2d 179, 184 (Iowa 1992) (quoting City of
Panora v. Simmons, 445 N.W.2d 363, 367 (Iowa 1989)).
We reiterate that the scope of collective bargaining rights of public
employees “is a matter for the legislature, not the courts.” State Bd. of
Regents v. United Packing House Food & Allied Workers, Local No. 1258,
175 N.W.2d 110, 113 (Iowa 1970); see also Bennett v. City of Redfield,
29
446 N.W.2d 467, 473 (Iowa 1989) (“The right to public employment is not
a fundamental right.”). House File 291 does not prohibit or restrict
unions from soliciting members, disseminating materials, engaging in
political activities, or expressing their views. As the State argues, “There
is a fundamental distinction between the right to associate and whether
someone must listen when you do. Declining to collectively bargain over
certain topics does not inhibit the ability to associate.” We agree and
apply rational basis review to this challenge. Nothing in House File 291
prohibits public employees from joining AFSCME or any other union.
The Fourth Circuit rejected a claim that legislation ending payroll
deductions for union dues violated associational rights. S.C. Educ.
Ass’n, 883 F.2d at 1263–64. That court noted that the
legislation does not prohibit, regulate, or restrict the right of
the [union] or any other organization to associate, to solicit
members, to express its views, to publish or disseminate
material, to engage in political activities, or to affiliate or
cooperate with other groups.
Id. at 1256. The same is true of House File 291.
The plaintiffs charge that House File 291 “red circles” AFSCME-
represented bargaining units.11 The plaintiffs contend this targeting was
artful and capricious and performed with “scalpel-like precision” to
specifically target AFSCME. The district court expressly “reject[ed]
Plaintiffs’ contention that [House File 291] ‘red circles’ AFSCME
bargaining units or impinges on freedom of association with AFSCME.”
11The plaintiffs have not alleged that House File 291 is an unconstitutional bill
of attainder. See U.S. Const. art. I, § 9, cl. 3 (“No Bill of Attainder . . . shall be passed”);
Iowa Const. art. I, § 21 (“No bill of attainder . . . shall ever be passed.”); Atwood v.
Vilsack, 725 N.W.2d 641, 651 (Iowa 2006) (“A bill of attainder ‘is a legislative
determination that metes out punishment to a particular individual or a designated
group of persons without a judicial trial.’ ” (quoting State v. Phillips, 610 N.W.2d 840,
843 (Iowa 2000))).
30
The text of House File 291 is facially neutral. The plaintiffs offered
no evidence that the thirty percent threshold was chosen to target
AFSCME. As we have explained above, House File 291 survives rational
basis review. House File 291 was enacted within the power of the
general assembly. Accordingly, we will not inquire into the subjective
motives of individual legislators, regardless of whether political payback
inspired some of them.
The Sixth Circuit, in rejecting a constitutional challenge to a
Michigan statute prohibiting public school employee payroll deductions
for union dues, expressly declined to “ ‘peer[] past’ the [statutory] text . . .
‘to infer some invidious legislative intention.’ ” Bailey v. Callaghan, 715
F.3d 956, 960 (6th Cir. 2013) (quoting Walker, 705 F.3d at 649–50)). The
Sixth Circuit concluded it was bound by the “familiar principle of
constitutional law that this Court will not strike down an otherwise
constitutional statute on the basis of an alleged illicit legislative motive.”
Id. (quoting United States v. O’Brien, 391 U.S. 367, 383, 88 S. Ct. 1673,
1682 (1968)); see also In re Hubbard, 803 F.3d 1298, 1312 (11th Cir.
2015) (same). We too apply the O’Brien principle and decline to consider
alleged motives to red circle AFSCME.
In upholding the Wisconsin enactment more broadly curtailing
public employee collective bargaining rights, the Seventh Circuit squarely
addressed the claim legislators were motivated by politic payback.
As unfortunate as it may be, political favoritism is a
frequent aspect of legislative action. We said as much in
Hearne v. Board of Education, 185 F.3d 770, 775 (7th Cir.
1999). There, members of the Chicago Teachers Union
challenged on various constitutional grounds, including the
Equal Protection Clause, an act of the Republican-dominated
legislature that severely curtailed Chicago teachers’ job
security relative to teachers in other parts of the state. Id. at
773. The unions argued, in part, that the Republican
legislature retaliated against them for opposing Republicans
31
in the previous election. Id. We candidly remarked, “there is
no rule whereby legislation that otherwise passes the proper
level of scrutiny . . . becomes constitutionally defective
because one of the reasons the legislators voted for it was to
punish those who opposed them during an election
campaign.” Id. at 775. We went further stating, “[i]ndeed
one might think that this is what election campaigns are all
about: candidates run a certain platform, political promises
made in the campaign are kept (sometimes), and the winners
get to write the laws.” Id. These sorts of decisions are left
for the next election. Accordingly, we must resist the
temptation to search for the legislature’s motivation for the
Act’s classifications.
Walker, 705 F.3d at 654. We likewise decline to weigh the subjective
motivations of legislators in our rational basis review under the Iowa
Constitution. See Qwest Corp., 829 N.W.2d at 559–60; see also Rhoades,
880 N.W.2d at 447 (declining to give weight to legislator’s affidavit).
The 2017 amendments do not infringe on a fundamental right of
association. The plaintiffs “come to us with a problem suitable only for
political solution.” See Brown v. City of Lake Geneva, 919 F.2d 1299,
1304 (7th Cir. 1990). The plaintiffs are free to attempt to persuade
public employers, such as the State and local governments and school
boards, to voluntarily bargain over formerly mandatory terms. The
plaintiffs otherwise must look to the ballot box and the elected branches
to change this lawfully enacted statute.
IV. Conclusion.
For these reasons, we affirm the district court’s summary
judgment in favor of the State and PERB.
AFFIRMED.
Mansfield, Christensen, and McDonald, JJ., join this opinion.
Cady, C.J., files a dissenting opinion in which Wiggins, J., joins.
Appel, J., files a separate dissenting opinion in which Cady, C.J., and
Wiggins, J., join.
32
#17–1841, AFSCME v. State
CADY, Chief Justice (dissenting).
I respectfully dissent and join the dissent by Justice Appel. I write
separately to emphasize the important role of courts and how a statute
that treats people differently must not only have a rational basis, but one
that fits the statute. See Varnum v. Brien, 763 N.W.2d 862, 879 (Iowa
2009) (“[T]he deference built into the rational basis test is not dispositive
because this court engages in a meaningful review of all legislation
challenged on equal protection grounds by applying the rational basis
test to the facts of each case.”).
The legislation at issue gives expansive collective bargaining rights
to public safety employees, but very limited collective bargaining rights to
other public employees. Our constitutional doctrine of equal protection
recognizes that most all laws tend to discriminate in some way, so the
focus of the analysis turns on whether the unequal treatment is properly
justified. See NextEra Energy Res. LLC v. Iowa Utils. Bd., 815 N.W.2d 30,
46 (Iowa 2012) (explaining a classification resulting in some inequality
does not necessarily violate equal protection). If it is, the constitutional
mandate of equal protection is not violated. Id.
The majority opinion finds a rational basis to justify the disparate
treatment in this case from the special need to protect the public against
the potential harm of labor unrest by public safety employees and to give
special protection to public safety employees from the health and safety
risks they face on the job. The premise is that public safety is a vital
concern in Iowa and this concern supports special laws that give greater
bargaining rights to public safety employees than other public employees
to help keep them on the job, instead of engaging in strikes or becoming
injured and unable to perform their jobs.
33
I agree with the conclusion in the majority opinion that the rational
reasons identified are an adequate justification for disparate collective
bargaining treatment among public employees. I also agree it is not the
role of courts to find criticism of public policy based on disagreement
over policy. Any such form of criticism, even implicit, has no place in the
analysis by courts. Instead, the only role of the courts in the process is
to decide if the discrimination is justified under the facts and
circumstances.
In this case, the legislation offends our constitution. The problem
with the law is not its purpose or justification to discriminate, but how
the general assembly failed to apply this purpose in articulating the law.
Instead of treating public employees differently by dividing them into one
group of public safety employees and another group of other public
employees, the general assembly passed a law giving different rights to
public employees based on their membership in a collective bargaining
agreement. The problem is that bargaining units in Iowa contain both
public safety employees and other public employees. Thus, while the law
purported to put public safety employees in a separate class based on a
valid purpose, it created classifications by using bargaining units and
permitted the bargaining units to contain up to seventy percent of
persons who are not public safety employees. This means the statute
enacted ended up giving many public employees rights of public safety
employees and denied many public safety employees those rights.
This type of line drawing falls far too short of our constitution’s
demands. While line drawing can never be clean and can present a
variety of obstacles, this case is not even close to a fair delineation.
Moreover, there is simply no reason why the general assembly could not
have drawn the lines to eliminate the unconstitutional distinctions. The
34
law cannot purport to give needed special protection to one group of
people and then allow that group to be populated by up to seventy
percent of other people not included within the purpose. This approach
is a bad fit and destroys the justification for the law.
If the line drawing needed to accomplish the stated purpose in this
case were difficult to do, as it can be in some cases, leeway would exist.
But, in truth, there is no reason it cannot be done in this case.
Constitutional lines are clearly available. A collective bargaining statute
in Wisconsin is one such example. See Wis. Educ. Ass’n Council v.
Walker, 705 F.3d 640, 642–43 (7th Cir. 2013). Here, the line required by
the constitution simply was not drawn. Id.
The majority opinion relies on Walker as its authority to support
the constitutionality of the Iowa statute. That reliance is misplaced.
Walker involved a Wisconsin statute that gave broader collective
bargaining agreements to those public employees designated as public
safety employees based on the same rationale used in this case. Id. at
655. Yet, unlike the Iowa statute, the Wisconsin statute divided public
safety employees and other public employees into two separate groups.
Id. at 642–43. Unlike the Iowa statute, the statute did not use
percentages of public safety employees within a bargaining unit to allow
for such dramatic overlap. Thus, the purpose of the statute fit the
categories drawn, and this fit allowed the legislation to pass
constitutional scrutiny. Id. at 654–57.
Accordingly, the Walker decision does not support the
constitutionality of the statute in this case, and the majority opinion
offers little more analysis. It only relies on the justification to
discriminate and ignores the vast overinclusiveness and
underinclusiveness of classifying employees based on membership in
35
bargaining units. As a result, the Iowa statute ends up treating many
similarly situated public employees in Iowa differently based solely on the
bargaining unit they belong to and not for the reason the constitution
would justify different treatment of public employees. Our constitution
requires laws to treat similarly situated people equally unless there is an
adequate reason otherwise. In this case, the overinclusiveness and
underinclusiveness written into the statute drowned this reason out.
Our constitutional form of government depends on courts to see it and
demand better.
Wiggins, J., joins this dissent.
36
#17–1841, AFSCME v. State
APPEL, Justice (dissenting).
I. Introduction.
House File 291 is an odd statute. See 2017 Iowa Acts ch. 2,
§§ 1, 6 (codified at Iowa Code §§ 20.3(11), .9 (2018)). It slices and dices
the universe of public employees entitled to collective bargaining by
various categories in multiple novel ways that are overinclusive and
underinclusive. One of the two ostensible purposes—labor peace—is
advanced even though severe sanctions for striking have been in place
for forty years, and during that period, there has never been a strike by
any public employees. Further, the means chosen by the legislature—an
arbitrary grouping and shuffling of public employees that is overinclusive
and underinclusive—bears no rational relation to either labor peace or
promoting the health and safety of public employees exposed to danger
in their jobs.
In my view, therefore, the law does not survive rational basis
review under article I, section 6 of the Iowa Constitution. Accordingly, I
respectfully dissent.
II. Overview of House File 291.
I begin with a discussion of the remarkable classification system
created by the law. It identifies an oddball group of public employees
and throws them into the burlap grab bag labeled “public safety
employee[s].” Id. § 1 (codified at Iowa Code § 20.3(11)). Then, some of
those within the grab bag are denied privileges that others receive. Id.
§ 6. And some public employees not within the grab bag receive the
benefits denied to a portion of public safety employees, while others do
not. Id. Perplexing, I know. The classification system is illogical.
37
The identification of public safety employees is made not on the
basis of an employee’s duties or functions, but rather by the title an
employee holds. Id. § 1 (codified at Iowa Code § 20.3(11). In some
respects, the “public safety” grab bag is astonishingly inclusive. The
grab bag was stretched astoundingly wide. It accommodates park
rangers, gaming enforcement officers, and peace officers designated by
the department of transportation. Id.
But then, it excludes employees with obvious public safety
responsibilities. The grab bag has no room for university police who, just
like other police officers, are law enforcement officers pursuant to Iowa
Code chapter 80B, are trained and certified by the Iowa Law Enforcement
Academy, and engage in law enforcement and emergency response
alongside other city police officers. Id. Airport firefighters are excluded
even though they too work alongside the firefighters designated as public
safety employees by House File 291. Id. The law also excludes others,
like parole officers and fraud bureau investigators, who work in
unpredictable environments with broad arrest powers and the obligation
to respond to emergencies. Id. And none of our state’s corrections
officers, jailers, and emergency medical service providers are considered
public safety employees. Id. Yet all of those public employees work in
“protection occupations.” Iowa Code § 97B.49B(1)(e).
As is evident, the statutory classification of public safety employees
is obviously remarkably overinclusive and underinclusive. No one
questions that. And no one questions that the overinclusiveness and
underinclusiveness are among the features that make the classifications
in House File 291 suspect.
I think it very doubtful that the classification of public safety
employees makes much sense, but we are not done with the
38
irrationalities of the statute. This is because classification as a public
safety employee does not even determine whether a public employee gets
the benefits of collective bargaining granted to some and denied others.
Under House File 291, full collective bargaining rights are provided
to all state employees in bargaining units with at least thirty percent
public safety employees. Id. § 6 (codified at Iowa Code § 20.9). In such a
unit, the thirty percent public safety employees get the benefit of
representatives who have the ability to collectively bargain fully over
wages and a list of other terms and conditions of employment. Id. But
so do the remaining seventy percent of non-“public safety employees” in
the bargaining unit. Id. Thus, in a unit with thirty percent public safety
employees, a supermajority of the beneficiaries are not public safety
employees! If the law is designed to target public safety employees for
preferential treatment, it is way, way overbroad.
And yet, once again, it is also underinclusive. What about a
bargaining unit with twenty-nine percent public safety employees?
Those public safety employees, along with their colleagues in the
bargaining unit, are out in the cold. See id. For instance, we are told
that the police officers serving the City of Guttenberg, along with the
police and fire departments of the City of Decorah, are all relegated to
disfavored status under House File 291. So too are the deputy sheriffs of
Humboldt County, even though the county sheriffs and Humboldt police
officers serve side-by-side and share equipment.
Thus, the set of public safety employees benefiting from the statute
is doubly underinclusive. The definition of “public safety employees” is
underinclusive, and then only some public safety employees are doled
out benefits based solely on whether the employee happens to fall within
39
a given type of bargaining unit. Id. §§ 1, 6 (codified at Iowa Code
§§ 20.3(11), .9).
What kind of statute is this? Notably, the parties have failed to
identify a similar statute anywhere at any time. House File 291 is unlike
the recent legislation passed in Wisconsin because, under the Wisconsin
law, all those designated as public safety employees receive broader
collective bargaining rights and all those who are not so designated do
not receive those rights. See Wis. Educ. Ass’n Council v. Walker, 705
F.3d 640, 642–43 (7th Cir. 2013). Make no mistake, House File 291 is
really odd.
III. Framework for Rational Basis Review.
Our approach to rational basis review is well-established. See
LSCP, LLLP v. Kay-Decker, 861 N.W.2d 846, 859 (Iowa 2015); Racing
Ass’n of Cent. Iowa v. Fitzgerald (RACI), 675 N.W.2d 1, 7–8 (Iowa 2004).
In general terms, “to pass the rational basis test, the statute must be
‘rationally related to a legitimate state interest.’ ” LSCP, 861 N.W.2d at
858 (quoting Qwest Corp. v. Iowa State Bd. of Tax Review, 829 N.W.2d
550, 558 (Iowa 2013)). In undertaking our analysis, we employ a three-
part test.
First, we identify the classes of similarly situated persons treated
differently. LSCP, 861 N.W.2d at 859. This is a threshold determination.
Id. We do not make intricate distinctions between purported classes of
similarly situated individuals, as “[n]o two groups are identical in every
way.” Qwest, 829 N.W.2d at 561.
Next, we “examine the legitimacy of the end to be achieved.” LSCP,
861 N.W.2d at 860 (quoting Fed. Land Bank of Omaha v. Arnold, 426
N.W.2d 153, 156 (Iowa 1988)). We consider “whether there was a valid,
‘realistically conceivable’ purpose that served a legitimate government
40
interest.” Residential & Agric. Advisory Comm., LLC v. Dyersville City
Council, 888 N.W.2d 24, 50 (Iowa 2016) (quoting McQuistion v. City of
Clinton, 872 N.W.2d 817, 831 (Iowa 2015)). “A legitimate interest can be
any reasonable justification, not just the one the legislature actually
chose.”12 LSCP, 861 N.W.2d at 858.
Our review of the legitimacy of the end to be achieved is not
toothless. Id. at 860. We consider whether the claimed state interest is
“realistically conceivable” and “decide whether this reason has a basis in
fact.” Id. (quoting RACI, 675 N.W.2d at 7–8). “The ‘realistically
conceivable’ standard requires more than ‘a purely superficial analysis
and implies that the court is permitted to “probe to determine if the
constitutional requirement of some rationality in the nature of the class
singled out has been met.” ’ ” Id. (quoting RACI, 675 N.W.2d at 7 n.3).
“ ‘Basis in fact’ means ‘the court will undertake some examination of the
credibility of the asserted factual basis for the challenged classification
rather than simply accepting it at face value.’ ” Id. (quoting RACI, 675
N.W.2d at 8 n.4). “In other words, although ‘actual proof of an asserted
justification [i]s not necessary, . . . the court w[ill] not simply accept it at
face value and w[ill] examine it to determine whether it [i]s credible as
opposed to specious.” Id. (alterations in original) (quoting Qwest, 829
N.W.2d at 560).
Third, we consider the relationship between the classification and
the purpose of the classification. The fit between the means chosen by
the legislature and its objective need not be perfect, but it must be
rational. Id. at 859. “[W]e must consider whether the relationship
12Some states decline to consider hypothetical justifications in considering equal
protection claims brought under state constitutions. See State v. Russell, 477 N.W.2d
886, 889 (Minn. 1991). We need not consider the question here because the statute is
infirm even under the hypothetical justifications advanced by the State.
41
between the classification . . . and the purpose of the classification is so
weak that the classification must be viewed as arbitrary.” Id. at 860.
“Under the Iowa Constitution, we determine whether a
classification rationally furthers a legitimate state interest by evaluating
whether the classification features ‘extreme degrees of overinclusion and
underinclusion in relation to any particular goal.’ ” Id. at 861 (quoting
Bierkamp v. Rogers, 293 N.W.2d 577, 584 (Iowa 1980)). “If a
classification involves extreme overinclusion or underinclusion ‘in
relation to any particular goal, it cannot [reasonably] be said to . . .
further that goal.’ ” Id. (quoting Bierkamp, 293 N.W.2d at 584).
Of course, we have explained that rational basis review is a “very
deferential standard.” NextEra Energy Res. LLC v. Iowa Utils. Bd., 815
N.W.2d 30, 46 (Iowa 2012) (quoting Varnum v. Brien, 763 N.W.2d 862,
878 (Iowa 2009)). “The plaintiff has the heavy burden of showing the
statute unconstitutional and must negate every reasonable basis upon
which the classification may be sustained.” Id. (quoting Bierkamp, 293
N.W.2d at 579–80). Further, “[a] classification ‘does not deny equal
protection simply because in practice it results in some inequality;
practical problems of government permit rough accommodations.’ ” Id.
(alteration in original) (quoting In re Det. of Morrow, 616 N.W.2d 544, 548
(Iowa 2000)).
But “[t]he deference we afford the legislature’s classifications ‘is
not, in and of itself, necessarily dispositive’ under article I, section 6.”
LSCP, 861 N.W.2d at 859 (quoting Bierkamp, 293 N.W.2d at 581). Our
“rigorous standards have not . . . prevented this court from finding
economic . . . legislation in violation of equal protection provisions.”
RACI, 675 N.W.2d at 8–9. “[E]ven in the economic sphere, a citizen’s
guarantee of equal protection is violated if desirable legislative goals are
42
achieved . . . through wholly arbitrary classifications or otherwise
invidious discrimination.” Fed. Land Bank, 426 N.W.2d at 156. “It is for
the judicial department to determine whether any department has
exceeded its constitutional functions . . . .” Luse v. Wray, 254 N.W.2d
324, 327 (Iowa 1977) (quoting 16 C.J.S. Constitutional Law § 144, at
688).
IV. Applying Iowa’s Rational Basis Review.
A. The Statutory Classifications. As described above, House
File 291 classifies public employees in multiple unusual ways. Among
the public employees with safety responsibilities, it identifies some as
public safety employees and omits others. 2017 Iowa Acts ch. 2, § 1
(codified at Iowa Code § 20.3(11)). Then, it goes on to even omit some of
the public safety employees from the benefits of broader collective
bargaining while allowing large numbers of those not branded as public
safety employees to benefit from broader collective bargaining. Id. § 6
(codified at Iowa Code § 20.9).
Therefore, House File 291 treats many similarly situated persons
differently. First, some public employees with safety responsibilities—
like university police, airport firefighters, corrections officers, jailers, and
emergency medical service providers—are similarly situated to other
public employees with safety responsibilities yet treated differently. See
id. § 1 (codified at Iowa Code § 20.3(11)). Second, only some of the public
employees that House File 291 itself considers similarly situated—public
safety employees—are able to benefit from broader collective bargaining.
Id. § 6 (codified at Iowa Code § 20.9). Third, among the public employees
that are not considered public safety employees by the law, some are able
to engage in broader collective bargaining and others are not. Id.
43
B. Examining Ends. The State has suggested two purposes for
House File 291—labor peace and the health and safety of public safety
employees. Neither provides a basis for sustaining this statute.
I begin with the purported purpose of labor peace. First, the
historical record is striking. No one claims that there has ever been a
strike of any public employees, let alone public safety employees, since
the enactment of the Public Employment Relations Act over forty years
ago. Further, no one claims that such a strike has been seriously
threatened. The lack of any facts to support the asserted rationale is
troubling.
Second, as plaintiffs point out, labor peace was not a rationale for
the law asserted by any Iowa legislators during the floor debate. That is
striking. If there was truly a risk to public safety that a strike by public
safety employees would create, surely the legislators would have said so.
The fact that avoiding strikes was not even mentioned in the debates
further suggests a lack of basis in fact.
Third, for forty years, draconian sanctions have been in place in
the event any public employee contemplated striking. The sanctions can
include imprisonment for six months; daily individual fines of $500; daily
union fines of $10,000; termination from employment and ineligibility for
public employment for one year; decertification of union and one-year
waiting period for recertification; injunctions; contempt; and “any other
legal or equitable remedy or penalty.” Iowa Code § 20.12(3)–(6). The
existence and effectiveness of the sanctions undermine the State’s
argument that labor peace is a purpose of the discriminatory treatment
in House File 291. See, e.g., U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528,
536–37, 93 S. Ct. 2821, 2827 (1973) (explaining that pre-existing
provisions addressing fraud “necessarily casts considerable doubt upon
44
the proposition that the 1971 amendment could rationally have been
intended to prevent those very same abuses”).
In Iowa, we “examin[e] . . . the credibility of the asserted factual
basis for the challenged classification rather than simply accepting it at
face value.” LSCP, 861 N.W.2d at 860 (quoting RACI, 675 N.W.2d at 8 &
n.4). Based on the history, the lack of justification in legislative debates,
and the existence of strong sanctions already addressing the problem, I
conclude that the labor peace rational fails that test.
As an alternative, the State generally claims that the health and
safety of certain endangered public employees could be a legitimate end
for the law. No one questions the general proposition that promoting the
health and safety of employees is a legitimate state interest. Of course,
that generalization may be declared as supporting every statute. But to
the extent House File 291 provides nebulous health and safety benefits
apparently arising from robust collective bargaining rights, what is the
rationale for denying those benefits to other public safety employees
under the statute? It seems odd to suggest that some public safety
employees are entitled to the health and safety benefits afforded by
robust collective bargaining and benefits and others are not. Why, say,
are park rankers entitled to the health and safety benefits of robust
collective bargaining while corrections officers are not? While health and
safety benefits may justify robust collective bargaining rights, that
benefit is equally applicable to the excluded public safety employees.
C. Examining Means. I now turn to the question of whether
there is a rational relationship between the purported goals of the statute
and the means chosen by the legislature. For the reasons expressed
below, I find it hard to see a rational relationship between the means
chosen and the ends asserted.
45
If labor peace were the goal, why aren’t corrections staff, or parole
officers, or university police officers, or healthcare workers, provided the
benefits of the statute? Other states deal with the potential of strikes in
inclusive ways. See, e.g., Cty. Sanitation Dist. No. 2 v. L.A. Cty. Emps.
Ass’n, 699 P.2d 835, 846 & n.26 (Cal. 1985) (en banc) (noting that ten
states permit public employees to strike “unless such strikes endanger
the public health, safety, or welfare” and explaining that “[t]he statutes
generally prohibit strikes by police and fire-protection employees,
employees in correctional facilities, and those in health-care
institutions”). If House File 291 is designed to prevent strikes that would
jeopardize public safety, it is remarkably underinclusive.
Conversely, is there anything in the record suggesting that public
safety employees included in the House File 291 grab bag have
threatened to strike? And if they have, have they threatened to strike
more frequently or more intensively than the corrections officials and
university police? Is there anything in the record suggesting that a strike
by gaming enforcement officers would be a threat to public safety? And
could it be of the same magnitude as a strike by the many police and fire
departments left out in the cold by the thirty percent threshold?
Moreover, is the danger of a strike by non-“public safety employees” in a
favored bargaining unit somehow of such concern that they, too, need
special bargaining rights? These questions, of course, must be answered
in the negative, and reveal the arbitrariness and extreme overinclusion of
the classifications if they are designed to ensure labor peace.
Most importantly, perhaps, is the absence of a rational connection
between doling benefits and preventing strikes. Does the record, or any
legislative facts, show that only some public safety employees—i.e., those
in unions in which they comprise more than thirty percent of members—
46
need special benefits to convince them not to break the law and strike?
Or that, unless they are doled out special benefits, police officers in those
units (and I guess gaming enforcement officers, park rangers, and DOT
officers) will refuse to do their duty in the face of others breaking the law
and striking? Are public safety employees in units in which they
comprise less than thirty percent of members somehow better able to
resist lawbreaking? Or are those public safety employees less important
to public safety?
The classifications in House File 291 are arbitrary if the goal was
labor peace. There is no relationship between the classifications, which
feature extreme degrees of overinclusion and underinclusion, and labor
peace. And the linchpin of the argument advanced in favor of the law—
public safety employees might strike in the face of criminal penalty if
they are not granted special status—is specious. In the face of such
irrationality, I would not uphold the oddball classifications in House File
291.
I now turn to the question of whether the classifications in House
File 291 may be supported as health and safety measures. In my view,
the slicing and dicing in House File 291 bears no rational connection to
protecting health and safety of public employees exposed to greater risks.
In short, and as detailed below, the law confers privileges on some public
employees and withholds them from others without regard to whether
the persons actually face greater danger. It also does not consider
whether the privileges are rationally related to protecting health and
safety.
The legislature’s choice of who may be allowed greater collective
bargaining rights is grievously underinclusive towards achieving a goal of
protecting health and safety of public employees exposed to danger. Why
47
omit university police officers, corrections officers, jailers, emergency
medical service providers, airport firefighters, and others from the
category of public safety employees? 2017 Iowa Acts ch. 2, § 1 (codified
at Iowa Code § 20.3(11)). The record shows that many employees in
these jobs, especially corrections officers and university police officers,
face similar or greater risks than those classified as public safety
employees. Psychiatric aides and medical technicians, according to the
record, are approximately four times as likely to be injured on the job as
are police officers and approximately 150 times as likely to be injured on
the job as firefighters. Meanwhile, the number of road safety workers
killed in Iowa exceeds the number of police killed in the line of duty.
Moreover, why prevent even some of the public safety employees
from being able to attain the collective bargaining benefits that,
purportedly, would protect their health and safety? Id. § 6 (codified at
Iowa Code § 20.9). If the purpose was to protect the health and safety of
public employees exposed to danger, or even just the health and safety of
an anointed group of those public employees, the statute is fatally
underinclusive.
The statute, of course, is also overinclusive if the goal is to protect
health and safety of those exposed to greater danger. Why allow
supermajorities of non-“public safety employees” to access those
benefits? See id. There is no rational explanation.
Further, the limitations on bargaining applicable to the two groups
are numerous, and in almost every respect, divorced from health and
safety. For instance, House File 291 gives units with thirty percent
public safety employees greater rights than other units in arbitrating over
wages. Id. What rational connection is there between a cap on the
wages that an arbitrator may award to some bargaining units and the
48
health and safety of a portion of the members of other bargaining units?
There is none.
Similarly, House File 291 makes seven bargaining subjects
mandatory in the case of units with thirty percent public safety
employees and prohibited in the case of other units. These subjects are
“insurance, leaves of absence for political activities, supplemental pay,
transfer procedures, evaluation procedures, procedures for staff
reduction, and subcontracting public services.” Id. Again, protecting the
health and safety of some members of some bargaining units does not
rationally connect to giving all of the members of those units the
exclusive right to bargain over those subjects.
Indeed, House File 291 requires mandatory negotiation over
seventeen specified subjects in collective bargaining with units comprised
of at least thirty percent public safety employees. Id. Only one of those
subjects is “health and safety matters.” Id. And for other unions, none
of the seventeen subjects is a mandatory topic of negotiations. Id. The
reason for giving the favored units such significantly greater collective
bargaining rights is not rationally explainable by a desire to protect the
health and safety of a portion of the benefited units.
The situation we face is not like that in Wisconsin. Unlike
Wisconsin, as noted above, the Iowa law shuffles the public safety
employees into some groups that are entitled to greater benefits and
others which are not. Id. In Wisconsin, all public safety employees were
entitled to greater collective bargaining rights. Wis. Educ. Ass’n Council,
705 F.3d at 642–43. Moreover, in Iowa, many non-“public safety
employees” are granted greater collective bargaining rights while others
are not. 2017 Iowa Acts ch. 2, § 6 (codified at Iowa Code § 20.9). In
Wisconsin, no nonsafety employees were granted greater bargaining
49
rights. Wis. Educ. Ass’n Council, 705 F.3d at 642–43. Further, the
federal court addressing the Wisconsin law did not consider whether the
gamut of differential collective bargaining rights present in House File
291 bear any rational relation to health and safety. See id. at 656–57
(discussing recertification requirements and elimination of payroll
deductions for all public employees). Finally, reliance on federal
precedents ignores that, in Iowa, extreme overinclusion and
underinclusion can render a statute so arbitrary as to fail the rational
basis test. LSCP, 861 N.W.2d at 859; RACI, 675 N.W.2d at 7–8.
It seems to me that the extreme overinclusiveness and
underinclusiveness of this statute is so striking that it does not pass
constitutional muster under RACI principles.
V. Conclusion.
For the above reasons, I would reverse the judgment of the district
court.
Cady, C.J., and Wiggins, J., join this dissent.