PHX Reporter

Originally published at the Goldwater Institute

The Arizona Supreme Court last night agreed to hear the Goldwater Institute’s lawsuit on behalf of taxpayers challenging the constitutionality of government subsidies to public-sector labor unions. Coming just weeks after the justices agreed to review another taxpayer case Goldwater is litigating, this lawsuit—called Gilmore v. Gallego—will mark the twelfth time we’ve appeared before the state’s highest court.

The Gilmore case involves a practice known as “release time,” whereby public employees receive government paychecks but don’t actually work for the government—instead, they work for a union: recruiting members, meeting with candidates, endorsing politicians, lobbying the government, and so forth. “Released” employees, in short, get a paycheck from the government but don’t work for the government—they don’t report to the government about how they spend their time, they aren’t reviewed for performance by any government supervisors, and they aren’t assigned any responsibilities by the government. Taxpayers are required to pay—but don’t get any public services in return for their money. Instead, their money—millions of dollars of it—goes straight into the union’s pocket, for the union to use in lobbying for…more government.

Release time is unconstitutional because the state constitution’s “Gift Clause” forbids the government from giving money to any private entity and getting nothing in return—and we’ve challenged its constitutionality in Arizona, New Jersey, Texas, and other places.

In a 2016 case called Cheatham, a narrowly divided Arizona Supreme Court rejected our challenge to the constitutionality of release time, holding that the money the government pays to the union isn’t a gift to the union, but is just part of the “compensation” that’s paid to union members in exchange for their services. But as we argue in the Gilmore case, even if that’s true, it’s still unconstitutional because in the Janus case, decided two years later, the U.S. Supreme Court made clear that employees can’t be forced to hand over their compensation to a union, either. In other words, there are two alternatives: either release time is just an unconstitutional subsidy to a union—a giveaway of taxpayer money to the union in exchange for nothing—or it’s an unconstitutional way of forcing government employees to pay for the union to engage in speech those employees don’t agree with.

Not long after the Cheatham case, the Arizona Supreme Court backed away from it, overruling an important part of that decision in another Goldwater lawsuit, called Schires. Now, we’re asking the court to go further and to declare that release time is unconstitutional, either because it’s an outright subsidy to unions, or because it forces government employees to hand over a portion of their paycheck to a union, which uses that money for political purposes—in ways the U.S. Supreme Court declared invalid in the Janus decision.

The next steps in the Gilmore lawsuit are another round of briefing, followed by oral arguments on a date the court has not yet announced. You can learn more about the Gilmore case here, and find out more about the Arizona Constitution’s Gift Clause here and here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.