United States Court of Appeals
For the Eighth Circuit
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No. 13-2739
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Jennifer Parrish; Addie Clyde; Cynthia Cunningham; Patricia Gentz; Holly Goad;
Sara Nelson; Jerol Oldenkamp; Tracy Stengel; Lisa Templin; Ruth Tessmer; Sally
Willis-Oeltjen; Tabitha Zimmer
lllllllllllllllllllll Plaintiffs - Appellants
v.
Governor Mark Dayton, in his official capacity as the Governor of the State of
Minnesota; Josh Tilsen, in his official capacity as Commissioner of the Bureau of
Mediation Services; Lucinda Jesson, in her official capacity as Commissioner of
the Minnesota Department of Human Services
lllllllllllllllllllll Defendants - Appellees
AFSCME Council 5; Angela Anderson; Sharon O'Boyle; Marilyn Geller
lllllllllllllllllllllIntervenors below - Appellees
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: May 15, 2014
Filed: July 31, 2014
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Before WOLLMAN, BYE, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Jennifer Parrish and other plaintiffs operate child-care businesses in their
homes. They challenge the constitutionality of Minnesota’s Family Child Care
Providers Representation Act (the Act). The district court1 found plaintiffs’ claims
unripe, dismissing the case without prejudice. This court granted plaintiffs an
injunction pending appeal. Having jurisdiction under 28 U.S.C. § 1291, this court
dissolves the injunction and affirms the judgment of the district court.
Minnesota subsidizes child care for poor families by the Child Care Assistance
Program. The Program pays child-care providers, but says they are not state
employees. Minn. Stat. § 119B.09. In 2013, Minnesota passed the Act, making the
providers “executive branch state employees employed by the commissioner of
management and budget” for collective bargaining purposes. Minn. Stat. § 179A.52.
The Act allows the election of an “exclusive representative” to represent the providers
in meeting and negotiating with the state. Id. If elected, the exclusive representative
may assess a “fair share fee” on “employees who are not members of the exclusive
representative.” Minn. Stat. § 179A.06. An election is triggered by the filing of “an
appropriate petition stating that at least 30 percent of the appropriate unit [Program
providers in Minnesota] wish to be represented by the petitioner.” Minn. Stat. §
179A.52. If the employee organization wins the election, the state then certifies the
employee organization as the exclusive representative. If an exclusive representative
is not certified (or pending certification) by June 30, 2017, the Act expires. See id.
Despite active efforts, no employee organization has filed a petition.
Plaintiffs argue that exclusive representation and the fair share fee violate their
First Amendment rights. The state and an employee organization argue that
plaintiffs’ claims are unripe, since no petition has been filed. Ripeness is reviewed
1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
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de novo. Vogel v. Foth & Van Dyke Assocs., Inc., 266 F.3d 838, 840 (8th Cir.
2001). “[T]he ripeness inquiry requires examination of both the ‘fitness of the issues
for judicial decision’ and ‘the hardship to the parties of withholding court
consideration.’” Nebraska Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d
1032, 1038 (8th Cir. 2000), quoting Abbot Labs. v. Gardner, 387 U.S. 136, 149
(1967). The fitness prong “safeguards against judicial review of hypothetical or
speculative disagreements.” Nebraska Pub. Power Dist., 234 F.3d at 1038. See
Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1291 (11th Cir. 2010) (“The
fitness prong is typically concerned with questions of ‘finality, definiteness, and the
extent to which resolution of the challenge depends upon facts that may not yet be
sufficiently developed.’”), quoting Harrell v. The Florida Bar, 608 F.3d 1241, 1258
(11th Cir. 2010). The hardship prong asks whether delayed review “inflicts
significant practical harm” on the plaintiffs. Ohio Forestry Ass’n, Inc. v. Sierra
Club, 523 U.S. 726, 733 (1998). See Nebraska Pub. Power Dist., 234 F.3d at 1039
(finding that “an issue may be ripe” when delayed review results in “substantial
financial risk, or will force parties to modify their behavior significantly”).
“The touchstone of a ripeness inquiry is whether the harm asserted has
‘matured enough to warrant judicial intervention.’” Vogel, 266 F.3d at 840, quoting
Paraquad, Inc. v. St. Louis Hous. Auth., 259 F.3d 956, 958 (8th Cir. 2001). “A
claim is not ripe for adjudication if it rests upon ‘contingent future events that may
not occur as anticipated, or indeed may not occur at all.’” Texas v. United States, 523
U.S. 296, 300 (1998), quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S.
568, 580-81 (1985). The plaintiffs need not “await the consummation of threatened
injury to obtain preventive relief. If the injury is certainly impending, that is
enough.’” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979),
quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923).
The Supreme Court affirmed these principles in a similar challenge to exclusive
representation. In Harris v. Quinn, 134 S. Ct. 2618 (2014), an Illinois statute allowed
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“Disabilities Program” workers to elect an exclusive representative. One election was
unsuccessful: workers “voted down efforts by [two employee organizations] to
become their representatives.” Harris v. Quinn, 134 S. Ct. 2618, 2644 n.30 (2014).
The plaintiffs challenged the law based on the possible outcome of
another—future—election. The Court found the claim unripe, since an election was
not “currently scheduled” and “the record [did not] show that any union is currently
trying to obtain certification through a card check program.” Id.
Here, an election is not currently scheduled. No organization is trying to obtain
certification through a card check program. No organization has filed a petition for
an election. Plaintiffs have not shown any significant practical harm from awaiting
a petition. The election of an exclusive representative is not certainly impending, and
may not occur at all. See Texas, 523 U.S. at 300; Babbitt, 442 U.S. at 298; Public
Water Supply Dist. No. 10 of Cass Cnty., Mo. v. City of Peculiar, Mo., 345 F.3d 570,
573 (8th Cir. 2003) (finding a claim unripe when “no petition . . . has been filed, and
it is not clear that a petition will ever be filed”).2 Plaintiffs’ claims are not ripe for
review.
*******
The injunction pending appeal is dissolved. The judgment of the district court
is affirmed.
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2
The state discusses at length two NLRB cases. See Orchard Corp. of Am. v.
NLRB, 408 F.2d 341, 342 n.1 (8th Cir. 1969) (finding the order to hold an election
not ripe for review), citing Daniel Constr. Co. v. NLRB, 341 F.2d 805, 810 (4th Cir.
1965) (“Daniel will be entitled to a review of the Board action in the representation
case if the following succession of events occurs: the union wins the new election
and is certified by the NLRB . . . .”). In Harris, the Supreme Court did not rely on
NLRB precedent in its ripeness analysis.
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