Kathleen D‘AGOSTINO; Denise Boian; Jean M. Demers; Laurie Smith; Kelly Winship; Denise Farley; Stephanie Kozlowski-Heck; Leslie Marcyoniak; Elizabeth Mongeon, Plaintiffs, Appellants, v. Charlie BAKER, in his official capacity as Governor of the Commonwealth of Massachusetts; Thomas L. Weber, in his official capacity as Director of the Department of Early Education and Care; Service Employees International Union, Local 509, Defendants, Appellees.
No. 15-1433
United States Court of Appeals, First Circuit.
Feb. 5, 2016.
812 F.3d 240
The circumstantial evidence presented, and the reasonable inferences that could have been drawn from it, simply did not suffice to allow a jury to conclude beyond a reasonable doubt that Maymi knew of the conspiracy to possess and distribute a controlled substance or that he knowingly aided and abetted that crime. See Spinney, 65 F.3d at 234. From the circumstantial evidence, the jury may have inferred that (1) Maymi went to get, or get in, the Suzuki; left in the car; and returned to the Hampton Inn because of the conversation with Rodriguez, Garcia, and the CI; (2) Rodriguez retrieved the black bag later found to contain the cash from the Suzuki; and (3) Garcia‘s statement to Ramos about “the guys” referred to the driver and at least one other occupant of the Suzuki, implicating them as people waiting to receive the “work” and leave with it—and no more. See Loder, 23 F.3d at 589-90.
As in Loder, where this Court held that knowledge of a mail fraud scheme could not be imputed when no evidence was introduced that information concerning the scheme was ever communicated to the defendant, here there is no basis for finding that information about the charged crime was communicated to Maymi. 23 F.3d at 592. There is notably less basis for making such an inference here than there was in Burgos, in which this Court held that even a phone conversation recorded via wiretap in which a police officer defendant informed a drug distributor of surveillance and warned, “let‘s take it easy for now,” along with an unrecorded five-to-ten minute conversation between the two men on the street, 703 F.3d at 6, and evidence of their acquaintance, could only support an inference of knowledge of general illegal activity. Id. at 13-15.
The majority relies on the principle that a jury verdict that represents a “plausible rendition of the record,” including inferences, must be allowed to stand. Ortiz, 966 F.2d at 711; see also United States v. Morales-de Jesus, 372 F.3d 6, 21 (1st Cir. 2004). It has neglected the corollary that inferences that are “certainly plausible” may still have limited significance. See Perez-Melendez, 599 F.3d at 43-44; Burgos, 703 F.3d at 17. Suggestive though they may be, none of the available inferences here establish that Maymi knew of the drug crime specifically or knowingly participated in its commission. Only by “stack[ing] inference upon inference” of limited significance in contravention of our precedent has the majority determined that the jury could have found Maymi‘s guilt beyond a reasonable doubt. Burgos, 703 F.3d at 9 (citing United States v. Valerio, 48 F.3d 58, 64 (1st Cir. 1995)). Without stacking inferences, this Court is left with, at the very most, evidence that suggests knowledge of “generalized illegality,” which Burgos held insufficient to sustain a conviction for conspiracy, 703 F.3d at 10, 16, and Perez-Melendez determined insufficient to support a conviction for aiding and abetting. 599 F.3d at 46-47.
I thus respectfully dissent from the judgment.
William L. Messenger, with whom the National Right to Work Legal Defense Foundation, Geoffrey R. Bok, and Stoneman, Chandler & Miller were on brief, for appellants.
Timothy J. Casey, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellees Charlie Baker and Thomas L. Weber.
Scott A. Kronland, with whom Peder J.V. Thoreen, Altshuler Berzon LLP, Katherine D. Shea, and Pyle Rome Ehrenberg PC were on brief, for appellee Service Employees International Union, Local 509.
Sarah A. Smegal, with whom Hackett Feinberg P.C. was on brief, for the National Federation of Independent Business Small Business Legal Center, amicus curiae in support of plaintiffs-appellants.
Before LYNCH, Circuit Judge, SOUTER, Associate Justice,* and SELYA, Circuit Judge.
SOUTER, Associate Justice.
A majority of the class of providers in question chose the appellee Service Employees International Union, Local 509, as their exclusive agent for bargaining collectively with the responsible state agency, the Department of Early Education and Care. The subjects of their attention are customary in collective bargaining, and include recruitment and training of providers.
No provider is required by statute or by the current agreement between the Department and the Union to become a union member or to contribute any money to the Union for any purpose. While a provider may not bargain separately or furnish services under terms different from those set by the collective bargaining agreement, a provider is free to address the Department, the Legislature and the public with any expression of disagreement with a union position, or on the broader policy or philosophy governing family child care services, or on any other subject. And a provider may raise a grievance directly with the Department, although the Union has a right to be represented at any ensuing meeting, and the Department may take no responsive action at odds with an existing agreement.
The appellants declined to join the Union and brought this action in the district court under
Our disposition of the constitutional claims turns on precedent, and the appellants’ principal arguments probe the vitality of that precedent in light of recent developments. The convenient starting point for purposes of this case is Abood v. Detroit Board of Education, 431 U.S. 209 (1977), dealing with the rights of teachers employed in public education to be free from enforced association with a union. The Court affirmed the centrality of exclusive and fair representation to effective collective bargaining, id. at 220-21, and followed law previously applied in private sector litigation: it permitted an agency shop agreement requiring non-union members of a bargaining unit to contribute a fee in lieu of dues to support the bargaining activity of an exclusive union-bargaining representative selected by a majority of bargaining unit employees, id. at 225-26. The permissible contribution was held to be justified by the overarching object of promoting labor peace, and by the equity of preventing free riders, an analysis taken to suffice as to
Abood‘s understanding that non-union public employees have no cognizable associational rights objection to a union exclusive bargaining agent‘s agency shop agreement points emphatically to the same result here, where no financial support for any purpose is required from non-union employees. And that result is all the clearer under Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), which ruled against First Amendment claims brought by public college faculty members, professional employees of a state education system, who challenged a legislative mandate that a union selected as their exclusive bargaining agent be also the exclusive agent to meet with officials on educational policy beyond the scope of mandatory labor bargaining. The Court held that neither a right to speak nor a right to associate was infringed, id. at 289; like the appellants here, the academic employees in Knight could speak out publicly on any subject and were free to associate themselves together outside the union however they might desire. Their academic role was held to give them no variance from the general rules that there is no right to compel state officials to listen to them, id. at 286, and no right to eliminate the amplification that an exclusive agent necessarily enjoys in speaking for the unionized majority, id. at 288. Since non-union professionals, college teachers, could claim no violation of associational rights by an exclusive bargaining agent speaking for their entire bargaining unit when dealing with the state even outside collective bargaining, the same understanding of the First Amendment should govern the position taken by the family care providers here, whose objection goes only to bargaining representation.
The appellants, however, cite Harris v. Quinn, 573 U.S. 616 (2014), to argue that Knight has been rendered inapplicable to them owing to the fact that they are not state employees as customarily understood, even though their remuneration comes from the Commonwealth. We do not, however, read Harris as limiting Knight in a way that affects this case.
The First Amendment claimants in Harris were home care personal assistants hired by individuals but paid by the state, who objected to a compulsory agency fee requirement. The Court accepted the distinction they raised, between the conventional public employees considered in Abood and “partial” public employees who looked to the state to pay their charges for directly serving private individuals. Id. at 646. Given the “partial” employees’ comparatively attenuated relationships both to the state and to one another, the Court held that imposing an obligation to pay agency fees was insufficiently supported by the justifications of labor peace and no free riders that had been held to warrant mandatory fees in Abood. Id. at 648.
But the Harris distinction does not decide this case. While we can agree with the appellants in assuming the comparabil-ity
The subsidiary arguments for reversal do no better. The appellants, for example, invoke the statutory bar to a union‘s discrimination against non-joiners when bargaining to reach a collective agreement. See
Nor does the fiduciary characterization support any claim of compelled speech on the theory that a “fiduciary” union‘s position is the more plausibly imputable to a non-union dissenter. No matter what adjective is used to characterize it, the relationship is one that is clearly imposed by law, not by any choice on a dissenter‘s part, and when an exclusive bargaining agent is selected by majority choice, it is readily understood that employees in the minority, union or not, will probably disagree with some positions taken by the agent answerable to the majority. And the freedom of the dissenting appellants to speak out publicly on any union position further counters the claim that there is an unacceptable risk the union speech will be attributed to them contrary to their own views; they may choose to be heard distinctly as dissenters if they so wish, and as we have already mentioned the higher volume of the union‘s speech has been held to have no constitutional significance. Knight, 465 U.S. at 288.
A trio of appellants’ cited authorities may be given even briefer treatment as not on point. Unlike the auto drivers in Wooley v. Maynard, 430 U.S. 705 (1977), the appellants are not compelled to act as public bearers of an ideological message they disagree with. Nor, of course, are they under any compulsion to accept an undesired member of any association they may belong to, as in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), or to modify the expressive message of any public conduct they may choose to engage in, the issue addressed in Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995).
Finally, appellants get no support from Mulhall v. UNITE HERE Local 355, 618 F.3d 1279 (11th Cir. 2010), a case on standing that recognized only a First Amendment associational interest, which it distinguished from a right. Quite apart from its limited scope, Mulhall is an odd case for appellants to cite in their favor, since it notes the distinction between constitutional, compulsory “affiliation” with a union and compulsory union membership, which is not at issue here. Id. at 1288.
The judgment of the district court is AFFIRMED.