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, 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, Defendants-Appellees; AFSCME Council 5; Angela Anderson; Sharon O‘Boyle; Marilyn Geller, Intervenors below-Appellees.
No. 13-2739
United States Court of Appeals, Eighth Circuit
July 31, 2014
761 F.3d 873
In this case, Syfco claimed expenses for the cost to repair or replace property separate and apart from the cost of removing the mold. The expenses Syfco claimed for the cost of removing the false floor, removing portions of the walls, and constructing a new floor and walls would not have been covered by the limited additional coverage for mold remediation to begin with, and thus could not be barred by an exclusion within that limited additional coverage. In fact, Syfco claims there was no “remediation” of the mold before Morris began repairing and replacing the damaged property. The record indicates, however, that Morris cleaned the basement (i.e., removed the mold) as part of the costs of restoring the basement. For purposes of this appeal, we need not decide whether some portion of the contractor‘s bill should be considered remediation of mold barred by the “seepage or leakage” exclusion in the additional coverage part—it is enough to decide that Syfco made a claim for some costs that were unaffected by the limited exclusion for “seepage or leakage” contained in the additional coverage for mold remediation. The district court therefore erred when it determined the “seepage or leakage” exclusion for mold remediation barred all of Syfco‘s claims.
III
We reverse and remand for further proceedings consistent with this opinion.1
William L. Messenger, argued, Springfield, VA, (Aaron B. Solem, Springfield, VA, on the brief), for Appellant.
Alan Gilbert, AAG, argued, Saint Paul, MN, John M. West, argued, Washington, DC, (Gregg Marlowe Corwin, Saint Louis Park, MN, Kristyn Marie Anderson, AAG, Saint Paul, MN, on the brief), for Appellees.
Before WOLLMAN, BYE, and BENTON, Circuit Judges.
Jennifer Parrish and other plaintiffs operate child-care businesses in their homes. They challenge the constitutionality of
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.
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 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 Abbott 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
The Supreme Court affirmed these principles in a similar challenge to exclusive representation. In Harris v. Quinn, 573 U.S. 616, 134 S.Ct. 2618 (2014), an Illinois statute allowed “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.