Tuesday, October 04, 2011


A snapshot of teachers union legal action in contract struggle—just who's bumbling?

by Larry Geller

The Hawaii State Teachers Association contract struggle appears, from press accounts, to be proceeding at a molasses-like pace and to be just as murky. Perhaps that’s accurate, perhaps not. There are legal arguments involved that bear analysis at a higher level than press reaction.

I often download the actual complaint filed in legal cases I want to write about, or ask the attorney for a copy if I can’t get it on my own. This bypasses the interpretations and bias (perhaps inadvertent, perhaps not) of newspaper articles. I also rely on articles such as appear on the Courthouse News Service website which are original content, not summaries of news articles found here and there on the web.

So I was interested in the Courthouse News Service write-up of the current spat between HSTA and the state over the contract imposed on teachers starting July 1. Indeed, they’ve captured the essence of the dispute in a short article (see link below). As an example, we learn from our local coverage that HSTA lost its case at the Supreme Court. But local coverage hasn’t described the complexity of filing a writ of mandamus, for example> It’s not reasonable to expect a newspaper or TV station to cover the issues more than superficially. Short news articles also don’t bring perspective to the difficulty of winning any writ of mandamus, something that attorneys would understand but not necessarily news columnists.

Now, you do need to check out their story in full. All I can do is snip. The teachers union failed at its attempt to get the Supreme Court to compel the Hawaii Labor Relations Board to grant the teachers swift relief. But it was not from  simple bumbling as implied by some commentators (I’m aware that someone with a legal education may be able to identify bumbling that I’m unable to see).

For a six-second sound bite blog style (this can actually be read in six seconds with practice), here is the HSTA reaction to the Supreme Court as given by the Courthouse News Service reporter:

The union says state Supreme Court order denying its complaint was "in violation of constitutional and statutory provisions, in excess of statutory authority or jurisdiction of the agency, made upon unlawful procedure, affected by other error of law, clearly erroneous in view of the reliable, probative and substantive evidence on the whole records, and/or arbitrary, capricious, and characterized by abuse of discretion and a clearly unwarranted exercise of discretion."

[Courthouse News Service, Teachers Fight 'Take It or Leave It' Deal, 10/4/2011]

I guess it’s fair to say that the HSTA is accusing the state Supreme Court of bumbling. Not that they would say that, of course (or maybe that’s what they actually did say, if the above snip is translated into ordinary English). In my limited experience, attorneys do not usually blast a Supreme Court’s decision in this way. They may disagree, but read the above again. It goes well beyond saying “we disagree.” Well beyond.

Maybe I should rethink my view on HSTA bumbling.

And yes, any case can be lost due to the inadequacy of argument on one side or the other, leaving the Court with no choice but to find for the other side. To read only the decision one might not be able to see the missing parts, the arguments that another attorney might have made. A legal scholar might catch the defects, but ordinary folk would not.

Unfortunately, we almost never see an analysis of how well an attorney or legal team did in court by someone competent to evaluate the effort in context.

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the HSTA's legal team is a disaster. The non-granting of mandamus relief can never be characterized as a violation of constitutional or statutory provisions, etc.,. How can the non-granting of mandamus be in excess of the court's authority? it makes no sense.

HSTA's legal team just seems to string together a bunch of legal jargon into meaningless strings, hoping someone with authority will bite. just take a look at their so called "ex parte communication" attack on abercrombie. it's difficult to understand what was ex parte about it because all of the parties were served, then to file an ethics complaint about it. makes no sense.

it's like HSTA's legal team is run by a bunch of 'vexatious litigants' (you know the litigants that are prohibited by court order from filing court cases without court approval).

HSTA is a careful organization. They were careful to make reservations for transportation and lodging for their president and his entourage to go to Chicago for a boondoggle convention, at the exact time they should have been here to close whatever contract was possible before the start of the school year. Evidently, going on a junket to endorse Obama for the next election is more important than representing the teachers who pay ever-increasing union dues from their ever-decreasing paychecks. HSTA is careful all right. They had better be careful that teachers don't organize against them, fire them, and arrange representation by another union.

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