The second group of plaintiffs consists of Louis Kaplan, Louis S. Gansky and Albert Accooe (hereinafter referred to as the "Kaplan plaintiffs"). They allege that they "were in employment positions which were not represented by a union, and which were prohibited from union representation." Complaint at para. 34. These plaintiffs' claims focus upon Bill 625A. They argue that, by the terms of the ordinance, they qualify for the eight percent pension increase therein provided. They argue in the alternative that if the ordinance does not cover them it is unconstitutional.
Defendants, the City of Philadelphia, the City Council of Philadelphia, the Board of Pensions and Retirement of the City of Philadelphia, and the former Mayor of Philadelphia, William J. Green, have moved to dismiss the complaint as to all plaintiffs and all counts. The motion to dismiss argues that the complaint fails to state any valid federal claims. In addition, the motion asserts that the pendent state law claims should be dismissed if no federal claims survive this motion and that, without regard to the viability of the federal claims, the state law claim under PERA should fail.
Since the Lindenbaum and Kaplan plaintiffs have advanced somewhat different claims, I will review the issues raised by the motion to dismiss separately for each of the two groups of plaintiffs.
THE LINDENBAUM PLAINTIFFS
1) Freedom of Speech1
In the "second claim for relief" in the complaint, plaintiffs allege that defendants have deprived them of "the right to freedom of speech as guaranteed by the First and Fourteenth Amendments to the Constitution." Complaint at para. 45(a). There are no allegations in the complaint which identify the speech interest in question or explain how that interest has been infringed. These ordinances do not in terms regulate speech and there is no suggestion in the complaint or the response to the present motion that the ordinances were in some manner intended to affect speech.
Defendants' motion to dismiss specifically denies that the ordinances infringe plaintiffs' freedom of speech and plaintiffs have not taken issue with this denial in brief or on argument.
Accordingly, plaintiffs' freedom of speech claim will be dismissed.
2) Freedom of Association
Defendants recognize that although the Constitution does not explicitly protect freedom of association, the Supreme Court has identified an implicit constitutional right of association and a corollary right not to associate. See e.g., Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977); Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977); Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). See generally Gaebler, "First Amendment Protection Against Government Compelled Expression and Association," 23 B.C.L.Rev. 995 (1982); Raggi, "An Independent Right to Freedom of Association," 12 Harv.C.R. -- C.L.L.Rev. 799 (1977); Note, "Constitutional Law -- The Constitutional Right of Nonassociation -- Abood v. Detroit Board of Education," 14 Wake Forest L.Rev. 663 (1978). The Lindenbaum plaintiffs allege that Bill 474 violates their right not to associate with a union by denying them benefits because of the decision which each of them made not to join District Council 33.
The present motion to dismiss argues that the associational interests identified by the Lindenbaum plaintiffs are not constitutionally protected. Defendants' argument in support of this position is not presented with great clarity. Thus, at times it appears that defendants are suggesting that the rights of association and non-association are not constitutionally protected unless the association in question is involved in activities which are "intertwined with the explicit guarantees under the First Amendment." Reply at 4. This form of the argument apparently would not allow plaintiffs to state a claim under the First Amendment unless the association in question is in some way linked to expression, petition, worship or assembly -- the only rights explicitly identified in the First Amendment. At other points in defendants' motion, it appears that defendants are suggesting that plaintiffs' rights of association and non-association are not implicated unless the infringement of these rights also infringes the right of speech, press, worship, assembly and/or petition. In order for plaintiffs to state a viable freedom of association claim under this form of defendants' argument, plaintiffs would be required to show that the burden on association either directly or indirectly burdened one of these explicit First Amendment rights.
Although this formulation of defendant's position has some superficial logic, it is not supported by the relevant Supreme Court precedents and does not offer supportable ground for dismissal of plaintiffs' associational claims under Rule 12(b)(6). If an associational interest deserves constitutional protection only when rights of expression, assembly, worship or petition are also affected, the constitutional claim could just as easily be predicated upon the burden upon the explicit constitutional right as upon the burden on association. Thus, defendants' position assumes that the Supreme Court's repeated recognition of distinct rights of association and non-association has been superfluous. It is not, however, the Supreme Court's practice to fashion new labels for existing constitutional rights or to create new constitutional rights which are wholly redundant of long-established rights.
Furthermore, the Supreme Court has recognized that association is itself a form of expression. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 483, 85 S. Ct. 1678, 1681, 14 L. Ed. 2d 510 (1965). The decision to affiliate oneself with a particular group carries with it the willingness to be associated with the principles and purposes for which that group stands. Thus, even if it were possible to state that the Supreme Court's recognition of the right of association only extends to instances in which the infringement of associational interests also involves an infringement of rights explicitly identified in the Constitution, it would be impossible to divorce burdens on association from burdens upon explicit First Amendment rights: Infringement of the right of association necessarily involves infringement of the right of expression.
Defendants' first argument with respect to plaintiffs' associational claims -- that the First Amendment is not implicated unless the association in question is in some manner involved in protected speech, assembly, worship or petition -- is not, as a general matter, as clearly at odds with constitutional precedent as the argument just addressed. However, it is evident in the present case that the associational interest in question is one which is constitutionally protected. Although the right of association is most commonly conceived of in terms of political associations, the Supreme Court and other federal courts have recognized that economic speech and associations are not excluded from the guarantees of the First Amendment. E.g., Friedman v. Rogers, 440 U.S. 1, 99 S. Ct. 887, 59 L. Ed. 2d 100 (1979); Abood v. Detroit Board of Education, supra; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976); Thomas v. Collins, 323 U.S. 516, 65 S. Ct. 315, 89 L. Ed. 430 (1945); International Union, United Automobile, Aerospece and Agricultural Implement Workers of America v. National Right to Work Legal Defense and Educational Foundation, 192 U.S. App. D.C. 23, 590 F.2d 1139, 1148 (D.C.Cir.1978); Jensen v. Farrell Lines, Inc., 477 F. Supp. 335, 354 (S.D.N.Y.1979); O'Brien v. Leidinger, 452 F. Supp. 720, 724 (E.D.Vir.1978).
Furthermore, the Supreme Court has recognized that First Amendment interests are necessarily called into question in the decision not to join a union. This is true not only for an employee's decision not to take part in the political activities of a union but also in her decision not to associate with the collective bargaining activities of a union. Some of these First Amendment interests were identified by Justice Stewart speaking for the majority in Abood, supra 431 U.S. at 222, 97 S. Ct. at 1793:
To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests. An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union's policy in negotiating a medical benefits plan. One individual might disagree with a union's policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself. An employee might object to the union's wage policy because it violates guidelines designed to limit inflation, or might object to the union's seeking a clause in the collective-bargaining agreement proscribing racial discrimination. The examples could be multiplied. To be required to help finance the union as a collective-bargaining agent might well be thought, therefore, to interfere in some way with an employee's freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.