"In fairness," added Wright, "courts are very hesitant to rule summarily in a case that the defendants have never properly argued. Recognizing this, we've also suggested that the Supreme Court either remand the case to the Court of Appeals for a full hearing or require the DHS to write a brief that answers the central question. Either way, the DHS faces an uphill battle if it eventually claims home day care providers are public employees. On its own website, the DHS clearly tells them several times in separate places that they are not public employees."

Wright also points out that home-based day care providers were described as "independent contractors" by a lobbyist for the American Federation of State, County and Municipal Employees in a remarkably candid e-mail recently obtained through the Freedom of Information Act. The lobbyist, who is apparently familiar with the unionization and the surrounding negotiations, also stated that the unionization effort was undertaken with the approval of the "Executive Office" -- i.e., the office of Gov. Jennifer Granholm.