Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 74268-5
Title of Case: State Ex Rel Public Disclosure Comm., Respondent
v. Washington Education Assoc., Appellant
File Date: 03/16/2006
Oral Argument Date: 05/27/2004
SOURCE OF APPEAL
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Appeal from Superior Court,
County
Honorable Gary R Tabor
JUSTICES
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Authored by Faith Ireland
Concurring: Barbara A. Madsen
Bobbe J Bridge
Charles W. Johnson
Susan Owens
Tom Chambers
Dissenting: Gerry L Alexander
Richard B. Sanders
Mary Fairhurst
COUNSEL OF RECORD
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Counsel for Petitioner(s)
Linda Anne Dalton
Atty General's Ofc Govt & Enforcement
PO Box 40100
Olympia, WA 98504-0100
David Thomas Wendel
Assistant Attorney General
PO Box 40126
Olympia, WA 98504-0126
Counsel for Respondent(s)
Aimee Strand Iverson
WA Education Association
PO Box 9100
Federal Way, WA 98063-9100
Judith A. Lonnquist
Law Offices of Judith A. Lonnquist, P.S.
1218 3rd Ave Ste 1500
Seattle, WA 98101-3021
Harriet Kay Strasberg
Attorney at Law
3136 Maringo Rd SE
Olympia, WA 98501-3428
Amicus Curiae on behalf of Washington State Labor Council
James D. Oswald
Law Offices of James D. Oswald
100 S King St Ste 560
Seattle, WA 98104-3844
Amicus Curiae on behalf of National Education Association
Robert H. Chanin
Bredhoff & Kaiser, PLLC
805 Fifteenth Street NW
Suite 1000
Washington, DC 20005
Donald E Clocksin
Attorney at Law
407 Adams St SE Ste 206
Olympia, WA 98501-6917
Richard B. Wilkof
National Education Association
1201 16th Street NW
Washington, DC 20036
Amicus Curiae on behalf of Pacific Legal Foundation
Russell Clayton Brooks
Pacific Legal Foundation
10940 NE 33rd Pl Ste 210
Bellevue, WA 98004-1432
Deborah J La Fetra
Pacific Legal Foundation
10360 Old Placerville Rd
Suite 100
Sacramento, CA 95827
Amicus Curiae on behalf of WASHINGTON FEDERATION OF STATE EMPLOYEES
Edward Earl III Younglove
Younglove Lyman & Coker PLLC
PO Box 7846
Olympia, WA 98507-7846
Counsel for Other Parties
Steven T. O'Ban
Ellis Li & McKinstry PLLC
601 Union St Ste 4900
Seattle, WA 98101-3906
SANDERS, J. (dissenting)--
That to compel a man to furnish contributions of money for the propagation
of opinions which he disbelieves and abhors, is sinful and tyrannical.{1}
The majority turns the First Amendment on its head. Unions have a
statutory, not constitutional, right to cause employers not only to
withhold and remit membership dues but also to withhold and remit fees from
nonmembers in an equivalent amount.2 Absent this statutory mechanism for
the withholding and remission of agency fees (or membership fees for that
matter), there is no right, constitutional or otherwise, for the union to
require it. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223, 97 S. Ct.
1782, 1793, 52 L. Ed. 2d 261 (1977).
Many other states have markedly different statutory schemes: Some entirely
bar union security agreements and outlaw agency shops as well.3
Should the legislature of the State of Washington choose to repeal the
mandatory withholding provisions of RCW 41.59.060 and .100, there would be
no constitutional impediment to doing so. And no party to this proceeding
claims there is.
However the existence of these mandatory withholding statutes does raise a
very definite constitutional problem insofar as the statute is used to
compel the nonmember to support the political advocacy of the union without
his consent. Nearly every case cited by the majority concerns precisely
that eventuality. However that constitutional problem can no longer arise
in the state of Washington by virtue of a further statute, RCW 42.17.760,
which provides in its entirety:
A labor organization may not use agency shop fees paid by an individual who
is not a member of the organization to make contributions or expenditures
to influence an election or to operate a political committee, unless
affirmatively authorized by the individual.
There is nothing ambiguous about this statute. No labor organization may
use agency fees for political purposes absent "affirmative authoriz{ation}"
by the individual. Nonaction or acquiescence is not "affirmative
authoriz{ation}."
Given that the legislature could constitutionally repeal the whole
statutory scheme allowing withholding in the first place, I find it nearly
beyond comprehension to claim that the legislature, or the people acting
through their sovereign right of initiative, could not qualify these
statutes to ensure their constitutional application.
In short, the majority turns the First Amendment on its head to invalidate
a state statute enacted to further protect the constitutional rights of
nonunion members who are required to pay agency fees as the price of their
employment.
While the First Amendment protects the right to organize and to express
ideas on behalf of an organization, it "does not impose any affirmative
obligation on the government to listen, to respond, or . . . to recognize
the association and bargain with it." Smith v. Ark. State Highway
Employees, 441 U.S. 463, 465, 99 S. Ct. 1826, 1828, 60 L. Ed. 2d 360
(1979). See also Brown v. Alexander, 718 F.2d 1417, 1421-22 (6th Cir.
1983). Following from this basic premise, there is no constitutional right
to have the government deduct union dues (and, by logical extension, agency
fees) from paychecks. Ark. State Highway Employees v. Kell, 628 F.2d 1099
(8th Cir. 1980).
"Although the loss of payroll deductions may economically burden the
{union} and thereby impair its effectiveness, such a burden is not
constitutionally impermissible." S.C. Educ. Ass'n v. Campbell, 883 F.2d
1251, 1256 (4th Cir. 1989). "{T}he First Amendment does not impose an
affirmative obligation on the state to assist the program of an association
by providing payroll deduction services." Id. at 1257. The Fourth
Circuit, examining whether payroll deductions were constitutionally
required, quoted the United States Supreme Court, "'{A} legislature's
decision not to subsidize the exercise of a fundamental right does not
infringe that right.'" Id. at 1256 (quoting Buckley v. Valeo, 424 U.S. 1,
96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)). The court concluded by stating,
"the state's failure to authorize payroll deductions for the {union} does
not deny {union} members the right to associate, to speak, to publish, to
recruit members, or to otherwise express and disseminate their views." Id.
at 1257.
The Ohio legislature eliminated wage checkoffs for the support of any
"candidate, separate segregated fund, political action committee,
legislative campaign, political party, or ballot issue." Ohio Rev. Code
sec. 3599.031(H). The United States Court of Appeals for the Sixth Circuit
found this constitutional. Toledo Area AFL-CIO Council v. Pizza, 154 F.3d
307, 319-21 (6th Cir. 1998).
Therefore, it would be perfectly constitutional if the State chose to
eliminate the payroll deduction for collection of agency shop fees
altogether. How then could merely placing a procedural condition on the
collection of a small portion of such shop fees (those that would be used
to influence an election or to operate a political committee) violate the
constitution?
The majority chooses not to address this line of cases. Instead it
distorts cases delineating the requirements protecting dissenting union
members and nonmembers from having their dues used to support political
activities with which they disagree to do the opposite: limit the State's
ability to protect such dissenters.
Simply put, all of the cases cited by the majority involve claims by
dissenters that certain steps were required to protect their constitutional
right not to associate and not to have their money spent supporting
political positions with which they disagreed.4 I cannot improve upon
Judge Hunt's dissent from the case below: "{T}hese cases do not support the
converse, advanced by the majority here, that an 'opt-in' provision such as
Washington's is constitutionally barred." State ex rel. Wash. State Pub.
Disclosure Comm'n v. Wash. Educ. Ass'n, 117 Wn. App. 625, 642, 71 P.3d 244
(2003) (Hunt, J., dissenting).5 Judge Hunt's learned dissent cogently
analyzes each of the cases relied upon by the majority and reaches the
correct conclusion.6
Our majority takes "dissent is not to be presumed"7 out of the context in
which it was written--the context of unions categorically violating the
rights of dissenters. That language simply served to limit the actions a
union must undertake in the absence of a statutory scheme. The holdings of
all the cases cited by the majority amount to a simple proposition: the
constitution requires at least an opt-out scheme to protect dissenters'
rights.8 None of these cases stand for the proposition that the
constitution limits a different legislative approach to protecting
dissenters' rights, including an opt-in scheme.
From the majority's misconstruction of the "dissent is not to be presumed"
language a false "balance" requirement is invented. Other than general
paeans to the right of association, the majority cites no other precedent
for its holding that the "balance" between the associational rights of
dissenters and nondissenters is upset by requiring one to register assent,
rather than register dissent.9 Again, if the elimination of a payroll
deduction does not abridge the constitutional rights of union members and
nonobjecting nonmembers to associate, it is inconceivable that requiring
assent as a precondition to using funds generated by a payroll deduction
abridges such rights.
In fact, an "opt-in" legislative scheme has explicitly been
constitutionally upheld. In Michigan State AFL-CIO v. Miller, 103 F.3d
1240 (6th Cir. 1997), the Sixth Circuit upheld a statute that read:
"{A} labor organization may solicit or obtain contributions for a separate
segregated fund . . . on an automatic basis, including but not limited to a
payroll deduction plan, only if the individual who is contributing to the
fund affirmatively consents to the contribution at least once in every
calendar year."
Id. at 1248-1249 (quoting Mich. Comp. Laws Ann. sec. 169.255(6) (West
1966)).
The statutory scheme in Michigan prohibited labor unions from making
political contributions from general funds, requiring them to maintain a
"segregated" fund for such contributions. Id. at 1244. Thus, in order to
solicit or obtain funds that would be used for political purposes--even
from its own members, let alone nonmembers--the union had to obtain
"affirmative consent" for the deduction every calendar year.
This is a more restrictive scheme than the Washington statute at issue
since it applies to all union members while the Washington statute applies
only to nonmembers.10 But the statute mirrors Washington's in requiring
"affirmative consent"--substantively identical to "affirmative
authorization"--before using payroll deductions for political purposes.
And even given the Michigan statute's broader effects in applying to union
members, the Sixth Circuit stated:
{T}he suggestion that asking people to check a box once a year unduly
interferes with the speech rights of those contributors borders on the
frivolous.
Id. at 1253.
The majority's treatment of this case borders on the inexplicable. It
claims that the primary issue in Miller was the equal application of the
reverse checkoff to unions, corporations, non-profits, and other groups.
Majority at 26 n.6. It was nothing of the sort. The three sections of the
opinion are labeled "Facts" (id. at 1243), "Intervention" (id. at 1245),
and "The First Amendment and sec. 169.255(6)" (id. at 1248). There are no
sections involving equal protection challenges.11
As Miller recognized, the suggestion that a legislative choice to protect
dissenting nonmembers by requiring affirmative authorization before using
their agency shop fees to influence an election or to operate a political
committee violates the First Amendment to the United States Constitution
"borders on the frivolous."
The majority claims this statute violates the First Amendment associational
rights of the union, citing Boy Scouts of Am. v. Dale, 530 U.S. 640, 120 S.
Ct. 2446, 147 L. Ed. 2d 554 (2000).
This argument's flaw is at its foundation: association is a two way street
requiring a mutual desire to associate by all concerned. But here nonunion
employees have elected not to associate . This does not violate the
associated rights of the union or its members since it had no
constitutional right to compel membership much less monetary support from
nonmembers in the first place.
Moreover, this argument for unconstitutionality was never advanced by the
parties and is therefore not properly considered by the court. See RAP
9.12 (limiting review of summary judgment to "evidence and issues called to
the attention of the trial court"); see also Nelson v. McGoldrick, 127
Wn.2d 124, 140, 896 P.2d 1258 (1995); Simpson Tacoma Kraft Co. v. Dep't of
Ecology, 119 Wn.2d 640, 649, 835 P.2d 1030 (1992) (refusing consideration
of issues not raised before trial court); cf. Tiffany Family Trust Corp. v.
City of Kent, 155 Wn.2d 225, 240, 119 P.3d 325 (2005) (refusing
consideration of 42 U.S.C. sec. 1983 claim raised only in reply brief).
However even if it is properly before the court, it is not meritorious
since this statute does not apply to union members only nonmembers who must
pay agency fees because of their refusal to join the union. The right of
these nonunion employees to refuse to join the union is itself protected by
the First Amendment right of association as "'{f}reedom of association . .
. plainly presupposes a freedom not to associate.'" Boy Scouts, 530 U.S.
at 563; Good v. Associated Students of Univ. of Wash., 86 Wn.2d 94, 104,
542 P.2d 762 (1975). Boy Scouts protected the right of nonassociation.
Were this statute to apply to union dues from voluntary union members, the
analysis might be arguable. But it doesn't, and it isn't.
The majority confuses the analysis further by referring to "the union's
expressive association with agency fee payers," majority at 31, and "its
{union's} expressive association with nonobjecting agency fee payers." Id.
at 33. But there is no association between the union and agency fee payers
because by definition these individuals have refused to join (associate
with) the union. The absence of membership defeats any claim that the
regulation of statutorily required monetary support can possibly violate
the right of union members to freely associate with one another for
political advocacy. Rather it puts in jeopardy the First Amendment right
of nonmembers to refuse to associate with a union which uses their money to
advance a political agenda with which they might disagree. That is the
concern of the First Amendment in this context, as it is the even more
protective concern of RCW 42.17.760.
"Our Government has no more power to compel individuals to support union
programs or union publications than it has to compel the support of
political programs, employer programs or church programs. And the First
Amendment, fairly construed, deprives the Government of all power to make
any person pay out one single penny against his will to be used in any way
to advocate doctrines or views he is against, whether economic, scientific,
political, religious or any other."
Good, 86 Wn.2d at 101 (quoting Int'l Ass'n of Machinists v. Street, 367
U.S. 740, 791, 6 L. Ed. 2d 1141, 81 S. Ct. 1784 (1961) (Black, J.,
dissenting)).
I dissent.
1 Thomas Jefferson, Religious Liberty Guaranteed: Bill for Establishing
Religious Freedom, 1779, in A Documentary History of Religion in America
231 (Edwin S. Gaustad ed., 3d ed. 2003) (emphasis omitted).
2 RCW 41.59.060(2) ("If an agency shop provision is agreed to and becomes
effective pursuant to RCW 41.59.100, except as provided in that section,
the agency fee equal to the fees and dues required of membership in the
exclusive bargaining representative shall be deducted from the salary of
employees in the bargaining unit."); RCW 41.59.100 ("A collective
bargaining agreement may include union security provisions including an
agency shop . . . . If an agency shop provision is agreed to, the employer
shall enforce it by deducting from the salary payments to members of the
bargaining unit the dues required of membership in the bargaining
representative, or, for nonmembers thereof, a fee equivalent to such dues.
. . .").
3 See Ala. Code sec.sec. 25-7-6, 25-7-30 to 25-7-36 (Supp. 1992); Ariz.
Rev. Stat. Ann. Const. art. XXV (West 1984) and sec.sec. 23-1301 to 23-1303
(West 1995); Ark. Code Ann. sec.sec. 11-3-301 to 11-3-304 (Michie Supp.
1996); Fla. Stat. Ann. Const. art. 1, sec. 6 (West 1991); Ga. Code Ann.
sec.sec. 34-6-20 to 34-6-28 (1998); Idaho Code Ann. sec.sec. 44-2001 to 44-
2012 (1997); Iowa Code Ann. sec.sec. 731.1 to 731.5 (West 1993); Kan. Stat.
Ann. Const. art. 15, sec. 12 (1988); La. Rev. Stat. Ann. sec.sec. 23:981 to
23:985 (West 1998); Miss. Code Ann. sec. 71-1-47 (1995); Neb. Rev. Stat.
Const. art. XV, sec. 13 (1995); Nev. Rev. Stat. Ann. sec.sec. 613.230 to
613.300 (Michie 1996); N.C. Gen. Stat. sec.sec. 95-78 to 95-84 (1997); N.D.
Cent. Code sec.sec. 34-01-14, 34-08-04 (1987); S.C. Code Ann. sec.sec. 41-7-
10 to 41-7-90 (Law Co-op. 1986); S.D. Codified Laws Const. art. VI, sec. 2
(Michie 1978) and sec.sec. 60-8-3 to 60-8-8 (Michie 1993); Tenn. Code Ann.
sec.sec. 50-1-201 to 50-1-204 (1991); Tex. Lab. Code Ann. sec.sec. 101.051
to 101.053 (West 1996); Utah Code Ann. sec.sec. 34-34-01 to 34-34-17
(1997); Va. Code Ann. sec.sec. 40.1-58 to 40.1-69 (Michie 1994); Wyo. Stat.
Ann. sec.sec. 27-7-108 to 27-7-115 (Michie 1997). Thirteen of these states
outlaw agency shops as well as union shops. There is no indication that
any state has been held to have violated union members' rights by
foreclosing mandatory collection of fees from nonmembers.
4 Mitchell v. Los Angeles Unified School District, 963 F.2d 258 (9th Cir.
1992) is no different. That case concerned the First Amendment right of
nonunion employees to withhold financial support from union political
activity. The court held the constitutional right of the nonunion
employees was adequately protected by an opportunity to "opt-out" of full
dues payment through an agency fee. The constitutional rights of the union
were never at issue.
5 See also Irving M. Copi & Carl Cohen, Introduction to Logic 219-20 (9th
ed. 1994) (converse of a given proposition not necessarily valid).
6 See State ex rel. Wash. State Pub. Disclosure Comm'n, 117 Wn. App. at 642-
44 (Hunt, J., dissenting), analyzing Int'l Ass'n of Machinists v. Street,
367 U.S. 740, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961); Bhd. of Ry. & S.S.
Clerks v. Allen, 373 U.S. 113, 83 S. Ct. 1158, 10 L. Ed. 2d 235 (1963);
Abood, 431 U.S. 209; Ellis v. Bhd. of Ry., 466 U.S. 435, 104 S. Ct. 1883,
80 L. Ed. 2d 428 (1984); Mitchell, 963 F.2d 258. While Judge Hunt did not
examine Weaver v. University of Cincinnati, 970 F.2d 1523 (6th Cir. 1992),
that case arose in the identical context to the others: a claim that
certain procedures, such as affirmative consent, were constitutionally
required to protect dissenters' rights. See Weaver, 970 F.2d at 1531. All
of these cases dealt with the constitution a floor--a minimum level of
process needed to protect dissenters' rights. None of these cases dealt
with the constitution as a ceiling limiting the discretion of legislators,
or the people acting as legislators, in providing further protection to
dissenters.
7 Street, 367 U.S. at 774; Abood, 431 U.S. at 238.
8 Even the language quoted by Justice Ireland demonstrates this: "'{T}he
Constitution requires only that such expenditures be financed from charges,
dues, or assessments paid by employees who do not object.'" Majority at 17
(quoting Abood, 431 U.S. at 235-36) (emphasis added). Further, Abood was a
plurality opinion, and the concurring justices either explicitly chose not
to address alternative remedies for the violations of dissenters' rights,
remedies such as RCW 42.17.760 (see Abood, 431 U.S. at 244 (Stevens, J.,
concurring)), or explicitly stated that the constitution does not require
employees to "declare their opposition to the union and initiate a
proceeding" in order to vindicate their First Amendment rights. Abood, 431
U.S. at 245 (Powell, J., concurring).
9 And even the cases cited as interpreting the "presumption of dissent" are
misrepresented. Wagner v. Professional Engineers in California Government,
354 F.3d 1036, 1043 (9th Cir. 2004) is cited for the proposition that "{a}
presumption of dissent fails to respect the nonmember's First Amendment
rights as 'running both ways.'" Majority at 21 (quoting Wagner, 354 F.3d
at 1043). Yet the issue discussed in that section of Wagner was whether
the proper remedy for an inadequate Hudson notice (where no statutory
scheme required assent prior to use) was return of the nonchargeable
amounts to all fee payers, including those who did not object, or whether
the proper remedy was a new, proper notice with a renewed opportunity to
object and then to receive a refund with interest. The case had nothing to
do with whether requiring assent prior to use of nonobjecting nonmembers'
payroll deductions was constitutional. Indeed, the case stresses
protection of dissenters in absence of a statutory scheme protecting them:
"The fundamental right at issue is the right to be informed before making a
choice whether to pay for non-chargeable expenditures." Wagner, 354 F.3d at
1043.
10 The majority's attempt to distinguish Miller on the basis that Washington
has a statute, RCW 42.17.680(3), limiting union members' payroll deductions
is baffling. The fact that Washington also has a statute regulating union
member payroll deductions (though in a different manner than Michigan's)
doesn't affect the central premise of Miller--that an "opt-in" system
regarding payroll deductions does not violate the First Amendment.
11 The challenge in Miller was to both associational and speech rights.
Miller, 103 F.3d at 1250. Similarly, the majority frames the issue in both
political speech and associational terms. Majority at 13-14. But while
the majority chooses to focus on the line of United States Supreme Court
cases concerning associational (and nonassociational) rights, the Sixth
Circuit focused on the free speech cases. Under that line of cases, the
Sixth Circuit looked at whether the requirement of affirmative consent for
a payroll deduction was a content-neutral restriction on the potential
speech of union members who would have been funded by the payroll
deduction. Id. at 1250-53. The majority determined that the restriction
on speech was content-neutral, and in making that determination the court
examined whether the statute was an invidious "attempt to limit
contributions made to separate segregated funds or to favor one class of
voters over another." Id. at 1251. The court determined that there was no
invidious purpose because the "statute applies evenhandedly." Id. I of
course agree that there is no violation of free speech rights in limiting a
payroll deduction system and of course no violation of associational
rights, as outlined above.