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
----------------
Appeal from Superior Court,
County
Honorable Gary R Tabor
JUSTICES
--------
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
-----------------
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
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
STATE of WASHINGTON ex rel. ) No. 74268-5
WASHINGTON STATE PUBLIC ) DISCLOSURE COMMISSION, )
)
Petitioner, )
v. ) Filed March 16, 2006
)
WASHINGTON EDUCATION )
ASSOCIATION, )
)
Appellant, )
)
---------------------------------------------- )
)
GARY DAVENPORT, MARTHA ) No. 74316-9
LOFGREN, WALT PIERSON, )
SUSANNAH SIMPSON, and )
TRACY WOLCOTT, )
)
Petitioners, individually )
and on behalf of all other )
nonmembers similarly )
situated, ) v.
)
)
WASHINGTON STATE )
EDUCATION ASSOCIATION, )
)
Respondent. )
)
IRELAND, J.* -- In these consolidated cases, we review RCW 42.17.760,
which governs a labor union's ability to use agency shop fees, the fees
paid by educational employees who are not union members. Both cases stem
from an Evergreen Freedom Foundation (Evergreen) complaint with the Public
Disclosure Commission (PDC) that the Washington Educational Association
(WEA) violated RCW 42.17.760 (hereafter sec.760).
In the first consolidated case, the trial court found that WEA had
intentionally violated sec.760 and assessed $590,375 in penalties and
costs. The Court of Appeals reversed, holding that RCW 42.17.760 is
unconstitutional. We affirm the Court of Appeals.
In the second consolidated case, plaintiffs contend that chapter 42.17
RCW provides them a private right of action to recover for violations of
sec.760. Plaintiffs also assert tort claims based on violations of sec.760.
The trial court agreed that sec.760 provides a private right of action, but
the Court of Appeals reversed because it had held sec.760 unconstitutional.
The Court of Appeals remanded the case for dismissal. We affirm the Court
of Appeals.
FACTUAL BACKGROUND
WEA is the exclusive bargaining agent for approximately 70,000
Washington State educational employees. Membership in WEA is voluntary.
However, both members and nonmembers must contribute to WEA for the costs
related to collective bargaining.1 Per statute, members pay dues to the
union; nonmembers pay agency shop fees, which are equivalent to member
dues. RCW 41.59.1002; RCW 41.56.122.
A portion of members' dues goes to support political and ideological
causes, which are unrelated to the union's collective bargaining activities
on behalf of all employees. These expenses are typically called
nonchargeable expenses. Nonmembers who do not wish to support these
nonchargeable activities may obtain a rebate of that portion of their fees
that was used for nonchargeable activities. The process by which the union
rebates this amount to dissenting nonmembers was established by the United
States Supreme Court in Chicago Teachers Union v. Hudson, 475 U.S. 292, 106
S. Ct. 1066, 89 L. Ed. 2d 232 (1986).
Twice each year, WEA sends a "Hudson packet" to each nonmember. The Hudson
packet includes a letter notifying the employee of his or her right to
object to paying fees for nonchargeable expenditures. The packet gives the
nonmember three choices: (1) pay agency shop fees equivalent to 100 percent
of dues; (2) object to paying 100 percent and receive a rebate of
nonchargeable expenditures, as calculated by WEA; or (3) object to paying
100 percent and challenge WEA's calculations of nonchargeable expenditures.
The packet also provides financial information about WEA and its
activities. During the years 1996 to 2000, WEA had approximately 3,500
nonmembers per year, which is approximately 5 percent of the total number
of persons represented by WEA.
When a nonmember challenges WEA's calculation of nonchargeable
expenditures, an arbitrator determines the amount of the nonmember's fees
that should be rebated. Pending the outcome of the arbitration, WEA
escrows any fees that are reasonably in dispute. The WEA rebates to the
employee the amount determined by the arbitrator, and transfers the
remainder to the WEA general account. During the years 1996 to 2000, the
rebates ranged from $44 to $76. Clerk's Papers (CP) at 839. Nonmembers
who did not object and did not request rebates did not receive rebates.
Their fees were transferred from escrow to WEA's general account.
Political expenditures were made from this account pursuant to a 1996
agreement with the PDC. At issue are the fees paid by the nonobjecting
nonmembers.
PROCEDURAL BACKGROUND
This is the latest in a series of actions by Evergreen against WEA.
These cases include State ex rel. Evergreen Freedom Foundation v.
Washington Education Ass'n, 140 Wn.2d 615, 999 P.2d 602 (2000) and State ex
rel. Evergreen Freedom Foundation v. Washington Education Ass'n, 111 Wn.
App. 586, 49 P.3d 894 (2002).
The current action began in August 2000, when Evergreen filed a complaint
with the PDC, alleging that WEA had violated RCW 42.17.760. The complaint
asserted that WEA failed to get the affirmative authorization of all
nonmembers before using the nonmembers' fees for political purposes, as
required by the statute. In order to avoid yet another lawsuit, WEA
entered into a stipulation with the PDC. In that stipulation, WEA
acknowledged that it had violated sec.760 during the 1999-2000 fiscal year.
The PDC referred the case to the attorney general for prosecution.
The State filed suit against WEA in October 2000, alleging WEA had
violated sec.760 during the previous five years, 1996 to 2000. Both
parties moved for summary judgment. The trial court granted the PDC's
motion for partial summary judgment, ruling sec.760 is constitutional and
it "requires affirmative authorization from agency fee payers . . . and
defendant's Hudson procedures do not satisfy this requirement." CP at 349-
50. The court ruled that it was a question of fact whether WEA had "used"
those agency fees for political purposes. The case proceeded to a bench
trial on the issue of whether the WEA had "used" for political purposes the
fees of nonmembers who had failed to object by completing and returning the
form contained in the Hudson packet.
At trial, three experts testified concerning WEA's accounting
procedures and whether WEA had used the fees of the nonobjecting
nonmembers. Two of the three experts, including the parties' jointly
retained expert, testified that WEA had not used the fees of the
nonobjecting nonmembers for political expenditures.
However, the trial court concluded that WEA had used those fees. The court
assessed a sanction of $200,000, calculated by multiplying $25 by the
approximately 4,000 nonmembers who had failed to respond to the Hudson
packet. The court then doubled the fine to $400,000, as allowed by RCW
42.17.400(5). The court awarded the PDC costs and fees of $190,375 for a
total judgment against WEA of $590,375. The trial court also issued a
permanent injunction, precluding WEA from collecting the full amount of
agency fees mandated by RCW 41.59.100 and requiring WEA to institute new
procedures for segregating the amounts collected from members and the
amounts collected from nonmembers.
WEA appealed. On appeal, Division Two of the Court of Appeals held
sec.760 unconstitutional because its "affirmative authorization requirement
unduly burdens unions." State ex rel. Wash. State Pub. Disclosure Comm'n
v. Wash. Educ. Ass'n, 117 Wn. App. 625, 640, 71 P.3d 244 (2003). The
State sought review in this court.
The other consolidated case arose in March 2001, when several
educational employees, Gary Davenport, Martha Lofgren, Walt Pierson,
Susannah Simpson, and Tracy Wolcott (Davenport), who are not members of the
union, filed a class action against WEA on behalf of present or former
public school employees. Davenport claims a private right of action under
the Public Disclosure Act (PDA). Davenport seeks a refund of that portion
of agency shop fees used for political expenditures. Davenport also
alleges tort claims for breach of fiduciary duty, conversion, and
fraudulent concealment. The trial court dismissed the breach of fiduciary
duty claim but denied dismissal of the other claims. In addition, the
trial court ruled that sec.760 provides a private right of action. The
trial court then stayed further proceedings while the parties sought
interlocutory appeal. The Court of Appeals granted review. After holding
sec.760 unconstitutional in the consolidated case, the Court of Appeals
remanded the Davenport case to the trial court for dismissal. Davenport
petitioned for review in this court.
This court granted the State's and Davenport's petitions for review
and consolidated the two cases. We affirm the Court of Appeals.
ISSUES
1. Does WEA's Hudson process satisfy RCW 42.17.760's requirement of
affirmative authorization?
2. Does the requirement of affirmative authorization render RCW 42.17.760
unconstitutional?
3. Does chapter 42.17 RCW create a private right of action?
ANALYSIS
1. Does WEA's Hudson process satisfy RCW 42.17.760's requirement of
affirmative authorization?
Enacted in 1992 as part of Initiative 134 (I-134), the Fair Campaign
Practices Act, sec.760 restricts the ability of unions to use for political
purposes the agency fees paid by employees who have not joined the union.
Laws of 1993, ch. 2, sec.sec. 1-36. RCW 42.17.760 provides:
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.
WEA argues that the Hudson process satisfies the requirement of affirmative
authorization because it provides each individual nonmember the opportunity
to object, to obtain a refund, and to prevent fees from being used by WEA,
even temporarily, for political purposes. The State contends that the
plain language of the statute makes clear that each individual nonmember
must provide actual consent and that failure to respond to the Hudson
packet does not constitute consent.
Prior to this suit, no court had construed the affirmative authorization
requirement of sec.760. The PDC, the agency charged with implementing the
PDA, had not issued any regulations interpreting sec.760 or brought any
enforcement actions concerning sec.760. In addition, despite several
requests that the PDC provide guidance to labor organizations on how to
comply with sec.760's affirmative authorization requirement, the PDC had
not given any direction.
In interpreting an initiative, the court looks at the voters intent and the
language of the initiative as the average informed lay voter would
interpret it. In re Estate of Hitchman, 100 Wn.2d 464, 467, 670 P. 2d 655
(1983). Words are given their ordinary meaning. Wash. State Coalition for
the Homeless v. Dep't of Soc. & Health Servs., 133 Wn.2d 894, 905, 949 P.2d
1291 (1997). If the language used is fairly susceptible to more than one
interpretation, the statute is ambiguous. Sacred Heart Med. Ctr. v. Dep't
of Revenue, 88 Wn. App. 632, 636, 946 P.2d 409 (1997). If the statute is
ambiguous, the intent of the electorate may be ascertained from the
language of the initiative as well as the official voters pamphlet. State
v. Thorne, 129 Wn.2d 736, 763, 921 P.2d 514 (1996).
Because sec.760 does not define "affirmative authorization," it is unclear
whether the Hudson process satisfies the authorization requirement. The
plain language seems to indicate a nonmember must provide an expression of
positive authorization. Failure to respond to the Hudson packet may be
considered acquiescence, but it would not fulfill the affirmative
authorization requirement. The difference is that affirmative
authorization seems to indicate that the member must say "yes," instead of
failing to say "no."
In this case, the language of the voters pamphlet does not assist us
because it also fails to clarify the term "affirmative authorization" and
fails to identify what type of authorization was intended. Indeed, the
voters pamphlet describes the requirement as "individual authorization,"
not "affirmative authorization."
The State admits that sec.760 does not require written authorization. We
agree, otherwise the statute would have so stated. Where written
authorization is required in the chapter, the statute specifies written
authorization. Compare the language of sec.760, which forbids the use of
nonmember fees in support of political activities "unless affirmatively
authorized by the individual," to the language of RCW 42.17.680(3), which
forbids deducting "a portion of an employee's wages or salaries for
contributions to political committees or for use as political contributions
except upon written request of the employee." RCW 42.17.680(3)(emphasis
added). Where different language is used in different places within a
statute, it is presumed there is a difference in intent. State v. Roberts,
117 Wn.2d 576, 586, 817 P.2d 855 (1991). Therefore, not only does sec.760
not require written authorization, we presume that written authorization is
not what is intended.
At oral argument, the State was unable to specify what form of
authorization would satisfy the requirement of affirmative authorization,
except to say that the Hudson process was not sufficient. The State
asserts that the voters intended to provide to nonmembers more protection
of First Amendment rights than is provided under the Hudson process
approved by the Supreme Court. However, the State has failed to provide
any evidence of such intent. The single line in the voters pamphlet
concerning the agency shop fees provision does not mention either the
constitution or the protection of the nonmember. The voters pamphlet's only
reference to the current sec.760 is the comment that under I-134, "agency
shop fees could not be used for political purposes without individual
authorization." This bare description does not indicate what form the
authorization should take or whether the Hudson process satisfies the
requirement of affirmative authorization.
We have previously discussed the intent of the voters in passing I-134.
For example, we declared that "{t}he intent of the people of this State in
enacting Initiative 134 can be determined from the declarations in RCW
42.17.610 and .620." Evergreen Freedom Found. v. Wash. Educ. Ass'n, 140
Wn.2d at 637. Those declarations of intent indicate that the principal
thrust of I-134 was to protect the integrity of the election process from
the perception that elected officials are improperly influenced by monetary
contributions and the perception that individuals have an insignificant
role to play. Wash. State Republican Party v. Wash. State Pub. Disclosure
Comm'n, 141 Wn.2d 245, 293, 4 P.3d 808 (2000) (Talmadge, J., dissenting).
Thus, the intent of the statute is to protect the public, not individual
employees. Crisman v. Pierce County Fire Prot. Dist. No. 21, 115 Wn. App.
16, 23, 60 P.3d 652 (2002). The requirement of individual authorization
does not advance this intent any more than the Hudson process.
Where a statute is ambiguous and this court is able to construe it in a
manner which renders it constitutional, the court is obliged to do so.
State v. Dixon, 78 Wn.2d 796, 804, 479 P.2d 931 (1971). However, having
construed the statute as requiring more than a nonresponse to a Hudson
packet, we must next examine the constitutionality of sec.760.
2. Does the requirement of affirmative authorization render RCW 42.17.760
unconstitutional?
A party challenging the constitutionality of a statute bears the burden of
establishing its unconstitutionality beyond a reasonable doubt. State ex
rel. Heavey v. Murphy, 138 Wn.2d 800, 808, 982 P.2d 611 (1999). A statute
is presumed constitutional, and all doubts are resolved in favor of
constitutionality. Dixon, 78 Wn.2d at 804.
The first and fourteenth amendments to the United States Constitution
protect the freedom of an individual to associate for the purpose of
advancing beliefs and ideas. Abood v. Detroit Bd. of Educ., 431 U.S. 209,
233, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977); Elrod v. Burns, 427 U.S. 347,
355-57, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). The practice of persons
banding together to make their political voices heard is deeply embedded in
the American political process. Citizens Against Rent Control v. City of
Berkeley, 454 U.S. 290, 294, 102 S. Ct. 434, 70 L. Ed. 2d 492 (1981). "Its
value is that by collective effort individuals can make their views known,
when, individually, their voices would be faint or lost." Id.
The freedom to associate encompasses the freedom to contribute financially
to an organization for the purpose of spreading a political message. Id.
at 296. "Making a contribution . . . enables like-minded persons to pool
their resources in furtherance of common political goals." Buckley v.
Valeo . Restrictions on expenditures in political campaigning "implicate
fundamental First Amendment interests." Id. at 23; see also Wash. State
Republican Party, 141 Wn.2d at 256.
On the other hand, equally protected is a person's right not to be
compelled to support political and ideological causes with which he or she
disagrees. Hurley v. Irish-American Gay, Lesbian, & Bisexual Group, 515
U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995). The freedom of
association includes the converse right not to be compelled to associate.
Good v. Associated Students of Univ. of Wash., 86 Wn.2d 94, 100, 542 P.2d
762 (1975). Freedom of speech includes the freedom not to speak or to have
one's money used to advocate ideas one opposes. Keller v. State Bar of
Calif., 496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990). "{A}t the
heart of the First Amendment is the notion that an individual should be
free to believe as he will, and that in a free society one's beliefs should
be shaped by his mind and his conscience rather than coerced by the State."
Abood, 431 U.S. at 234-35.
In a series of cases, the United States Supreme Court has addressed these
competing rights--the right to freely associate for the purpose of
political speech and the right to be free from forced association--in the
context of the political speech of labor organizations. The result is an
approach which strikes a balance between those who disagree with the labor
organization's political activities and those who support the political
activities. The approach accommodates the dissenting nonmember by
providing an easy and prompt method of registering his or her objection and
recouping any portion of fees which might otherwise be used by the union
for political purposes. At the same time, the approach crafted by the
Court makes it simple for one who supports the political causes of the
union, whether member or nonmember, to assert his or her right of
association.
In International Association of Machinists v. Street, 367 U.S. 740, 749, 81
S. Ct. 1784, 6 L. Ed. 2d 1141 (1961), the Court considered whether a union
"receiving an employee's money should be free, despite that employee's
objection, to spend his money for political causes which he opposes." The
Court recognized the government's interest in supporting the important role
unions play in preserving workplace harmony. Compulsory dues or fees to
the union were justified by the union's obligation to represent all
employees, whether members or not, as well as the union's desire to avoid
free-riders. Therefore, the Court affirmed the union's right to collect
fees from all employees who benefit from the union's collective bargaining
activities.
The Court held, however, that compulsory union dues may not be used to
support political causes if the member disagrees with those causes. On the
other hand, "the majority also has an interest in stating its views without
being silenced by the dissenters." Id. at 773.
The Court stated that the appropriate remedy must reconcile the majority
and dissenting interests in the area of political expression, protecting
both interests "to the maximum extent possible without undue impingement of
one on the other," and taking into account the administrative difficulty of
accommodating each group. Id. Any remedies, however, would properly be
granted only to those employees who had made known to the union that they
did not desire their funds to be used for political causes to which they
object. "{D}issent is not to be presumed--it must affirmatively be made
known to the union by the dissenting employee." Id. at 774.
In Abood, the Court affirmed that the principles of Street applied to
public employees represented by a collective bargaining agency. The Court
held that the union was allowed to use members' dues for purposes other
than collective bargaining, provided the money did not come from employees
who objected to the causes supported. Abood, 431 U.S. at 222. "{T}he
Constitution requires only that such expenditures be financed from charges,
dues, or assessments paid by employees who do not object to advancing those
ideas and who are not coerced into doing so against their will by the
threat of loss of governmental employment." Id. at 235-36. The Court
affirmed that the burden is on the employee to make his objection known.
Then in Hudson and Ellis,3 while once again affirming that the burden is on
the employee to register his dissent to the union's political activities,
the Court outlined the procedures that are constitutionally required to
safeguard the First Amendment rights of that dissenting employee. An
employee who is given a simple and convenient method of registering dissent
has not been compelled to support a political cause and has not suffered a
violation of his or her First Amendment rights.4
With these principles in mind, we consider the constitutionality of the
restriction imposed by sec.760 on the political speech of the union, its
members, and its nonmembers. Regulation of First Amendment rights is
always subject to exacting judicial scrutiny. Citizens Against Rent
Control, 454 U.S. at 294. The State bears the burden of demonstrating that
the restriction is narrowly tailored to achieve a compelling governmental
interest. State ex rel. Pub. Disclosure Comm'n v. 119 Vote No! Comm., 135
Wn.2d 618, 624, 957 P.2d 691 (1998). "Such burdens are rarely met." Id.
Under sec.760, the union is prevented from spending any portion of a
nonmember's agency fees for political causes without the affirmative
authorization of the nonmember. The WEA contends, and a majority at the
Court of Appeals agreed, that the statute is unconstitutional because its
requirement of affirmative authorization amounts to an impermissible
presumption that each nonmember objects to the union's use of his or her
fees for political activities. The State argues that although the Supreme
Court has placed the burden on the dissenting nonmember to assert his or
her First Amendment rights, it is nevertheless constitutionally permissible
for sec.760 to shift the burden to the union to protect the First Amendment
rights of dissenting nonmembers. The Court of Appeals held that by
presuming the dissent of nonmembers, sec.760 upsets the balance of members'
and nonmembers' constitutional rights in the context of a union's
expenditures for political activities. Section 760 impermissibly shifts to
the union the burden of the nonmembers' rights. This has the practical
effect of inhibiting one group's political speech (the union and supporting
nonmembers) for the improper purpose of increasing the speech of another
group (the dissenting nonmembers).
A presumption of dissent violates the First Amendment rights of both
members and nonmembers. The State argues that sec.760 has no impact on the
First Amendment rights of members because sec.760 only requires the
affirmative authorization of nonmembers. However, this argument denies the
obvious, significant expense involved in complying with sec.760. It is
disingenuous to argue that sec.760 has no impact on members' ability to
assert their collective political voice. Campaign finance legislation can
create insurmountable organizational and financial hurdles for
organizations attempting to engage in political speech, rendering the
legislation unconstitutional. Fed. Election Comm'n v. Mass. Citizens for
Life, Inc., 479 U.S. 238, 254-55, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986).
The weight of the administrative burden on the union is an important
consideration in resolving the balance of member and nonmember First
Amendment rights. See, e.g., Waters v. Churchill, 511 U.S. 661, 671, 114
S. Ct. 1878, 128 L. Ed. 2d 686 (1994) (court should consider the cost of
procedural safeguards on First Amendment rights); Grunwald v. San
Bernardino City Unified Sch. Dist., 994 F.2d 1370 (9th Cir. 1993)
(requirements of accommodating dissenting nonmembers must be practical).
Dissenters may not silence the majority by the creation of too heavy an
administrative burden.
In this case, WEA presented evidence that the procedures required by the
State's interpretation of sec.760 would be extremely costly and would have
a significant impact on the union's political activities. See Report of
Proceedings (RP) at 175-76, 187, 203, 208. The State concedes that written
permission is not required. But even without a written permission
requirement, the State's position would require individual contact with
each nonmember who did not respond to the Hudson packet. Therefore, we
reject the State's argument that transferring the burden from the
dissenting nonmember to the union would have no impact on the union's
ability to assert its political voice.
A presumption of dissent violates the First Amendment rights of nonmembers
as well. A presumption of dissent fails to respect the nonmember's First
Amendment rights as "running both ways." Wagner v. Prof'l Eng'rs in Calif.
Gov't, 354 F.3d 1036, 1043 (9th Cir. 2004). It assumes that because an
employee has not joined the union, he or she disagrees with the union's
political expenditures. However, there are numerous and varied reasons why
employees choose not to join a union. Leer v. Wash. Educ. Ass'n, 172
F.R.D. 439, 446-47 (W.D. Wash. 1997) (nonmembers do not have unanimity of
purpose). Employees may choose to remain nonmembers for many reasons
unrelated to political expression. For those nonmembers who agree with the
union's political expenditures, sec.760's presumption of dissent presents
an unconstitutional burden on their right to associate themselves with the
union on political issues. We are bound to provide at least as much
protection to the union's members and nonmembers as that provided by the
First Amendment: "'{S}tates have no greater power to restrain the
individual freedoms protected by the First Amendment than does the
Congress.'" Wash. State Republican Party, 141 Wn.2d at 264 (quoting
Wallace v. Jaffree, 472 U.S. 38, 48-49, 105 S. Ct. 2479, 86 L. Ed. 2d 29
(1985)).
Nevertheless, the State argues that we need not adhere to the balance of
First Amendment rights as articulated in Street, Abood, and their progeny.5
The State argues that those cases are different because they do not involve
a state statute that expressly calls for affirmative authorization of
nonmembers. The State also places great emphasis on the fact that sec.760
was enacted by the citizens of Washington. However, the voters cannot do
through initiative what is constitutionally prohibited. Amalgamated
Transit Union Local 587 v. State, 142 Wn.2d 183, 204, 11 P.3d 762 (2000).
In reviewing the constitutionality of a statute, it is irrelevant that a
statute is enacted by the voters rather than a legislative body. Id.
Moreover, while our state may provide greater protection to its citizens,
such as dissenting nonmembers, than is provided by the federal
constitution, it cannot do so at the expense of the rights of other
citizens, such as members and supporting nonmembers. The State's argument
transfers the burden of asserting First Amendment rights from the
dissenting nonmembers and places it on the supporting nonmembers and the
union. Increased protection for nonmembers, as asserted by the State, tips
the scales of First Amendment rights in favor of the dissenting nonmember,
while increasing the burden on the nonmember who supports the union's
political causes and also on the union, which must bear the administrative
costs. "{T}he concept that government may restrict the speech of some
elements of our society in order to enhance the relative voice of others is
wholly foreign to the First Amendment." Buckley, 424 U.S. at 48-49.
In addition, there is no indication that in voting for I-134, the voters
intended to provide more protection for nonmembers than that offered under
federal constitutional principles. Rather, as we have previously stated,
the principal thrust of I-134 was to protect the integrity of the election
process from the perception that elected officials are improperly
influenced by monetary contributions and the perception that individuals
have an insignificant role to play. Wash. State Republican Party, 141
Wn.2d at 293. The intent of the statute was to protect the public, not
individual employees. Crisman, 115 Wn. App. at 23 (the wording and history
of chapter 42.17 RCW indicate that its goal is to protect the public); see
also Nelson, 131 Wn.2d at 532 ("Initiative 134 . . . was aimed at repairing
the political process.").
The Ninth Circuit engaged in a similar analysis in Mitchell v. Los Angeles
Unified School District, 963 F.2d 258 (9th Cir.), cert. denied, 506 U.S.
940 (1992). In Mitchell, plaintiffs were nonmembers who, like the
nonmembers here, failed to object to the union's use of a portion of agency
shop fees for nonchargeable expenditures. The district court issued an
injunction, requiring the union to obtain the affirmative consent of each
individual nonmember before using that nonmember's fees for political
purposes.
The Ninth Circuit reversed, holding that requiring an opt-in system "would
unduly impede the union in order to protect 'the relatively rare species'
of employee who is unwilling to respond to the union's notifications but
nevertheless has serious disagreements with the union's support of its
political and ideological causes." Id. at 263. The court held it would be
an unconstitutional burden to require all those who agree with the union's
political activities to affirmatively consent. Id. The Mitchell court
quoted the United States Supreme Court's statement in Street, that the
union should not be sanctioned in favor of an employee who makes no
complaint regarding the use of his or her money. Id. at 260. In addition,
the court quoted from a California Supreme Court decision that reached the
same conclusion in a similar case: "{E}ach nonmember has a right to
prevent the use of his or her service fee for purposes beyond the union's
representational obligations. Since . . . that additional right is an
aspect of the right of an employee to refuse to participate in a union's
activities . . . , it must be affirmatively asserted or else it is waived."
Id. at 262 (quoting Cumero v. Pub. Employment Relations Bd., 49 Cal. 3d
575, 590, 778 P.2d 174 (1989)).
Likewise, the Sixth Circuit held that the Supreme Court has set out a
"hierarchy of interests," which places the burden on the nonmember to make
his objection known. Weaver v. Univ. of Cincinnati, 970 F.2d 1523, 1532
(6th Cir. 1992), cert. denied, 507 U.S. 917 (1993). The Weaver court
stated that "{a}n 'opt-in' procedure would greatly burden unions while
offering only a modicum of control to nonunion employees whose procedural
rights have already been safeguarded by Hudson." Id. at 1533. An opt-in
provision impermissibly shifts the balance of interests underlying all of
the Supreme Court's pronouncements. Id.
The dissent incorrectly states that the Sixth Circuit has explicitly
affirmed the constitutionality of an opt-in statute similar to sec.760.
Dissent at 8 (citing Mich. State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir.
1997)). However, the statute at issue in Miller is not similar to sec.760.
Washington's counterpart to the Michigan statute at issue in Miller is RCW
42.17.680(3), which we construed in one of Evergreen's previous suits
against WEA. See State ex rel. Evergreen Freedom Found. v. Wash. Educ.
Ass'n, 140 Wn.2d 615, 999 P.2d 602 (2000). The provision at issue in
Miller was the Michigan statute's prohibition of reverse checkoff, a
collection system that automatically deducts contributions from a member's
paycheck without his or her prior approval. Like the Michigan statute at
issue in Miller, RCW 42.17.680(3) restricts the ability of various groups,
including corporations and labor groups, from making direct deductions from
an employee's wages. Miller did not involve a statute like sec.760, and
Miller is inapplicable to this case.6
The United States Supreme Court has held that a union has the right to use
nondissenting nonmember fees for political purposes. Abood, 431 U.S. at
240 (quoting Bhd. of Ry. & S.S. Clerks v. Allen, 373 U.S. 113, 122, 83 S.
Ct. 1158, 10 L. Ed. 2d 235 (1963)). The State has failed to even attempt
to justify sec.760, which it is required to do when regulating First
Amendment rights. In fact, a restriction on the First Amendment rights of
WEA must be justified by a compelling governmental interest. Here, the
only interest asserted is additional protection for nonmembers' First
Amendment rights. However, there is no indication or argument that WEA is
compelling nonmembers to support political activities or preventing
nonmembers from asserting their First Amendment rights.
The Supreme Court has indicated that a nonmember has a right to be free
from compelled support of a political cause the nonmember does not agree
with. As the Supreme Court has held, there is no compelled support if the
union utilizes the Hudson procedures. Given that there is no compelled
support, it does not appear that there is any governmental interference
with First Amendment rights of nonmembers for sec.760 to protect against.
Certainly the State has not provided any evidence of a compelling
governmental interest that justifies the restriction on WEA from using the
fees of the nondissenting nonmembers.
Judge Robin J. Hunt in her dissent at the Court of Appeals opines that
while "opt-in" procedures have not been found to be constitutionally
required, the procedure is not constitutionally infirm. State ex rel. Pub.
Disclosure Comm'n v. Wash. Educ. Ass'n, 117 Wn. App. 625, 644, 71 P.3d 244
(2003) (Hunt, J., concurring in part, dissenting in part). She argues that
the cases we cite, Street, Abood, Mitchell, and others, create a
constitutional floor, but not a ceiling. Even if this argument were
accepted, when the State acts in a way that affects the associational and
free-speech rights of individuals, in addition to having a compelling
reason, its legislation must be narrowly tailored. RCW 42.17.760 is not
narrowly tailored especially when examined in light of recent United State
Supreme Court authority.
In Boy Scouts of Am. v. Dale, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d
554 (2000), the United States Supreme Court set forth the test for
determining whether a government regulation improperly violates a group's
right of expressive association. Because sec.760 regulates the
relationship between the union and agency fee payers with regard to
political activity, the Boy Scouts analysis should be applied here. Under
the Boy Scouts test, we must evaluate whether sec.760's opt-in provision
would significantly burden the union's expressive activity. Boy Scouts,
530 U.S. at 653. If so, then we must analyze whether sec.760's opt-in
provision is narrowly tailored to support a compelling state interest that
is unrelated to the suppression of free speech. Id. at 648. We conclude
that the union's expressive activity is significantly burdened by sec.760's
opt-in requirement. We also conclude that any compelling state interest in
protecting dissenters' rights, could be met by less restrictive means other
than the sec.760 opt-in procedure. The union's Hudson procedures amount to
a constitutionally permissible alternative that adequately protects both
the union and dissenters. Because RCW 42.17.760 is not narrowly tailored,
we hold that the statute is unconstitutional.
The dissent complains that the narrowly tailored issue was not argued or
briefed and that we should not rely on Boy Scouts. However, this is
specifically argued in Respondent WEA's brief to this court. Resp't Br. at
14. That the Boy Scouts v. Dale case was not cited does not preclude this
court from considering this important case. "{T}his court has the inherent
discretionary authority to reach issues not briefed by the parties if those
issues are necessary for decision." Blaney v. Int'l Ass'n of Machinists &
Aerospace Workers, 151 Wn.2d 203, 213, 87 P.3d 757 (2004) (quoting City of
Seattle v. McCready, 123 Wn.2d 260, 269, 868 P.2d 134 (1994)). Moreover,
"{T}his court has frequently recognized it is not constrained by the issues
as framed by the parties if the parties ignore a constitutional mandate, a
statutory commandment, or an established precedent." City of Seattle v.
McCready, 123 Wn.2d 260, 269, 868 P.2d 134 (1994).
In 2000, the United States Supreme Court analyzed whether application of
New Jersey's public accommodation law to require the Boy Scouts to admit
James Dale, a homosexual gay rights activist, violated the Boy Scouts'
First Amendment right of expressive association. Boy Scouts, 530 U.S. at
643, 647. The Court noted that government actions that unconstitutionally
burden a group's right of expressive association "may take many forms," one
of which was forcing a group to accept certain unwanted members. Id. at
648. The Court then applied a multistep analysis and concluded (1) that
the Boy Scouts engaged in expressive activity, (2) that forced inclusion of
Dale would significantly burden the Boy Scouts' expression, and (3) that
application of New Jersey's public accommodations law in that case ran
afoul of the Boy Scouts' constitutional freedom of expressive association.
Id. at 656.
While this case involves regulation of the use of agency shop fees, rather
than regulation of the group's membership, the essence of RCW 42.17.760 is
state regulation of the relationship between the union and agency fee
payers with regard to political speech.
Under Boy Scouts, in order to determine whether sec.760 violates the
union's freedom of expressive association, we must first determine whether
the union engages in expressive activity. Boy Scouts, 530 U.S. at 656. It
is clear from the record that the WEA engages in political and ideological
activities not related to collective bargaining or contract administration.
Moreover, sec.760 specifically regulates the expenditure of agency shop
fees "to influence an election or to operate a political committee." Thus,
it seems indisputable that the union engages in expressive activity and
sec.760 regulates the union's expressive association with agency fee
payers. See Boy Scouts, 530 U.S. at 650.
We must next determine whether sec.760 opt-in requirement,
significantly burdens the union's ability to express its viewpoint. The
Boy Scouts Court emphasized that courts "must also give deference to an
association's view of what would impair its expression." Boy Scouts, 530
U.S. at 653.
RCW 41.59.060(2) provides that if an agency shop agreement becomes
effective, a fee that is equivalent to union dues will be deducted from the
salary of employees in the bargaining unit. See also RCW 41.59.100
(providing for limited exceptions not at issue here). Thus, under the
agency shop provisions, the union is entitled to collect a fee equivalent
to 100 percent of union dues from nonmembers in the bargaining unit. RCW
41.59.100.
RCW 42.17.760 then encumbers the use of such funds by prohibiting their
expenditure for political speech absent affirmative authorization by the
agency fee paying nonmember. Notably, the statute acknowledges that the
fees are in the union's possession but places restrictions upon the use of
the union's funds for political speech. RCW 42.17.760.
The union's Hudson procedures protect dissenters' rights not to
participate in the union's political speech. Twice a year, the union
mailed a Hudson packet to agency fee payers. The packet contained detailed
information about the union's expenditures and the right to object to
nonchargeable expenditures. The packet offered three options. A nonmember
could: (1) pay agency shop fees equal to 100 percent of union dues, (2) pay
agency shop fees, but object to WEA's political expenditures and receive a
rebate of nonchargeable expenditures as calculated by the union, or (3)
object to the WEA's political expenditures and challenge the WEA's
calculation of nonchargeable expenditures before an impartial arbitrator.
RCW 42.17.760 significantly changes this process by requiring the union to
forgo the use of the portion of agency fees that would go toward political
expenditures unless the nonmember affirmatively authorizes use for
political purposes, rather than allowing the union to use that portion of
the agency fee for political speech absent objection.
The union contends that sec.760's affirmative authorization requirement
significantly burdens its expressive association with nonobjecting agency
fee payers. At trial, a union expert testified that it would double the
complexity of the dues collection system if fee payers were to pay a
different amount than members. The union's additional efforts to attain
affirmative authorization would impose further administrative burden. Even
if the union were to hold the amount allocated to political activity in
escrow while seeking affirmative authorization, the lack of access to those
funds could impact the timeliness of the union's political speech. Given
the Boy Scouts requirement that we give deference to the union's view of
what would impair its political expression and given the long recognized,
highly protected nature of political speech, we conclude that RCW 42.17.760
significantly burdens the union's right of expressive association. See Boy
Scouts, 530 U.S. at 653; see also Meyer v. Grant, 486 U.S. 414, 425, 108 S.
Ct. 1886, 100 L. Ed. 2d 425 (1988) (political speech is at the core of the
First Amendment freedom).
Finally, we must consider whether RCW 42.17.760 is narrowly tailored to
support a compelling government interest that is unrelated to suppression.
Boy Scouts, 530 U.S. at 648. The protection of dissenters' First Amendment
rights is a compelling interest and this interest is not rooted in a desire
to suppress the union's political speech for suppression's sake. However,
the federal case law previously extensively cited reveals that sec.760's
opt-in provision is not narrowly tailored to protect this interest. Hudson,
475 U.S. 292; Abood, 431 U.S. 209; Street, 367 U.S. 740; Weaver, 970 F.2d
1523; Mitchell, 963 F.2d 258. As noted previously, the United States
Supreme Court and other federal courts have concluded that a
constitutionally acceptable alternative is the opt-out system previously
implemented by the union. See, e.g., Street, 367 U.S. at 774; Abood, 431
U.S. at 235-36; Mitchell, 963 F.2d at 262-63. Even if these cases do not
contain a constitutionally based prohibition against opt-in systems, they
do reveal a less restrictive alternative means for protecting dissenters'
rights. Under the Boy Scouts analysis, sec.760 significantly burdens the
union's expressive association, requiring the statute to survive strict
scrutiny. See Boy Scouts, 530 U.S. at 648. The constitutionally
acceptable opt-out alternative is significant in that it reveals that
protection of dissenters' rights can be achieved through means
significantly less restrictive of the union's associational freedoms than
RCW 42.17.760's opt-in requirement. See id.
In sum, RCW 42.17.760 regulates the relationship between the union and
agency fee payers with regard to political expression. Therefore, we apply
the framework set forth in Boy Scouts to determine whether sec.760 violates
the union's right of expressive association. The union engages in
expressive activity and RCW 42.17.760's opt-in requirement significantly
burdens the union's association with agency fee payers with regard to its
political speech. Accepting the argument that protection of dissenters'
rights is a compelling state interest, the opt-out procedure is a less
restrictive constitutionally permissible alternative. RCW 42.17.760's opt-
in procedure is not narrowly tailored to advance the State's interest in
protecting dissenters' rights, and thus, the statute is unconstitutional.
3. Does chapter 42.17 RCW create a private right of action?
Because Davenport's claims in the consolidated case are founded on an
alleged violation of sec.760, we do not reach either Davenport's claim that
chapter 42.17 RCW implies a private right of action or Davenport's tort
claims. We therefore affirm the Court of Appeals' remand of Davenport to
the superior court for dismissal.
CONCLUSION
We hold that RCW 42.17.760 is unconstitutional. We affirm the Court of
Appeals in each case.
* Justice Faith Ireland is serving as a justice pro tempore of the Supreme
Court pursuant to Washington Constitution article IV, section 2(a).
1 It is well settled that a union, which is obliged to act on behalf of
all employees in the bargaining unit, may charge nonunion employees to bear
their fair share of the costs of the representation. Air Line Pilots Ass'n
v. Miller, 523 U.S. 866, 118 S. Ct. 1761, 140 L. Ed. 2d 1070 (1998). The
dissent takes pains to point out that many states have passed so called
"right to work laws" which have not been held unconstitutional. This
argument is irrelevant to the issue in this case and inconsistent with
"Washington's long and proud history of being a pioneer in the protection
of employee rights." Drinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d
291, 300, 996 P.2d 582 (2000).
2 RCW 41.59.100 provides, in part: "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 Ellis v. Bhd. of Ry., Airline & S.S. Clerks, 466 U.S. 435, 104 S. Ct.
1883, 80 L. Ed. 2d 428 (1984).
4 Neither party has provided an analysis or argument to show why, in this
context, the state constitutional provision protecting the rights of free
speech and association should be construed more broadly than the federal
provision. Therefore, we interpret the state constitutional clause
coextensively with its parallel federal counterpart. Nelson v. McClatchy
Newspapers, Inc., 131 Wn.2d 523, 538, 936 P.2d 1123 (1997).
5 Similarly, the dissent asserts that balancing members' and nonmembers'
rights is a "false" requirement created by the majority, rather than an
approach created by the Supreme Court. On the contrary, as other courts
have recognized, "the balance of interests underlying all of the Supreme
Court's pronouncements on the subject of agency shop fees" must be applied
when determining the use of those fees for political purposes. Weaver, 970
F.2d at 1533; see e.g., Miller, 103 F.3d at 1253 (union's process must
strike "a balance between the right to solicit political contributions and
the co-equal right not to contribute").
6 The dissent sees no distinction between Miller and the current case.
However, use of agency shop fees was not at issue in Miller and Michigan
does not have a statute that specifically applies only to agency shop fees.
Furthermore, we note that the primary issue in Miller concerned applying to
unions the statutory restrictions against reverse checkoff, which were
already applied to corporations, nonprofits, and other groups. The Miller
court held that the Michigan statute "applies evenhandedly" to unions,
corporations, and other entities. Miller, 102 F.3d at 1251. The parties
have not raised, and we do not address, any argument concerning sec.760's
application solely to labor organizations while nonprofit, corporate, and
other groups are not similarly subject to affirmative authorization
requirements. See Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 110 S.
Ct. 1391, 108 L. Ed. 2d 652 (1990) (statute that restricts corporate
political expenditures, but not labor organization's political
expenditures, was justified, in part, by ability of fee payer to avoid
paying for political activities of a labor organization whereas
shareholders cannot dissociate themselves from corporation's political
activities).