Petition for Writ of Certiorari — Washington v. WASHINGTON EDUCATION ASSN.

Supreme Court U.S.

951657 Juni ~ 2006

NO.

———__—OFFIGE-OF THE CLERK

IN THE SUPREME COURT OF

‘THE UNITED STATES

WASHINGTON,

Petitioner,

v.

WASHINGTON EDUCATION ASSOCIATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

To THE SUPREME COURT OF WASHINGTON

PETITION FOR A WRIT OF CERTIORARI

Rob McKenna

Attorney General

Linda A. Dalton William Berggren Collins

Nancy J. Krier Deputy Solicitor General

Sr. Assistant Attorneys General Counsel of Record

D. Thomas Wendel 1125 Washington Street SE

Assistant Attorney General PO Box 40100

Olympia, WA 98504-0100

360-753-6245

Counsel For Petitioners

RECEIVED

JUN 28 2006

OFFICE OF THE

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QUESTION PRESENTED

Where state law does not prohibit the practice,

collective bargaining agreements may contain a

union security provision, which requires employees,

who are not members of the union, to pay an agency

shop fee to the union as a condition of employment.

Abood v. Detroit Board of Education, 431 U.S. 209

(1986), held that, to protect these nonmembers’ First

Amendment rights, the union is prohibited from

using these fees to support its political agenda if

the nonmember objects (opt-out). Wash. Rev. Code

§ 42.17.760 provides additional protection for

nonmembers by requiring them to affirmatively

consent (otp-in) before their fees may be used for

political purposes.

Does the requirement in Wash. Rev. Code

§ 42.17.760 that nonmembers must affirmatively

consent (opt-in) before their fees may be used to

support the union’s political agenda violate the

union’s First Amendment rights?

il

TABLE OF CONTENTS

PETITION FOR A WRIT OF CERTIORARI............. 1

IIT snsuisitivnisttinibitetininiieseaceceitnnuunsidipebinnsele 1

SR RRS AR A ey ore eS nEte Ee ED 1

CONSTITUTIONAL AND STATUTORY .

PROVISIONS INVOLVED ..............2........00: siilltibtigia 1

EIT EMER ALISO EOE NE TOTO TREE 2

a al 2

SR PERRY Ean er Rem NT ARE 7

REASONS FOR GRANTING THE

eT snsiecidencdiicinlcardees hd ite lich ietaasaiciuninihiieatibaniiiaiionn 16

1. Unions Do Not Have A First Amendment

Right To Use Nonmembers’ Fees For

ee i iinictiicsiiieeibtinctinetnntiveinstinenismniniacs 17

2. The Decision Below Conflicts With

Decisions Upholding Opt-In

IIE insiiesinisscicastudiansighiiaduahesiieiacaauienseitiiniiiies 20

IIT <ctintitenciresercincanbiisteisesincsernsnneneientioand 27

il

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Bd. of Educ.

Sie 2) g , REE ONenpenee 4-5, 10, 13, 17-18

Bhd. of Ry. & S.S. Clerks v. Allen :

IS emacs 17, 18

Boy Scouts of America v. Dale

I a ese 14, 16-17

Chicago Teacher’s Union Local 1 v.

Hudson

re rs Se Ee ctereccsccdscnensencnsetecimsiniiaial 5-6, 10-11,

13, 15, 18, 22, 23, 26

Ellis v. Bhd. of Ry., Airline &

S.S. Clerks

| EER Nnn TOE TET nT EIEN 13

Fed. Election Comm'n v. Natl Right

To Work Comm.

459 U.S. 197 (1982)....................... 3-4, 16, 20, 22-23, 27

Int 'l Ass'n of Machinists v. Street

CE cccidoiincutavininthintseisisihciidlinehtendsttiatn 10, 13

Keller v. State Bar of California ~-

NE Wy Cine. cicissicccpnidineinintsanemniiniciesdiadabniesinhes 5,22

Lehnert v. Ferris Faculty Ass'n

I I i i catitgee 4,18

Lincoln Fed. Labor Union 19129 v.

Northwestern Iron & Metal Co.

CN 2, 3, 18-20

iv

Michigan State AFL-CIO v. Miller

103 F.3d 1240 (6th Cir. 1997) .0000. 0. 16, 25-27

Pipefitters Local Union 562 v. United

States ~

Fe Ce I viccetiiicanceinisdicibitetink nirnciiaiite siabeencecinak: 24

Rumsfeld v. Forum For Academic &

Institutional Rights, Inc.

ee i Cis Pe SD Diciisaidecteintcicieiheeconsensiiipinsialtsilmitia 17

Smith v. Arkansas State Highway

Employees Local 1315

Ne a: i iar baccieecicinicaheiinceidinccesinleettiaitaads 19, 20

South Carolina Educ. Ass’n v.

Campbell

883 F.2d 1251 (4th Cir. 1989) ....ccce libaiai 19

Toledo Area AFL-CIO Coun. v. Pizza

154 F.3d 307°(6th Cir. 1998) ................0.cccccscccseeees 20

United States v. Boyle

482 F.2d 755 (D.C. Cir. 1973) .........00....... 16, 23-25, 27

United States v. Intl Union United

Auto., Aircraft & Agric. Implement

Workers

SOE US, OOF 0 osescisiicsiciscnsendaone 23

Statutes

9000 SOK i ee 22, 24

SUG BONNE cece ee 3, 20

B UAC. | CET vseserntccsncsvsssccovsecsevsinniscaseentasitiininn 21

I inscnienctpnctepsienniniicndesectnietionstianiietoen 3

~ 2U.S.C. § 441b(D)(4)(A) Gi) «00.00... ecceccsceesecscereresersensees 21

ne Te 21

a iscsi incininpcansiintntataniciinsensnnanstntationn 22

11 CER. TT Shihan tipinstnenesianesinininnie 21,22

I en cniaceiitcntbnctnstinndncnnnsnbenest 24, 25

I ET idea ciainceinncenaidnncepassndaitendtanensntenne l

Wash. Rev. Code § 28B.52.045(2) ..0........cccccccccccesceseesees 2

Wash. Rev. Code § 41.56.122(1) .0........cccccccccscssserseseeseees 2

Wash. Rev. Code § 41.59.100 .................cccccccccsccccsssesessess 2

Wash. Rev. Code § 42.17.390 ..........::ssesssssssssseesessneesesees 8

Wash. Rev. Code § 42.17.7600 ............cccccesee 2, 6-8, 10-14,

17, 20, 22-23, 25

Constitutional Provisions

U.S. Const. SES ee ]

U.S. Const. amend. XIV, § ee

® = - +. R m - 7 4 —

a 7 7 . & a Gee

‘

Le Pace Wey pee ease Od bak:

PETITION FOR A WRIT OF CERTIORARI

The Attorney General of Washington, on

behalf of the State of Washington, respectfully

petitions for a writ of certiorari to review the

judgment of the Supreme Court of Washington in

this case.

OPINIONS BELOW

The opinion of the Supreme Court of

Washington (App. at la) is reported at 156 Wash. 2d

543, 130 P.3d 352. The opinion of the Washington

Court of Appeals (App. at 48a) is reported at

117 Wash. App. 625, 71 P.3d 244. The trial court’s

Order Regarding Cross-Motions For Summary

Judgment (App. at 115a), Letter Opinion (App. at

102a), Findings Of Fact And Conclusions Of Law

(App. at 92a), Permanent Injunction (App. at 84a),

and Judgment (App. at 81a) are unpublished.

JURISDICTION

The judgment of the Supreme Court of

Washington was entered March 16, 2006. App. at

la. The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment of the United States

Constitution provides in part that “Congress shall

make no law .. . abridging the freedom of speech . . .

or the right of the people peaceably to assemble, and

to petition the Government for a _ redress of

grievances.” U.S. Const. amend. I.

The Fourteenth Amendment to the United

States Constitution provides in part: “nor shall any

State deprive any person of life, liberty, or property,

without due process of law ... .” U.S. Const. amend.

XIV, § 1.

Wash. Rev. Code § 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.” App. at 138a.

Other relevant statutes and regulations are

set out in the Appendix. App. at 124a—156a.

STATEMENT

1, Background

Under Washington law, a_ collective

bargaining agreement may include a union security

provision. Wash. Rev. Code § 28B.52.045(2), App. at

124a; Wash. Rev. Code § 41.56.122(1), App. at 129a;

Wash. Rev. Code § 41.59.100, App. at 13la. A union

security provision requires a nonmember of the

union to pay an agency shop fee to the union, and the

employer agrees to discharge nonmembers who

refuse to pay the fee.

The United States Constitution does not

require states to permit union security agreements.

The Court has sustained so-called “right to work”

laws that prohibit an employer from discharging

employees because they refuse to either join the

union or pay an agency shop fee. Lincoln Fed. Labor

Union 19129 v. Northwestern Iron & Metal Co., 335

U.S. 525, 531 (1949) (“The constitutional right of

workers to assemble, to discuss and formulate plans

for furthering their own self interest in jobs cannot

be construed as a constitutional guarantee that none

shall get and hold jobs except those who will join in

the assembly or will agree to abide by the assembly’s

plans.”).

A union may place the dues paid by members

and the agency shop fees paid by nonmembers into

its general treasury. Subject to the First

Amendment and the requirements cf state and

federal law, the treasury may be used for a variety of

purposes, including collective bargaining, contract

administration, grievance adjustment, litigation, as

well as charitable and social activities. In Washing-

ton, a union may also use its general treasury to

make contributions or expenditures to influence

elections or to operate a political committee.

The United States Constitution does not

require a state to allow unions to use general

treasury funds to make a contribution or expenditure

in connection with an election for political office. At

the federal level, unions, national banks, and certain

corporations are prohibited from making contribu-

tions or expenditures from their general treasuries in

connection with elections to certain federal offices. 2

U.S.C. § 441b(a). App. at 140a. Such contributions

and expenditures can only be made from a separate

segregated fund supported by voluntary

contributions. 2 U.S.C. § 441b(b)(4). App. at 143a.

The Court has ruled that these restrictions do not

violate the First Amendment. Fed. Election Comm'n

v. Natl Right To Work Comm., 459 U.S. 197, 207

(1982) (“we conclude that the associational rights

asserted by respondent may be and are overborne by

the interests Congress has sought to protect in

enacting § 441b”).

To compel nonmembers to financially support

a union by paying an agency shop fee impacts the

nonmembers’ First Amendment rights. Abood uv.

Detroit Bd. of Educ., 431 U.S. 209, 222 (1977).

Requiring payment of the agency shop fee does not

violate the nonmembers’ First Amendment rights

when it “is used to finance expenditures by the

Union for the purposes of collective bargaining,

contract administration, and grievance adjustment

.. Id. at 225-26. This interference with the

nonmembers’ First Amendment rights has two

justifications. The first is the government’s interest

in labor peace. The second is that an agency shop fee

used to support collective bargaining activities

eliminates the “free rider” problem. Unions that are

the exclusive bargaining representative are required

to fairly and equitably represent all employees—

members and nonmembers alike. The agency shop

fee pays for the representation of the nonmember.

Id. at 221-26. Without this payment, the

nonmember is a free rider. However, nonmembers’

First Amendment rights are violated if the agency

shop fee is used for activities unrelated to collective

bargaining such as litigation that does not concern

the nonmembers’ bargaining unit or expenditures for

general public relations. Lehnert v. Ferris Faculty

Ass'n, 500 U.S. 507, 528-29 (1991).

This case concerns using nonmembers’ fees to

support the WEA’s political agenda. This “implicates

core First Amendment concerns.” Jd. at 516. The

First Amendment prohibits the state “from requiring

{a nonmember] to contribute to the support of an

ideological cause he may oppose as a condition of

holding a job...” Abood, 431 U.S. at 235. Union

expenditures “for the expression of political views, on

‘behalf of political candidates, or toward the

advancement of other ideological causes not germane

to its duties as collective-bargaining representative”

may only “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.” Jd. at 235, 236.

In Chicago Teacher’s Union Local 1 v. Hudson,

475 U.S. 292, 310 (1986), the Court held that “the

constitutional requirements for the Union’s collection

of agency fees include [1] an adequate explanation of

the basis for the fee, [2] a reasonably prompt

opportunity to challenge the amount of the fee before

an impartial decisionmaker, and [3] an escrow for

the amounts reasonably in dispute while such

challenges are pending.” Hudson, 475 U.S. at 310.

Hudson “outlined a minimum set of procedures by

which a union in an agency-shop relationship could

meet its requirement” to use nonmember fees for

political purposes. Keller v. State Bar of California,

496 U.S. 1, 17 (1990) (emphasis added).

Essentially, Hudson held that the First

Amendment requires unions to give nonmembers the

opportunity to opt-out of having a portion of their

agency fee used for political purposes to which they

object.

Washington law does not impede a union’s

ability to use nonmembers’ fees for _ political

purposes. State law permits union security

agreements, instead of prohibiting them, and

permits unions to make political contributions or

expenditures from their general treasuries, instead

of requiring a separate segregated fund supported by

voluntary contributions. However, the state does

impose an additional procedural requirement—

beyond the opt-out procedure required by Hudson—

before a union can use a nonmember’s fees for

political purposes. This requirement applies only to

use of the nonmember fees for political purposes. It

does not apply to other uses of the same fees that are

not related to collective bargaining.

Wash. Rev. Code § 42.17.760 requires that

nonmembers must give their affirmative consent

before their agency fee can be used for political

purposes. Wash. Rev. Code § 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.” Wash. Rev. Code § 42.17.760

(emphasis added). App. at 138a.

Thus, Wash. Rev. Code § 42.17.760 establishes

an opt-in procedure before nonmembers’ fees may be

used by the union for political purposes.

2. Proceedings Below

Respondent Washington Education Associa-

tion (WEA) is a labor union that represents

educational employees in Washington’s common

schools (K-12), community colleges, and universities.

The WEA is an affiliate of the National Education

Association (NEA). The WEA has entered into

collective bargaining agreements with public

employers that contain union security provisions

requiring nonmembers to pay an agency shop fee as

a condition of continued employment. As part of the

process of collecting fees from nonmembers, the WEA

sends out a “Hudson packet” notifying them of their

right to object to paying fees for non-chargeable

expenditures and to challenge WEA’s calculation of

the fee. When non-members object, they are given a

refund of the percentage of the annual fee that the

union’s computations indicate were not used for

collective bargaining activities. When nonmembers

challenge the union’s computations, an arbitrator

decides what part of the fee was used for collective

bargaining purposes to determine the appropriate re-

fund. Pending the outcome of the arbitration, WEA

escrows any fees that are reasonably in dispute.

The Washington State Public Disclosure

Commission (PDC) is the state agency charged with

enforcing Washington’s campaign finance laws. The

PDC received a complaint alleging that the WEA was

not complying with Wash. Rev. Code § 42.17.760.

That is, that the WEA was using nonmembers’ fees

for political purposes without the affirmative consent

of the nonmembers. After an investigation, the PDC

and the WEA entered into a stipulation that

provided that the WEA’s “general fund money was

used to make contributions and expenditures to

influence an election and to operate a_ political

committee,” and that the WEA “did not have

affirmative authorization from agency fee payers to

use their money for these purposes.” App. at 12la Jf

3, 4. The PDC and the WEA agreed that the WEA

“committed multiple violations of [Wash. Rev. Code

§] 42.17.760.” App. at 122a. This stipulation applied

to the WEA 1999-2000 fiscal year.

After considering the stipulation, the PDC

referred the matter to the Washington Attorney

General because the maximum statutory penalty

that the PDC could impose was inadequate in light of

the a.parent violations. App. at 120a. Washington

law authorizes a court to impose higher penalties.

Wash. Rev. Code § 42.17.390.

a. Trial Court

The Attorney General filed a complaint

against the WEA in superior court for violating

Wash. Rev. Code § 42.17.760.! The complaint sought

civil penalties, treble damages, if the violation was

intentional, and costs and attorney's fees. The trial

court entered summary judgment in favor of the

state that Wash. Rev. Code § 42.17.760 was

constitutional, that Wash. Rev. Code § 42.17.760

required affirmative authorization from _ the

‘1 The PDC also received a complaint alleging that the

NEA was violating Wash. Rev. Code § 42.17.760. The PDC

referred this complaint to the Attorney General, who filed a

complaint against the NEA. That action is stayed pending the

outcome of this case. State of Washington ex rel. Washington _

State Pub. Disclosure Comm’n v. National Educ. Ass'n,

Thurston County Docket No. 05-2-01709-3.

nonmembers, and that the WEA’s Hudson procedure

did not satisfy the requirement of Wash. Rev. Code §

42.17.760. App. at 117a 94 1, 3. A bench trial

followed on whether the WEA used nonmember fees

to influence an election or to support a political

committee. App. at 117a { 5.

After the trial, the court issued a letter

opinion and entered findings of fact and conclusions

of law. App. at 102a, 92a. The trial court found that

for each fiscal year from 1996 to 2000 the WEA used

nonmembers’ fees for contributions or expenditures

to influence an election or to operate a political

committee. App. at 96a J 20. The court found

approximately 8000 nonmembers did not give their

consent during this time and imposed a civil penalty

of $25 per nonmember for a total civil penalty of

$200,000. App. at 96a § 21. The court also found

that the WEA “intentionally chose not to comply with

[Wash. Rev. Code §] 42.17.760.” App. at 98a ¥ 29.

Based on the intentional violation, the trial court

doubled the civil penalty to $400,000. App. at 98a

q 30. The court also awarded the state its costs and

‘attorney’s fees. App. at 98a J 33. The amount of the

costs and attorney’s fees was $190,375. Thus, the

total judgment against the WEA was $590,375. App.

at 6a. The trial court also entered a permanent

injunction setting out the manner in which the WEA

was to comply with Wash. Rev. Code § 42.17.760.

App. at 84a.

b. Court Of Appeals

The WEA appealed to the Washington Court

of Appeals. A divided three judge panel reversed the

10

trial court and held that Wash. Rev. Code

§ 42.17.760 was unconstitutional. App. at 48a.

The majority began by reviewing Jnternational

Association of Machinists v. Street, 367 U.S. 740

(1961), Abood, 431 U.S. 209, and Hudson, 475 U.S.

292. The majority concluded that these cases stand

for the proposition that “nonmembers who do not

want the union to use their fees for non-chargeable

expenditures must make their objection known to the

union.” App. at 6la. The majority reasoned that

“{Wash. Rev. Code §] 42.17.760 relieves nonmembers

of their burden of objection” by creating “an ‘opt-in’

procedure—nonmembers must give their authori-

zation before the union may use their fees on

political expenditures.” App. at 63a, 63a—64a. The

majority concluded that this opt-in procedure “does

- not follow the Court’s carefully crafted and balanced

approach” set out in Street, Abood, and Hudson.

App. at 64a.

Having concluded that the opt-out procedure

in Hudson was constitutionally required, the

majority held that the opt-in procedure authorized by

Wash. Rev. Code § 42.17.760 was unconstitutional

because it “would unduly require a union to protect

nonmembers who disagree with a union's political

expenditures but are unwilling to voice their

objections. The procedures imposed on unions by

federal law fully protect nonmembers’ First

Amendment rights. Further restrictions, such as an

opt-in procedure, upset the balance between

nonmembers’ rights and the rights of the union and

the majority.” App. at 68a.

11

The dissent also began by reviewing Street,

Abood, and Hudson. And the dissent agreed with the

majority that these cases stand “for the proposition

that an ‘opt-in’ provision is not constitutionally

required ....” App. at 72a. However, the dissent

concluded that these decisions did “not support the

converse, advanced by the majority here, that an

‘opt in’ provision such as _ Washington’s is

constitutionally barred.” App. at 72a.

The dissent concluded that all “the cases that

the majority cites simply uphold opt out procedures

as constitutional. None, however, hold that the

Constitution requires an opt out procedure or that

the burden of dissent must be on the objecting

employee. Further, none of these cases hold that a

statutory opt in procedure, such as the one in

[Wash. Rev. Code §] 42.17.760 is constitutionally

infirm ....” App. at 75a (internal quotation marks

omitted).

c. Supreme Court Of Washington

The Supreme Court of Washington granted

the state’s petition for review of the Court of Appeals

decision and affirmed that decision by a vote of six to

three. App. at la.

The majority began by considering whether

the WEA’s Hudson procedure satisfied the

requirements of Wash. Rev. Code § 42.17.760. The

majority concluded that it did mot. According to the

majority, the plain language of Wash. Rev. Code

§ 42.17.760 “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

12

affirmative authorization requirement.” App. at 10a.

The majority reasoned that “(t]he difference is that

affirmative authorization seems to indicate that the

member must say ‘yes,’ instead of failing to say ‘no.”

App. at 10a.

The Court next took up the question of

whether Wash. Rev. Code § 42.17.760 violated the

First Amendment of the United States Constitution.”

The majority's conclusion that Wash. Rev. Code

§ 42.17.760 is unconstitutional rested on four points.

First, the majority held that the union had a

First Amendment right to use nonmembers’ fees for

political purposes. According to the majority, 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, 97 S.

Ct. 1782 (quoting Bhd. of Ry. & S.S. Clerks v. Allen,

373 U.S. 113, 122, 83 S. Ct. 1158, 10 L. Ed. 2d 235

(1963)).” App. at 26a. And the majority stated that

the “State has failed to even attempt to justify [Wash

Rev. Code § 42.17.]760, which it is required to do

when regulating First Amendment rights.” App. at

26a.

Second, the majority held that the burden is

on the nonmember to object so that the opt-out

2 The Washington Supreme Court’s decision was based

solely on the federal constitution. According to the Court,

neither party “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.” App. at 17a n.4.

13

procedure in Hudson was constitutionally required.

The majority reviewed Street, 367 U.S. 740,

Abood, 431 U.S. 209, Hudson, 475 U.S. 292, and

Ellis v. Brotherhood of Railway, Airline & Steamship

Clerks, 466 U.S. 435 (1984). According to the

majority, these cases stand for the proposition that

“the burden is on the employee to register his dissent

to the union’s political activities ....” App. at 17a.

Thus, 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.” App. at 17a.

Third, the majority held that the opt-in

procedure in Wash. Rev. Code § 42.17.760 violated

the First Amendment because it burdened the First

Amendment right of the union to use nonmembers’

fees for political purposes and the First Amendment

right of a nonmember to support the union’s political

agenda.

The majority reasoned that the affirmative

authorization requirement of Wash. Rev. Code

§ 42.17.760 constituted a “presumption of dissent

[that violated] the First Amendment rights of both

memb.rs and nonmembers.” App. at 19a. The rights

of members were violated because “the procedures

required by the State’s interpretation of [Wash. Rev.

Code § 42.17.760] would be extremely costly and

would have a significant impact on the union’s

political activities.” App. at 20a. The rights of

nonmembers were also violated because a

“presumption of dissent .. . assumes that because an

employee has not joined the union, he or she

_disagrees with the union's political expendi-

14

tures.” App. at 20a. Thus, for “those nonmembers

who agree with the union’s political expenditures,

[Wash. Rev. Code § 42.17.]760’s presumption of

dissent presents an unconstitutional burden on their.

right to associate themselves with the union on

political issues.” App. at 20a—21a.

Fourth, the majority applied this Court’s

decision in Boy Scouts of America v. Dale, 530 U.S.

640 (2000), to conclude that Wash. Rev. Code

§ 42.17.760 violated the WEA’s right of expressive

association. The majority reasoned that because

Wash. Rev. Code § 42.17.760 “regulates the

relationship between the union and agency fee

payers with regard to political activity, the Boy

Scouts analysis should be applied... .” App. at 27a.

The majority determined that the WEA

engages in expressive activity because the “WEA

engages in political and ideological activities not

related to collective bargaining or _ contract

administration.” App. at 29a—30a. The majority

concluded that the opt-in requirement burdened the

WEA’s expressive association because “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.” App. at

30a. The opt-in requirement “encumbers the use of

such funds by prohibiting their expenditure for

political speech absent affirmative authorization by

the agency fee paying nonmember.” App. at 30a.

Finally, the majority held that the opt-in

requirement was not narrowly tailored because the

“opt-out alternative . . . reveals that protection of

dissenters’ rights can be achieved through means

significantly less restrictive of the union's

15

associational freedoms than [Wash. Rev. Code §]

42.17.760’s opt-in requirement.” App. at 33a.

Three justices of the Washington Supreme

Court dissented. First, the dissent rejected the

majoritys claim that the WEA had a First

Amendment right to use nonmembers’ fees for

political purposes. The dissent explained that 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.” App. at

35a. “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.” App. at 35a. Thus, “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?” App. at 39a.

Second, the dissent rejected the majority's

conclusion that the Hudson opt-out procedure was

constitutionally required. The dissent distinguished

the federal cases relied on by the majority because

they only stand for the proposition that “the

constitution requires at least an opt-out scheme to

protect dissenters’ rights. None of these cases stand

for the proposition that the constitution limits a

different legislative approach to protecting

dissenters’ rights, including an opt-in [requirement].”

App. at 41a (footnote omitted).

16

Finally, the dissent rejected the majority's

reliance on Boy Scouts. The majority’s reasoning

was flawed because “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.” App. at 46a.

REASONS FOR GRANTING THE PETITION

This case presents the intersection of two

important branches of this Court’s First Amendment

jurisprudence—the right of union members to

associate and the right of the individual not to be

forced to support political speech with which he or

she disagrees. The Court should grant review for

two reasons.

First, there is no basis in the decisions of this

Court for the Washington Supreme Court’s holding

that unions have a First Amendment right to use

nonmembers’ agency shop fees for political purposes.

This conclusion is so far outside the mainstream of

this Court’s decisions that it demands to be

corrected.

Second, the decision below conflicts with

Federal Election Commission v. National Right To

Work Committee, 459 U.S. 197 (1982) (NRWC),

United States v. Boyle, 482 F.2d 755 (D.C. Cir. 1973),

and Michigan State AFL-CIO v. Miller, 103 F.3d

1240 (6th Cir. 1997). All three of these decisions

uphold statutes that established opt-in procedures

for nonmembers to make contributions that a union

17

can use for political purposes. Given the importance

of this issue, the Court should grant review to

resolve this conflict.’

1. Unions Do Not Have A First Amendment

Right To Use Nonmembers’ Fees For

Political Purposes

The decision below is based on the premise

that a union has a constitutional right to use

nonmembers’ fees for political purposes. We are

aware of no decision of this Court that recognizes

such a constitutional right, and the majority below

cites none. Rather, the majority stated that 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, 97 S.

Ct. 1782 (quoting Bhd. of Ry. & S.S. Clerks v. Allen,

3 The Washington Supreme Court's alternative holding

that Wash. Rev. Code § 42.17.760 violates the WEA’s right of

expressive association is also incorrect. The parties never

advanced this argument (App. at 45a), and the right of

expressive association is not involved in this case because

Wash. Rev. Code § 42.17.760 does not force the WEA to accept

an unwanted person. The statute applies only to nonmem-

bers—employees who have made a conscious decision not to join

the union. The “forced inclusion of an unwanted person in a

group infringes the group's freedom of expressive association if

the presence of that person affects in a significant way the

group's ability to advocate public or private viewpoints.” Boy

Seouts of America v. Dale, 530 U.S. 640, 648 (2000). Laws that

do not force a group to accept an unwanted member or make

membership in a group less attractive implicate the right of

expressive association. Rumsfeld v. Forum For Academic &

Institutional Rights, Inc., 126 S. Ct. 1297, 1312 (2006) (“Unlike

the public accommodations law in Dale, the Solomon

Amendment does not force a law school ‘to accept members it

does not desire.”’).

18

373 U.S. 113, 122, 83 S. Ct. 1158, 10 L. Ed. 2d 235

(1963)).” App. at 26a. This statement is misleading.

The right discussed in Abood and Allen was a right

under the collective bargaining agreement. Abood,

431 U.S. at 239 n.40 (“no decree would be proper

which appeared likely to infringe the unions’ right to

expend uniform exactions under the union-shop

agreement”).

The Hudson procedure was designed to protect

the First Amendment rights of the nonmembers, not

the union. This Court has recognized that unions

“have aligned themselves with a wide range of social,

political, and ideological viewpoints... .” Lehnert v.

Ferris Faculty Ass'n, 500 U.S. 507, 516 (1991). “To

force employees to contribute, albeit indirectly, to the

promotion of such positions implicates core First

Amendment concerns.” Id. (emphasis added).

This Court has long held that unions have no

First Amendment right to compel a worker to join or

pay fees to the union. The Court established this

principle when it rejected challenges to state right to

work laws. A right to work law prohibits workers

from losing their jobs because they refuse to join a

union or pay fees to a union. In Lincoln Federal

Labor Union 19129 v. Northwestern Iron & Metal

Co., 335 U.S. 525 (1949), this Court upheld right to

work laws in Nebraska and North Carolina. The

union argued that “these state laws abridge the

freedom of speech and the opportunities of unions

and their members ‘peaceably to assemble and to

petition the Government for a redress of grievances.”

Lincoln Fed. Labor Union 19129, 335 U.S. at 529.

19

The Court rejected this argument. It held that

there

“cannot be wrung from a constitutional right of

workers to assemble to discuss improvement of

their own working standards, a further

constitutional right to drive from remunerative

employment all other persons who will not or

can not, participate in union assemblies.”

Lincoln Fed. Labor Union 19129, 335 US. at

531 (emphasis added).

Thus, the “constitutional right of workers to

assemble . . . cannot be construed as a constitutional

guarantee that none shall get and hold jobs except

those who will join in the assembly... .” Lincoln

Fed. Labor Union 19129, 335 U.S. at 531.

Thus, unions have no First Amendment right

to require nonmembers to pay fees to the union. In

fact, “the First Amendment does not impose any

affirmative obligation on the government to listen, to

respond or, in this context, to recognize the

association and bargain with it.” Smith v. Arkansas

State Highway Employees Local 1315, 441 U.S. 463,

465 (1979). Since the First Amendment does not

require government to recognize or negotiate with

unions, it surely does not give unions a right to

collect fees from nonmembers.‘

4 Courts have held that the First Amendment does not

impose any obligation on government to assist unions in

collecting union dues or agency shop fees by granting payroll

deductions so that the fees and dues can be withheld from

employees’ pay by the employer and paid directly to the union.

South Carolina Educ. Ass’n v. Campbell, 883 F.2d 1251, 1256

{4th Cir. 1989) (“Although loss of payroll deductions may

20

In Washington, the WEA’s right to receive

agency fees from nonmembers comes from state

statutes that permit collective bargaining

agreements to contain a union security provision. It

is not a First Amendment right. The contrary

premise of the majority below cannot be reconciled

with this Court’s decisions in Lincoln Federal Labor

Union 19129 and Smith.

2. The Decision Below Conflicts With

Decisions Upholding Opt-In Require-

ments

The decision below invalidating the opt-in

requirement in Wash. Rev. Code § 42.17.760 conflicts

with decisions upholding opt-in statutes against

First Amendment challenges.

a. Federal Election Commission uv.

National Right To Work Committee

The decision below conflicts with NRWC,

which upheld an opt-in procedure for federal

elections. 2 U.S.C. § 441b(a) provides that it “is

unlawful for . . . any labor organization, to make a

contribution or expenditure in connection with

[certain federal elections.]” App. at 140a (emphasis

economically burden the [union] and thereby impair its

effectiveness, such a burden is not constitutionally

impermissible.”); Toledo Area AFL-CIO Coun. v. Pizza, 154 F.3d

307, 319 (6th Cir. 1998) (‘wage checkoff ban simply does not

impinge, in a constitutionally significant manner, on any First

Amendment rights”); Arkansas State Highway Employees Local

1315 v. Kell, 628 F.2d 1099, 1102 (8th Cir. 1980) (while the

highway department's refusal to deduct union dues “may

impair the effectiveness of the union, this type of impair-

ment... is not one that the First Amendment prohibits’).

.

added). The terms “contribution” and “expenditure”

are broadly defined, but they do not include “the

establishment, administration, and _ solicitation of

contributions to a separate segregated fund to be

utilized for political purposes by a corporation, labor

organization, membership organization, cooperative,

or corporation without capital stock.” 2 U.S.C.

§ 441b(b)(2)(C) (emphasis added). App. at 142a.

Thus, unlike Washington, the federal government

prohibits political contributions and expenditures

from a union’s general treasury—-they can only be

made from a separate segregated fund.

And with one limited exception, it is “unlawful

... for a labor organization, or a separate segregated

fund established by a labor organization, to solicit

contributions to such a fund from any person other

than its members and their families.” 2 U.S.C.

§ 441b(b)(4)(A)(Gii) (emphasis added). App. at 143a.

Thus, federal law prohibits unions from soliciting

nonmembers for contributions for political purposes.

The only exception to this ban on _ soliciting

nonmembers is that a union may “make 2 written

solicitations for contributions during the calendar

year from any _ stockholder, executive or

administrative personnel, or employee of a

corporation or the families of such persons.” 2 U.S.C.

§ 441b(b)(4)(B). App. at 143a. Nonmembers of the

union must opt-in if they want to contribute to the

union’s political fund. The union or separate

segregated fund “may not use a payroll deduction

plan, a check-off system, or other plan which deducts

contributions from an employee’s paycheck as a

method of facilitating the making of contributions

22

under this section.” 11 C.F.R. § 114.6(e)(1) (empha-

sis added). App. at 154a.

The majority below concluded that Wash. Rev.

Code § 42.17.760 violated the First Amendment

_ because the opt-in provision imposed a burden on the

union and nonmembers, who supported the union’s

political agenda, by making it more difficult to make

political contributions. The court held that the

procedures set out in Hudson, 475 U.S. 292, are

constitutionally required and the state may not

establish more stringent procedures. Hudson did not

impose any such constitutional requirement. As-this

Court recognized in Keller v. State Bar of California,

496 U.S. 1, 17 (1990):

“Hudson . . . outlined a minimum set of

procedures by which a union in an agency-shop

relationship could meet its requirement under

Abood, [431 U.S. 209.}” (Emphasis added.)

NRWC establishes that Hudson does not

impose a constitutional requirement on the state.

The procedures in 2 U.S.C. § 441b go far beyond

Hudson and would surely be unconstitutional under

the majority's analysis in the decision below. But in

NRWC, this Court rejected a First Amendment

challenge to § 441b. In NRWC, the National Right to

Work Committee challenged the requirement in

2U.S.C. § 441b(b)(4)(C) that prohibited the

committee from soliciting nonmembers to contribute

to its separate segregated political fund.

The Court rejected a First Amendment

challenge concluding “that the associational rights

asserted by [the committee] may be and are

overborne by the interests Congress has sought to

23

protect in enacting § 441b.” NRWC, 459 U.S. at 207.

The Court pointed to two interests. First, the

“substantial aggregations of wealth amassed by the

special advantages which go with the corporate form

of organization should not be converted into political

‘war- chests’ which could be used to incur political

debts from legislators who are aided by the

contributions.” NRWC, 459 U.S. at 207. Although

NRWC spoke in terms of corporate “war chests,” the

Court has expressed the same concern about “huge

war chests being maintained by labor unions... .”

United States v. Intl Union United Auto., Aircraft &

Agric. Implement Workers, 352 U.S. 567, 579 (1957).

The second interest is “to protect the

individuals who have paid money into a corporation

or union for purposes other than the support of

candidates from having that money used to support

political candidates to whom they may be opposed.”

NRWC, 459 U.S. at 208. This is the same reason the

Court required the procedures in Hudson. Hudson,

475 U.S. at 294 (the “union, however, could not,

consistently with the Constitution, collect from

dissenting employees any sums for the support of

ideological causes not germane to its duties as

collective-bargaining agent”). But in NRWC, this

interest supports a more stringent statutory

procedure than Hudson or Wash. Rev. Code

§ 42.17.760—prohibiting solicitation from non-

members. Simply put, the decision below cannot be

reconciled with NRWC.

b. United States v. Boyle |

The decision below also conflicts with United

States v. Boyle, 482 F.2d 755 (D.C. Cir. 1973), a

24

decision of the District of Columbia Circuit. Boyle

dealt with 18 U.S.C. § 610 (1970), the forerunner of 2

U.S.C. § 441b. 18 U.S.C. § 610 made it “unlawful for

... any labor organization to make a contribution or

expenditure in connection with any election [for

certain federal offices.}” Boyle, 482 F.2d at 758 n.1.

In interpreting § 610, this Court held that the ©

prohibition did not apply to a separate segregated

fund and that union officials could solicit

contributions to the fund “under circumstances

plainly indicating that donations are for a political

purpose and that those solicited may decline to

contribute without loss of job, union membership, or

any other reprisal within the union’s institutional

power.” Pipefitters Local Union 562 v. United

States, 407 U.S. 385, 414 (1972).

In Boyle, the union president was charged

with using union dues to contribute to the separate

segregated political funds in violation of § 610. The

president argued that § 610 violated the union’s

freedom of speech and that the government’s goal of

protecting minority rights could be achieved by

legislation requiring either

“contracting in, in which all members

approving of the proposed political assessment

would be required tuo give affirmative evidence

of such approval, or-‘contracting out,’ in which

a union member objecting to the political use

of a portion of his dues could refuse to tender

that particular assessment.” Boyle, 482 F.2d

at 763—64 (emphasis added).

Essentially, the president was arguing that the First

Amendment required that the union be allowed to

25

use dues for political purposes so long as members

had the ability to “contract in” (opt-in) or “contract

out” (opt-out). .

The Court rejected the argument because it

concluded that Ҥ 610, as interpreted in Pipefitters,

does establish a system of ‘contracting in’ oo

Boyle, 482 F.2d at 764. Unions “are permitted to

make contributions if assenting members ‘give

affirmative evidence of such approval’ by assenting to

having a deduction made from the member’s pay

check.” Jd. (emphasis added). Thus, the Court con-

cluded that the contracting in requirement of § 610

did not violate the union’s First Amendment rights.

The decision below directly conflicts with

Boyle. Boyle held that the contracting in require-

ment in § 610, which provides that members give

affirmative evidence of approval, did not violate the

First Amendment. The decision below holds the

opposite—that the requirement for affirmative

approval in Wash. Rev. Code § 42.17.760 violates the

First Amendment.

c. Michigan State AFL-CIO v. Miller

The decision below is also in conflict with

Miller, 103 F.3d 307, a Sixth Circuit decision. Like

Washington and the federal government, Michigan

requires individuals contributing to a _union’s

political fund to opt-in by affirmatively consenting to

contribute to a union’s political fund. Under

Michigan law, a corporation or a union “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

26

affirmatively consents to the contribution at least

once in every calendar year.” Miller, 103 F.3d at

1248-49 (emphasis added). This is an opt-in

procedure. The contribution ends unless the

employee annually gives his or her consent. Under

the opt-out procedure in Hudson, a contribution will

continue unless and until the employee objects.

The union claimed that this requirement

violated “the speech and associational rights protect-

ed by the Constitution.” Miller, 103 F.3d at 1250. In

particular, the union alleged that the “annual con-

sent requirement unduly interferes with their right to

solicit funds for the furtherance of protected speech,

an activity recognized as falling within the scope of

the First Amendment.” Jd. (emphasis added).

The court rejected this claim. The court

concluded that the annual consent requirement

“furthers an important or substantial governmental

interest” which was “the right not to contribute to

political causes that [a person does] not favor... .”

Miller, 103 F.3d at 1253. The annual consent

requirement advanced the state’s interest because

“verifying on an annual basis that individuals intend

to continue dedicating a portion of their earnings to a

political cause . . . reminds those persons that they

are giving money for political purposes... .” Id.

Also, unlike the Hudson opt-out procedure, the

annual consent requirement “counteracts the inertia

that would tend to cause people to continue giving

funds indefinitely even after their support for the

message may have waned.” Id.

The “court also concluded that “the

governmental interest is unrelated to the

27

suppression of free speech.” Miller, 103 F.3d at 1253.

The “Michigan statute does not impose any direct

limits on speech. It does not determine who can

speak, how much they can speak, or what they may

say.” Id. The court recognized that the union might

lose contributions but “if contributions were to

decline . . . the cause would be the exercise of

informed choice by individuals, not the governmental

suppression of political advocacy.” Id.

The decision below directly conflicts with

Miller. The Michigan annual affirmative consent

requirement and the Washington affirmative consent

requirement are very similar. Both require a person

to opt-in to making contributions to support the

union’s political agenda.

The Court should grant review to resolve the

conflict between the decision below and NRWC,

Boyle, and Miller.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully Submitted.

Rob McKenna

Attorney General

Linda A. Dalton William Berggren Collins

Nancy J. Krier Deputy Solicitor General

Sr. Assistant Attorneys Counsel of Record

General 1125 Washington Street SE

D. Thomas Wendel PO Box 40100

Assistant Attorney General Olympia, WA 98504-0100

360-753-6245

June 14, 2006