Opposition Brief — Washington v. WASHINGTON EDUCATION ASSN.

‘ FILED

AUG 25 2006

NO. 05-1657 LOFFICEOF 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

REPLY TO BRIEF IN OPPOSITION

Rob McKenna

Attorney Genera.

Linda A. Dalton ~ William Berggren Collins

Nancy J. Krier Deputy Solicitor General

Sr. Assistant Attorneys General Counsel of Record

D. Thomas Wendei 1125 Washington Street SE

Assistant Attorney General PO Box 40100

Olympia, WA 98504-0100

360-753-6245

Counsel For Petitioners

— — ——_ —- —___ —

TABLE OF CONTENTS

Respondent’s Restatement Of The

Question Presented Does Not

Accurately State The Issue .....................:0seeeeeee

Respondent Offers No Authority

That Unions Have A First

Amendment Right To Use

Nonmembers’ Fees For Political

REESE SOE RAREST ai aA Oe

The Decision Below Is In Conflict

With Other Decisions That Uphold

Opt-In Requirements For

Contributions To Unions For

EET CAT Le EE OES

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Bd. of Educ.

Re ee PE Occ cisicriisicinsitcipenntitniitsiicbae

Chicago Teacher’s Union, Local 1 v.

Hudson

Fe rte Be GID sicccnseticeeisccssrenpeeenicccetinnienne

Fed. Election Comm’ v. Nat'l Right To

Work Comm.

og FR Ren

First Nat'l Bank of Boston v. Bellotti

EN CR I iecsienccsitcasindenicassicenainnismninitinesen

Keller v. State Bar of California

I Se iciis niicntinnissebictcnsainnkicevninianii

Lincoln Federal Labor Union 19129 v.

Northwestern Iron & Metal Co.

le GP EINE ceniiesccnichaptnsniscnaticinstcnsenintion

Michigan State AFL-CIO v. Miller

103 F.3d 1240 (6th Cir. 1997)...

United States v. Boyle

482 F.2d 755 (D.C. Cir. 1973) ......... cece

il

Constitutional Provisions

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U.S. Const. amend. I................... sssuscensenseenseenecssessees

Statutes

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REPLY TO BRIEF IN OPPOSITION

1. Respondent’s Restatement Of The Ques-

tion Presented Does Not Accurately State

The Issue

Respondent Washington Education Associa-

tion’s (WEA) Brief In Opposition restates the

Question Presented. According to the WEA, the

question is whether

“Wash. Rev. Code § 42.17.760 impermissibly

burdens the First Amendment right of unions

and their members to free speech by creating

an insurmountable hurdle to engaging in

political speech that is not narrowly tailored to

advancing any compelling governmental

interest?” Br. Opp’n at i (punctuation omitted).

in its Question Presented, and elsewhere, the

WEA describes this “insurmountable hurdle” as

prohibiting the use of members dues in the union’s

general fund “unless the union has secured the

affirmative consent of each individual payer of an

agency fee to the financing of the union’s political

advocacy through the union’s treasury moneys’.

Br. Opp’n at i, 9, 12, 17.

This characterization of the insurmountable

hurdle is not accurate. Wash. Rev. Code § 42.17.760

does not impose any limit on the union’s use of

members’ dues. It applies only to the union’s use

of nonmembers’ agency fees. 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). | .

By the plain text of the statute, the WEA does

not need nonmembers’ consent to use members’ dues

for political purposes. It needs nonmembers’ consent

to use nonmembers’ fees for political purposes.

This fact is also confirmed by the Permanent

Injunction entered by the trial court. It does not

require nonmembers’ consent before the WEA can

use its general fund for political purposes. Rather, it

requires the WEA to reduce the amount of the

agency fees paid by nonmembers by the percentage

of the WEA’s expenditures that have been used for

political purposes. Pet. App. 88a (4 2(e)). -

Thus, the issue in this case is not how a union

may use members’ dues, it is how a union may use

nonmembers fees. The first amendment to the

United States Constitution 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 v. Detroit Bd. of Educ.,

431 U.S. 209, 235 (1977). In Chicago Teacher's

Union, Local 1 v. Hudson, 475 U.S. 292, 310 (1986),

the Court held that the nonmembers’ First

Amendment rights were protected if the

nonmembers were given an opportunity to object

(opt-out) to having their fees used -for political

purposes. However, this Court has explained that

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.]” Keller v. State Bar of California,

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

This case directly presents the question of

whether a state may go beyond the minimum

procedures authorized by Hudson and require that

nonmembers affirmatively consent (opt-in) before

their fees may be used to support the union’s

political agenda. This is an important question that

should be resolved by this Court.

2. Respondent Offers No Authority That

Unions Have A First Amendment Right

To Use Nonmembers’ Fees For Political

Purposes

The decision of the Washington Supreme

Court majority below is based on the premise that

the “United States Supreme Court has held that a.

union has the right to use nondissenting nonmember

fees for political purposes”. App. at 26a. In our

petition we stated that we were unaware of any

decision of this Court that recognizes such a

constitutional right. Pet. at 17. In Lincoln Federal

Labor Union 19129 v. Northwestern Iron & Metal

Co., 335 U.S. 525, 531 (1949), the Court held that

unions do not have a First Amendment right to

require nonmembers to pay fees to a union as a

condition of employment. Thus, a union’s ability to

collect fees from nonmembers is solely a creature of

statute—not constitutional law.

-

In response, the WEA agrees that Lincoln

Federal Labor Union stands for the proposition that

a union has no constitutional right to collect an

agency fee in the first place. Br. Opp’n at 13.

However, the WEA argues that Lincoln Federal

Labor Union does not address the union’s right to

engage in political expression financed by

nonmember fees that the union has lawfully

collected. Br. Opp’n at 13.

However, the argument does not support the

underlying premise of the Washington Supreme

Court—that the union has a constitutional right to

use nonmembers’ fees for political purposes. The

WEA cites no decision of this Court to support this

proposition. The decision below is so far outside the

mainstream of this Court’s decisions that it requires

correction.

3. The Decision Below Is In Conflict With

Other Decisions That Uphold Opt-In

Requirements For Contributions To

Unions For Political Purposes

In our petition, we argued that the decision

below striking down the opt-in requirement of Wash.

Rev. Code § 42.17.760 is in conflict 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 upheld

statutes that established opt-in procedures to make

contributions that a union :an use for political

purposes. Pet. at 20—27.

The WEA seeks to minimize these conflicts.

With regard to NRWC and Boyle, the WEA

emphasizes that the statutes involved in those cases

applied to contributions to unions that would be used

to support candidates for office rather than to

support or oppose ballot measures. Br. Opp’n at

16-18. The WEA states that none of the political

contributions at issue in this case were used to

support candidates for public office. -Br. Opp’n at

5 n.d.

This fact does not eliminate the conflict.

Wash. Rev. Code § 42.17.760 requires affirmative

consent to use fees to influence an election or operate

a political committee. This requirement applies to

both elections for public office and ballot measures.

And the decision below did not strike down Wash.

Rev. Code § 42.17.760 only as applied to ballot

measures. There is nothing in the opinion of the

majority below that draws this distinction. Wash.

Rev. Code § 42.17.760 applies to fees paid to a union

that could be used to contribute to a candidate. The

decision below striking down the opt-in requirement

conflicts with NRWC and Boyle.

Moreover, the WEA’s emphasis on the

distinction between election for public office and

elections for ballot measures does not minimize the

conflict. The WEA relies heavily on First National

Bank of Boston v. Bellotti, 435 U.S. 765 (1978), which

struck down a law that prohibited corporations from

making contributions or expenditures to influence

the outcome of elections on certain ballot measures.

Br..Opp’n at 10, 16, 18. Based on Bellotti, the WEA

appears to be arguing that there is no conflict

between the decision below and~NRWC and Boyle

because a union has a greater right to use

nonmembers’ fees to support or oppose a ballot

measure than it does to support or oppose a

candidate for public office. The WEA cites no

authority to support this proposition or offer any

logical reason why opt-in is permissible if the

contribution is to a candidate but impermissible if it

is to support or oppose a ballot measure.

The WEA also seeks to minimize the conflict

between the decision below and Miller. The WEA

does not rely on the distinction between elections for

public office and ballot measures because the

Michigan Constitution guarantees the right of

initiative and referendum. Mich. Const. art. II, § 9.

Thus, the opt-in requirement in Miller applied to

both candidate elections and ballot measures.

Instead, the WEA argues that the requirement in

Miller only limited the union’s ability to use the

state’s payroll services to assist it in collecting

contributions. Br. Opp’n at 14.

This characterization of Miller is not accurate.

The statute in Miller provided that 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 affirmatively consents

to the contribution at least once in every

calendar year’. Miller, 103 F.3d at 1248-49

(emphasis added).

The prohibition was not limited to use of the state’s

payroll services. It applied more broadly to

contributions “on an automatic basis, including but

not limited to a payroll deduction plan”. Id.

The decision below struck down an opt-in

requirement. NRWC, Boyle, and Miller upheld opt-in

requirements. This is a direct conflict that should be

resolved by this Court.

4. Wash. Rev. Code § 42.17.760 Is Not Unique

The WEA argues that this case does not have

national significance because the requirement in

Wash. Rev. Code § 42.17.760 is unique. Br. Opp’n

at1l. However, as the Campaign Legal Center

explains in its amicus brief, a number of states have

adopted opt-in requirements for political contri-

butions. Amicus Curiae Br. Campaign Legal Center

at 12-13, App. 1-5. Thus, the validity of opt-in

requirements is not limited to Washington. It is a

national issue, and the validity of such requirements

should be resolved by this Court.

5. Conclusion

For the foregoing reasons, 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 General Counsel of Record

D. Thomas Wendel - 1125 Washington Street SE

Assistant Attorney General PO Box 40100

Olympia, WA 98504-0100

August 25, 2006 360-753-6245