Amicus Curiae Brief — Washington v. WASHINGTON EDUCATION ASSN.

FILED

2) AUG 10 2006

&

SZ OFFICE OF THE CLERK

No. 05-1657 |. SUPREMS COURT, U.S.

In the

Supreme Court of the United States

—

STATE OF WASHINGTON,

Petitioner,

Vv.

WASHINGTON EDUCATION ASSOCIATION,

Respondent.

a

vr

On Petition for Writ of Certiorari

to the Supreme Court of Washington

—

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

+

DEBORAH J. LA FETRA

Counsel of Record

TIMOTHY SANDEFUR

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae Pacific Legal Foundation

i

QUESTION PRESENTED

To prevent labor unions from subsidizing their political

activities with money taken from nonmember workers,

Washington State enacted a law requiring unions to obtain

affirmative consent from workers before using this money for

political activism. Does this law violate the First Amendment?

-

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......cccccccccccccccces i

SO GED Kb 0 oc eeen i scicsseeeune iv

IDENTITY AND INTEREST

er SD SS o's vende evuceeseueureds 1

SUMMARY OF ARGUMENT .............0000 eee 2

SEE bale ch cadaibavnsaddcnddasdgpasevasuas 4

l. THE WASHINGTON SUPREME

COURT’S DECISION CONFLICTS

WITH SETTLED PRECEDENT

THAT THE FIRST AMENDMENT

GUARANTEES A DISSENTING

WORKER’S RIGHT TO REMAIN SILENT ...... 4

Il. THE DECISION BELOW

Il.

CONFLICTS WITH DECISIONS OF

THE COURTS OF APPEALS OF THE

SIXTH CIRCUIT AND THE D.C. CIRCUIT ...... 7

THIS CASE INVOLVES IMPORTANT

FEDERAL CONSTITUTIONAL RIGHTS

AND THE CONSTITUTIONAL

AUTHORITY OF STATES .............-00-00. 9

LOWER COURTS NEED GUIDANCE

AS TO THE SCOPE OF HUDSON'S

PROTECTIONS FOR DISSENTERS ........... 13

THE COURT MUST GRANT

CERTIORARI TO END THE

UNION’S “MASSIVE RESISTANCE”

TO DISSENTING WORKERS’ EXERCISE

OF THEIR FIRST AMENDMENT RIGHTS ..... 14

iii

TABLE OF CONTENTS—Continued

CONCLUSION

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iv

TABLE OF AUTHORITIES

Page

Cases

Abood v. Detroit Bd. of Educ.,

RR eB ee eee er Be eer passim

Andrews v. Educ. Ass'n of Cheshire,

ot bos fs Brrr rrrrrre re 13

Bain Peanut Co. of Texas v. Pinson,

rae | PPP eT ee Ty Pree res 10

Bd. of Regents of the Univ. of Wis. Sys.

v. Southworth, 529 U.S. 217 (2000) ............005. |

Brosterhous v. State Bar of Cal.,

SGP Fae PUNO GOD obi ccesciivcessbbesceds ]

_ California v. Ramos, 463 U.S. 992 (1983) ............. 3

Chicago Teachers Union,

Local No. 1, AFT, AFL-CIO

v. Hudson, 475 U.S. 292 (1986) ...........05. passim

City of Charlotte v. Local 660, Int'l Ass'n

of Firefighters, 426 U.S. 283 (1976) ............ 10, 20

Communications Workers of Am.

v. Beck, 487 U.S. 735 (1988) ........... 10, 15-16, 19

Crawford v. Air Line Pilots Ass'n Int'l,

S70 FAG 15S GOR Ce, TOG oo cic cccdcicesetevens 13

Cumero v. Pub. Employment Relations Bd.,

rote feo * 5 Ere rrr |

Cummings v. Connell,

316 F.3d 886 (9th Cir. 2003)................6. 11,15

Damiano v. Matish,

830 F.2d 1363 (6th Cir. 1987) ..............05. 14-15 ©

V

. TABLE OF AUTHORITIES—Continued

Page

Ellis v. Bhd. of Ry., Airline & S.S.

Clerks, Freight Handlers, Express &

Station Employees, 466 U.S. 435 (1984) ......... 4,11

Florida v. White, 526 U.S. 559 (1999)... 6... ce eens 8

Gibson v. The Florida Bar,

906 F.2d 624 (11th Cir. 1990)... 6... ee eee ee 13

Grunwald v. San Bernardino City Unified

Sch. Dist., 994 F.2d 1370 (9th Cir. 1993) ........... 13

Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989) ............ 13

Int'l Ass'n of Machinists & Aerospace Workers

v. NLRB, 133 F.3d 1012 (7th Cir. 1998) ............ 13

Int'l Ass'n of Machinists v. Street,

ee den d eee ccensstsece 7,11

Keller v. State Bar of Cal., 496 U.S. 1 (1990) ...... 1, 4, 10

Kelo v. City of New London,

I 3, 12

Ky. Educators Pub. Affairs Council v. Ky. Registry

of Election «-in., 677 F.2d 1125 (6th Cir. 1982) ...... 10

Lakeside v. Oregon, 435 U.S. 333 (1978) ...........4.. 9

Lehnert v. Ferris Faculty Ass'n,

eee Bee eke ceedcawh occnces 1,10

Lincoln Fed. Labor Union No. 19129 v.

Nw. Iron & Metal Co., 335 U.S. 525 (1949) ......... 10

Locke v. Davey, 540 U.S. 712 (2004) ............. 11-12

Lutz v. Int'l Ass'n of Machinists & Aerospace

Workers, 121 F. Supp. 2d 498 (E.D. Va. 2000) .... 6,15

vi

TABLE OF AUTHORITIES—Continued

Page

Masiello v. U.S. Airways, Inc.,

113 F. Supp. 2d 870 (W.D.N.C. 2000) .............

Mich. State AFL-CIO v. Miller,

103 F.3d 1240 (6th Cir, 1997) .............. 3, 7-8, 20

Mills v. Habluetzel, 456 U.S. 91 (1982) .............4. 5

Oregon v. Hass, 420 U.S. 714 (1975) ..........000 00 12

Penrod v. NLRB, 203 F.3d 41 (D.C. Cir. 2000) ......... 15

Pilots Against Illegal Dues v. Air Line Pilots

Ass'n, 938 F.2d 1123 (10th Cir. 1991) ............. 13

PruneYard Shopping Ctr. v. Robins,

Gr es PEE déudhibcbadedecventdienadcude 11

Rosenberger v. Rector & Visitors of

Univ. of Va., 515 U.S. 819 (1995) ..... 2... ee eee ]

Shaw v. Reno, 509 U.S. 630 (1993) ............ 0c e eee 6

Shea v. Int'l Ass'n of Machinists & Aerospace

Workers, 154 F.3d 508 (Sth Cir. 1998) ....... 11, 15-16

Shuttlesworth v. City of Birmingham,

394 U.S. 147 (1969) ....... Ns uc dbccewentabanees 6

Skinner v. Oklahoma, 316 U.S. 535 (1942) ............ 12

State ex rel. Wash. State Pub.

Disclosure Comm'n v. Wash. Educ.

Ass'n, 130 P.3d 352 (Wash. 2006) .......... 2, 7-8, 14

State of Alaska v. Arctic Maid, 366 U.S. 199 (1961)..... 12

State of New York v. United States,

TEED inc hak octbdereincinsmantnes 12

Vii

TABLE OF AUTHORITIES—Continued

Page

Tavernor v. Ill. Fed'n of Teachers,

226 F.3d 842 (7th Cir. 2000)............... 11, 13,15

Taylor v. Simmons-Harris, 533 U.S. 976 (2001) ......... 9

Tierney v. City of Toledo,

824 F.2d 1497 (6th Cir. 1987) .............006- 14-15

United States v. Boyle, |

Cae Fe Faw Gs GEE, BDTED occ cc cccccccess 3, 9, 20

United States v. United Foods, Inc.,

Se PE od dadddhavenacsndcvcnntéencéec 4

Virginia v. Black, 538 U.S. 343 (2003) ..............4. 2

Washington v. Seattle Sch. Dist. No. 1,

ee ED oc Sain wines uecd ovcnseesode ves 19

Williams v. Rhodes, 393 U.S. 23 (1968) ............... 6

Wooley v. Maynard, 430 U.S. 705 (1977) .............. 4

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ....... 12

United States Constitution

Pe ISS eta bedd ow evucedsdassce ous passim

RET kbn dheustienwsuwadeneecdadescsecesnes 6

Federal Statute

SEED bbs tsnbacdasddabakue d¥ncctddues des 9

Rule of Court

DRE S onnccdantupeasctansuddcetes l

Vili

TABLE OF AUTHORITIES—Continued

Page

Miscellaneous

Baird, Charles W., The Tip of the Iceberg:

PACs & the Forced-Dues Base of Big

Labor's Political Machine, The Smith Center

for Private Enterprise Studies, Mar. 15,2001 ........ 18

Brennan, William J., Jr., State Constitutions

and the Protection of Individual Rights,

90 Harv. L. Rev. 489 (1977) ............. 00 e cues 12

Brown, Tom & Blethen, Ryan, State's Campaign

Cleanup a Washout?, Seattle Times, Aug. 3, 1997,

at Al, available at 1997 WLNR 1453262 .......... 18

David M., Requiring Unions to Notify

overed Employees of Their Right to Be

Agency Fee Payer in the Post Beck Era,

ck Rights System in the Real World

orkplace, 47 Wayne L. Rev. 1049 (2001) ..... 2, 4, 14

Chauffeurs, Teamsters, Warehousemen & Helpers

nion, Local No. 377, Case No. 8-CB-9415-1,

004 WL 298352 (N.L.R.B. Feb. 11, 2004) ......... 15

n, Lia B., True Integration: Advancing

Brown's Goal of Educational Equity in the

Wake of Grutter, 67 U. Pitt. L. Rev. 175 (2005) ...... 19

Hearings before the Subcommittee on

Employer-Employee Relations of the Committee

on Economic and Educational Opportunities,

on H.R. 3580, The Worker Right to Know Act,

Serial No. 104-66 (104th Cong. 2d Sess. 1996) ... 15-16

ix

TABLE OF AUTHORITIES—Continued

Hunter, Robert P.,

Paycheck Protection in Michigan (1998) .........-. 16

Jefferson, Thomas, Virginia Statute for

Religious Freedom (1786) in JEFFERSON: :

WRITINGS (Merrill D. Peterson ed., 1984) ........... 4

Kochkodin, Michael C.,.A Good Politician

Is One That Stays Bought: An Examination

of Paycheck Protection Acts and Their

Impact on Union Political Campaign Spending,

2 U. Pa. J. Lab. & Emp. L. 807 (2000) ............. 17

La Fetra, Deborah J., Recent

Deve'opments in Mandatory Student

Fee Cases, 10 J.L. & Pol. 579 (1994) ............... l

Local 74, Serv. Employees Int’l Union, ;

Fe Pe SENIOR sds bcdenenddécccdcccen 15

Lynch, Michael W., The Summer of Reform:

Campaign Finance Laws Return to the

Congressional Agenda, Reason, Aug. 18, 1998,

at 7, available at 1998 WLNR 4378163 ............ 18

Monson Trucking Inc., 324 N.L.R.B. 933 (1997) ....... 15

Office & Prof’l Employees Int'l Union,

Pe CE MP aS csc cckescdcvicsocade 15-16

Reitz, Michael, Paychecks Unprotected,

ee SR Eo ce hd cewhbeusdedos outs 17

Settlement Agreement between State of

Washington and WEA, Feb. 26, 1998 .............. 17

x

TABLE OF AUTHORITIES—Continued

Page

Varner, Lynne K. & Postman, David,

WEA Suit Follows Dues Dispute,

Seattle Times, Feb. 13, 1997, at B1,

available at 1997 WLNR 1483331 .............06. 17

Woldow, Brian J., The NLRB’s (Slowly)

Developing Beck Jurisprudence:

Defending a Right in a Politicized Agency,

52 Admin. L. Rev. 1075 (2000) ...........0-0 008s 14

l

IDENTITY AND INTEREST

OF AMICUS CURIAE’

Pursuant to Supreme Court Rule 37.2(a), Pacific Legal

Foundation (PLF) respectfully submits this brief amicus curiae

in support of the petition for a writ of certiorari. Written

consent was granted by counsel for all parties and lodged with

the Clerk of this Court.

PLF was founded 30 years ago and is widely recognized

as the largest and most experienced nonprofit legal foundation

of its kind. PLF litigates matters affecting the public interest at

all levels of state and federal courts and represents the views of

thousands of supporters nationwide. Among other things, PLF

litigates in defense of the right of workers not to be compelled

to make involuntary payments to support political or expressive

purposes with which they disagree. To that end, PLF attorneys

were counsel of record in Keller v. State Bar of Cal.,

496 U.S. 1 (1990); Cumero v. Pub. Employment Relations Bd.,

778 P.2d 174 (Cal. 1989); and Brosterhous v. State Bar of Cal.,

906 P.2d 1242 (Cal. 1995), and has participated as amicus

curiae in several other compelled fee cases, including and Bd.

of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217

(2000); Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819 (1995); Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507

(1991); and Abood v. Detroit Bd. of Educ., 431 U.S. 209

(1977). PLF attorneys have also published articles on

compelled speech issues, including Deborah J. La Fetra, Recent

Developments in Mandatory Student Fee Cases, 10 J.L. &

Pol. 579 (1994). Further, PLF has participated as amicus curiae

in this litigation in the Washington Court of Appeals and

Supreme Court.

' Counsel for a party did not author this brief in whole or in part. No

person or entity, other than amicus curiae, its members or its counsel

made a monetary contribution specifically for the preparation or

submission of this brief.

2

SUMMARY OF ARGUMENT

Almost thirty years after this Court’s decision in Abood,

431 U.S. 209, organized labor remains steadfast in its refusal to

implement that decision in any meaningful way. See generally

Jeff Canfield, What A Sham(e): The Broken Beck Rights System

in the Real World Workplace, 47 Wayne L. Rev. 1049, 1050

(2001) (noting that union behavior “makes it nearly impossible

for average employees to successfully assert these rights granted

by the Court.”). This obstructionism can only be described as

“massive resistance,” a direct affront to this Court’s repeated

declarations that unions may not use money taken from workers

without their consent for purposes of political activism. See

Virginia v. Black, 538 U.S. 343, 394 (2003) (Thomas, J.,

dissenting) (describing “massive resistance”).

In this case, the voters of Washington adopted a law,

called I-134, which included a provision (section 760) requiring

labor unions to obtain an “opt-in” agreement from workers

before devoting their compulsory fees to political lobbying

efforts. The court below found that this initiative, passed by an

impressive 72 percent vote, violates the First Amendment rights

of labor unions because it imposes an “administrative burden”

on the unions which interferes with their lobbying activities.

State ex rel. Wash. State Pub. Disclosure Comm'n v. Wash.

Educ. Ass'n, 130 P.3d 352, 360 (Wash. 2006) (WEA)

(“Dissenters may not silence the majority by the creation of too

heavy an administrative burden.”).

In brief, the court held that section 760’s opt-in

requirement decreases the union’s financial power, due

presumably to the number of people who overlook the need to

sign necessary forms, or decline to state a preference for some

other reason. The court concluded that the cost of obtaining

consent for the use of shop fees for political activity decreases

the union’s political influence, in violation of the First

Amendment. /d. '

3

This decision adopts an indefensible reading of the First

Amendment whereby unions are presumed to have a

constitutional nght to spend workers’ money on union political

advocacy. It also clashes with the decision of the Sixth Circuit

Court of Appeals in Mich. State AFL-CIO v. Miller, 103 F.3d

1240, 1253 (6th Cir. 1997), and the D.C. Circuit in United

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

affirmative consent requirements like that required by section

760 are consistent with the First Amendment.

Moreover, the decision below does serious damage to the

legislative autonomy of states, which have the constitutional

authority to adopt mechanisms for protecting citizens’ rights

above and beyond the requirements of the federal constitution.

This Court has long insisted that states have the room to

provide residents with greater protections than those provided

by the federal government. See, e.g., Kelo v. City of New

London, 125 S. Ct. 2655, 2668 (2005) (states may adopt more

restrictive definition of “public use” under state law to reduce

government’s ability to condemn property); California v.

Ramos, 463 U.S. 992, 1014 (1983) (“States are free to provide

greater protections in their criminal justice system than the

Federal Constitution requires.”). Washington State tried to do

just this, and should not be barred by a perverse interpretation

of the First Amendment.

If this Court’s decisions respecting the rights of dissenting

workers not to be coerced into supporting union political

advocacy are to be meaningfully implemented, the decision

below cannot stand. The petition should be granted.

, 4

ARGUMENT

THE WASHINGTON SUPREME COURT’S

DECISION CONFLICTS WITH SETTLED

PRECEDENT THAT THE FIRST :

AMENDMENT GUARANTEES A DISSENTING

WORKER’S RIGHT TO REMAIN SILENT

In Abood, 431 U.S. at 234-35, this Court held that every

person has a constitutional right not to subsidize union political

lobbying with which he disagrees. That basic right—best

encapsulated by Thomas Jefferson’s statement that “to compel

a man to furnish contributions of money for the propagation of

opinions ee eee a is sinful and tyrannical,”

Thomas Jeffefson, Virginia Statute for Religious Freedom

(1786) in JEFFERSON: WRITINGS 346 (Merrill D. Peterson ed.,

1984)—has been repeatedly affirmed by this Court. See, e.g.,

United States v. United Foods, Inc., 533 U.S. 405, 410 (2001);

Keller, 496 U.S. at 9-10; Chicago Teachers Union, Local

No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292 (1986); Ellis v.

Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, Express &

Station Employees, 466 U.S. 435 (1984). Of course, this

Court’s decisions made it clear that if a worker does not object

to such expenditures, nothing in the Constitution prohibits

them. Abood, 431 U.S. at 235-36. But unions, like all

government-empowered semi-public institutions, must respect

the night of dissenters not to utter or endorse messages with

which they disagree. Cf Wooley v. Maynard, 430 U.S. 705,

714 (1977); United Foods, 533 U.S. at 410.

Nonetheless, recognizing that they stand to lose a

significant amount of their coerced income, labor unions have

sought ways to minimize dissenters’ opportunities to withhold

their earnings from union expropriation. See generally

Canfield, supra. The union’s primary method of accomplishing

this is to make it so difficult for dissenters to assert and

5

vindicate their rights that they ultimately give up. The more

burdensome the procedure imposed on potential dissenters, the

fewer.dissenters who make the effort, and the more the union

stands to gain in the aggregate.

In Hudson, the teachers’ union sought to protect its

income by setting up a prohibitively difficult procedure for-

dissenting agency shop fee payers.? The union withheld a

certain amount of money from nonmembers, and required those

who objected to undergo a long and complicated three-step

internal union process, culminating in arbitration, to get their

money back. 475 U.S. at 296. The Court unanimously found

this procedure unconstitutional, because it did not adequately

protect the First Amendment rights of dissenters. Procedural

safeguards, this Court explained, must minimize infringement

of dissenters’ right to be free from compelled speech, id. at 303,

and minimize “the risk that dissenters’ funds will be used, even

temporarily, to finance ideological activities” with which they

disagree. /d. at 305 (quoting Abood, 431 U.S. at 244). But the

teacher’s union’s scheme “merely offerfed] dissenters the

possibility of a rebate” at the end of a complicated procedural

gauntlet. The Court found that this “forced exaction followed

by a rebate” was “not a permissible response” to the dissenters’

objections. Jd. at 305-06.

Hudson, like many of this Court’s decisions, recognized

that procedures and legal presumptions often can be fashioned

to impose such a severe burden on an affected party that they

render the party’s substantive constitutional guarantees hollow.

See, e.g., Mills v. Habluetzel, 456 U.S. 91 (1982) (unreasonably

short statute of limitations period violated due process);

? “Dues” are paid by union members. “Agency shop fees” are the -

same as dues except that they are paid by nonmembers against their

will, pursuant to this Court’s decision in Beck that nonmembers may

be forced to support unions from whose collective bargaining they

are presumed to benefit.

6

Williams v. Rhodes, 393 U.S. 23, 24 (1968) (“a series of

election laws has made it virtually impossible for a new

political party [to form]” violated substantive guarantees of

Fourteenth Amendment); Shaw v. Reno, 509 U.S. 630, 639

(1993) (“Ostensibly race-neutral devices such as literacy tests

with ‘grandfather’ clauses and ‘good character’ provisos were

devised to deprive black voters-of the franchise.”);

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 162-63

(1969) (burdensome permit requirement for civil mghts

demonstration violated First Amendment).

Section 760 seeks to create a “constitutionally adequate”

remedy that avoids such problems. It simply requires unions to

obtain consent before spending workers’ money on political

activities. The alternatives between (a) requiring dissenters to

assert their disagreement, and (b) requiring loyalists to assert

their agreement, are not interchangeable. Because some

workers inevitably will fail to return a signed consent form,

intentionally or accidentally, a presumption against dissent

guarantees a higher income for the union than a presumption

that requires the union to persuade its supporters to sign a

' consent form. As one district court explained in a case similar

to this one, “what is really at stake here is whether the union

can collect more money as a benefit of the decisionmaker’s

inertia.” Lutz v. Int'l Ass'n of Machinists & Aerospace

Workers, 121 F. Supp. 2d 498, 506 (E.D. Va. 2000). Simply

put, requiring dissenters to go through a refund procedure, as

opposed to requiring those who do agree with the lobbying to

signify that agreement, can practically nullify many dissenters’

First Amendment nights.

Requiring affirmative consent was a sensible response to

the apparent conflict between the union’s statutory night to

require agency shop fees from nonmembers, and the

constitutional right of nonmembers to refrain from supporting

the union’s political speech. Moreover, it was a logical solution

7

to the concerns expressed in Hudson, that unions might bury

workers’ rights in complicated procedural schemes.

But the decision below declares that the opt-in

requirement is unconstitutional because it will impose

“administrative burdens” on—i.e., decrease the financial

wherewithal of—the union, dampening its lobbying strength.

WEA, 130 P.3d at 359. This holding betrays the promise of

Hudson by declaring that measures which protect a dissenter’s

rights must not be overly “burdensome” on the power of a

union which desires to finance its activities through

expropriations. By a similar logic, a court might also hold that

it is unconstitutional for the owner of a television station to

charge a person for advertising time, because doing so

“inhibit[s]” the advertiser’s “political speech.” Jd. at 560. Of

course, such a decision would be in error, since it would ignore

the initial layout of rights; nobody has the constitutional right

to finance his or her speech at someone else’s expense. Cf. Int'l

Ass'n of Machinists v. Street, 367 U.S. 740, 795 (1961) (Black,

J., dissenting) (“[R]elieving protesting workers of all payment

of dues . . . . would interfere with the union’s activities only to

the extent that it bars compulsion of dues payments from

protesting workers to be used in some unknown part for

unconstitutional purposes, and I think it perfectly proper to hold

that such payments cannot be compelled.”). This is the

principle that the court below ignored, rendering its decision

squarely in conflict with Abood, Hudson, and other cases.

IT

THE DECISION BELOW

CONFLICTS WITH DECISIONS OF

THE COURTS OF APPEALS OF THE

SIXTH CIRCUIT AND THE D.C, CIRCUIT

In Miller, 103 F.3d 1240, the Sixth Circuit affirmed the

constitutionality of a law which “requir[ed] labor unions to

obtain affirmative consent at Jeast once per year from members

8

utilizing an automatic payroll deduction to make contributions

to their union for political purposes.” Jd. at 1243. The court

found that because the law was not a content-based speech

restriction, only intermediate scrutiny applied, id. at 1252, and

therefore the law need only further an important government

interest, do it in a way unrelated to the suppression of speech,

and do it in the least restrictive way possible, id. at 1253.

Although the union claimed in that case, as does the union in

this case, “that the administrative burden” would be “crushing,”

the court found no reason to agree with that claim: “[a]n annual

mailing to a union’s contributing members, asking them to

check a box and to return the notice to the union, would seem

to suffice under the statute.” Jd. Thus the burden, if any, would

not “rise to the level of a constitutional violation.” Jd. By

contrast, the danger of the opposite presumption was that it

could lead to dissenting members being forced to subsidize

speech with which they disagreed. Compared to that realistic

danger to First Amendment principles, the argument that the

opt-in requirement violated the union’s free speech rights

“border[ed] on the frivolous.” Jd.

The court below distinguished Miller on the grounds that

Miller dealt only with member dues and not with agency shop

fees, see WEA, 130 P.3d at 361-62. But this distinction is

untenable, as the dissent noted. See 130 P.3d at 368. Actually,

that this case involves agency shop fees is all the more reason

to follow Miller, because agency shop fees are paid by those

who choose (with almost no financial benefit to themselves) not

to join the union. Such people probably are not willing to see

their money used to support union political activities.

The central issue here—whether the First Amendment

requires the state to presume that workers prefer to support —

union political activities—is directly and contrarily decided in

Miller. Such a division of authority warrants this Court’s grant

of certiorari. See Florida v. White, 526 U.S. 559, 563 (1999)

(division between State Supreme Court and Federal Court of

9

Appeals warrants certiorari); Lakeside v. Oregon, 435 U.S. 333,

336 (1978) (same); Taylor v. Simmons-Harris, 533 U.S. 976

(2001) (same).

Similarly, in Boyle, 482 F.2d 755, the court upheld an opt-

in requirement similar to that involved here, against the claim

that it violated the First Amendment. The defendant in that

case was charged with violating 18 U.S.C. § 610, which at the

time prohibited unions from making political expenditures to

candidates out of funds taken from workers, unless the worker

consented. The defendant argued that this law “impose[d] an

unconstitutional limitation on the union’s freedom of speech,”

482 F.2d at 763, because it “substantially restrict[ed] the

union’s right to present its views by supporting candidates of its

choice.” Jd. In particular, the defendant argued that a less-

restrictive alternative would have been for the government to

impose an opt-out requirement, instead of an opt-in

requirement, like that required here. See id. at 763-64. The

court rejected this argument, noting that there was, in fact,

“no... viable less restrictive alternative” which would “protect

union minority interests.” Jd. at 764. Thus, the court concluded

that the opt-in requirement was constitutional.

The decision below, however, holds that the state may not

require an opt-in provision because doing so is too burdensome

for a labor union. This holding directly conflicts with Boyle,

creating a division of authority that justifies a grant of certiorari.

iil

THIS CASE INVOLVES

_ IMPORTANT FEDERAL

CONSTITUTIONAL RIGHTS AND THE

CONSTITUTIONAL AUTHORITY OF STATES

Washington State law gives unions the legal privilege to

force those workers who choose not to join the union to pay an

“agency shop fee”—a monetary fine almost equal to union

10

dues—to the union. This fee is deducted from the worker’s

paycheck. This Court has held that the Constitution allows

states to extend such privileges to unions. See Communications

Workers of Am. v. Beck, 487 U.S. 735, 749-50 (1988); Lehnert,

500 U.S. at 520. But unions have no constitutional right to

such deductions. /d.; Ky. Educators Pub. Affairs Council v. Ky.

Registry of Election Fin., 677 F.2d 1125, 1134 (6th Cir. 1982)

(“[the union] has no constitutional right to a check-off or

payroll deduction system for political fund raising.”); cf

Lincoln Fed. Labor Union No. 19129 v. Nw. 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 [union] or will agree to abide by the [union]’s

plans.”). State laws authorizing automatic deductions of agency

shop fees are neither constitutionally required nor

constitutionally prohibited; rather, they are an example of what

this Court has called “play in [the] joints” between

constitutional provisions. See Bain Peanut Co. of Texas v.

Pinson, 282 U.S. 499, 501 (1931). See also City of Charlotte

v. Local 660, Int'l Ass'n of Firefighters, 426 U.S. 283, 287

(1976) (“Within the limitations of the Equal Protection

Clause . . . the choice of those standards [for determining when

union dues will be withheld] is for the city and not for the

courts.”).

But while states are free to grant unions the privilege of

deducting agency shop fees from workers’ paychecks, workers

have a constitutional right not to be compelled to support

political campaigns with which they disagree. Abood, 431 U.S.

at 222-23; Keller, 496 U.S. at 10-11. Thus, when a union’s

statutory privilege collides with the constitutional rights of the

worker, the union’s privilege must yield. Cf Beck, 487 U.S.

at 751 (“[by authorizing unions to deduct money from

dissenters’ pay,] Congress did not intend ‘to provide the unions

11

with a means for forcing employees, over their objection, to

support political causes which they oppose.’ ” quoting Street,

367 U.S. at 764). Accordingly, the Court found in Hudson that

procedures which make it prohibitively difficult for workers to

object to union expropriations of their earnings for political

purposes must yield to the worker’s First Amendment nights.

475 U.S. at 308.

Following Hudson the Courts of Appeals for the Seventh,

Ninth, and Fifth Circuits, each found certain objection

procedures to be too burdensome, violating dissenters’ First

Amendment rights. See Tavernor v. Ill. Fed’n of Teachers, 226

F.3d 842, 848 (7th Cir. 2000) (union’s procedure of collecting

full amount of union dues from nonmembers rather than 85

percent associated with collective bargaining, and requiring

year-long process for rebate, violated Hudson); Cummings v.

Connell, 316 F.3d 886, 890-91 (9th Cir. 2005) (confusing and

incomplete notice of Hudson rights was unconstitutional); Shea

v. Int'l Ass'n of Machinists & Aerospace Workers, 154 F.3d

508, 515 (Sth Cir. 1998) (requiring workers to object to

paycheck deductions annually in writing, rather than to assert

continuing objection violated Hudson).

None of these courts has gone so far as to declare that

unions must employ opt-in procedures like the Washington law.

See Ellis, 466 U.S. at 444 (“there are readily available

alternatives, such as advance reduction of dues and/or

interest-bearing escrow accounts, that place only the slightest

additional burden, if any, on the union.”’). But, again, while the |

First Amendment does not require an opt-in procedure, neither

does it prohibit it. States remain free to devise additional ways

to protect dissenting workers’ rights, or even to expand those

rights beyond the minimum protection offered by the Federal

Constitution. See, e.g., PruneYard Shopping Ctr. v. Robins,

447 U.S. 74, 88 (1980); Locke v. Davey, 540 U.S. 712, 725

(2004).

12

One of the most important features of the federalist system

is that it allows states to devise statutory mechanisms that will

best protect individual rights. See Skinner v. Oklahoma, 316

U.S. 535, 539-40 (1942) (“Under our constitutional system the

States in determining the reach and scope of particular

legislation need not provide abstract symmetry .... [T]he

machinery of government would not work ifit were not allowed

a little play in its joints.”) (citations and quotation marks

omitted). If, for example, a state believes that police procedures

routinely fail to protect a suspect’s freedom from self-

incrimination, it may institute procedures that will more

effectively protect their rights. Oregon v. Hass, 420 U.S. 714,

719 (1975). Likewise, if a state believes that administrative

agencies do not adequately protect the rights of religious

exercise, it may implement more protective procedures, so long

as the procedures do not violate the free exercise of religion.

Locke, 540 U.S. at 725. The people of the states may choose to

limit the use of eminent domain if they find that the protections

afforded by the Federal Constitution are not effective enough.

Kelo, 125 S. Ct. at 2668. Or a state may allow citizens to send

their children to schools of their choice, including religious

schools, and to spend government education grants there.

Zelman v. Simmons-Harris, 536 U.S. 639, 653 (2002). See

further William J. Brennan, Jr., State Constitutions and the

Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).

The importance of this case with regard to state autonomy

is another reason that this Court should grant certiorari. Cf

State of New York v. United States, 326 U.S. 572, 574 (1946)

(judicial restriction on state autonomy especially warranted a

grant of certioriari); State of Alaska v. Arctic Maid, 366 U.S.

199, 202 (1961) (same).

13

IV

LOWER COURTS NEED GUIDANCE

AS TO THE SCOPE OF HUDSON'S

PROTECTIONS FOR DISSENTERS

The decision below is indicative of confusion in the lower

courts as to the degree of protection that workers are entitled to

under Hudson. Although Abood makes it clear that unions and

states must adopt procedures whereby dissenting workers can

prevent unions from subsidizing political speech through

paycheck deductions, and Hudson further explains that such

procedures must not be unduly burdensome, lower courts have

struggled to define the standards to which such procedures must

conform.

As the Seventh Circuit has noted, most circuit courts of

appeals have held that unions may deduct the full amount of an

agency shop fee plus the union political speech subsidy from a

worker’s paycheck so long as the worker may obtain a rebate

after a prompt and impartial procedure. Tavernor, 226 F.3d

at 848 (citing Grunwald v. San Bernardino City Unified Sch.

Dist., 994 F.2d 1370, 1373-76 (9th Cir. 1993); Pilots Against

Illegal Dues v. Air Line Pilots Ass'n, 938 F.2d 1123, 1132-33

(10th Cir. 1991); Gibson v. The Florida Bar, 906 F.2d 624, 631 -

(11th Cir. 1990); Crawford v. Air Line Pilots Ass'n Int'l, 870

F.2d 155, 161 (4th Cir. 1989); Hohe v. Casey, 868 F.2d 69, 72

(3d Cir. 1989); Andrews v. Educ. Ass'n of Cheshire, 829 F.2d

335, 339 (2d Cir. 1987)). See also Int'l Ass'n of Machinists &

Aerospace Workers v. NLRB, 133 F.3d 1012, 1017 (7th Cir.

1998) (noting that Third and Sixth Circuit decisions regarding

certain Hudson requirements “are in tension with the cases

(often the same cases!) that hold that dissenters are not entitled

to the highest level of audit services that the market offers.”).

Yet other circuits have held that unions must inform

workers of what amount of their paycheck deduction will be

spent on political activism, and allow dissenters to receive that

14

money back before the union engages in political activity. See

Tierney v. City of Toledo, 824 F.2d 1497, 1504-05 (6th Cir.

1987); Damiano v. Matish, 830 F.2d 1363, 1370 (6th Cir.

1987). The 7ierney court explained that in its view, Hudson

prohibits the union from “deduct[ing] any amount, for however

short a time, which represents monies clearly expended for

ideological purposes. The union simply cannot exact from the

dissenter this proportionate amount, and must instead allow him —

an advance reduction of that part of the union’s fee immediately

upon objection.” 824 F.2d at 1504.

These cases indicate that lower courts need direction as to

the exact meaning of Hudson’s holding with regard to undue

burdens on workers. Here, the state of Washington adopted a

procedure designed to meet and even exceed the minimal

constitutional guarantees recognized in Hudson. The court

below, however, declared that “the burden [is] on the dissenting

nonmember to assert his or her First Amendment rights,” and

that it is not “constitutionally permissible. . . to shift the burden

to the union to protect the First Amendment nights of dissenting

nonmembers.” WEA, 130 P.3d at 359. Only this Court can

resolve the issue of whether Hudson is compatible with the

State’s decision to require unions to obtain permission before

subsidizing political speech with money taken from workers.

V

THE COURT MUST GRANT CERTIORARI TO

END THE UNION’S “MASSIVE RESISTANCE”

TO DISSENTING WORKERS’ EXERCISE

OF THEIR FIRST AMENDMENT RIGHTS

In the nearly 30 years since Abood, organized labor has

adopted a concerted resistance toward this Court’s decisions_

with regard to workers’ rights. See generally Canfield, supra;

Brian J. Woldow, The NLRB's (Slowly) Developing Beck

Jurisprudence: Defending a Right in a Politicized Agency, 52

Admin. L. Rev. 1075 (2000) (documenting refusal of unions

15

and government to abide by Beck and similar cases). See also

Monson Trucking Inc., 324 N.L.R.B. 933, 935 (1997) (union

failed to provide employee Beck rights notice); Local 74, Serv.

Employees Int'l Union, 323 N.L.R.B. 289, 290 (1997) (same);

Chauffeurs, Teamsters, Warehousemen & Helpers Union, Local

No. 377, Case No. 8-€B-9415-1, 2004 WL 298352 (N.L.R.B.

Feb. 11, 2004) (“I find that the membership application with the

‘Notice’ hidden on the second and third page did not serve to

adequately apprise newly-hired employees of their Beck

rights.”). As one expert testified to Congress, “[t]he first hurdle

that employees face [when asserting their rights not to subsidize

union political activities] is that they are lied to by union leaders

who purport to represent them. I use a stark term, and I mean

it. That’s right. They are lied to regularly, clearly as a matter

of course.” Hearings before the Subcommittee on Employer-

Employee Relations of the Committee on Economic and

Educational Opportunities, on H.R. 3580, The Worker Right to

Know Act, Serial No. 104-66 (104th Cong. 2d Sess. 1996)

at 111 (Statement of W. James Young).

In case after case, workers are forced to rely on federal

courts to resolve complaints against union rules that unfairly

burden their right not to be compelled to subsidize political

speech. See, e.g., Shea, 154 F.3d 508; Tavernor, 226 F.3d 842;

Cummings, 316 F.3d 886; Lutz, 121 F. Supp. 2d 498; Masiello

v. U.S. Airways, Inc., 113 F. Supp. 2d 870, 875 (W.D.N.C.

2000); Tierney, 824 F.2d 1497; Damiano, 830 F.2d 1363;

Penrod v. NLRB, 203 F.3d 41 (D.C. Cir. 2000).

For example, in Office & Prof’l Employees Int'l Union,

331 N.L.R.B. 48 (2000), the union promulgated rules requiring

an objecting employee to specify exactly the amount of fees she

believed were wrongly withheld and what the money had been

spent on. Moreover, the union “treat[ed] the failure to submit

challenges that specified a category of expenditures as a waiver

of the right to challenge the expenditures.” Jd. at 49. The

National Labor Relations Board found that this was

16

unreasonable and arbitrary because “the Union simply place[d]

too high a burden on the objector’s exercise of her right to

challenge the Union’s figures.” Jd.

In Shea, too, the Fifth Circuit noted that the procedure

created for objecting dissenters was intended to prevent them

from taking advantage of their nghts:

It seems to us that the unduly cumbersome annual

objection requirement is designed to prevent

employees from exercising their

constitutionally-based right of objection, and serves

only to further the illegitimate interest of the [union]

in collecting full dues from nonmembers who would

not willingly pay more than the portion allocable to

activities germane to collective bargaining.

154 F.3d at 515.

In spite of judicial decisions striking down organized

labor’s obstructionist tactics, unions and their political

representatives remain obstinate in their refusal to accord

workers the rights to which they are entitled under Abood,

Hudson, and similar cases. A poll conducted in 1996, revealed

that 78 percent of union members are not even aware of their

rights under the Beck decision, and political leaders since the

Reagan Administration have refused to implement Beck in a

meaningful way. David M. Burns, Requiring Unions to Notify

Covered Employees of Their Right to Be an Agency Fee Payer

in the Post Beck Era, 48 Cath. U. L. Rev. 475, 502 n.200, 481-

82 (1999); Hearings, supra, at 365. A 1998 report found that

“[gjovernmental enforcement of Beck rights . . . has been

virtually nonexistent.” Robert P. Hunter, Paycheck Protection

in Michigan 6 (1998).’

> Available at http://www .mackinac.org/archives/1998/s1998-05 pdf

(last visited June 29, 2006).

17

Union efforts to circumvent the law are exemplified by the

behavior of the Washington Education Association. See

generally Michael C. Kochkodin, A Good Politician Is One

That Stays Bought: An Examination of Paycheck Protection

Acts and Their Impact on Union Political Campaign Spending,

2 U. Pa. J. Lab. & Emp. L. 807, 824-29 (2000) (describing

WEA’s evasive response to I-134). In 1994, knowing that I-134

would soon take effect and bar the WEA from collecting money

to finance political activities from nonconsenting workers, the

union collected the upcoming year’s assessments in advance.

Michael Reitz, Paychecks Unprotected, Labor Watch, Jan.

2006, at 3.4 Then, after I-134 went into effect, the union “lent”

more than $162,000 from its general fund to its political action

committee, later forgiving the “loan.” See Settlement

Agreement between State of Washington and WEA, Feb. 26,

1998.° The union spent another $120,000 to pay for its political

action committee’s “administrative costs,” without reporting

these expenditures, and spent another $730,000 from its general

fund to support the passage of two ballot measures. Jd. The

union then established a euphemistically named “Community

Outreach Program,” which raised and spent more than $2

million on political activities without permission from WEA

members. Jd.; see also Lynne K. Varner & David Postman,

WEA Suit Follows Dues Dispute, Seattle Times, Feb. 13, 1997,

at B1, available at 1997 WLNR 1483331. During this time, the

full amount of the union’s income from dues that had been

authorized for political expenditures was only about $144,000

per year. Reitz, supra.

After an investigation of these activities, the state’s

Political Disclosure Committee concluded that WEA had

* Available at http://www.capitalresearch.org/ pubs/pdf/LW0106.pdf

(last visited May 31, 2006).

* Available at http://www .atg.wa.gov/pubs/wca_setl.html (last visited

May 27, 2006).

18

violated several sections of the state’s campaign finance laws,

‘and urged the Attorney General to take action. The Attorney

General then filed a lawsuit against the union, which settled

before trial. In exchange for the union paying a $100,000 fine

and agreeing to reduce dues by $5 per member, the Attorney

General dropped the case, requiring only that the WEA promise

to abide by a set of permissive “guidelines” under which the

union can still transfer dues money from its general fund to its

political action committee. See Michael W. Lynch, The

Summer of Reform: Campaign Finance Laws Return to the

Congressional Agenda, Reason, Aug. 18, 1998, at 7, available

at 1998 WLNR 4378163.° See further Tom Brown & Ryan

Blethen, State ’s Campaign Cleanup a Washout?, Seattle Times,

Aug. 3, 1997, at Al, available at 1997 WLNR 1453262.

Similarly troubling is that laws giving special privileges to

labor unions also give them a unique power to promote their

interests outside the procedures followed by everyone else in

American democracy. As one scholar has concluded,

“citizens of a free country are free to spend their own money

on the political causes and candidates they wish to support. But

in the 60 years since the enactment of the National Labor

Relations Act, union officials have extracted hundreds of

billions of dues dollars as a condition of employment from the

paychecks of America’s working people. No religious, trade,

or any other private association, has the same power to

confiscate the earnings of unwilling individuals.” Charles W.

Baird, The Tip of the Iceberg: PACs & the Forced-Dues Base

of Big Labor's Political Machine, The Smith Center for Private

Enterprise Studies, Mar. 15, 2001.’

® These guidelines are available at http://www.atg.wa.gov/pubs/wea_

exhibit_a.html (last visited May 31, 2006).

” Available af http://www.sbe.csuhayward.edu/~sbesc/tipoftheice

berg.html (last visited May 31, 2006).

19

The Executive Branch has been of little help to workers

seeking protection of their rights. In the waning days of his

Administration, the first President Bush finally signed an

executive order which would have required the implementation

of the Beck decision by unions engaged in federal government

contracts—but that order was rescinded by President Clinton on

his first day in office. Burns, supra, at 481-82. The current

Bush Administration has done nothing. With union

intransigence toward the requirements of Abood—requirements

rooted in basic fairness principles—as well as executive branch

indifference, workers must turn to this Court for protection. Cf.

Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 486

(1982) (noting “the judiciary’s special role in safeguarding the

interests of those groups that are “relegated to such a position

of political powerlessness as to command extraordinary

protection from the majoritarian political process.”).

ae

CONCLUSION

>, 6

A writer recently said of the South’s “massive resistance”

campaign toward Brown v. Bd. of Educ. that only vigilance by

this Court “precipitated a steady desegregation of American

schools.” Lia B. Epperson, True Integration: Advancing

Brown's Goal of Educational Equity in the Wake of Grutter,

67 U. Pitt. L. Rev. 175, 182 (2005). The intransigence of “the

Southern power structure conceded only in response to the

federal -ourt demands.” /d. at 183.

Today, unions are engaged in a similarly brazen refusal to

abide by the clear mandates of Abood, Beck, and Hudson.

Unions such as the WEA continue to fund political activities

with moneys taken from nonmembers without their consent,

either by violating the law outright, as with the “Community

Outreach Program” or by skirting the law, as through its “loan

forgiveness” scheme.

20

Washingtonians enacted I-134 to end such abuses. They

were entitled to undertake such a measure to protect the rights

of workers. Cf City of Charlotte, 426 U.S. at 289 (government

“is free to develop fair and reasonable standards” with regard to

paycheck deductions.). The decision below upends this Court’s

First Amendment rulings with regard to worker rights—creating

a direct conflict with the decision of the Sixth Circuit in Miller

and the D.C. Circuit in Boyle—and unjustifiably limits the

state’s power to protect citizens. To protect the integrity of this

Court’s labor relations decisions, and the rightful discretion of

the state to protect the First Amendment rights of its citizens,

the petition for certiorari should be granted.

DATED: August, 2006.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

TIMOTHY SANDEFUR

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae Pacific Legal Foundation