The Freedom Foundation continues to refine its arguments in Boardman v. Inslee weeks after filing its appeal to the U.S. Supreme Court asking the justices to consider the case during the session scheduled to begin in October.
On July 21, the organization submitted a brief in response to issues raised by attorneys for the state of Washington and Gov. Jay Inslee about the Freedom Foundation’s March 23 request to SCOTUS for a writ of certiorari.
In it, Freedom Foundation attorneys assert the Boardman ruling issued last October by the 9th Circuit Court of Appeals was profoundly (and predictably) wrong — not only because it flies in the face of court precedent, but also because the appeals panel had an obligation to protect the constitutional rights of in-home care providers SCOTUS emphatically affirmed in Harris v. Quinn (2014) and Janus v. AFSCME (2018).
Instead, the 9th Circuit’s ruling seemed calculated to preserve the very scheme banned in Harris and Janus under which government can compel individuals to financially support and associate with public-sector unions simply because they accept a stipend from Medicaid in return for providing basic homecare for a friend or loved one.
The petitioners — Brad Boardman, Deborah Thurber and Shannon Benn — are Washington residents and Medicaid-compensated homecare providers who sought to contact other caregivers represented by the Service Employees International Union (SEIU) to inform them of their First Amendment rights to decline to union membership, dues and fees.
The Freedom Foundation does the same work on a much broader scale. But before anyone can be informed of anything, it’s necessary to first obtain a list from the state including the caregivers’ names, contact information and date of birth.
Such information has always been available to anyone requesting it under Washington’s Freedom of Information Act. But knowing the workers would likely leave the union en masse once they found out they could, SEIU and other unions authored, sponsored and funded a 2016 ballot initiative, I-1501, under which union-represented care providers would be exempted from existing public disclosure laws.
And Washington voters, deceived by the initiative’s title into believing they were actually cracking down on identity theft, ultimately passed I-1501 with a 60 percent majority.
Within weeks, Boardman, Thurber and Benn filed a lawsuit against Inslee to invalidate the measure.
The case eventually made its way to the 9th Circuit Court of Appeals, where a split panel last fall ruled that I-1501 violated neither Washington law nor the state constitution. However, Judge Daniel Bress, correctly observed in his dissent that the measure made “state-controlled, speech-enabling information” available only to the “incumbent public-sector union that serves as the exclusive bargaining representative employees paid with public funds” while denying that same information to everyone else.
The Freedom Foundation’s subsequent appeal to the Supreme Court, supported by 13 amicus curiae (friend of the court) briefs submitted by a diverse and distinguished group of First Amendment advocates, challenges the fundamental viewpoint discrimination manifest in I-1501.
In response, the state and union-backed initiative campaign abandoned their previous position that the initiative is “beyond First Amendment scrutiny.” Instead, they now assert that I-1501 only makes a permissible “status-based” distinction between speakers.
As exclusive bargaining representative for the employees, they claim, the incumbent unions are somehow entitled to a monopoly over access to the information needed to communicate with the employees.
The Freedom Foundation’s reply motion noted that, in fact, it is being denied access to what should be public information solely on the basis of its pro-employee viewpoint.
Silencing one side of a debate on an issue of public importance is one of the chief evils the First Amendment guards against. Employees can learn of about the rights affirmed by Janus and Harris only if Boardman, Thurber and Benn — to say nothing of the Freedom Foundation — know who those employees are, and by keeping secret public information the state actually does stifle public debate.
Boardman is just one more, albeit very important, step in a long process of freeing public-sector workers from union oppression.
The essential issue in Boardman v. Inslee is whether the caregivers’ contact information must be made readily available to everyone who requests it — as public disclosure laws require for nearly all public employees — or whether unions alone deserve exclusive access to it.
Controlling access to the means of communication with union members is just one more way the unions seek to suppress freedom of speech. And unless the court wants to see its earlier rulings in Harris and Janus eroded to the point of irrelevance, it needs to hear (and rule correctly on) Boardman.