Courtroom Exchange in Boardman Prompts Debate Over Holding in Janus

Courtroom Exchange in Boardman Prompts Debate Over Holding in Janus

Courtroom Exchange in Boardman Prompts Debate Over Holding in Janus

Can the state help public sector unions promote their pro-union views to government workers while effectively denying the Freedom Foundation access to the same people?  That is the question the Freedom Foundation put to the 9th Circuit Court of Appeals this week.

A three-judge panel from the court heard arguments on Feb. 4 in the case of Bradley Boardman v. Inslee, which challenges the constitutionality of Initiative 1501, a statewide initiative passed by Washington voters in 2016 that denies public access to the contact information for thousands of Medicaid-compensated homecare providers like Boardman.   This same Initiative 1501, however, guarantees that contact information would be given to the unions.

The union-funded measure claimed to be about protecting “vulnerable adults” from identity theft, but virtually everyone concedes its true purpose was to prevent the Freedom Foundation from contacting these “quasi-public employees” and informing them of their rights under the U.S. Supreme Court’s 2014 Harris v. Quinn decision to opt out of union membership and dues.

Boardman and the Freedom Foundation were represented in the proceeding by Susan Stahlfeld, a partner with Miller, Nash, Graham & Dunn in Seattle, who argued that preventing the organization from obtaining what had previously been public information about government employees violates the First Amendment by limiting its ability to interact with the workers one on one.

“(1501) does not regulate speech on its face,” Stahlfeld argued, “but what it does do is put a burden on the right to speak one on one with (individual providers).”

She explained, “These people are required by the government to be associated with 45,000 strangers who are scattered across the state. (Boardman and the Freedom Foundation) would like to be able to talk with these people about their compelled association in the bargaining unit.”

The Boardman argument also involved a critical discussion of the Supreme Court’s related 2018 ruling in Janus v. AFSCME, which extended the opt-out rights affirmed in Harris to all state and local employees.

In arguing that Initiative-1501’s distinction between unions and opposing speakers was unconstitutional, Stahlfeld pointed out that, “Everything a union does is political and involves public issues.”

Judge N. Randy Smith then asked Stahlfeld if Janus had really said that collective bargaining is inherently ‘political’ speech.

“Yes!” an astonished Stahlfeld responded.

“I don’t believe it,” Smith persisted.

Stahlfeld explained, “When you look at Janus, it says if a union says to its public-sector employer, ‘You need to pay us more money,’ that (demand is inherently political because it) impacts budgets, which impacts spending on other programs and public issues.”

Justice Samuel Alito noted even grievances under a public sector collective bargaining agreement can be ‘political’ speech:  the union in Janus had filed a grievance seeking to compel the state of Illinois to appropriate $75 million to fund a wage increase.

The Supreme Court was clear:  everything a public sector union does — including collective bargaining — is inherently political and workers have a constitutional right to not pay for that speech.

That’s why the Foundation challenged Initiative-1501 in Boardman  — so those workers can learn of their Janus and Harris rights.

We’re pretty sure they won’t learn about it from the unions.

Chief Litigation Counsel
Eric Stahlfeld has practiced law in Washington State for 25 years, after graduating from the Marshall-Wythe School of Law at the College of William and Mary in Virginia. He previously worked in the administration of President Ronald Reagan. He lives outside Seattle with his wife Susan. They have two children, Marta and Karl.