Freedom Foundation

Dissenting Judge in Boardman Lawsuit Had It Exactly Right

“What if the State of Washington passed a law that gave the reigning political party access to certain State-controlled, speech-enabling information, but denied that information to everyone else?… So should it matter if the State enacted the same law, but instead of giving the information to the incumbent political party, it gave it to an incumbent public-sector union that serves as the exclusive bargaining representative employees paid with public funds? That is what happened here when Washington voters enacted I-1501.”

– 9th Circuit Court Judge Daniel A. Bress, dissenting

In Boardman v. Inslee, a split panel of the 9th Circuit Court of Appeals last week said it violated neither the law nor the Constitution for a public-sector union to deceive voters and abuse Washington’s initiative process in order to achieve what it couldn’t in litigation or through the Legislature.

Consequently, in-home caregivers paid with Medicare funds will have a much more difficult time learning about their constitutional right to opt out of a union whose values they may not share.

The Freedom Foundation will appeal to the U.S. Supreme Court, continuing its seven-year fight on behalf of these caregivers.

Those who have been following the organization’s efforts will remember that in 2014 the U.S. Supreme Court ruled in Harris v. Quinn that caregivers classified as quasi-government employees because they’re paid with Medicare funds cannot be forced to belong or pay agency fees to a union. (In 2018, this holding was extended to all public sector employees in Janus v. AFSCME.)

Immediately after Harris, the Freedom Foundation began assisting individual caregivers like Brad Boardman, Sharon Benn and Deborah Thurber (the individual plaintiffs in Boardman) contact their fellow caregivers to inform them of their rights under Harris and also to advocate for replacing the union with a different and more effective association.

But as Judge Bress recognized in his Boardman dissent, “(C)ommunicating with care providers is essentially impossible without certain state-held information.”

Why?  Because “Washington’s approximately 45,000 care providers are geographically dispersed throughout the state and are hard to identify. Most of them (provide care for family members) … in the privacy of their homes … (and) do not gather in any centralized location or typically share clients, supervisors or any other contacts with one another.”

This point is undisputed, meaning that the “state’s information about the identities and contact information for in-home care providers is, thus, the golden ticket to communicating with” the caregivers.

The Freedom Foundation was able to help individual caregivers like Boardman, Benn and Thurber identify fellow caregivers through public records requests — right up until the union created and bankrolled Initiative 1501 in 2016.

The union-funded campaign for Initiative 1501 told Washington voters the purpose of the initiative was to protect seniors from identity theft, and the initiative did include some provisions purporting to do that.

But as documents obtained from the state and the union demonstrate, the real purpose of I-1501 was to prevent the Freedom Foundation from obtaining the caregivers’ contact information.

Governor Jay Inslee’s own general counsel wrote in an email that, while I-1501 “ostensibly deals with ID theft, (it) … is aimed at preventing the state from releasing public records.”

The unions agreed. Judge Bress wrote, “The unions expressly urged their members to vote for I-1501 because it would shut down the (Freedom) Foundation’s advocacy.”

Maybe if I-1501 had treated the incumbent unions the same way it treated the Freedom Foundation and dissenting caregivers, it could be argued that it wasn’t unfair. But the union-drafted initiative explicitly protects the unions’ continued access to the caregivers’ information while denying that information to the Freedom Foundation, Boardman, Benn and Thurber.

In his dissent, Bress recognized the “fundamental problem” with I-1501’s different treatment of the incumbent unions and any dissenting voices. “Through extreme favoritism as to who may receive critical and otherwise unavailable speech-enabling information about in-home care providers,” he wrote, “I-1501’s speaker-based distinction powerfully favors those views inherent to incumbent unions while creating significant obstacles to speech for anyone with opposing views. The information disparity that I-1501 creates in the First Amendment’s political speech heartland is so severe that the inference of viewpoint discrimination is inescapable.”

The Freedom Foundation agrees and will appeal this decision to the U.S. Supreme Court on behalf of the caregivers.