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Boardman v. Inslee: In union victory, Ninth Circuit finds government data-access prohibitions do not violate First, Fourteenth Amendment

Reports First Amendment

Boardman v. Inslee, No. 19-35113 (9th Cir. Oct. 22, 2020).

Complaint, Boardman v. Inslee, No. 3:17-cv-05255 (W.D. WA. Apr. 5, 2017), complaint hosted by (plaintiff).

In a win for unions, the U.S. Court of Appeals for the Ninth Circuit recently affirmed a district court’s summary judgment upholding the constitutionality of Washington state ballot initiative 1501. The court rejected First and Fourteenth Amendment challenges, leaving in place limitations that make it more difficult for appellants to reach in-home care providers and inform them of their right to opt-out of agency fee payments to their collective bargaining representatives.

Initiative 1501 (“I-1501”), which was supported by nearly 71% of Washington voters in 2016, was described on the ballot as a measure to “increase the penalties for criminal identity theft and civil consumer fraud targeted at seniors or vulnerable individuals.” Part III of the initiative also prohibited public access to certain government-controlled information—namely, the personal information of “in-home care givers of vulnerable populations.” However, the initiative allowed information to be provided to providers’ exclusive bargaining representatives. The Freedom Foundation, a conservative think-tank and co-appellants in the case along with several individual in-home providers, dubbed I-1501 as a “Trojan horse designed to deceive Washington state voters into approving something they wouldn’t otherwise.”

The more than 35,000 home healthcare providers and 8,000 home-based childcare providers in Washington are required to participate in statewide collective bargaining, represented by the SEIU 775 and the SEIU 925 unions, respectively. Prior to 2014, unions would routinely require and collect payment from members and non-members aliketo support the groups’ collective-bargaining activities. In 2014, the Supreme Court held in Harris v. Quinn that quasi-public employees like in-home care providers cannot be forced to pay agency fees as non-members of a union. Following the decision, some unions continued to automatically collect payments, requiring an explicit “opt-out” from the provider– either to resign from the union and stop paying member dues, or to stop paying non-member fees. The Supreme Court’s 2018 Janus v. AFSCME Council 31 decision effectively nullified the opt-out loophole for public-sector labor unions, but certain workarounds remain in place that make it difficult for workers to resign as dues-paying members of such unions. Since the changes in law, the appellants have attempted to inform other in-home providers of their right to opt out of paying agency fees to the unions. Two co-appellants are also motivated by a campaign to replace the SEIU 925 union with a competing one, on whose board they serve. Given the large number of individual in-home care providers throughout the state, appellants have relied for years on Public Records Act (“PRA”) requests to obtain lists of providers’ contact information. The unions unsuccessfully challenged the PRA information requests a number of times, and in response helped introduce I-1501. The initiative subsequently exempted the relevant provider information from further disclosure. Appellants challenged I-1501 on First and Fourteenth Amendment claims.

The Ninth Circuit rejected all claims. Noting that although the First Amendment does not guarantee a right to government information, recent precedent restricts imposing viewpoint-based discrimination in the provision of such information. However, the Court did not find that such a First Amendment claim was supported here: there was no evidence of viewpoint preference between parties, and the challenged provisions did not “draw[] distinctions based on the message.” The Court also rejected that the limited relationships conferred by the union representation implicated appellants’ associational rights and stated that appellants lacked the standing to assert the First Amendment rights of other in-home providers. Finally, Equal Protection challenges also failed, as the initiative passed rational-basis review given that it furthered a legitimate state purpose of protecting vulnerable populations.

Judge Bress dissented. He found that prohibiting access to provider information to all but the unions was effectively promoting the incumbent unions’ views at the expense of anyone who might oppose them. He called I-1501 “transparent viewpoint discrimination…” that “fail[s] First Amendment scrutiny and thereby violate[s] Appellants’ fundamental rights under the Equal Protection Clause.”

Proponents of the initiative applauded the decision as protecting the personal information of vulnerable populations and their caregivers. However, despite the victory, restrictions following the decisions in Harris and Janus continue to hurt union membership and income.

Savely Zakharenko is a 1L at Harvard Law School.