SEATTLE—Washington State Attorney General Rob McKenna won his first case before the U.S. Supreme Court today, persuading the Court to unanimously uphold a state initiative requiring unions to obtain prior permission from non-members before using their representation fees for political purposes.
"This is an important victory for the First Amendment rights of workers in Washington," McKenna said. "Thanks to the great team of attorneys on this case, we were able to present a persuasive argument in favor of protecting workers' political freedoms.”
"When non-union members in Washington are required to pay fees to the union as a condition of employment, there is no reason to require them to bear the burden of affirmatively objecting to prevent the union from using their money to promote political issues or candidates they do not support,” McKenna stated. “Workers who have already said ‘no’ to joining a union should not be required to say ‘no’ a second time to prevent their money from being spent for political purposes.”
Washington law requires educational employees, who are not members of the Washington Education Association, to pay an agency shop fee to the union as a condition of continued employment. As part of the process of collecting the fees, the WEA sends out a “Hudson packet” that notifies nonmembers of their right to object to paying fees for political activities and other non-chargeable expenses. When the employee objects, he or she receives a refund.
Under the Hudson process, if the nonmembers do not object within 30 days, the WEA may use the nonmember agency fees for any purpose. However, under Initiative 134, which was enacted by the people in 1992, the WEA must obtain the nonmembers’ prior affirmative consent before using their fees for political purposes.
The Evergreen Freedom Foundation filed a complaint on behalf of nonmembers alleging the WEA was violating the requirement for affirmative consent. The state Public Disclosure Commission investigated and referred the case to Attorney General Chris Gregoire, who brought an action against the WEA. The trial court entered summary judgment in favor of the state. The WEA appealed.
A divided three-judge panel reversed the trial court then the state petitioned to the Washington Supreme Court for review. The Washington State Supreme Court affirmed the Court of Appeals decision by a six-to-three vote and found the “affirmative consent” requirement unconstitutional.
In Washington v. Washington Education Association, argued in early January, McKenna asked the U.S. Supreme Court to reverse the March 16, 2006, Washington State Supreme Court decision. The U.S. Supreme Court did so, unanimously ruling that the affirmative consent requirement in Initiative 134 was not unconstitutional.
According to the court, “The mere fact that Washington required more than the Hudson minimum does not trigger First Amendment scrutiny. The constitutional floor for union collection and spending of agency fees is not also a constitutional ceiling for state-imposed restrictions.”
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