Melissa Belgau v. Jay Inslee ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELISSA BELGAU; DONNA BYBEE; No. 19-35137
MICHAEL STONE; RICHARD
OSTRANDER; MIRIAM TORRESPL; D.C. No.
KATHERINE NEWMAN; GARY HONC, 3:18-cv-05620-
Plaintiffs-Appellants, RJB
v.
OPINION
JAY ROBERT INSLEE, in His Official
Capacity as Governor of the State of
Washington; DAVID SCHUMACHER,
in His Official Capacity as Director
of the Washington Office of
Financial Management; JOHN
WEISMAN, in His Official Capacity
as Director of the Washington
Department of Health; CHERYL
STRANGE, in Her Official Capacity
as Director of the Washington
Department of Social Health and
Services; ROGER MILLAR, in His
Official Capacity as Director of the
Washington Department of
Transportation; JOEL SACKS, in His
Official Capacity as Dir. of
Washington Department of Labor
and Industries; WASHINGTON
FEDERATION OF STATE EMPLOYEES,
(AFSCME, Council 28),
Defendants-Appellees.
2 BELGAU V. INSLEE
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted December 10, 2019
Seattle, Washington
Filed September 16, 2020
Before: M. Margaret McKeown and Morgan Christen,
Circuit Judges, and M. Douglas Harpool, * District Judge.
Opinion by Judge McKeown
SUMMARY **
Civil Rights
The panel affirmed the district court’s dismissal of a
putative class action brought pursuant to 42 U.S.C. § 1983alleging that deduction of union dues from plaintiffs’
paychecks violated the First Amendment.
Plaintiffs are public employees who signed membership
agreements authorizing Washington state to deduct union
dues from their paychecks and transmit them to the
Washington Federation of State Employees, AFSCME
*
The Honorable M. Douglas Harpool, United States District Judge
for the Western District of Missouri, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BELGAU V. INSLEE 3
Council 28 (“WFSE”). They had the option of declining
union membership and paying fair-share representation (or
agency) fees. After the decision in Janus v. American
Federation of State, County, and Municipal Employees,
Council 31, 138 S. Ct. 2448 (2018), which held that
compelling nonmembers to subsidize union speech is
offensive to the First Amendment, employees notified
WFSE that they no longer wanted to be union members or
pay dues. Per this request, WFSE terminated employees’
union memberships. However, pursuant to the terms of
revised membership agreements, Washington continued to
deduct union dues from employees’ wages until an
irrevocable one-year term expired.
The panel held that plaintiffs’ claims against WFSE
failed under § 1983 for lack of state action. The panel held
that neither Washington’s role in the alleged
unconstitutional conduct nor its relationship with WFSE
justified characterizing WFSE as a state actor. At bottom,
Washington’s role was to enforce a private agreement. See
Roberts v. AT&T Mobility LLC, 877 F.3d 833, 844 (9th Cir.
2017) (“there is no state action simply because the state
enforces [a] private agreement”). Because the private dues
agreements did not trigger state action and independent
constitutional scrutiny, the district court properly dismissed
the claims against WFSE.
Addressing whether the claims for prospective relief
against Washington were moot, the panel held that the
claims fell within the “capable of repetition yet evading
review” mootness exception. The panel held that the
challenged action, continued payroll deduction of union dues
after an employee objects to union membership, capped at a
period of one year, was too short for judicial review to run
its course.
4 BELGAU V. INSLEE
The panel held that the First Amendment claim for
prospective relief against Washington failed because
employees affirmatively consented to the deduction of union
dues. The panel rejected employees’ argument that the
Supreme Court’s decision in Janus voided the commitment
they made and now required the state to insist on strict
constitutional waivers with respect to deduction of union
dues. The panel held that Janus did not extend a First
Amendment right to avoid paying union dues, and in no way
created a new First Amendment waiver requirement for
union members before dues are deducted pursuant to a
voluntary agreement. The panel held that neither state law
nor the collective bargaining agreement compelled
involuntary dues deduction and neither violated the First
Amendment. The panel concluded that in the face of
plaintiffs’ voluntary agreement to pay union dues and in the
absence of any legitimate claim of compulsion, the district
court appropriately dismissed the First Amendment claim
against Washington.
COUNSEL
James G. Abernathy (argued), Olympia, Washington, for
Plaintiffs-Appellants.
Matthew J. Murray (argued), Scott A. Kronland, and P.
Casey Pitts, Altshuler Berzon LLP, San Francisco,
California; Edward E. Younglove III, Younglove & Coker
PLLC, Olympia, Washington; for Defendant-Appellee
Washington Federation of State Employees, (AFSCME,
Council 28).
Alicia Orlena Young (argued), Senior Counsel; Kelly M.
Woodward, Attorney; Robert W. Ferguson, Attorney
BELGAU V. INSLEE 5
General; Office of the Attorney General, Olympia,
Washington; for Defendants-Appellees Jay Robert Inslee,
David Schumacher, John Weisman, Cheryl Strange, Roger
Millar, and Joel Sacks.
OPINION
McKEOWN, Circuit Judge:
The Supreme Court’s decision in Janus v. American
Federation of State, County, and Municipal Employees,
Council 31 was a gamechanger in the world of unions and
public employment. 138 S. Ct. 2448 (2018). In Janus the
Court concluded that compelling nonmembers to subsidize
union speech is offensive to the First Amendment. Public
employers stopped automatically deducting representation
fees from nonmembers.
But the world did not change for Belgau and others who
affirmatively signed up to be union members. Janus
repudiated agency fees imposed on nonmembers, not union
dues collected from members, and left intact “labor-relations
systems exactly as they are.” Id. at 2485 n.27. Belgau and
fellow union-member employees claim that, despite their
agreement to the contrary, deduction of union dues violated
the First Amendment. Their claim against the union fails
under 42 U.S.C. § 1983 for lack of state action, a threshold
requirement. Their First Amendment claim for prospective
relief against Washington state also fails because Employees
affirmatively consented to deduction of union dues. Neither
state law nor the collective bargaining agreement compels
involuntary dues deduction and neither violates the First
Amendment. We affirm the district court’s dismissal of the
case.
6 BELGAU V. INSLEE
BACKGROUND
The putative class action plaintiffs Melissa Belgau,
Michael Stone, Richard Ostrander, Miriam Torres,
Katherine Newman, Donna Bybee, and Gary Honc
(collectively, “Employees”) work for Washington state and
belong to a bargaining unit that is exclusively represented by
the Washington Federation of State Employees, AFSCME
Council 28 (“WFSE”). See RCW 41.80.080(2)–(3).
Washington employees are not required to join a union to get
or keep their jobs, though around 35,000 of the 40,000
employees in the bargaining unit are WFSE members. See
RCW 41.80.050.
Employees became union members within three months
of starting work. They signed membership agreements
authorizing their employer, Washington state, to deduct
union dues from their bi-weekly paychecks and transmit
them to WFSE.
At the time Employees signed the membership cards,
union dues were between 1.37% and 1.5% of base wages.
They had the option of declining union membership and
paying fair-share representation (or agency) fees, which
were approximately 65–79% of union dues. Agency fees
covered the cost incurred by the union in representing the
interests of all employees—members and nonmembers
alike—in the bargaining unit over the terms of employment.
See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 232, 235
(1977), overruled by Janus, 138 S. Ct. 2448. The monies
could not be used for First Amendment activities that were
“not germane to [the union’s] duties as collective-bargaining
representative.” Id. at 235.
Joining the union conferred rights and benefits.
Employees could vote on the ratification of collective
BELGAU V. INSLEE 7
bargaining agreements, vote or run in WFSE officer
elections, serve on bargaining committees, and otherwise
participate in WFSE’s internal affairs. Employees also
enjoyed members-only benefits, including discounts on
goods and services, access to scholarship programs, and the
ability to apply for disaster/hardship relief grants.
Based on the authorization in the membership
agreements, Washington deducted union dues from
Employees’ paychecks. Article 40 of the 2017–2019
collective bargaining agreement (“CBA”) between
Washington and WFSE required Washington to deduct “the
membership dues from the salary of employees who request
such deduction . . . on a Union payroll deduction
authorization card,” and to “honor the terms and conditions”
of these membership cards. Washington law also directed
Washington to collect the dues on behalf of WFSE from
union members who authorized the deduction. See RCW
41.80.100(3)(a). 1
In 2017, WFSE circulated a revised membership
agreement. The revised card, a single-page document,
headlined: “Yes!” the signatory “want[s] to be a union
member.” A series of voluntary authorizations followed.
The signatory “voluntarily authorize[ed]” and “direct[ed]”
Washington to deduct union dues and remit them to WFSE.
The signatory agreed that the “voluntary authorization” will
be “irrevocable for a period of one year.” The signatory
reiterated and confirmed these voluntary authorizations
1
Citations are to the section numbers in effect at the time of the
deductions. The current version of RCW 41.80.100, which became
effective on July 28, 2019, removes the authority for collecting
representation fees but leaves intact the language about collecting
membership dues. See Washington Laws of 2019, ch. 230 §§ 15, 18.
8 BELGAU V. INSLEE
above the signature line. Employees were not required to
sign the revised cards to keep their jobs or remain as WFSE
members. Employees signed the revised cards.
After the Supreme Court decided Janus in June 2018,
Washington and WFSE promptly amended the operative
2017–2019 CBA. These July 2018 and August 2018 Memos
of Understanding removed Washington’s authority to deduct
an “agency shop fee, non-association fee, or representation
fee” from nonmember paychecks. However, the updated
provision did not change Washington’s obligation to collect
“membership dues” from those who authorized the
deduction and to “honor the terms and conditions of each
employee’s signed membership cards.”
After the Janus decision, Employees notified WFSE that
they no longer wanted to be union members or pay dues. Per
this request, WFSE terminated Employees’ union
memberships. However, pursuant to the terms of the revised
membership agreements, Washington continued to deduct
union dues from Employees’ wages until the irrevocable
one-year terms expired. The dues were last collected from
Employees when the one-year terms expired in April 2019.
In August 2018, Employees filed a putative class action
against the state defendants—Washington State Governor
Jay Inslee, and state agency directors and secretaries David
Schumacher, John Weisman, Cheryl Strange, Roger Millar,
and Joel Sacks (collectively, “Washington”)—and WFSE
alleging that the dues deductions violated their First
Amendment rights and unjustly enriched WFSE.
Employees sought injunctive relief against Washington from
continued payroll deduction of union dues, and
compensatory damages and other relief against WFSE for
union dues paid thus far. The district court granted summary
judgment for Washington and WFSE and dismissed the case.
BELGAU V. INSLEE 9
ANALYSIS
I. THE § 1983 CLAIM AGAINST THE UNION FAILS FOR
LACK OF STATE ACTION
The gist of Employees’ claim against the union is that it
acted in concert with the state by authorizing deductions
without proper consent in violation of the First Amendment.
The fallacy of this approach is that it assumes state action
sufficient to invoke a constitutional analysis. To establish a
claim under 42 U.S.C. § 1983, Employees must show that
WFSE deprived them of a right secured by the Constitution
and acted “under color of state law.” Collins v. Womancare,
878 F.2d 1145, 1147 (9th Cir. 1989). The Supreme Court
has long held that “merely private conduct, however
discriminatory or wrongful,” falls outside the purview of the
Fourteenth Amendment. Blum v. Yaretsky, 457 U.S. 991,
1002 (1982) (citation omitted).
The state action inquiry boils down to this: is the
challenged conduct that caused the alleged constitutional
deprivation “fairly attributable” to the state? Naoko Ohno v.
Yuko Yasuma, 723 F.3d 984, 993 (9th Cir. 2013); see Blum,
457 U.S. at 1004 (“constitutional standards are invoked only
when it can be said that the State is responsible for the
specific conduct of which the plaintiff complains”); Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978) (the
challenged unconstitutional conduct must be “properly
attributable to the State”). The answer here is simple: no.
We employ a two-prong inquiry to analyze whether
Washington’s “involvement in private action is itself
sufficient in character and impact that the government fairly
can be viewed as responsible for the harm of which plaintiff
complains.” Ohno, 723 F.3d at 994; see Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982) (two-prong
10 BELGAU V. INSLEE
test). The first prong—“whether the claimed constitutional
deprivation resulted from ‘the exercise of some right or
privilege created by the State or by a rule of conduct imposed
by the state or by a person for whom the State is
responsible’”—is not met here. Ohno, 723 F.33d at 994
(quoting Lugar, 457 U.S. at 937). It is important to unpack
the essence of Employees’ constitutional challenge: they do
not generally contest the state’s authority to deduct dues
according to a private agreement. Rather, the claimed
constitutional harm is that the agreements were signed
without a constitutional waiver of rights. Thus, the “source
of the alleged constitutional harm” is not a state statute or
policy but the particular private agreement between the
union and Employees. Id.Nor can Employees prevail at the second step—“whether
the party charged with the deprivation could be described in
all fairness as a state actor.” Id. As a private party, the union
is generally not bound by the First Amendment, see United
Steelworker of Am. v. Sadlowski, 457 U.S. 102, 121 n.16
(1982), unless it has acted “in concert” with the state “in
effecting a particular deprivation of constitutional right,”
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir.
2012) (citations omitted). A joint action between a state and
a private party may be found in two scenarios: the
government either (1) “affirms, authorizes, encourages, or
facilitates unconstitutional conduct through its involvement
with a private party,” or (2) “otherwise has so far insinuated
itself into a position of interdependence with the non-
governmental party,” that it is “recognized as a joint
BELGAU V. INSLEE 11
participant in the challenged activity.” Ohno, 723 F.33d
at 996. Neither exists here. 2
No Coercion or Oversight. The state’s role here was to
permit the private choice of the parties, a role that is neither
significant nor coercive. See Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 54 (1999) (requiring “significant
assistance”); Lugar, 457 U.S. at 937 (requiring “significant
aid”). The private party cannot be treated like a state actor
where the government’s involvement was only to provide
“mere approval or acquiescence,” “subtle encouragement,”
or “permission of a private choice.” See Sullivan, 526 U.S.
at 52–54.
WFSE and Employees entered into bargained-for
agreements without any direction, participation, or oversight
by Washington. “The decision” to deduct dues from
Employees’ payrolls was “made by concededly private
parties,” and depended on “judgments made by private
parties without standards established by the State.” Id. at 52(citation omitted); see Pinhas v. Summit Health, Ltd.,
894 F.2d 1024, 1034 (9th Cir. 1989) (“Only private actors
were responsible for the [challenged] decision” where “the
decision ultimately turned on the judgments made by private
parties according to professional standards that are not
established by the State.” (quotation marks and citation
omitted)). Therefore, when Employees “signed” the
membership cards that authorized the dues deductions, they
“did not do so because of any state action.” Duffield v.
Robertson Stephens & Co., 144 F.3d 1182, 1201 (9th Cir.
2
Nor does WFSE qualify as a state actor under other tests the
Supreme Court has articulated—the public function, the state
compulsion, and the governmental nexus tests. See Desert Palace,
398 F.3d at 1140.
12 BELGAU V. INSLEE
1998), overruled on other grounds by E.E.O.C. v. Luce,
Forward, Hamilton & Scripps, 345 F.3d 742 (9th Cir. 2003);
see Canlis v. San Joaquin Sheriff’s Posse Comitatus,
641 F.2d 711, 717 (9th Cir. 1981) (“purely private”
decisions, “exclusively from within the organization itself,”
do not make WFSE a state actor).
Although Washington was required to enforce the
membership agreement by state law, it had no say in shaping
the terms of that agreement. The state “cannot be said to
provide ‘significant assistance’ to the underlying acts that
[Employees] contends constituted the core violation of its
First Amendment rights” if the “law requires” Washington
to enforce the decisions of others “without inquiry into the
merits” of the agreement. Ohno, 723 F.3d at 996–97.
Washington’s “mandatory indifference to the underlying
merits” of the authorization “refutes any characterization” of
WFSE as a joint actor with Washington. Id. at 997.
Ministerial Processing. At best, Washington’s role in
the allegedly unconstitutional conduct was ministerial
processing of payroll deductions pursuant to Employees’
authorizations. But providing a “machinery” for
implementing the private agreement by performing an
administrative task does not render Washington and WFSE
joint actors. Sullivan, 526 U.S. at 54. Much more is
required; the state must have “so significantly encourage[d]
the private activity as to make the State responsible for” the
allegedly unconstitutional conduct. Id. at 53.
No Symbiotic Relationship. Nor did Washington
“insinuate[] itself into a position of interdependence with”
WFSE. Ohno, 723 F.3d at 996 (citation omitted). A merely
contractual relationship between the government and the
non-governmental party does not support joint action; there
must be a “symbiotic relationship” of mutual benefit and
BELGAU V. INSLEE 13
“substantial degree of cooperative action.” Sawyer v.
Johansen, 103 F.3d 140, 140 (9th Cir. 1996); Collins,
878 F.2d at 1154. Thus, no significant interdependence
exists unless the “government in any meaningful way
accepts benefits derived from the allegedly unconstitutional
actions.” See Ohno, 723 F.3d at 997. Here Washington
received no benefits as a passthrough for the dues collection.
The state remitted the total amount to WFSE and kept
nothing for itself. Far from acting in concert, the parties
opposed one another at the collective bargaining table. See
Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179,
196 (1988) (where the private actor “acted much more like
adversaries than like partners,” the private actor is “properly
viewed as . . . at odds with the State”). Because neither
Washington’s role in the alleged unconstitutional conduct
nor its relationship with WFSE justify characterizing WFSE
as a state actor, Employees cannot establish the threshold
state action requirement.
We are not persuaded by Employees’ attempt to avoid
the state action analysis by framing their grievances as a
direct challenge to government action. This approach does
not square with their theory of allegedly insufficient consent
for dues deduction, rather than a challenge to the law or the
CBA. As we have observed, “[i]f every private right were
transformed into a governmental action just by raising a
direct constitutional challenge, the distinction between
private and governmental action would be obliterated.”
Roberts v. AT&T Mobility LLC, 877 F.3d 833, 839 (9th Cir.
2017) (citation omitted).
Neither are we swayed by Employees’ attempt to fill the
state-action gap by equating authorized dues deduction with
compelled agency fees. The actual claim is aimed at
deduction of dues without a constitutional waiver, not a
14 BELGAU V. INSLEE
deduction of agency fees, which did not occur. 3 See Blum,
457 U.S. at 1004 (state action analysis is aimed at “the
specific conduct of which the plaintiff complains” (emphasis
added)).
At bottom, Washington’s role was to enforce a private
agreement. See Roberts, 877 F.3d at 844 (“there is no state
action simply because the state enforces [a] private
agreement”). Because the private dues agreements do not
trigger state action and independent constitutional scrutiny,
the district court properly dismissed the claims against
WFSE. 4
II. EMPLOYEES HAVE NO FIRST AMENDMENT CLAIM
AGAINST THE STATE
A. MOOTNESS
Employees’ sole remaining claim against Washington is
for an injunction prohibiting the continued deduction of dues
despite signed deduction authorizations. When Employees
filed the complaint, Washington was still deducting union
dues from their payrolls; however, the deductions ceased
when the one-year payment commitment periods expired. A
live dispute “must be extant at all stages of review, not
merely at the time the complaint is filed.” Preiser v.
3
Our conclusion that state action is absent in the deduction and the
transfer of union dues does not implicate the Seventh Circuit’s analysis
on the collection of agency fees. See Janus v. Am. Federation of State,
Cty. and Municipal Employees, Council 31, 942 F.3d 352, 361 (7th Cir.
2019) (“Janus II”).
4
The district court also properly dismissed the unjust enrichment
claim against the union in light of the contractual agreement between the
parties. See Young v. Young, 164 Wash. 2d 477, 484–85 (2008).
BELGAU V. INSLEE 15
Newkirk, 422 U.S. 395, 401 (1975) (citations omitted).
Thus, any prospective injunction would not provide relief for
Employees’ mooted claim. See Ruiz v. City of Santa Maria,
160 F.3d 543, 549 (9th Cir. 1998) (“Claims for injunctive
relief become moot when the challenged activity ceases” and
“the alleged violations could not reasonably be expected to
recur” (citation omitted)). But we are not deprived of
jurisdiction because the claim falls within an exception to
mootness.
In the class action context, a “controversy may exist . . .
between a named defendant and a member of the class
represented by the named plaintiff, even though the claim of
the named plaintiff has become moot.” Sosna v. Iowa,
419 U.S. 393, 402 (1975). The Court extended this principle
to situations where, as here, the district court has not ruled
on class certification. See Gerstein v. Pugh, 420 U.S. 103,
110 n.11 (1975). A claim qualifies for this “limited”
exception if “the pace of litigation and the inherently
transitory nature of the claims at issue conspire to make
[mootness] requirement difficult to fulfill.” United States v.
Sanchez-Gomez, 138 S. Ct. 1532, 1539 (2018).
Such an inherently transitory, pre-certification class-
action claim falls within the “capable of repetition yet
evading review” mootness exception if (1) “the duration of
the challenged action is ‘too short’ to allow full litigation
before it ceases,” Johnson v. Rancho Santiago Cmty Coll.
Dist., 623 F.3d 1011, 1019 (9th Cir. 2010), and (2) there is a
reasonable expectation that the named plaintiffs could
themselves “suffer repeated harm” or “‘it is certain that other
persons similarly situated’ will have the same complaint,”
Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1089–90 (9th
Cir. 2011) (quoting Gerstein, 420 U.S. at 110 n.11).
Employees’ claim satisfies both conditions.
16 BELGAU V. INSLEE
The challenged action—continued payroll deduction of
union dues after an employee objects to union
membership—is capped at a period of one year, which is too
short for the judicial review to “run its course.” See Johnson,
623 F.3d at 1019 (three years is “too short”). Because
Washington continued to deduct union dues until the one-
year terms expired, other persons similarly situated could be
subjected to the same conduct. For these reasons, we
exercise jurisdiction over Employees’ claim against
Washington.
B. THE FIRST AMENDMENT
Employees do not claim that joining a union was a
condition of their job; they chose to join WFSE. Employees
do not offer a serious argument that they were coerced to
sign the membership cards; they voluntarily authorized
union dues to be deducted from their payrolls. Employees
do not argue they were later required to sign the revised
union cards; they signed those documents and made the
commitment to pay dues for one year. These facts speak to
a contractual obligation, not a First Amendment violation.
Employees instead argue that the Court’s decision in Janus
voided the commitment they made and now requires the
state to insist on strict constitutional waivers with respect to
deduction of union dues. This argument ignores the facts
and misreads Janus.
The First Amendment does not support Employees’ right
to renege on their promise to join and support the union.
This promise was made in the context of a contractual
relationship between the union and its employees. When
“legal obligations . . . are self-imposed,” state law, not the
First Amendment, normally governs. See Cohen v. Cowles
Media Co., 501 U.S. 663, 671 (1991); Erie Telecomms., Inc.
v. City of Erie, Pa., 853 F.2d 1084, 1989–90 (3d Cir. 1988)
BELGAU V. INSLEE 17
(distinguishing a First Amendment challenge from a claim
to enforce “contractual obligations under the franchise and
access agreements”). Nor does the First Amendment
provide a right to “disregard promises that would otherwise
be enforced under state law.” Cohen, 501 U.S. at 671; cf.
Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971)
(“The First Amendment is not a license to trespass, to steal,
or to intrude by electronic means into the precincts of
another’s home or office.”).
Janus did not alter these basic tenets of the First
Amendment. The dangers of compelled speech animate
Janus. 138 S. Ct. at 2463–64. The Court underscored that
the pernicious nature of compelled speech extends to
“[c]ompelling individuals to mouth support for views they
find objectionable” by forcing them to subsidize that speech.
Id. at 2463. For that reason, the Court condemned the
practice of “automatically deduct[ing]” agency fees from
nonmembers who were “not asked” and “not required to
consent before the fees are deducted.” Id. at 2460–61.
Employees, who are union members, experienced no
such compulsion. Under Washington law, Employees were
free to “join” WFSE or “refrain” from participating in union
activities. See RCW 41.80.050. Washington and WFSE did
not force Employees to sign the membership cards or retain
membership status to get or keep their public-sector jobs.
Employees repeatedly stated that they “voluntarily
authorize[d]” Washington to deduct union dues from their
wages, and that the commitment would be “irrevocable for a
period of one year.” Washington honored the terms and
conditions of a bargained-for contract by deducting union
dues only from the payrolls of Employees who gave
voluntary authorization to do so. See RCW 41.80.100(3)(a).
No fact supports even a whiff of compulsion.
18 BELGAU V. INSLEE
That Employees had the option of paying less as agency
fees pre-Janus, or that Janus made that lesser amount zero
by invalidating agency fees, does not establish coercion.
Employees’ choice was not between paying the higher union
dues or the lesser agency fees. Choosing to pay union dues
cannot be decoupled from the decision to join a union. The
membership card Employees signed, titled “Payroll
Deduction Authorization,” begins with the statement: “Yes!
I want to be a union member.” This choice to voluntarily
join a union and the choice to resign from it are contrary to
compelled speech. See Gallo Cattle Co. v. Cal. Milk
Advisory Bd., 185 F.3d 969, 975 & n.7 (9th Cir. 1999); see
also Bauchman for Bauchman v. W. High Sch., 132 F.3d
542, 557–58 (10th Cir. 1997) (“a choice whether or not to
sing songs she believe infringed upon” her First Amendment
right “negates” “coercion or compulsion”); Kidwell v.
Transp. Commc’ns Int’l Union, 946 F.2d 283, 292–93 (4th
Cir. 1991) (“Where the employee has a choice of union
membership and the employee chooses to join, the union
membership money is not coerced.”). By joining the union
and receiving the benefits of membership, Employees also
agreed to bear the financial burden of membership.
Janus does not address this financial burden of union
membership. The Court explicitly cabined the reach of
Janus by explaining that the “[s]tates can keep their labor-
relations systems exactly as they are—only they cannot force
nonmembers to subsidize public-sector unions.” 138 S. Ct.
at 2485 n.27. Nor did Janus recognize members’ right to
pay nothing to the union. The Court “was not concerned in
the abstract with the deduction of money from employees’
paychecks pursuant to an employment contract” nor did it
give “an unqualified constitutional right to accept the
benefits of union representation without paying.” Janus II,
942 F.3d at 357–58. We join the swelling chorus of courts
BELGAU V. INSLEE 19
recognizing that Janus does not extend a First Amendment
right to avoid paying union dues. 5
In an effort to circumvent the lack of compulsion,
Employees define the relevant First Amendment right as the
freedom not to pay union dues without “consent that amount
to the waiver of a First Amendment right.” In arguing that
Janus requires constitutional waivers before union dues are
5
See Mendez v. Cal. Teachers Ass’n, et al., 419 F. Supp. 3d 1182,
1186 (N.D. Cal. 2020) (“As every court to consider the issue has
concluded, Janus does not preclude enforcement of union membership
and dues deduction authorization agreements . . . .”); Allen v. Ohio Civil
Serv. Emps. Ass’n AFSCME, Local 11, 2020 WL 1322051, at *12 (S.D.
Ohio Mar. 20, 2020) (noting “the unanimous post-Janus district court
decisions holding that employees who voluntarily chose to join a union
. . . cannot renege on their promises to pay union dues”). See, e.g., Fisk
v. Inslee, 759 F. App’x 632, 633 (9th Cir. 2019); Creed v. Alaska State
Emps. Ass’n/AFSCME Local 52, 2020 WL 4004794, at *5–10 (D.
Alaska July 15, 2020); Molina v. Pa. Soc. Serv. Union, 2020 WL
2306650, at *7–8 (M.D. Pa. May 8, 2020); Durst v. Or. Educ. Ass’n,
2020 WL 1545484, at *4 (D. Or. Mar. 31, 2020); Bennett v. Am. Fed’n
of State, Cty., and Mun. Emps., Council 31, AFL-CIO et al., 2020 WL
1549603, at *3–5 (C.D. Ill. Mar. 30, 2020); Loescher v. Minn. Teamsters
Pub. & Law Enf’t Emps.’ Union, Local No. 320 and Indep. Sch. Dist.
No. 831, 2020 WL 912785, at *7 (D. Minn. Feb. 26, 2020); Quirarte v.
United Domestic Workers AFSCME Local 3930, 2020 WL 619574,
at *5–6 (S.D. Cal. Feb. 10, 2020); Hendrickson v. AFSCME Council 18,
2020 WL 365041, at *5–6 (D.N.M. Jan. 22, 2020); Hernandez v.
AFSCME Cal., 424 F. Supp. 3d 912, 923–24 (E.D. Cal. 2019); Smith v.
Super Ct., Cty. of Contra Costa, 2018 WL 6072806, at *1 (N.D. Cal.
Nov. 16, 2019); Oliver v. Serv. Emps. Int’l Union Local 668, 2019 WL
5964778 (E.D. Pa. Nov. 12, 2019); Anderson v. SEIU, 2019 WL
4246688, at *2 (D. Or. Sept. 4, 2019); Seager v. United Teachers L.A.,
2019 WL 3822001, at *2 (C.D. Cal. Aug. 14, 2019); O’Callaghan v.
Regents of Univ. of Cal., 2019 WL 2635585, at *3 (C.D. Cal. June 10,
2019); Babb v. Cal. Teachers Ass’n, 378 F. Supp. 3d 857, 877 (C.D. Cal.
2019); Cooley v. Cal. Statewide Law Enf’t Ass’n, 2019 WL 331170, at *2
(E.D. Cal. Jan. 25, 2019).
20 BELGAU V. INSLEE
deducted, Employees seize on a passage requiring any
waiver of the First Amendment right to be “freely given and
shown by ‘clear and compelling’ evidence.” Janus, 138
S. Ct. at 2486. This approach misconstrues Janus. The
Court considered whether a waiver could be presumed for
the deduction of agency fees only after concluding that the
practice of automatically deducting agency fees from
nonmembers violates the First Amendment. It was in this
context that the Court mandated that nonmembers “freely,”
“clearly,” and “affirmatively” waive their First Amendment
rights before any payment can be taken from them. Id. The
Court discussed constitutional waiver because it concluded
that nonmembers’ First Amendment right had been
infringed, and in no way created a new First Amendment
waiver requirement for union members before dues are
deducted pursuant to a voluntary agreement.
We note that there is an easy remedy for Washington
public employees who do not want to be part of the union:
they can decide not to join the union in the first place, or they
can resign their union membership after joining. Employees
demonstrated the freedom do so, subject to a limited
payment commitment period. In the face of their voluntary
agreement to pay union dues and in the absence of any
legitimate claim of compulsion, the district court
appropriately dismissed the First Amendment claim against
Washington.
AFFIRMED.