Hamidi et al v. Service Employees International Union Local 1000 et al

Filing 94

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 2/8/17 ORDERING that Plaintiffs' MOTION for Summary Judgment 64 is DENIED. IT IS FURTHER ORDERED that the California State Controller's Cross-Motion for partial Summary Judgment, and Local 1000's Cross-Motion for Summary Judgment, 67 , 74 are GRANTED. The Clerk is directed to enter judgment in favor of Defendants and against Plaintiffs. CASE CLOSED.(Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 KOUROSH HAMIDI, et al., and the CLASS THEY SEEK TO REPRESENT, Plaintiffs, 14 15 16 17 18 v. CIV. NO. 2:14-cv-319 WBS KJN MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT AND CROSSMOTIONS FOR PARTIAL SUMMARY JUDGMENT AND SUMMARY JUDGMENT SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000, and BETTY YEE, California State Controller, Defendants. 19 20 21 ----oo0oo---- 22 23 Fifteen employees of the state of California 24 (“plaintiffs”)1 brought this class action against defendants 25 Service Employees International Union Local 1000 (“Local 1000”) 26 27 28 1 There were originally eighteen plaintiffs. (See Compl. ¶ 6 (Docket No. 1).) Three have been dismissed from this action. (Docket No. 33.) 1 1 and the California state controller,2 alleging that defendants’ 2 ‘opt-out’ system for collecting optional union fees violates the 3 First Amendment. 4 for summary judgment against defendants. 5 64).) 6 controller cross-moves for partial summary judgment, against 7 plaintiffs. 8 Controller’s Cross-Mot. (Docket No. 74).) 9 I. (Compl. (Docket No. 1).) Plaintiffs now move (Pls.’ Mot. (Docket No. Local 1000 cross-moves for summary judgment, and the state (Local 1000’s Cross-Mot. (Docket No. 67); State Factual and Procedural History 10 Plaintiffs are employees of the state of California. 11 (Compl. ¶ 6.3) 12 collective bargaining representative of plaintiffs and other 13 state employees. 14 1000 may, but are not required to, join Local 1000 as dues-paying 15 members. 16 dues-paying members. 17 California recognizes Local 1000 as the exclusive (Id. ¶ 19.) (Id. ¶ 20.) Employees represented by Local Plaintiffs have not joined Local 1000 as (Id. ¶ 6.) Employees represented by, but not dues-paying members 18 of, Local 1000 (“nonmembers”) must, pursuant to a series of 19 ‘agency shop’ agreements between Local 1000 and the state, pay 20 21 22 23 24 25 26 27 28 2 At the commencement of this action, the California state controller was John Chiang. (Compl. ¶ 7.) Chiang has since been succeeded by Betty Yee. (State Controller’s CrossMot. at 1 n.1 (Docket No. 74).) For purposes of clarity, the court will refer to the California state controller by title, rather than by name. 3 The facts discussed in this Order are taken from plaintiffs’ verified Complaint. “A verified complaint may be treated as an affidavit [on a motion for summary judgment] to the extent that the complaint is based on personal knowledge and sets forth facts admissible in evidence and to which the affiant[s are] competent to testify.” Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985). Unless expressly noted, the parties do not dispute the facts discussed in this Order. 2 1 Local 1000 a ‘fair share’ fee. 2 choose to pay the “full” fair share fee, which Local 1000 uses to 3 fund expenditures both germane and not germane to collective 4 bargaining, or a “reduced” fair share fee, which is used to fund 5 only expenditures that are germane to collective bargaining.4 6 (See id. ¶¶ 20-21; Decl. of Brian Caldeira (“Caldeira Decl.”) ¶ 3 7 (Docket No. 37).) 8 contributions to political causes. 9 (Id. ¶ 20.) Nonmembers may Non-“germane” expenditures include (Compl. ¶ 21.) In deciding whether to charge nonmembers the full or 10 reduced fair share fee, Local 1000 has, with the state’s 11 authorization and assistance, implemented an ‘opt-out’ system. 12 See (id. ¶ 26); Cal. Gov’t Code § 3515.8 (providing “refund” 13 procedure whereby state employees may “demand . . . return of any 14 part of [a fair share] fee . . . [designated to] aid . . . 15 activities or causes of a partisan political or ideological 16 nature”); id. § 3515.7 (requiring that “state employer . . . 17 deduct the amount specified by the [collective bargaining 18 representative] from the salary or wages of every employee” and 19 “remit[]” such funds to the representative each month). 20 21 22 23 24 25 26 27 28 Under that system, Local 1000 sends nonmembers, prior 4 It is well-established that unions may require nonmembers to pay the portion of fair share fees that are used to fund “germane” expenditures. See Ry. Emp. Dep’t v. Hanson, 351 U.S. 225, 238 (1956) (unions may compel nonmember employees to pay fees); Abood v. Detroit Bd. of Ed., 431 U.S. 209, 235 (1977) (compelled union fees must be “germane to . . . collective[ ]bargaining”). Fees used to fund “ideological causes not germane to . . . collective-bargaining,” by contrast, may not be compelled. See Ellis v. Bhd. of Ry., 466 U.S. 435, 447 (1984) (“The union . . . could not, consistently with the Constitution, collect from dissenting employees any sums for the support of ideological causes not germane to its duties as collectivebargaining agent.”). 3 1 to each annual fee cycle, a notice (“Hudson notice”) informing 2 them that they will be charged the full fair share fee for the 3 upcoming cycle unless they opt out by sending back a written 4 statement stating that they wish to be charged only the reduced 5 fair share fee. 6 statement must include the objector’s name, signature, address, 7 department, and unit, and, per Local 1000’s instructions, “should 8 include, for identification purposes, [the objector’s] social 9 security number.” (See Compl. ¶¶ 12, 26a-c.) The opt-out (Id. Ex. A, Hudson Notice at 3 (Docket No. 1- 10 1).) 11 specified period, and employees must renew their objections each 12 year. 13 the above procedure are charged the full fair share fee, (id. ¶ 14 26a), which the state controller deducts from their paychecks and 15 forwards to Local 1000, Cal. Gov’t Code ¶ 3515.7. 16 The statement must be sent by postal mail within a (Compl. ¶ 26g.) Nonmembers who do not opt out pursuant to On January 31, 2014, plaintiffs filed this action 17 against defendants. (Compl. at 15.) 18 action, brought under 42 U.S.C. § 1983, alleges that Local 1000’s 19 fee collection system violates the First Amendment by 20 “requir[ing] that individuals pay agency fees . . . [that] 21 subsidiz[e Local 1000’s] political and other non-bargaining 22 activities, absent their affirmative consent.” 23 Plaintiffs also allege, under the same cause of action, that 24 Local 1000’s opt-out procedure--which requires nonmembers to 25 renew their objections each year, send their objections by postal 26 mail, and disclose their social security numbers in their 27 objections--fails to meet the constitutional standard set forth 28 in Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 4 Plaintiffs’ sole cause of (Id. ¶ 31.) 1 (1986). 2 (Docket No. 64-2).) (See id. ¶ 32; Pls.’ Mot., Mem. (“Pls.’ Mem.”) at 18-19 3 The court has certified plaintiffs’ cause of action for 4 class treatment to the extent it is brought as a facial challenge 5 upon the constitutionality of Local 1000’s opt-out requirement 6 and procedure. 7 53).) 8 pertaining to any as-applied challenges they might bring as 9 individuals in this action, and appear to have waived those (See May 22, 2015 Order at 3 n.3, 20 (Docket No. Plaintiffs have not, to date, raised any arguments 10 challenges in their Opposition to Local 1000’s Cross-Motion.5 11 The only challenge pending in this action, therefore, is 12 plaintiffs’ facial challenge. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs and Local 1000 now move for summary judgment 5 Any as-applied challenge brought in this action would be predicated upon individual plaintiffs not receiving Hudson notices, receiving untimely Hudson notices, or not having their objections honored. There are no allegations that Local 1000 failed to honor any individual objections in this case. Plaintiffs Ammons, Christensen, Giles, Lopez, Miller, Ollis, and Toledo testify that they did not receive Hudson notices for the 2013-2014 fee cycle, and plaintiff Tutt testifies that she received notice after Local 1000’s 2013-2014 objection deadline had passed. (Compl. ¶¶ 22-23.) Local 1000 disputes that plaintiffs failed to receive timely Hudson notices in its CrossMotion memorandum, (see Local 1000’s Cross-Mot., Mem. at 5-6 (citing Local 1000’s Resp. to Pls.’ Statement of Undisputed Facts at 11-14 (Docket No. 69)) (Docket No. 68)), and notes that it “has implemented a procedure for addressing . . . late-filed objections, incomplete objections, asserted failures to receive Hudson notices, and the like, whereby [it] will provide replacement Hudson notices and extend time for filing fee objections, where it can be determined that the error was not the fault of the nonmember,” (id. at 28 (citing Caldeira Decl. ¶¶ 910)). Plaintiffs did not respond to any of Local 1000’s facts in their Opposition, and concede that whether they received timely notices is not “material to the claim raised.” (Pls.’ Opp’n at 9 (Docket No. 87).) Accordingly, the court understands plaintiffs to have waived their as-applied challenges. 5 1 with respect to plaintiffs’ facial challenge. 2 judgment declaring Local 1000’s opt-out system unconstitutional, 3 permanently enjoining defendants from enforcing the system, and 4 ordering that defendants pay plaintiffs and the nonmember class 5 compensatory damages for fees “exceeding constitutionally- 6 chargeable costs” (“non-‘germane’ fees”) collected pursuant the 7 system. 8 1000 seeks judgment denying plaintiffs’ challenge and dismissing 9 this action with prejudice. 10 Plaintiffs seek (Pls.’ Proposed Order at 2-3 (Docket No. 83).) Local (Local 1000’s Proposed Order at 5 (Docket No. 73).) 11 The state controller separately moves for partial 12 summary judgment denying plaintiffs’ challenge to the extent it 13 seeks monetary damages against her. 14 Mot. at 2.) 15 recovering monetary damages against the state controller under 16 the doctrine of sovereign immunity. 17 No. 87)); see also Will v. Michigan Dep’t of State Police, 491 18 U.S. 58, 71 (1989). 19 to the state controller to the extent plaintiffs seek monetary 20 damages against her, and decide plaintiffs’ claim for declaratory 21 and injunctive relief against her together with their claim for 22 the same relief against Local 1000.6 23 II. (State Controller’s Cross- Plaintiffs have conceded that they are barred from (Pl.’s Opp’n at 2 (Docket Accordingly, the court will grant judgment Legal Standard 24 Summary judgment is proper “if the movant shows that 25 26 27 28 6 The parties agreed at oral argument that the state controller cannot be held liable for monetary damages in this action. The state controller agreed to be bound by the court’s ruling on plaintiffs’ claim for declaratory and injunctive relief against Local 1000. 6 1 there is no genuine dispute as to any material fact and the 2 movant is entitled to judgment as a matter of law.” 3 P. 56(a). 4 of the suit, and a genuine issue is one that could permit a 5 reasonable jury to enter a verdict in the non-moving party’s 6 favor. 7 (1986). 8 undisputed, and the heart of the controversy is the legal effect 9 of such facts, such a dispute effectively becomes a question of Fed. R. Civ. A material fact is one that could affect the outcome Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 “[W]here the operative facts are substantially 10 law that can, quite properly, be decided on summary judgment.” 11 Joyce v. Renaissance Design Inc., No. CV 99-07995 LGB (EX), 2000 12 WL 34335721, at *2 (C.D. Cal. May 3, 2000); see also Braxton- 13 Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th Cir. 1985) 14 (“[W]here the palpable facts are substantially undisputed, [the 15 controverted] issues can become questions of law which may be 16 properly decided by summary judgment.”). 17 III. Discussion 18 19 A. Constitutionality of Opt-Out Requirement Plaintiffs’ challenge to the constitutionality of Local 20 1000’s opt-out requirement arises from the United States Supreme 21 Court’s decision in Knox v. Serv. Employees Int’l Union, Local 22 1000, 132 S.Ct. 2277 (2012). 23 contend, suggests that an opt-out system for collecting non- 24 “germane” union fees violates the First Amendment. 25 argues, in response, that Knox overruled neither prior Supreme 26 Court cases that expressly assumed that the opt-out requirement 27 is constitutionally acceptable, nor the Ninth Circuit’s decision 28 in Mitchell v. Los Angeles Unified Sch. Dist., 963 F.2d 258 (9th Language from Knox, plaintiffs 7 Local 1000 1 Cir. 1992), which held “that the Constitution does not mandate a 2 system under which nonmembers pay full union dues only if they 3 opt in,” id. at 260. 4 The Supreme Court has long assumed, without expressly 5 deciding, that an opt-out system for collecting non-“germane” 6 fees is tolerable under the First Amendment. 7 Machinists v. Street, 367 U.S. 740 (1961), the Court was 8 presented with the question of whether the Railway Labor Act 9 authorized unions to use fees exacted from employees to fund In Int’l Ass’n of 10 political causes which they opposed. 11 holding that the Act did not grant unions such power, the Court 12 stated, in dicta, that any remedies granted to employees who were 13 subject to such use of their fees “would properly be granted only 14 to [those] who have made known to the union officials that they 15 do not desire their funds to be used for political causes to 16 which they object.” 17 “is not to be presumed.” 18 known to the union by the dissenting employee.” 19 Id. at 774. Id. Id. at 743-44. After “[D]issent,” the Court stated, “It must affirmatively be made Id. Since Street, the Court has reiterated the admonition 20 that “dissent is not to be presumed” in a number of other cases. 21 In Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), the Court 22 held that unions may not, as a constitutional matter, fund 23 political activities using fees exacted from employees “who 24 object” to such activities, id. at 235-36, 238, noting again that 25 under Street, “dissent [must] be affirmatively indicated” for the 26 objecting employee to be eligible for relief, id. at 239; see 27 also Hudson, 475 U.S. at 306 (“In Abood, we reiterated that the 28 nonunion employee has the burden of raising an objection . . . 8 1 .”). 2 explained that one of the reasons Hudson notices must meet 3 certain procedural requirements is because such requirements 4 protect the First Amendment rights of nonunion employees, who 5 “bear[] the burden of objecting.” The Court expressed a similar sentiment in Hudson, where it 6 Id. at 307. Many other cases have, in reliance upon Street’s 7 admonition, understood the line between employees who may and may 8 not be charged non-“germane” fees to be drawn at whether they 9 object. See Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 520 10 (1991) (holding that certain lobbying activities may not be 11 charged to “objecting employees” (emphasis added)); Ellis v. Bhd. 12 of Ry., 466 U.S. 435, 453 (1984) (holding that certain litigation 13 expenses may not be charged to “objecting employees” (emphasis 14 added)); Bhd. of Ry. v. Allen, 373 U.S. 113, 118 (1963) (“No 15 respondent who does not . . . prove that he objects to 16 [political] use [of fees] will be entitled to relief.” (emphasis 17 added)). 18 Against the backdrop of Street and its progeny, the 19 Ninth Circuit was faced squarely with the question of whether an 20 opt-out system for collecting non-“germane” fees violates the 21 First Amendment in Mitchell. 22 line of cases, the constitutionality of a union’s opt-out system 23 was the dispositive issue. 24 recounting the “long line of Supreme Court cases” which assumed 25 that the opt-out requirement is constitutionally acceptable, 26 “beginning with [Street],” the Ninth Circuit concluded that 27 “[t]here is . . . no support for the plaintiffs’ position . . . 28 that affirmative consent to deduction of full fees is required in There, unlike in Street and its See Mitchell, 963 F.2d at 259. 9 After 1 order to protect their First Amendment rights.” 2 “[N]onunion members’ rights are adequately protected,” the Ninth 3 Circuit held, “when they are given the opportunity to object to 4 such deductions . . . .” 5 Id. at 261. Id. Mitchell remained largely unquestioned until the 6 Supreme Court’s decision in Knox. In Knox, the issue before the 7 Court was whether a union may constitutionally require employees 8 to pay a “special . . . mid-year dues increase,” not disclosed in 9 its annual Hudson notice, to fund an “Emergency . . . Political 10 Fight-Back Fund.” 11 held that it may not, and further held that such a fee may only 12 be imposed with the “affirmative consent” of employees. 13 2296. 14 Knox, 132 S.Ct. at 2285, 2296 n.9. The Court Id. at While Knox did not deal squarely with whether unions 15 may implement opt-out systems for collecting non-“germane” fees 16 that are disclosed in annual Hudson notices, see id. at 2285 17 (“Hudson concerned a union’s regular annual fees. 18 case, by contrast, concerns the First Amendment requirements 19 applicable to a special assessment or dues increase that is 20 levied to meet expenses that were not disclosed when the amount 21 of the regular assessment was set.”), the Knox Court devoted 22 several paragraphs to criticizing Street and the line of cases 23 citing Street which assumed that they may. 24 The present “[R]equiring objecting nonmembers to opt out of paying 25 the nonchargeable portion of union dues,” the Court noted, 26 “represents a remarkable boon for unions.” 27 it is recognized, as our cases have, that a nonmember cannot be 28 forced to fund a union’s political or ideological activities, 10 Id. at 2290. “Once 1 what is the justification for putting the burden on the nonmember 2 to opt out of making such a payment?” the Court asked. 3 opt-out system creates a risk that the fees paid by nonmembers 4 will be used to further political and ideological ends with which 5 they do not agree,” which is in tension with Hudson’s requirement 6 that “any procedure for exacting fees from unwilling contributors 7 . . . be ‘carefully tailored to minimize the infringement’ of 8 free speech rights.” 9 303). 10 Id. “An Id. at 2290-91 (quoting Hudson, 475 U.S. at The Court then characterized Street’s “dissent” 11 admonition as “dicta” arrived at “without any focused analysis” 12 and an “offhand remark” that “c[a]me about more as a historical 13 accident than through the careful application of First Amendment 14 principles.” 15 Id. at 2290. In light of Knox’s criticism of Street, plaintiffs 16 argue, this court should find the opt-out requirement to be 17 unconstitutional. 18 Knox . . . reversed the Supreme Court’s prior decisionmaking in 19 Street.” 20 proves Street’s admonition “never was binding precedent” to begin 21 with. 22 reject[ed] the . . . analysis underlying [the Ninth Circuit’s] 23 decision in Mitchell,” and thus indicates that Mitchell is no 24 longer good law. 25 that neither Street nor Mitchell bind this court, and that 26 therfore the court is free to decide, anew, whether the opt-out 27 requirement is constitutional. 28 Knox’s criticism of Street, plaintiffs argue, the court should To be precise, plaintiffs “do not argue that (Pls.’ Opp’n at 11.) (Id.) Rather, they argue that Knox Plaintiffs further argue that “Knox explicitly (Id.; Pls.’ Mem. at 11-12.) Plaintiffs argue (Pls.’ Mem. at 12.) 11 In light of 1 2 find that such a requirement violates the First Amendment. The court notes that notwithstanding its criticism of 3 Street, Knox does not control the outcome of this case. Despite 4 characterizing Street’s admonition as “dicta,” Knox did not go to 5 the extent of ruling that the admonition was unconstitutional. 6 Nor did Knox hold that unions must obtain employees’ “affirmative 7 consent” to collect non-“germane” fees in all circumstances. 8 Instead, Knox limited the “affirmative consent” requirement to 9 “special . . . mid-year dues increase[s].” See Knox, 132 S.Ct. 10 at 2296 (“[W]hen a public-sector union imposes a special 11 assessment or dues increase, the union . . . may not exact any 12 funds from nonmembers without their affirmative consent.” 13 (emphasis added)); see also id. at 2285 (“Hudson concerned a 14 union’s regular annual fees. 15 concerns the First Amendment requirements applicable to a special 16 assessment or dues increase that is levied to meet expenses that 17 were not disclosed when the amount of the regular assessment was 18 set.”); id. at 2295 (noting that previous cases “permitt[ed] 19 unions to use opt-out rather than opt-in schemes when annual dues 20 are billed,” and that the present case presented a “new 21 situation”). 22 to annual Hudson notices, rather than a special mid-year dues 23 increase, Knox is not controlling. 24 The present case, by contrast, Because this case concerns fees collected pursuant What the court is left with, then, is Mitchell, and the 25 question of whether it remains good law after Knox. 26 the relationship between circuit and Supreme Court precedents, 27 the Ninth Circuit has held that its precedents remain binding law 28 in this circuit until the Supreme Court “undercut[s] the theory 12 Addressing 1 or reasoning underlying [its] precedent in such a way that the 2 cases are clearly irreconcilable.” 3 889, 900 (9th Cir. 2003). 4 standard.” 5 “It is not enough for there to be some tension between the 6 intervening higher authority and prior circuit precedent, or for 7 the intervening higher authority to cast doubt on the prior 8 circuit precedent.” 9 higher authority to “chip[] away at the theory behind” a circuit Miller v. Gammie, 335 F.3d Clear irreconcilability “is a high Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012). Id. Nor is it enough for the intervening 10 precedent, or send a “strong signal[]” that a circuit precedent 11 ought to be reconsidered. 12 1150 (9th Cir. 2013). 13 . . clearly irreconcilable.” 14 United States v. Green, 722 F.3d 1146, Instead, “the intervening case must [be] . Id. (emphasis in original). Knox is not “clearly irreconcilable” with Mitchell. As 15 discussed above, Knox’s criticism of Street did not rise to the 16 level of holding Street’s admonition and other cases’ reliance 17 upon it to be unconstitutional. 18 unions must obtain employees’ affirmative consent before charging 19 them non-“germane” fees was expressly limited to a “special . . . 20 mid-year dues increase” levied by a union after it had already 21 charged employees fees pursuant to an annual Hudson notice. 22 Knox, 132 S.Ct. at 2285, 2295-96. 23 Knox, concerned fees charged pursuant to an annual Hudson notice. 24 See Mitchell, 963 F.2d at 259 (explaining that case concerned 25 fees charged pursuant to a Hudson notice); (Decl. of Jeffrey 26 Demain (“Demain Decl.”) Ex. 4, Mitchell v. Los Angeles Unified 27 Sch. Dist. Compl. ¶¶ 27-30, 39, (showing that Mitchell concerned 28 annual dues) (Docket No. 72-4)). Moreover, Knox’s holding that 13 See Mitchell, in contrast with Because Knox did not hold 1 Street’s admonition to be unconstitutional, and because Knox and 2 Mitchell apply to different factual circumstances, Knox and 3 Mitchell are not “clearly irreconcilable.” 4 1207; Green, 722 F.3d at 1150. 5 See Lair, 697 F.3d at The court’s analysis of Mitchell’s viability after Knox 6 is confirmed by the Ninth Circuit’s ruling in Friedrichs v. 7 California Teachers Ass’n, No. 13-57095, 2014 WL 10076847 (9th 8 Cir. 2014). 9 Knox was decided, alleging that unions violated their First There, plaintiff employees brought action, after 10 Amendment rights by “requiring [them] to undergo opt out 11 procedures to avoid making financial contributions in support of 12 ‘non-chargeable’ union expenditures.” 13 Teachers Ass’n, No. SACV 13-676-JLS CWX, 2013 WL 9825479, at *1-2 14 (C.D. Cal. Dec. 5, 2013). 15 for the unions, id. at *3, and the case was appealed to the Ninth 16 Circuit. 17 questions presented [on] appeal . . . are governed by controlling 18 Supreme Court and Ninth Circuit precedent,” the Ninth Circuit 19 affirmed the district court’s judgment. 20 10076847, at *1. 21 subsequently “affirmed by an equally divided [Supreme] Court.” 22 Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016). 23 Friedrichs v. California The district court entered judgment Citing Mitchell as good law and noting that “the Friedrichs, 2014 WL The Ninth Circuit’s affirmation was itself Friedrichs confirms that Mitchell remains good law 24 after Knox. Because Mitchell remains good law after Knox, the 25 court must deny plaintiffs’ challenge to the constitutionality of 26 Local 1000’s opt-out requirement. 27 C14-200-MJP, 2016 WL 6126016, at *3 (W.D. Wash. Oct. 20, 2016) 28 (denying challenge to constitutionality of union’s opt-out 14 Accord Hoffman v. Inslee, No. 1 2 requirement in light of Friedrichs). B. 3 Constitutionality of Opt-Out Procedure Plaintiffs’ challenge to the constitutionality of Local 4 1000’s opt-out procedure is brief compared to their challenge of 5 its opt-out requirement. 6 take issue only with three aspects of Local 1000’s procedure: (1) 7 the requirement that objections be renewed each year, (2) the 8 requirement that nonmembers send their objections by postal mail, 9 and (3) the requirement that nonmembers state their social 10 (See Pls.’ Mem. at 18-19.) security numbers in their objections. 11 Plaintiffs (Id.) Under Hudson, a union’s procedure for collecting fees 12 from nonmembers must be “carefully tailored to minimize the 13 infringement” upon nonmembers’ free speech rights.7 14 U.S. at 303. 15 speech,” however, “is constitutionally mandated.” 16 Churchill, 511 U.S. 661, 670 (1994) (O’Connor, J., plurality 17 op.). 18 that, while more protective of nonmembers’ First Amendment rights 19 than others, are not required by the Constitution. 20 475 U.S. at 308 n.21 (“We do not agree . . . that a full-dress 21 administrative hearing [as to a union’s determination of 22 chargeable fees], with evidentiary safeguards, is part of the 23 24 25 26 27 28 7 Hudson, 475 “[N]ot every procedure that may safeguard protected Waters v. Hudson itself noted that there are procedural safeguards See Hudson, Hudson also requires that unions “include an adequate explanation of the basis for [their] fee” in their annual notices, provide “a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker,” and hold “the amounts reasonably in dispute” in escrow “while such challenges are pending.” Hudson, 475 U.S. at 310. Those requirements are not at issue in this case. (Pls. Mem. at 10 n.7 (noting that Hudson’s financial disclosure, dispute resolution, and escrow requirements are “not specifically at issue here”).) 15 1 constitutional minimum. 2 might satisfy the requirement of a reasonably prompt decision by 3 an impartial decisionmaker . . . .”); see also Mitchell, 963 F.2d 4 at 261 (noting that opt-in system was not required under Hudson). 5 We think that an expeditious arbitration Plaintiffs contend that requiring them to renew their 6 objections each year and send their objections by postal mail 7 constitute a “cumbersome” and “excessive[]” burden. 8 at 19.) 9 social security numbers in their objections triggers the threat (Pls.’ Mem. They further argue that requiring them to disclose their 10 of identity theft, which “discourage[s]” objections. 11 Because such requirements make it less likely that nonmembers 12 will file objections, they argue, Local 1000’s opt-out procedure 13 fails to meet the standard set forth in Hudson. 14 (Id.) Notwithstanding plaintiffs’ arguments, it appears that 15 the Ninth Circuit has ratified the annual renewal and postal mail 16 requirements at issue here. 17 raised on appeal was whether a union’s requirement that employees 18 “renew their objection in writing every year” is permissible 19 under the First Amendment. 20 v. California Teachers Ass’n Appellants’ Br. at 22-23 (Docket No. 21 72-6); see also id. Ex. 5, Friedrichs v. California Teachers 22 Ass’n Compl. ¶ 10 (“Plaintiffs additionally request that this 23 Court declare that the Defendants’ practice of requiring an 24 annual affirmative ‘opt out’ . . . violates the First Amendment . 25 . . .”) (Docket No. 72-5).) 26 order affirming judgment against the employees, that it “reviewed 27 . . . the briefing filed in [the] appeal” and found “that the 28 questions presented in [the] appeal are so insubstantial as not In Friedrichs, one of the questions (See Demain Decl. Ex. 6, Friedrichs The Ninth Circuit noted, in its 16 1 to require further argument.”8 2 *1. 3 Friedrichs, 2014 WL 10076847, at Similarly, in Mitchell, the opt-out system at issue 4 required nonmembers to object “by certified mail.” Mitchell v. 5 Los Angeles Unified Sch. Dist., 744 F. Supp. 938, 941 (C.D. Cal. 6 1990). 7 requirement, the Ninth Circuit stated that “[t]he procedures 8 followed by the union to give plaintiffs the opportunity to 9 object to the full agency fee complied with the applicable In upholding the constitutionality of the union’s opt-out 10 standard to ensure protection of their First Amendment rights.” 11 Mitchell, 963 F.2d at 263. 12 In light of Friedrichs and Mitchell, the court finds 13 that Local 1000’s annual renewal and postal mail requirements are 14 acceptable under Hudson. 15 With respect to Local 1000’s requirement that employees 16 state their social security numbers in their objections, Local 17 1000 argues that the requirement “constitutes a reasonable 18 precaution to insure that one non-member’s objection is not 19 misattributed to another non-member.” 20 Mem. at 25 (Docket No. 68).) 21 employees,” Local 1000 notes, “the likelihood is high that some 22 will share the same name.” (Local 1000’s Cross-Mot., “With so many represented state (Id.) “The social security number, 23 24 25 26 27 28 8 Other circuits have split over whether an annual objection requirement is permissible under Hudson. The Sixth and D.C. Circuits have found it to be permissible, see Tierney v. City of Toledo, 824 F.2d 1497, 1506 (6th Cir.1987); Abrams v. Communications Workers of America, 59 F.3d 1373, 1381-82 (D.C. Cir. 1995), while the Fifth Circuit has found it to be impermissible, see Shea v. Int’l Ass’n of Machinists & Aerospace Workers, 154 F.3d 508, 517 (5th Cir. 1998). 17 1 as a unique identifier, assists the union in attributing fee 2 objections to the correct person.” 3 (Id.) Plaintiffs have offered no evidence indicating that 4 Local 1000’s social security number requirement results in 5 identity theft, or that employees are deterred from objecting 6 because of that requirement. 7 offered evidence indicating that the requirement is reasonably 8 necessary to guard against misattribution of objections, and that 9 it “takes precautions to safeguard the confidentiality of . . . Local 1000, on the other hand, has 10 employees’ SSNs” pursuant to federal and state law. (See Decl. 11 of Anne Giese ¶¶ 10-11 (discussing need for social security 12 numbers and precautionary measures taken) (Docket No. 71).) 13 In light of evidence indicating that Local 1000’s 14 social security number requirement is reasonably necessary to 15 prevent misattribution of objections, and in the absence of 16 evidence indicating that such requirement deters employees from 17 objecting, the court finds that Local 1000’s social security 18 number requirement is acceptable under Hudson. 19 Having addressed each aspect of plaintiffs’ 20 constitutional challenge, the court finds that because Mitchell 21 remains good law after Knox, and because Local 1000’s opt-out 22 requirements have been found by the Ninth Circuit or this court 23 to be acceptable under Hudson, the court must deny plaintiffs’ 24 Motion and grant Local 1000’s Cross-Motion. 25 26 27 28 IT IS THEREFORE ORDERED that plaintiffs’ Motion for summary judgment be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that the California state controller’s Cross-Motion for partial summary judgment, and Local 18 1 1000’s Cross-Motion for summary judgment be, and the same hereby 2 are, GRANTED. 3 The clerk is directed to enter judgment in favor of 4 defendants and against plaintiffs. 5 Dated: February 8, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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