Boardman et al v. Inslee et al

Filing 76

ORDER signed by Judge Benjamin H. Settle, Granting the State and the Campaign's Motions for Summary Judgment, (Dkts. 48 and 47 ); and Denying Plaintiffs' 50 Motion for Summary Judgment. (GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BRADLEY BOARDMAN, et al.,
Plaintiffs,
v.
JAY R. INSLEE, et al.,

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Defendants

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and

CASE NO. C17-5255 BHS
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT,
INTERVENOR-DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT, AND DENYING
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT

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CAMPAIGN TO PREVENT FRAUD
AND PROTECT SENIORS,

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Defendant-Intervenors.

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This matter comes before the Court on Defendants Governor Jay R. Inslee,

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Patricia Lashway, Director of the Washington Department of Social and Health Services

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ORDER - 1

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(“DSHS”), and Ross Hunter, Director of the Washington Department of Early Learning’s

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(“DEL”) (collectively “State”) motion for summary judgment, Dkt. 47, Defendant-

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Intervenors the Campaign to Prevent Fraud and Protect Seniors’s (“Campaign”) motion

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for summary judgment, Dkt. 48, and Plaintiffs Bradley Boardman (“Boardman”),

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Deborah Thurber (“Thurber”), Shannon Benn (“Benn”), and Freedom Foundation’s

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(“Freedom Foundation” or “the Foundation”) (collectively “Plaintiffs”) cross-motion for

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summary judgment, Dkt. 50. The Court has considered the pleadings filed in support of

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and in opposition to the motions and the remainder of the file and hereby rules as follows:

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I.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

On June 30, 2014, the Supreme Court decided Harris v. Quinn, 134 S. Ct. 2618

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(2014). Harris, in Plaintiffs’ framing, held that in-home caregivers who are paid through

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the Medicaid program to provide in-home care for adults and children (“caregivers”)

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“could not be forced to belong to or otherwise financially support a union because it

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violated their First Amendment rights.” Dkt. 50 at 7. Plaintiffs explain that their interest

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in contacting caregivers in Washington arose “[i]mmediately after Harris was issued in

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2014.” Dkt. 50 at 7. On July 2, 2014, two days after the decision, the Freedom

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Foundation submitted public records requests to DSHS and DEL, seeking a list of

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caregivers from each. Dkt. 50 at 12 (citing Dkt. 6, Declaration of Maxford Nelson

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(“Nelson Decl.”), at 3–4). DEL provided the requested list, and “[f]or over two and a half

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years, the Foundation has been using this list to reach Childcare Providers and informing

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them of their right to leave the union.” Nelson Decl. at 4. DSHS “determined that the

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names of [caregivers] were disclosable information” but, according to Plaintiffs, “delayed

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ORDER - 2

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disclosure long enough to allow SEIU 775 to sue [DSHS] and the Foundation to prevent

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disclosure of the records.” Id. at 4.1 Though the suit was ultimately unsuccessful, the state

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trial court granted a temporary restraining order preventing disclosure and kept it in place

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until the appeal was resolved in 2016 in favor of the Foundation. Dkt. 50 at 12.

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Additional disputes over public records requests followed. Dkt. 50 at 12.

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Washington voters enacted Washington State Initiative 1501 (“the Initiative”) in

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the 2016 general election. Dkt. 47 at 4. The Initiative’s text described its intent to:

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protect the safety and security of seniors and vulnerable individuals by (1)
increasing criminal penalties for identity theft targeting seniors and
vulnerable individuals; (2) increasing penalties for consumer fraud
targeting seniors and vulnerable individuals; and (3) prohibiting the release
of certain public records that could facilitate identity theft and other
financial crimes against seniors and vulnerable individuals.

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Dkt. 47-1 at 5, Text of the Initiative. Plaintiffs challenge Part Three of the Initiative,
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which amended Washington’s Public Records Act, RCW Chapter 42.56 (“PRA”). The
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PRA provides for broad public access to state records, see WAC 44-14-01003, but state
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statutes have also created hundreds of exceptions. See Dkt. 49-5, Declaration of Gregory
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Wong, Ex. E Table of Exemptions from Public Records Disclosure.2 The Initiative added
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an exception for “sensitive personal information of vulnerable individuals and sensitive
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personal information of in-home caregivers for vulnerable populations from inspection
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Two chapters of the Service Employees International Union (“SEIU”) represent
caregivers in Washington State: SEIU 775 and SEIU 925. Dkt. 50 at 7.
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As the Campaign explains “[s]ome exemptions have obvious policy bases, such as for
the identity of victims or witnesses of crime, while others are less obvious, such as information
in commercial fertilizer reports and personal information of individual American ginseng
growers and dealers.” Dkt. 48 at 18 (citing RCW 42.56.240(2), 42.56.380(2), 42.56.380(6)).
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ORDER - 3

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and copying” under the Act, and defined sensitive personal information to include names,

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in addition to addresses, GPS coordinates, telephone numbers, email addresses, social

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security numbers, driver’s license numbers, “or other personally identifying information.”

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Dkt. 47-1 10.

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Neither party provides an explicit comparison of which identifying data points

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were available prior to the passage of the Initiative which are now not available.3 Based

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on the Court’s examination of the text of RCW 42.56.250(4), “[r]esidential addresses,

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residential telephone numbers, personal wireless telephone numbers, personal electronic

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mail addresses, social security numbers, and emergency contact information of

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employees or volunteers of a public agency” in personnel records or public employment

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related records have been excluded from public inspection and copying since at least

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2006,4 and driver’s license numbers and identicard numbers have been excluded since

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2014.5 Comparing this information to § 8(2)(b) of the Initiative, it appears that for

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caregivers, the only additional information the Initiative withholds is their names. See

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Dkt. 47-1 10.

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The Initiative continues to allow some entities to access caregiver identities,

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including the certified bargaining representative under RCW 41.56.080, see § 11(d),

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parties to contracts with the state where the contract requires disclosure, see § 11(f), or

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Plaintiffs argue the only “effective change was to keep non-preferred entities and
individuals such as Plaintiffs from learning the names of the [caregivers].” Dkt. 50 at 6.
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See 2006 Wash. Sess. Laws ch. 209 § 6 (recodifying and making technical corrections
to public disclosure law).
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See 2014 Wash. Sess. Laws ch. 106 § 1.

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ORDER - 4

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entities under contract with the state to provide services to or conduct research about

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vulnerable residents, see § 11(g).

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The argument for the Initiative in the Voters’ Guide noted that seniors and

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vulnerable people were particularly at risk of identity theft and other financial

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exploitation or scams. Dkt. 49-2 at 6–7. The argument against the Initiative in the Guide

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claimed the Initiative’s goal “is to rewrite the Public Records Act to prevent in-home

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caregivers and childcare providers from learning they no longer can be forced to pay dues

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to the union.” Id.

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On April 5, 2017, Plaintiffs filed a complaint against the State alleging that the

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Initiative violates Plaintiffs’ rights to free speech and free association under the First

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Amendment, and right to equal protection of the laws under the Fourteenth Amendment,

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seeking a permanent injunction enjoining the State from enforcing the Initiative. Dkt. 1,

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¶¶ 89–132.

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Also on April 5, Plaintiffs filed a motion for a temporary restraining order against

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the State, seeking to enjoin the Initiative. Dkt. 2. Plaintiffs raised their First Amendment

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and Equal Protection claims, as well as Thurber and Benn’s desire to call an election to

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replace SEIU 925 with another union for child caregivers. Dkt. 2 at 12. To call an

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election at that time, they would have had to “convince 30% of Childcare Providers to

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call for an election during the month of April” to meet the deadline, sixty days prior to

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the expiration of the then-current collective bargaining agreement for child caregivers.

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Dkt. 2 at 12. On April 10, 2017 the State responded, Dkt. 15, and the Court held a

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hearing. The Court denied the temporary restraining order due to Plaintiffs’ failure to

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show a likelihood of success on the merits and delay in bringing the motion. Dkt. 21.

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Also on April 10, the Campaign filed a motion to intervene as a defendant. Dkt. 17. On

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May 11, 2017, the Court granted the Campaign’s motion to intervene. Dkt. 31.

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On July 17, 2018, the State and the Campaign each filed motions for summary

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judgment. Dkts. 47, 48. On July 18, 2018, Plaintiffs filed a cross-motion for summary

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judgment. Dkt. 50. On August 6, 2018, the parties responded. Dkts. 60, 61, 63. On

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August 10, 2018, the parties replied. Dkts. 65, 67, 68.6

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II. DISCUSSION

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In this case, the dispute centers on whether Part Three of the Initiative violates the

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Constitution. Both sides agree the dispute is primarily legal rather than factual. Dkts. 47

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at 3, 48 at 14, 63 at 7. The primary legal question is whether a statute enacted by

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Washington voters is constitutional. As a threshold matter, legislative classifications are

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presumed constitutional, and “the burden of showing a statute to be unconstitutional is on

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the challenging party.” N.Y. State Club Ass’n, Inc. v. City of New York, 487 U.S. 1, 17

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(1988).

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Regarding the merits, Plaintiffs assert two Equal Protection claims and three First

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Amendment claims. The Court considers the First Amendment claims first, concluding

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that Plaintiffs have failed to establish any violation of a fundamental right. Based on that

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conclusion, the Court grants the State and the Campaign’s motions for summary

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On November 30, 2018, the Campaign filed a notice of supplemental authority. Dkt. 71.
Plaintiffs moved to strike the supplemental authority on December 5, 2018. Dkt. 72. The
Campaign responded on December 12, 2018. The Court does not address the case updated in the
Campaign’s notice, and so does not address Plaintiffs’ motion.

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judgment on Plaintiffs’ First Amendment claims and first Equal Protection claim, which

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is based on interference with a fundamental right. The Court then considers Plaintiffs’

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second Equal Protection claim under rational basis review and concludes that Plaintiffs

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have failed to establish any constitutional violation.

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A.

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Summary Judgment Standard
Summary judgment is proper only if the pleadings, the discovery and disclosure

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materials on file, and any affidavits show that there is no genuine issue as to any material

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fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

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The moving party is entitled to judgment as a matter of law when the nonmoving party

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fails to make a sufficient showing on an essential element of a claim in the case on which

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the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323

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(1986). There is no genuine issue of fact for trial where the record, taken as a whole,

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could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

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present specific, significant probative evidence, not simply “some metaphysical doubt”).

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See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if

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there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

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jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

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626, 630 (9th Cir. 1987).

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The determination of the existence of a material fact is often a close question. The
Court must consider the substantive evidentiary burden that the nonmoving party must

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meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson, 477

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U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

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issues of controversy in favor of the nonmoving party only when the facts specifically

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attested by that party contradict facts specifically attested by the moving party. The

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nonmoving party may not merely state that it will discredit the moving party’s evidence

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at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

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Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

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nonspecific statements in affidavits are not sufficient, and missing facts will not be

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presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

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B.

First Amendment
Plaintiffs allege that creating a PRA exception for caregiver identities interferes

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with Plaintiffs’ exercise of free speech and association because the identity lists “are

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essential for both Plaintiffs and the Unions to engage in political speech with

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[caregivers].” Dkt. 1, ¶ 96. Plaintiffs rely on seven lines of doctrine to support their claim

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that the exception burdens their First Amendment speech and association rights: (1)

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methods of communication cases, (2) access to government cases, (3) ballot access

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cases, (4) right to listen cases, (5) viewpoint discrimination cases, (6) overbreadth cases,

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and (7) freedom of association cases. The Court concludes that none of the authorities

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cited by Plaintiffs establishes that the Initiative burdens their First Amendment rights.

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a.

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Plaintiffs argue that the substantial Supreme Court precedent protecting picketing

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and door-to-door pamphlet distribution shows the First Amendment prohibits banning

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Methods of Communication

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access to a particular audience or a particular method of communication. Dkt. 50 at 21.

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See, e.g., Martin v. City of Struthers, 319 U.S. 141, 146–47 (1943) (“Freedom to

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distribute information to every citizen wherever he desires to receive it is so clearly vital

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to the preservation of a free society that, putting aside reasonable police and health

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regulations of time and manner of distribution, it must be preserved.”); Schneider v. State

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of New Jersey, Town of Irvington, 308 U.S. 147, 164 (1939) (“[P]amplets have proved

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most effective in the dissemination of opinion. And perhaps the most effective way of

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bringing them to the notice of individuals is their distribution at the homes of the

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people.”). Plaintiffs also cite Meyer v. Grant, 486 U.S. 414 (1988), where the state

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impermissibly prohibited paying petition circulators, to support the proposition that

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courts find burdens on speech when laws restrict the number of voices putting forward a

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particular message or reduce speakers’ “ability to make the issue a statewide discussion.”

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Dkt. 50 at 19 (citing 486 U.S. at 421–22). Plaintiffs convincingly establish that the

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Supreme Court values affordable methods of distributing speech, but their cited

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authorities do not support the proposition that the First Amendment compels the

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government to disclose information to help speakers identify their target audience. Unlike

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the cited authorities, the Initiative does not burden any methods of communication

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Plaintiffs may use to speak to caregivers once Plaintiffs have identified them—Plaintiffs

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may canvass, hire paid canvassers, distribute pamphlets, make speeches, advertise and

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hold meetings, picket, or send mailers to distribute their speech. Thus, Plaintiffs have

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failed to establish any unconstitutional restriction on a method of communication.

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Plaintiffs also cite Police Department of Chicago v. Mosely, 408 U.S. 92, 95–96

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(1972) (city ordinance allowing only labor-based picketing near schools) and Carey v.

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Brown, 447 U.S. 455 (1980) (state law exempting labor-based picketing from ban on

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picketing at dwelling-places) for the proposition that differential treatment of union and

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non-union speech violates the Equal Protection Clause. Dkt. 50 at 27–28.7 In Perry Educ.

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Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (“Perry Education”), the rival

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union cited Mosely and Carey for the proposition that the certified teacher’s union’s

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exclusive access to teacher mailboxes violated the First Amendment and the Equal

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Protection Clause. Id. at 41, 54. There, the Supreme Court distinguished Mosely and

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Carey, saying “[t]he key to those decisions . . . was the presence of a public forum. In a

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public forum, by definition, all parties have a compelling right of access.” Id. at 54–55.

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In this case, Plaintiffs have failed to establish a “forum” wherein the alleged

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discrimination is occurring. Plaintiffs have failed to cite, and the Court is unaware of

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any, authority for the proposition that a list of names is either a public or private forum

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for communication. Unlike a set of mailboxes allowing a speaker to insert pamphlets, a

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list of names simply identifies individuals. Thus, Plaintiffs’ reliance on Mosely and Carey

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is misplaced. Even if the list could be considered a forum, the Supreme Court has held

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that “when government property is not dedicated to open communication the government

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may—without further justification—restrict use to those who participate in the forum’s

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official business,” particularly when substantial alternative channels remain open for the

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The Court will also address Plaintiffs’ concerns about distinguishing between union and
non-union speech in its discussion of viewpoint discrimination.
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rival union. Id. at 53. Plaintiffs fail to establish that the list is dedicated to open

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communication or that they would participate in the list’s official business. Thus, the

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state may, “without further justification,” restrict access to the list. Id.

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Plaintiffs also rely on Perry Education in arguing that they have a right to access

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government information identifying caregivers because, they believe, there is no other

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simple or inexpensive way to identify caregivers. Dkt. 63 at 9–10. Plaintiffs, however,

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fail to establish a fundamental constitutional right based on the alleged difficulty of their

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intended task. Similar to Perry Education, Plaintiffs fail to show that their ability to

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“communicate” with their intended audience is seriously impinged by Part Three of the

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Initiative. 460 U.S. at 53 (“There is no showing here that [the rival union’s] ability to

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communicate with teachers is seriously impinged by the restricted access to the internal

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mail system.”). The Court recognizes that Plaintiffs would be more easily able to contact

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the audience if they had access to the list of identities, but speaking or communicating

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and contacting a specific recipient are distinctly different acts. Therefore, Plaintiffs’

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reliance on these methods of communication cases is without merit.

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b.

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Perhaps the most vehement disagreement between the parties is about how to

Government Access

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properly apply the First Amendment doctrines on access to government records or

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proceedings to the facts of this case. Defendants argue this case should follow Los

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Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 34 (1999),

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Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978), and related cases, which firmly disavow

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the existence of a government obligation under the First Amendment to disclose

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government information or records. Plaintiffs rely on Press-Enterprise v. Superior

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Court, 478 U.S. 1 (1986) and its progeny, which developed a two-part test to consider

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when “public access to criminal trials and the selection of jurors is essential to the proper

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functioning of the criminal justice system.” Id. at 7, 11–12. Three circuits and multiple

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district courts have applied these rules more broadly. See Leigh v. Salazar, 677 F.3d 892,

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899 n.5 (9th Cir. 2012) (collecting cases). The Court will discuss these cases in turn.

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Los Angeles Police Dep’t. In Los Angeles Police Dep’t, California passed a statute

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requiring those placing public records requests for names and addresses of recently

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arrested individuals to “declare that the request is being made for one of five prescribed

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purposes, and that the requester also declare that the address will not be used directly or

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indirectly to sell a product or service.” 528 U.S. at 34. A private company in the business

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of providing the names to attorneys and insurance companies brought a facial challenge.

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Id. The Supreme Court explained

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Petitioner [the Los Angeles Police Department] contends that the section in
question is not an abridgement of anyone’s right to engage in speech, be it
commercial or otherwise, but simply a law regulating access to information
in the hands of the police department. We believe that, at least for purposes
of facial invalidation, petitioner’s view is correct.

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Id. at 40 (emphasis added). The Court further reasoned “California could decide not to

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give out arrestee information at all without violating the First Amendment.” Id. (citing

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Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978)). 8

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The Court notes that Los Angeles Police Department contained multiple concurring
opinions, none of which dispute the cited reasoning.

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In Houchins, in response to a news station’s First Amendment claim for access to

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jails to interview inmates following reports of a prisoner’s suicide, the Supreme Court

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plurality explained that despite the media’s First Amendment right to gather information,

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“[t]his Court has never intimated a First Amendment guarantee of a right of access to all

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sources of information within government control.” 438 U.S. at 9. The Court reasoned

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that “[t]here is no discernible basis for a constitutional duty to disclose, or for standards

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governing disclosure of or access to information.” Id. at 14.9 Justice Stewart, concurring

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with the Houchins plurality, stated that “[t]he First and Fourteenth Amendments do not

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guarantee the public a right of access to information generated or controlled by the

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government, nor do they guarantee the press any basic right of access superior to that of

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the public generally.” Id. at 16 (Stewart, J., concurring). In a more recent case, Entler v.

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McKenna, the Ninth Circuit affirmed the district court’s dismissal of a state prisoner’s

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claim that a state official had violated his constitutional rights by lobbying for

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amendments to Washington’s Public Disclosure Act, stating “there is no constitutional

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right to public disclosure of government documents.” 487 Fed. Appx. 417, 417–418 (9th

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Cir. 2012). These precedents provide substantial support for Defendants’ argument that

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The plurality went on at some length on this topic, explaining “Petitioner cannot prevent
respondents from learning about jail conditions in a variety of ways, albeit not as conveniently as
they might prefer. Respondents have a First Amendment right to receive letters from inmates
criticizing jail officials and reporting on conditions. Respondents are free to interview those who
render the legal assistance to which inmates are entitled. They are also free to seek out former
inmates, visitors to the prison, public officials, and institutional personnel, as they sought out the
complaining psychiatrist here.” Houchins, 438 U.S. at 15 (internal citations omitted).
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“laws restricting public access to records do not implicate the First Amendment at all.”

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Dkt. 47 at 3.

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Press-Enterprise. The Press-Enterprise test, developed in application to the

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criminal justice system, asks “(1) whether historical experience counsels in favor of

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public access, and (2) whether public access would play a ‘significant positive role in the

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functioning of the particular process in question.’” 478 U.S. at 8. In recent years, circuit

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and district courts have applied this test when they consider “attempts to access a wide

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range of civil and administrative government activities.” Leigh, 677 F.3d at 899.

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Plaintiffs highlight a Ninth Circuit case applying the test, Cal-Almond, Inc. v. U.S.

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Dept. of Agriculture, 960 F.2d. 105, 109–110 (9th Cir. 1992), where an almond handler

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sought the identities of producers who would vote in a marketing referendum in order to

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lobby them. Id. at 106–07. The Court concluded that a serious constitutional question

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might exist if the statue did not allow the disclosure. Id. at 109. In applying the doctrine

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of constitutional avoidance, the Circuit reasoned that a tradition of public access to voter

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lists likely exists, the legislation in question was open to such construction, and therefore

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“it is reasonable to assume that Congress intended the lists of eligible voters to be a

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matter of public record.” Id. at 110.

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While this reasoning is dicta, Plaintiffs are correct that the posture of the Cal-

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Almond parties is similar to the case at bar to the extent that Plaintiffs Thurber and Benn

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seek to lobby caregivers to vote for their alternate union. Dkt. 63 at 13. However,

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Plaintiffs do not meet their burden to present precedent or historical fact showing a

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tradition of public access to the identities of public employees or union members to

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ORDER - 14

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satisfy the first part of the Press-Enterprise test. See Dkt. 63 at 13–14. In considering that

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factor, the Press-Enterprise court described the history of criminal trials dating back to

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the Norman Conquest, noting that “even our modern procedural protections have their

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origin in the ancient common-law principle which provided, not for closed proceedings,

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but rather for rules of conduct for those who attend trials.” 478 U.S. at 8 (internal citation

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omitted). Plaintiffs cite Harris and Janus on the “rights of all government employees not

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to be compelled to finance union speech.” Dkt. 63 at 14 (citing 134 S. Ct. 2618 and 138

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S. Ct. at 2464). In Harris, the Supreme Court specifically distinguished factual

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circumstances like the one at bar, saying “Petitioners do not contend that they have a First

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Amendment right to form a rival union. Nor do they challenge the authority of [the

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certified union] to serve as the exclusive representative of all the personal assistants in

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bargaining with the State.” 134 S. Ct. at 2640. Plaintiffs quote the Court’s statement in

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Janus that “[d]esignating a union as the employees’ exclusive representative substantially

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restricts the rights of individual employees . . . .” but omit the second half of the Court’s

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reasoning, that this restriction supports the union’s obligation to provide equal

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representation for all employees in the bargaining unit regardless of their union

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membership. 138 S. Ct. at 2460. The Court agrees with Defendants that these recent cases

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do not establish a “long-recognized tradition of access to public records” or to lists of

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government employee identities. Dkt. 67 at 5.

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Addressing the second half of the Press-Enterprise test, whether public access

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plays a significant positive role in the functioning of the particular process in question,

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Plaintiffs argue public access to caregiver identities will disrupt the unions’ “monopoly”

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on communication with the caregivers. Dkt. 63 at 14 (“IPs themselves, alternative

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Unions, or entities like the Freedom Foundation are all prevented from being able to

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speak to IPs.”). Cases applying Press-Enterprise outside the criminal justice context have

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involved government criminal or civil enforcement, information about public figures or

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government action, or government meetings. See Leigh, 677 F.3d at 899 n.5 (collecting

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cases). These cases appear united by recognized traditions of citizen government

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oversight.

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Plaintiffs do not clarify what process they believe would benefit from increased
public access, whether that is caregiver union elections, caregiver participation in

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collective bargaining, or societal political debate about the value of collective bargaining

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between caregivers and the state. To the extent Plaintiffs believe it is too difficult to

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decertify caregiver unions, and public access to caregiver identities would significantly

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improve union elections, those arguments would be appropriate in a challenge involving

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the complete context of the state’s collective bargaining laws.10 That is not the case here.

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Additional historical analysis and specificity could present a more compelling case, but

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on the record before the Court, an unestablished tradition of public access combined with

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a vague positive impact on an unspecified process does not support mandated access to

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For example, there appear to be different thresholds of interest required to initiate
representation elections for different types of employees—in an unfair labor practice complaint
filed by Thurber’s Pacific Northwest Child Care Association (“PNWCCA”) with the Washington
Public Employment Relations Commission against the State of Washington, PNWCCA argues
that the 30 percent showing of interest required for a representation election is too onerous for
child caregivers, particularly when compared to the 10 percent showing required for adult
caregivers under WAC 391-25-051. Dkt. 47-1 at 39.

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government records under Press-Enterprise. Because Plaintiffs have not satisfied the

2

Press-Enterprise test, and Los Angeles Police Dep’t and related cases declare firmly that

3

legislative policy decisions on public records disclosure do not generally implicate

4

fundamental rights under the First Amendment, the Court concludes that Plaintiffs have

5

failed to establish infringement of fundamental First Amendment rights.

6

c.

7

Plaintiffs cite one ballot access case, Bullock v. Carter, 405 U.S. 134 (1972) for

Ballot Access

8

the proposition that the First Amendment “broadly protects not only the expression of

9

speech but also the methods used to facilitate speech,” Dkt. 50 at 19, and another,

10

Williams v. Rhodes, 393 U.S. 23 (1968) for the proposition that a facially neutral law

11

burdening associational rights must be justified by a compelling state interest. Dkt. 63 at

12

21. Bullock found that the state had created “a system that utilizes the criterion of ability

13

to pay as a condition to being on the ballot, thus excluding some candidates otherwise

14

qualified and denying an undetermined number of voters the opportunity to vote for

15

candidates of their choice” in contravention of equal protection. 405 U.S. at 149.

16

Williams held that strict procedural requirements for new parties to place candidates on

17

the presidential election ballot burdened the right to cast effective votes and the right to

18

associate for political purposes and could not survive strict scrutiny. 393 U.S. at 30.

19

However, while these cases in dicta make many persuasive statements about the

20

foundational importance of political organizing and the duty of government to refrain

21

from burdening such organizing, they do so in the context of election to public office. As

22

the Supreme Court explains in Anderson v. Celebrezze, 460 U.S. 780, 793 (1983) “[o]ur

23
24

ORDER - 17

1

ballot access cases . . . focus on the degree to which the challenged restrictions operate as

2

a mechanism to exclude certain classes of candidates from the electoral process.”

3

Plaintiffs do not seek access to the electoral process, and do not cite authority applying

4

election law doctrine to union elections, which have their own complex set of regulations

5

and oversight.

6

d.

7

Plaintiffs argue that withholding caregiver identities interferes with the caregivers’

Right to Listen

8

right to hear Plaintiffs’ speech. Dkt. 50 at 24–26 (citing Red Lion Broadcasting Co. v.

9

FCC, 395 U.S. 367, 390 (1969) (“right of the public to receive suitable access to social,

10

political, esthetic, moral, and other ideas”); Thomas v. Collins, 323 U.S. 516, 534 (1945)

11

(right of workers to “hear what [the labor organizer] had to say); Martin v. City of

12

Struthers, Ohio, 319 U.S. 141, 143–44 (1943) (“The ordinance does not control anything

13

but the distribution of literature, and, in that respect, it substitutes the judgment of the

14

community for the judgment of the individual householder.”)). Defendants “do[] not

15

dispute that the corollary to freedom of speech is the right to receive information,” but

16

argue that Plaintiffs’ reliance on caselaw restricting a means of communication to a

17

particular audience is misplaced. Dkt. 60 at 10. The right to receive information is

18

derivative of the right to speak: that is, “where a speaker exists . . . the protection

19

afforded is to the communication, to its source and to its recipients both.” Va. State Bd. of

20

Pharmacy v. Va. Citizens Consumer Counsel, Inc., 425 U.S. 748, 756 (1976). Because

21
22
23
24

ORDER - 18

1

the Court finds Plaintiffs have not established infringement of their free speech, the Court

2

finds no derivative burden on caregivers’ right to listen.11

3

e.

4

Plaintiffs allege that “Part III of [the Initiative] favors the Union’s political and

5

ideological viewpoints because the [I]nitiative exempts unions from its coverage . . . .

6

Because the Initiative only burdens the speech of individuals and entities with views

7

divergent from those of the Union, it is viewpoint-discriminatory.” Dkt. 1, ⁋ 116.
Even if Plaintiffs’ records requests did constitute speech, the Initiative still does

8
9

Viewpoint Discrimination

not discriminate based on viewpoint by disclosing caregiver identities to the certified

10

collective bargaining representative and not Plaintiffs. As the Supreme Court explained in

11

Perry Education, when the rival union alleged access to teacher mailboxes for the

12

certified union constituted viewpoint discrimination, “it is more accurate to characterize

13

the access policy as based on the status of the respective unions rather than their views.”

14

460 U.S. at 49.
Plaintiffs are not the certified representative. The Initiative discloses caregiver

15
16

identities to the certified bargaining representative under RCW 41.56.080, or parties to

17

contracts with the state where disclosure is required or the entity is providing services to

18

vulnerable residents or conducting research about them. Dkt. 47-1 at 11–12. These are all

19

status distinctions, based on a contractual relationship or legal obligation to provide

20
11

21
22

The Court further notes that Plaintiffs did not include this claim in their complaint, see Dkt. 1,
nor explain how this claim impacts the rights of Plaintiffs actually before the court, as opposed to
caregivers in Washington generally, whom Plaintiffs do not claim to represent. See Dkts. 50, 63,
65.

23
24

ORDER - 19

1

collective bargaining services, and do not involve “unbridled discretion in the hands of a

2

government official or agency” as found unconstitutional in City of Lakewood v. Plain

3

Dealer Publishing Co., 486 U.S. 750 (1988) or make a content-based distinction between

4

topics of speech, see Boos v. Berry, 485 U.S. 312 (1988) (striking down ordinance

5

prohibiting signs criticizing embassy within 500 feet of the embassy). The Janus court’s

6

reasoning that an exclusive representative designation comes with “special privileges” for

7

the union like “obtaining information about employees” further supports a conclusion

8

that providing access to information for the certified bargaining representative and not for

9

others would not represent a First Amendment violation. 138 S. Ct. at 2467. Therefore,

10

Plaintiffs’ claim of viewpoint discrimination is unfounded, and the Court grants summary

11

judgment for Defendants on Plaintiffs’ Claim Three.

12

f.

13

Plaintiffs allege Part Three of the Initiative is overbroad, its “real, and sole,

14

purpose is to silence the Plaintiffs’ viewpoints,” and its “restrictions on access to Provider

15

lists bears [sic] a close and obvious nexus to Plaintiffs’ speech.” Dkt. 1, ⁋⁋122–123.

16

Plaintiffs cite United States v. Stevens, 559 U.S. 460 (2010) to define the concept of

17

overbreadth, describing legislation where “a substantial number of its applications are

18

unconstitutional, judged in relation to the statue’s plainly legitimate sweep” but proceed

19

to discuss City of Lakewood, 486 U.S. 750, Arcara v. Cloud Books, Inc., 478 U.S. 697

20

(1986), and Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575

21
22
23
24

ORDER - 20

Overbreadth

1

(1983), cases not typically associated with the overbreadth doctrine.12 The Court will

2

address Plaintiffs’ arguments on the cases discussed.

3

Plaintiffs argue that the Initiative could fall under the Supreme Court’s “course of

4

conduct” analysis, see Dkt. 50 at 26, where the Court “has applied First Amendment

5

scrutiny to a statute regulating conduct which has the incidental effect of burdening the

6

expression of a particular political opinion,” Arcara, 478 U.S. at 702 (citing United States

7

v. O’Brien, 391 U.S. 367 (1968)). Applying this test to the burden on speech posed by

8

closing an adult bookstore due to prostitution activity, the Supreme Court found “unlike

9

the symbolic draft card burning in O’Brien, the sexual activity carried on in this case

10

manifests absolutely no element of protected expression.” Arcara, 478 U.S. at 705. While

11

the distinction between prostitution and books may be more stark than the distinction

12

between records requests and mailer distribution, the Court is not convinced Plaintiffs

13

have shown that their records requests constitute expressive activity. There is no doubt

14

Plaintiffs wish to identify the caregivers so they can speak to them. But Plaintiffs do not

15

suggest they place public records requests for the purpose of the request encouraging the

16

caregivers to leave their union or join an alternative, nor do they suggest they are

17

demonstrating their opposition to state policy through placing public records requests.

18
19
20
21
22

12

Cases and concepts typically associated with overbreadth include Schad v. Borough of
Mt. Emphraim, 452 U.S. 61, 66 (1981) (town ordinance prohibited live entertainment to target
nude dancing, but swept in plays, concerts, and musicals), Broadrick v. Oklahoma, 413 U.S. 601,
615–16 (1973) (state law prohibiting political activity by government employees not facially
overbroad on potential to sweep in political button-wearing or bumper sticker displays), or
Houston v. Hill, 482 U.S. 451 (1987) (ordinance prohibiting interrupting police in course of their
duties swept in impermissible amount of protected speech).

23
24

ORDER - 21

1

They seek the records so they can more efficiently identify their target audience to direct

2

their canvassing or mailer distribution. In sum, Plaintiffs fails to establish that they

3

express their position by placing the records request.

4

Minneapolis Star and City of Lakewood are similarly inapposite, involving,

5

respectively, a tax on newsprint and ink, 460 U.S. at 585, and a requirement for a permit

6

granted at the mayor’s discretion to place newsracks on public property, 486 U.S. at 754.

7

These cases both address the Supreme Court’s particular concern about legislation

8

“directed narrowly and specifically at expression or conduct commonly associated with

9

expression: the circulation of newspapers.” See Dkt. 50 at 26 (citing City of Lakewood,

10

486 U.S. at 760). Plaintiffs fail to establish that the Initiative is invalid on the basis of

11

overbreadth or otherwise violates the First Amendment, and therefore the Court grants

12

summary judgment for Defendants on Plaintiffs’ Claim Four.

13

g.

14

Plaintiffs Thurber and Benn allege violation of their freedom of association,

Freedom of Association

15

explaining that “[w]ithout the list of Childcare Providers, [they] cannot exercise their

16

fundamental associational rights” to decertify SEIU “and are permanently subjected to an

17

association with SEIU 925.” Dkt. 1, ⁋ 130. Plaintiffs cite Thomas, 323 U.S. at 519, 522

18

n.2, where the Supreme Court found a Texas law requiring an organizer’s card for union

19

solicitation as applied to a speech by the president of a large national union was a prior

20

restraint on his right to free speech and free association. Dkt. 50 at 27. There, the court

21

reasoned that “[t]he right thus to discuss, and inform people concerning, the advantages

22

and disadvantages of unions and joining them is protected not only as part of free speech,

23
24

ORDER - 22

1

but as part of free assembly.” Id. at 532. Plaintiffs also cite State Emp. Bargaining Agent

2

Coal. v. Rowland, 718 F.3d 126, 132 (2nd Cir. 2013) where labor organizations and state

3

employees alleged the state “discriminatorily la[id] off only union members when

4

reducing the state’s work force.” Dkt. 50 at 27. There, the Second Circuit reasoned that

5

“[c]onditioning public employment on union membership, no less that on political

6

association, inhibits protected association and interferes with government employee’s

7

freedom to associate,” thus subjecting “employment decisions based on union

8

membership” to strict scrutiny. Rowland, 718 F.3d at 133–35. Here, as discussed above,

9

the operative restriction is of public records, not speech or discussion. Further, the

10
11

Initiative’s limits on access to public records are not employment decisions.
The Campaign highlights that traditional First Amendment associational

12

protections include the right to refuse to disclose membership lists for advocacy groups,

13

NAACP v. State of Ala. ex rel. Patterson, 357 U.S. 449, 462 (1984), and right to refuse

14

entry of undesired individuals into an association, Roberts v. United States Jaycees, 468

15

U.S. 609, 623 (1984) and correctly points out that a government obligation to assist a

16

challenger union does not fall into any of these categories. Dkt. 48 at 30.

17

Finally, Plaintiffs cite Janus to support their argument that associational rights are

18

implicated in exclusive union representation. However, as Defendants clarify, Janus held

19

union agency fees from nonmembers constituted compelled speech in violation of First

20

Amendment. 138 S. Ct. 2486. It did not hold, as Plaintiffs argue, that exclusive union

21

representation is compelled association in violation of the First Amendment, or that such

22

a “compelled association” creates a state obligation “to disclose to them with whom they

23
24

ORDER - 23

1

are associating.” Dkt. 63 at 11. Plaintiffs do not cite to other authority establishing that

2

exclusive representation of a collective bargaining unit constitutes an impermissible

3

restriction on the right to association.

4

The Court is persuaded by Defendants’ argument that despite the long and highly

5

litigated history of labor relations laws such as the federal Labor-Management Relations

6

Act, 29 U.S.C § 7 et seq., and the Washington Public Employees’ Collective Bargaining

7

Act, RCW Chapter 41.56, neither party has cited authority requiring an employer to

8

disclose the identities of the members of the collective bargaining unit to a group wishing

9

to associate with them. Dkt. 47 at 24. As previously noted, to the extent Plaintiffs

10

Thurber and Benn wish to decertify the existing child caregiver union and believe the

11

Initiative’s disclosure provision makes that effort too onerous, they fail to establish that

12

the Initiative infringes their First Amendment right to freedom of association. Therefore,

13

the Court grants summary judgment for Defendants on Plaintiffs’ Claim Five.

14

C.

15

Equal Protection
Plaintiffs bring two equal protection claims: first, that the Initiative interferes with

16

their fundamental rights of speech and association and therefore is subject to heightened

17

scrutiny under the Equal Protection Clause, and second, that the Initiative makes an

18

impermissible distinction among similarly situated records requesters and was motivated

19

by animus, thus failing even rational basis review. Dkt. 1, ¶¶ 89–109. Plaintiffs allege the

20

Initiative is unconstitutional both facially and as applied to Plaintiffs. Id.

21
22
23
24

ORDER - 24

1

1.

2

Plaintiffs allege that the Initiative “significantly interferes with citizens’

Interference with Fundamental Rights

3

fundamental rights and . . . does not pass strict scrutiny.” Dkt. 1, ⁋ 90. “[E]qual protection

4

analysis requires strict scrutiny of a legislative classification only when the classification

5

impermissibly interferes with the exercise of a fundamental right or operates to the

6

peculiar disadvantage of a suspect class.” Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312

7

(1976). Plaintiffs do not allege the classification burdens a suspect class, see Dkt. 1, ⁋ 109

8

(“Defendants treat similarly-situated, non-suspect class groups differently”), and the

9

Court found no interference with Plaintiffs’ fundamental First Amendment rights.

10

Therefore, the Court finds no equal protection violation that requires strict scrutiny, and

11

grants summary judgment for Defendants on Plaintiffs’ Claim One.

12

2.

Animus and Similarly Situated Groups

13

Plaintiffs allege they are similarly situated to the certified collective bargaining

14

representative permitted to access caregiver identities under § 8(d) of the Initiative,

15

because “both are groups and individuals that engage in constitutionally protected speech

16

with [caregivers],” and so should be afforded equal access to caregiver identities. Dkt. 1,

17

⁋101. Plaintiffs further allege the Initiative “was drafted with the intention to silence the

18

Foundation’s political speech and thus harm the Foundation” and was “motivated solely

19

by [the unions’] animus toward the Foundation, its outreach efforts, and its political

20

speech.” Dkt. 1, ⁋ 106, 107.

21
22

“The Equal Protection Clause of the Fourteenth Amendment commands that no
State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’

23
24

ORDER - 25

1

which is essentially a direction that all persons similarly situated should be treated alike.”

2

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler

3

v. Doe, 457 U.S. 202 (1982)). “[I]f a law neither burdens a fundamental right nor targets

4

a suspect class, we will uphold the legislative classification so long as it bears a rational

5

relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996).

6

Rational basis review requires two steps of analysis. First, “[d]oes the challenged

7

legislation have a legitimate purpose?” Western and Southern Life Ins. Co. v. State Bd. of

8

Equalization of Cal., 451 U.S. 648, 668 (1981). A “bare . . . desire to harm a politically

9

unpopular group” can never constitute a legitimate government purpose. Romer, 517 U.S.

10

at 634 (quoting Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). Further, “[t]he

11

State may not rely on a classification whose relationship to an asserted goal is so

12

attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, 473 U.S.

13

at 446 (internal citations omitted).

14

Second, “[w]as it reasonable for the lawmakers to believe that use of the

15

challenged classification would promote that purpose?” Western and Southern Life Ins.

16

Co., 451 U.S. at 668. Plaintiffs, as “those challenging the legislative judgment” have the

17

burden to “convince the court that the legislative facts on which the classification is

18

apparently based could not reasonably be conceived to be true by the governmental

19

decisionmaker.” Vance v. Bradley, 440 U.S. 93, 111 (1979) (upholding mandated

20

retirement at age 60 for Foreign Service employees, in contrast to age 70 for Civil

21

Service employees) (collecting cases). Challengers may present evidence that the

22

legislation is irrational, but “they cannot prevail so long as ‘it is evident from all the

23
24

ORDER - 26

1

considerations presented to [the legislature], and those of which we make take judicial

2

notice, that the question is at least debatable.’” Minn v. Clover Leaf Creamery Co., 449

3

U.S. 456, 464 (1981) (quoting United States v. Carolene Products Co., 304 U.S. 144,

4

153–54 (1938)). The Ninth Circuit explains that the equal protection doctrine outside

5

infringement on fundamental rights and discrimination against suspect classes, asks

6

“[courts] to imagine any conceivable basis supporting a law, even if not advanced by the

7

government.” Fowler Packing Company, Inc. v. Lanier, 844 F.3d 809, 815 n.3 (9th Cir.

8

2016) (emphasis added). Here, the classification at issue is between the certified

9

collective bargaining representative and Plaintiffs, who would like to receive the list of

10

caregiver identities for political speech or to elect an alternative union.

11

a.

12

Plaintiffs Boardman and Freedom Foundation seek to communicate with

13

caregivers about their “Harris rights.” Dkt. 50 at 10–11. The certified collective

14

bargaining representative has a legal responsibility to negotiate on behalf of all caregivers

15

with the state employer about their employment. See RCW 41.56.080. Plaintiffs

16

Boardman and Freedom Foundation do not assert that they have or wish to assume this

17

legal responsibility. Therefore, Plaintiffs Boardman and Freedom Foundation are not

18

similarly situated to the certified collective bargaining representative. Because these

19

plaintiffs are not similarly situated to those given the benefit they seek, a classification

20

treating them differently does not violate the Equal Protection Clause on that basis.

21

Plaintiffs Thurber and Benn assert that they wish to communicate with child

22

caregivers about issues relevant to the profession, and that they wish to call an election to

23
24

ORDER - 27

Similarly Situated Groups

1

replace SEIU 925 with their association, the PNWCCA. Dkt. 50 at 10. To the extent that

2

they wish to discuss concerns with the caregivers, they are not similarly situated to the

3

certified collective bargaining representative. To the extent that they wish to assume the

4

position of certified bargaining representative vis-à-vis the state employer, their

5

circumstance is similar, but they are not the certified representative. They are a rival

6

union. Courts recognize that certification of an exclusive representative is a permitted

7

component of collective bargaining regulatory structures, which may include differential

8

access to employees in the bargaining unit. See, e.g., Perry Education, 460 U.S. at 49

9

(differential access to teacher mailboxes based on status or lack thereof as certified

10

bargaining representative does not violate the Equal Protection Clause); Janus, 138 S. Ct.

11

at 2467 (unions will still seek exclusive representative designation without mandated

12

agency fees because designation often affords them “special privileges, such as obtaining

13

information about employees”). Therefore, the Initiative’s distribution of caregiver

14

identities to the certified bargaining representative but not Plaintiffs does not violate the

15

Equal Protection Clause on the basis of impermissible discrimination among similarly

16

situated groups.

17

b.

18

Next, the Court considers Plaintiffs’ argument that the Initiative’s decision to

Animus

19

withhold previously available caregiver identities from public records requests raises an

20

“inevitable inference that the disadvantage imposed is born of animosity toward the class

21

of persons affected.” See Dkt. 50 at 28 (citing Romer, 517 U.S. at 634). Plaintiffs argue

22

that the Initiative targets their public records requests and was “motivated by animus

23
24

ORDER - 28

1

against Plaintiffs and their message.” Dkt. 50 at 29. The stated purpose of Part Three of

2

the Initiative is to protect sensitive personal information about in-home caregivers for

3

vulnerable populations “because its release could facilitate identity crimes against

4

seniors, vulnerable individuals, and the other vulnerable populations that these caregivers

5

serve.” Dkt. 47-1 at 10. The State also argues that protecting the privacy of the caregivers

6

themselves is another legitimate governmental purpose promoted by withholding

7

caregiver identities. Dkt. 47 at 16 (citing Wash. Pub. Emp. Ass’n v. Wash. State Ctr. For

8

Childhood Deafness & Hearing Loss, 1 Wn. App. 225, 243 (2017) (state constitution

9

provides expectation of privacy for a public employee’s date of birth in combination with

10

his or her name), review granted, 190 Wn.2d 1002 (2018)).

11

Plaintiffs do not contest that preventing identity crimes against seniors and

12

vulnerable individuals is a legitimate government purpose, see Western and Southern Life

13

Ins. Co., 451 U.S. at 668, but argue that the impact of a PRA exception on these crimes is

14

speculative, and caregiver privacy is an after-the-fact justification, supporting an

15

inference that the true motivation was animus. Dkt. 63 at 11. “When the politically

16

unpopular group is not a traditionally suspect class, a court may strike down the

17

challenged statute under the Equal Protection Clause if the statute serves no legitimate

18

governmental purpose and if impermissible animus toward an unpopular group prompted

19

the statute’s enactment.” Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1200 (9th

20

Cir. 2018) (internal quotation omitted) (describing this standard as “searching scrutiny”)

21

Therefore, the Court considers whether the legislation’s method of action is “rationally

22
23
24

ORDER - 29

1

related to the achievement” of the legitimate purpose. Clover Leaf Creamery Co., 449

2

U.S. at 462–63.

3

The Initiative does not explicitly articulate how withholding caregiver identities

4

will protect vulnerable individuals. The State argues that caregivers often work in their

5

client’s homes, Dkt. 47 at 16 (citing Dkt. 1, ⁋ 20), and as the Initiative’s general

6

legislative findings state in § 4, these vulnerable clients frequently have “less ability to

7

protect themselves . . . and can be targeted using information available through public

8

sources, including publically available information that identifies such individuals or

9

their in-home caregivers.” Id. (citing Dkt. 47-1 at 7). The Campaign’s motion for

10

summary judgment cites Washington enforcement efforts to prevent fraud and identity

11

theft and notes that the Attorney General’s Fraud Fighters consumer education program

12

was established “specifically to assist the elderly because they more often are targeted for

13

fraud.” Dkt. 48 at 10. Voters received communications from the Campaign with details

14

about the rates of financial fraud committed against seniors, the likelihood of fraud

15

against seniors going unreported, and headlines from local news stories about cases of

16

seniors losing their savings to fraud. Dkt. 62-1 at 4–5. While this evidence is thin, it is

17

analogous to legislative history discussing the “situations in which agricultural

18

production facilities have been, or may be, harmed as a result of a misrepresentation

19

leading to the acquisition of records” in Animal Legal Defense Fund, 878 F.3d at 1201.

20

These points support an inference that withholding a list of identities that would

21

pinpoint homes containing vulnerable seniors reduces the amount of publically available

22

information that could be used identify targets for financial fraud and identity theft,

23
24

ORDER - 30

1

potentially reducing the rate at which seniors fall victim to these crimes. Plaintiffs argue

2

that the purpose of protecting seniors and vulnerable individuals from fraud is “based on

3

nothing more than speculation that some person might file a [public records request] and

4

(now on record for requesting the information) commit identity theft or fraud.” Dkt. 50 at

5

29. Plaintiffs argue that the law will not achieve its purpose of preventing identity theft

6

because caregiver contact information was already exempted from disclosure, supporting

7

an inference that the “only true effect of [the Initiative’s Public Records Act] provisions

8

was to preclude anyone other than approved groups from being able to learn the identity

9

of [caregivers].” Dkt. 50 at 13.

10

However, Plaintiffs anticipate being able to “access the individual [caregivers]

11

through mail directed to them and door-to-door canvassing” once they are provided a list

12

of caregiver names. Dkt. 50 at 24. Plaintiffs suggest wrongdoers would not want to

13

identify themselves by placing a public records request, but do not explain why

14

legislative reasoning that identity thieves could also find direct contact information once

15

they have a list of likely targets is irrational or speculative. Plaintiffs affirm that the

16

primary work location for many caregivers is their own homes. See Dkt. 64, Second

17

Declaration of Matt Hayward at 3, 4. If a caregiver’s identity leads easily to address

18

information to support direct mail or canvassing efforts, it appears rational for the voters

19

to reason that protecting caregiver identities removes an avenue that could be abused to

20

identify homes with vulnerable residents. Identity theft and financial fraud against seniors

21

is undoubtedly a real problem. The Court finds that “it is evident from all the

22

considerations presented to [the legislature],” or here, to the general voting public, that on

23
24

ORDER - 31

1

the efficacy of reducing publically available information about caregivers to reduce

2

possible avenues to target seniors for identity theft and similar crimes, “the question is at

3

least debatable,” and survives rational basis scrutiny. Clover Leaf Creamery Co., 449

4

U.S. at 464.

5

The parties devote substantial briefing to the question of whether union animus

6

against the Freedom Foundation would render the Initiative’s withholding of previously

7

available information an illegitimate action driven by impermissible animus. Plaintiffs’

8

most compelling argument may be that the true, or at least primary motivation of the

9

Initiative’s drafters and promoters was to restrict the Foundation’s ability to communicate

10

with caregivers about their right to withhold financial support from the unions. Plaintiffs

11

have submitted both internal communications of union officials as well as

12

communications from the unions to its members.13 Based on this evidence and SEIU

13

775’s loss in the state court, one could rationally infer that the predominate motivating

14

factor for the Initiative and the Campaign’s support for the Initiative was animus toward

15

the Freedom Foundation and outside entities with prerogatives similar to the Foundation.

16

That inference leads to the conclusion that the proffered motivation of protecting seniors

17

was merely pretext for the true motivation of animus. This rational conclusion, however,

18
Dkt. 56-8 at 2, Email from SEIU 775 to Members (“There’s one more way you can
fight to stop the Freedom Foundation: When you get your ballot in the mail, vote YES on [the
Initiative], which protects the private information of caregivers and our state’s most
vulnerable.”); id. at 4, Email from SEIU 775 to Members (“By voting [yes on the Initiative] we
protect caregivers in our union from anti-union bullying of the Freedom Foundation.”); id. at 10–
11, Email from SEIU 775 Legislative and Policy Director (“[The Initiative] initially began as
legislation to look into how outside groups were using/abusing the Public Records Act to get
private information of long term care workers and their clients . . . .”).
13

19
20
21
22
23
24

ORDER - 32

1

is of no moment to the Court’s consideration of the issues because Plaintiffs have failed

2

to submit any evidence that this allegedly impermissible animus “prompted the statute’s

3

enactment.” Animal Legal Defense Fund, 878 F.3d at 1200. The voters of Washington

4

enacted the Initiative, not the Washington legislature. Thus, to prove their claim,

5

Plaintiffs would have to show that the Washington voters harbored impermissible

6

animus, which Plaintiffs have failed to do, and in any case almost certainly could not do.

7

Instead, the text of the Initiative and the materials used to promote it to the general

8

public can only lead to the conclusion that the legislation received voter approval because

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of the widely and legitimately promoted purpose of protecting a vulnerable population of

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the state’s citizens from identity theft and financial fraud. Moreover, the motivations of

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the Campaign cannot render void a lawfully enacted initiative by the voters of

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Washington State even if some evidence establishes that the electorate may have been

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misled by the Initiative’s chief proponent as to the proponent’s true motivations.

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Therefore, the legitimate purpose for the PRA exception survives even a searching form

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of rational basis scrutiny, and the Court grants summary judgment for Defendants on

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Plaintiffs’ Claim Two.

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In sum, the Court concludes that Plaintiffs have failed to meet their burden to
dislodge the Initiative’s presumption of constitutionality.

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ORDER - 33

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III. ORDER
Therefore, it is hereby ORDERED that the State and the Campaign’s motions for

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summary judgment, Dkts. 48 and 47, are GRANTED. Plaintiffs’ motion for summary

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judgment, Dkt. 50, is DENIED.

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The Clerk shall enter a JUDGMENT and close the case.

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Dated this 10th day of January, 2019.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 34