[00:00:00] Speaker 03:
Good morning and welcome to the Ninth Circuit.

[00:00:03] Speaker 03:
Judge Thomas and I would like once again to welcome Judge Malloy from the United States District Court for the District of Montana who's sitting with us.

[00:00:11] Speaker 03:
We're very grateful for your willingness to come out and help us with our work.

[00:00:16] Speaker 01:
Thank you so much for having me.

[00:00:19] Speaker 03:
Our first case for argument this morning is Freedom Foundation against International Brotherhood of Teamsters Local 117.

[00:00:27] Speaker 03:
Mr. Snowball.

[00:00:36] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:38] Speaker 04:
Timothy Snowball on behalf of the Appellant Freedom Foundation.

[00:00:41] Speaker 04:
I would like to reserve two minutes for a bottle, please.

[00:00:43] Speaker 04:
May I just keep an eye on the clock?

[00:00:44] Speaker 04:
Will do.

[00:00:45] Speaker 04:
Your Honors, the issues I'll discuss today understandably track with the three elements of standing pursuant to Article 3.

[00:00:51] Speaker 04:
First, the injury in fact suffered by the Foundation to its right to freedom of expressive association.

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Second, the specific issue of causation for Governor Inslee.

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And third, the specific issue of redressability for Governor Inslee.

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In terms of the injury and fact analysis, Your Honors, again, the constitutional right at issue in this case is the foundation's right to freedom of expressive association.

[00:01:12] Speaker 04:
Now, the First Amendment for a long time has been understood to protect the right of those who wish to join together to advance and express shared beliefs, ideas, and goals.

[00:01:22] Speaker 04:
This is exemplified in the J.C.'

[00:01:25] Speaker 04:
's case, even in this circuit, multiple times, so there's no question of that.

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Nor is there a question of the right of nonprofits like the foundation

[00:01:32] Speaker 04:
to possess associational freedom rights.

[00:01:34] Speaker 04:
Again, this is well established.

[00:01:36] Speaker 04:
The specific rule pursuant in this case, Your Honors, is that where a state law imposes a serious burden on a group's right of expressive association by impairing or impeding the expressive message

[00:01:48] Speaker 01:
How does your argument fit in with the recent US Supreme Court case, as well as the Alliance case, and then the Ninth Circuit case, the Arizona Alliance for Retired Americans?

[00:02:01] Speaker 01:
It seems to me that what you're arguing is what's prohibited by the US Supreme Court and the Ninth Circuit.

[00:02:09] Speaker 04:
I would respectfully disagree, Your Honor.

[00:02:10] Speaker 04:
In terms of, again, just to establish first, the constitutional right at stake is the right of expressive association.

[00:02:15] Speaker 04:
I just want to be clear on that.

[00:02:17] Speaker 04:
But Your Honor is correct.

[00:02:18] Speaker 04:
there is an additional layer of standing analysis that's applicable to organizations like the Freedom Foundation.

[00:02:24] Speaker 04:
As your honor pointed out, the Arizona case says the statute must directly affect or interfere with an organization's already existing core activities.

[00:02:32] Speaker 04:
As far as the foundation's position goes, we think that this test is even more beneficial to our position than the previous test.

[00:02:38] Speaker 04:
As your honors know, the previous test was kind of an opaque mission, impairment of mission or diversion of resources.

[00:02:45] Speaker 04:
Here, this test is even more concrete and we think goes even more in favor of the foundation because since 2014, the core activity of the Freedom Foundation has been to effectively facilitate employees opting out of public sector labor unions.

[00:03:00] Speaker 04:
That's what we do.

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And so every other part of the foundation's work, whether it be educational, whether it be litigation, whether it be anything else,

[00:03:09] Speaker 04:
is really in service of this core activity.

[00:03:12] Speaker 04:
And we would think that, you know, in terms of the injury here, it's even more clear than the Havens Realty case, which was the case that kind of undergirded the governing standard.

[00:03:22] Speaker 04:
In Havens Realty, the educational association in that case, one of their core activities was being able to place people in housing and educate them to that end.

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So even one of its core activities being affected was sufficient for standing.

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the core activity of the foundation is undermined by the male refusals in this case.

[00:03:41] Speaker 04:
It would be akin to a statute, you know, saying that McDonald's can't serve food or drink.

[00:03:47] Speaker 04:
I mean, the entire purpose for which the foundation exists is to facilitate employee opt-outs.

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And the statute in this case gives the unions the discretion

[00:03:57] Speaker 04:
to simply refuse to accept those.

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And by doing that, it undermines the expressive association for which employees and the foundation are coming together.

[00:04:04] Speaker 03:
That's why the employees- That helps you with the claim against the unions.

[00:04:13] Speaker 03:
But how is that injury related to your claim against the governor?

[00:04:19] Speaker 04:
Sure.

[00:04:19] Speaker 04:
I think, Your Honor, as you noted, the claim against the governor

[00:04:24] Speaker 04:
whether or not the court allows that to go forward really has no effect upon the claim against the union in terms of the specific issues of causation and redressability against Governor Inslee.

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As the court pointed out to the parties, the Hippocratic Medicine case supplies the rule for causation.

[00:04:39] Speaker 04:
When a plaintiff is an unregulated party, as the foundation is in this case, causation against a government actor hinges on the response of a regulated third party.

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So the regulated third party in this case would be the union.

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Really, the standard is one of likelihood.

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The court should look at how likely it is that an injury will occur based upon the actions of the regulated third party to the foundation.

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And we think here there's a clear likelihood, near certainty, that the foundation's going to be injured going forward.

[00:05:08] Speaker 04:
Not only do you have a strong record of rejections in this case, you've had 14 batch envelopes of employee opt-outs.

[00:05:14] Speaker 04:
But that's the union doing that.

[00:05:17] Speaker 04:
What can the governor do about that?

[00:05:18] Speaker 04:
Well, the governor is the chief executive of the state.

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And so certainly, in terms of being tasked with the enforcement of statutes, the enforcement of laws, the governor has direct oversight of the attorney general.

[00:05:31] Speaker 04:
uh... has uh... oversight over perk which is the uh... employer relations board in washington state that would be tasked with an unfair labor practice charge perhaps if there had been an allegation of the statute being being uh... circumvented somehow and so the the effect of enjoining the governor then to get to the point of adjustability then would be to uh...

[00:05:50] Speaker 03:
enjoin the entire state apparatus under his purview from enforcement of this statute if in fact the court is convinced that the statute is declared unconstitutional that would be So take me through like what exactly would if you were to prevail and you got everything you wanted What would the governor be ordered to do or not do sure?

[00:06:12] Speaker 04:
I think in terms just to just to quickly take care of this point.

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I think that

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the claim against the union, it's important to distinguish between the as applied challenge against the union and the facial challenge against the governor.

[00:06:23] Speaker 04:
To your honor's point, I think the injunctive language in this case would read something like this.

[00:06:27] Speaker 04:
Entering an order permanently enjoining Governor Inslee from enforcing the statutes prohibition on public employees from communicating their payroll preferences regarding union dues directly to their employers.

[00:06:39] Speaker 04:
rather than to an applicable union.

[00:06:41] Speaker 04:
Really, that's the core of the case in terms of the burden in this case is the fact that the statute requires employees, rather than being able to go down and talk to their HR director, like any other deduction from their payroll, they are forced to communicate via mail.

[00:06:56] Speaker 04:
They can't call, they can't email, they have to send a letter to the union.

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And the statute in this case

[00:07:01] Speaker 04:
grants the union the discretion to accept or to reject that mail.

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And so if we got everything we wanted, if we waved a magic wand and made that happen, I would imagine employees would be able to communicate their preferences directly.

[00:07:13] Speaker 03:
So you're saying that this is what 4156-110-4 that says the employer relies on information provided by the union.

[00:07:22] Speaker 03:
And you would have the court sort of, say, cross out by the exclusive bargaining representative and put in, you know,

[00:07:29] Speaker 03:
directly by the employee?

[00:07:31] Speaker 04:
And specifically subpart 3A, Your Honor, I think is the portion that requires the employee to go through the union correct.

[00:07:38] Speaker 04:
If the court is convinced, in fact, that the statute's unconstitutional for interfering with the associational expression of the foundation and employees.

[00:07:46] Speaker 02:
And again, this is... So where does it prohibit your association?

[00:07:51] Speaker 02:
The statute?

[00:07:52] Speaker 02:
I mean, it's a facial challenge.

[00:07:54] Speaker 02:
You've got to look in all aspects of...

[00:07:57] Speaker 02:
how it's applied.

[00:07:59] Speaker 04:
Sure.

[00:08:00] Speaker 04:
I think the standard, Your Honor, is not so much preventing the association in the first instance.

[00:08:05] Speaker 04:
But that's your whole case.

[00:08:07] Speaker 04:
Well, frustrating the purpose, Your Honor, the purpose for which the association occurs.

[00:08:10] Speaker 04:
It would be akin to perhaps if I decided with Mr. Prasad to meet in a parking lot because we were going to go perform a public protest of some type and there was a statute that said that we could not

[00:08:22] Speaker 04:
use political signs or something, right?

[00:08:24] Speaker 04:
I mean, the entire purpose, we're still allowed to meet in the parking lot.

[00:08:27] Speaker 04:
The employees are still allowed to reach out to the foundation, given our 10 or 20 years of experience, to help them opt out.

[00:08:33] Speaker 04:
But the entire purpose of them doing that, the entire purpose of the expression, is the foundation and the employees both believe that the First Amendment protects an employee's right to make their own decision about union deductions.

[00:08:43] Speaker 02:
And so... Right, so what in the statute prohibits you from communicating to the employee directly?

[00:08:50] Speaker 02:
Correct, correct.

[00:08:52] Speaker 02:
Pardon me?

[00:08:53] Speaker 02:
It doesn't affect your ability.

[00:08:56] Speaker 02:
To do what, Your Honor?

[00:08:57] Speaker 02:
To communicate with the employees.

[00:09:00] Speaker 04:
It doesn't affect our ability to communicate with the employees, but it frustrates the expressive purpose for which the Association was formed in the first place.

[00:09:06] Speaker 04:
And I think that the two cases that probably supply the closest analogous situation in the rule here are Boy Scouts of America versus Dale

[00:09:14] Speaker 04:
That's at 530 U.S.

[00:09:15] Speaker 04:
640 and also the Hurley case at 515 U.S.

[00:09:18] Speaker 04:
557.

[00:09:20] Speaker 04:
Now both of those cases admittedly deal with private associations that are being asked to have members come in that perhaps frustrate the mission of the organization or somehow affect the expressive

[00:09:31] Speaker 04:
part of the organization's mission.

[00:09:33] Speaker 04:
But the rule is the same.

[00:09:35] Speaker 04:
The rule is one of impairment and burden.

[00:09:37] Speaker 03:
As Judge Thomas pointed out, this is a facial challenge, right?

[00:09:41] Speaker 03:
At least insofar as the governor is concerned.

[00:09:43] Speaker 03:
As the governor is concerned, right?

[00:09:45] Speaker 03:
And the governor says, look, the union is supposed to

[00:09:49] Speaker 03:
you know, pass these opt-outs along when they get them.

[00:09:53] Speaker 03:
And indeed, it's an unfair labor practice under state law if they don't do that.

[00:09:57] Speaker 03:
So we have to ask, is there any set of circumstances in which this would be constitutional?

[00:10:02] Speaker 03:
And it seems like the set of circumstances in which everybody does things the way they're supposed to under state law

[00:10:09] Speaker 03:
is a circumstance in which you would not be injured at all, right?

[00:10:13] Speaker 03:
So that seems to be a problem for official challenges, huh?

[00:10:16] Speaker 04:
I would differ with you, Your Honor, on just on one point.

[00:10:19] Speaker 04:
I don't think the governor has gone so far as to say that the unions must pass this along.

[00:10:24] Speaker 04:
My understanding was the governor has said that there's nothing prohibiting the union from accepting these opt-outs.

[00:10:29] Speaker 04:
And so really I think

[00:10:30] Speaker 04:
That discretion gets to the core of the issue here and why we think that the facial challenge would still survive this is the fact that the unions are given discretion under this statute to accept or to reject.

[00:10:43] Speaker 04:
And that is an extreme burden on the associational expression of freedom of the Freedom Foundation and employees who join together to be able to try to opt out and to express their shared message as to what the First Amendment allows or does not allow.

[00:10:58] Speaker 04:
And so it's not so much the fact that the union must pass the mail on or must reject the mail.

[00:11:04] Speaker 04:
Maybe we can get into that.

[00:11:06] Speaker 04:
From our position, it's the discretion that is given to the union presents an inherent burden on the associational expressive freedom of the Freedom Foundation.

[00:11:14] Speaker 04:
That's the constitutional injury in this case.

[00:11:16] Speaker 04:
And I'll just point out that the union has represented, in terms of at least the causation issue and the likelihood standard, they're going to continue to do this.

[00:11:24] Speaker 04:
There's no question that they're going to continue to do this.

[00:11:27] Speaker 04:
And there's no real question about why they're doing this.

[00:11:30] Speaker 04:
They know that the envelopes with the Freedom Foundation stamp on them contain employee opt-outs.

[00:11:35] Speaker 04:
And so there's no real mystery here as to why they're rejecting the mail or whether the mail is going to be rejected into the future.

[00:11:43] Speaker 03:
And it's your view that if the union were to say, we know this is an opt-out and we're not going to accept it or look at it because we just don't feel like dealing with employee opt-outs,

[00:11:56] Speaker 03:
It's your view that that is consistent with state law, that they're not violating state law in doing that?

[00:12:02] Speaker 04:
I think perhaps there could be some kind of unfair labor practice charge, Your Honor.

[00:12:07] Speaker 04:
To be honest, I haven't looked at that specific issue of whether or not that would be grounds under Washington law for an unfair labor practice.

[00:12:13] Speaker 04:
But I do think, again, that the inherent problem, the constitutional defect in this statute is the fact that the unions have the discretion to accept or reject mail.

[00:12:23] Speaker 04:
And if we take the Janus case at face value, there are serious constitutional implications for them to refuse this mail.

[00:12:29] Speaker 04:
Again, the constitutional right at issue is the foundation's right.

[00:12:33] Speaker 04:
But again, the foundation is joining with employees who have serious constitutional rights at stake.

[00:12:38] Speaker 04:
If the unions can simply refuse this mail, arguably they can compel employee speech.

[00:12:44] Speaker 04:
And that is a serious, serious constitutional problem.

[00:12:49] Speaker 04:
not only for the union's actions, but of course for the foundation, you know, who's tasked with helping people effectuate opt-outs pursuant to their constitutional rights.

[00:12:57] Speaker 04:
And so, again, it's the discretion issue, Your Honor, that we think is the constitutional defect.

[00:13:02] Speaker 01:
Can I ask you to go back and just a very simple question for a simple judge from Montana.

[00:13:10] Speaker 01:
What is the relationship

[00:13:12] Speaker 01:
between Freedom Foundation and union employees who want to opt out.

[00:13:20] Speaker 01:
Do they pay you to do this service?

[00:13:23] Speaker 01:
And part of your argument is that you have to spend $14 every time the union rejects the mail.

[00:13:33] Speaker 01:
Do they pay the $14, or do you voluntarily pay the $14?

[00:13:38] Speaker 04:
I see it.

[00:13:39] Speaker 04:
My time is running short, but I will answer quickly if I can, Your Honor.

[00:13:43] Speaker 04:
I think that in terms of the additional costs, no.

[00:13:45] Speaker 04:
The foundation offers all of its services to employees pro bono, so the employees are not financially obligated to pay anything.

[00:13:52] Speaker 04:
You are correct.

[00:13:53] Speaker 04:
There is an additional harm that occurs for each additional opt-out attempt beyond the first one.

[00:13:58] Speaker 04:
There is a specific

[00:14:01] Speaker 04:
monetary harm to the foundation on money that otherwise would have been spent on our core activity, which we think satisfies the Arizona test.

[00:14:08] Speaker 04:
But to Your Honor's greater point, if I have a First Amendment right to speech and Your Honor has a First Amendment right to speech and we join together to express a shared message, then the Constitution, the First Amendment

[00:14:22] Speaker 04:
recognizes an associational speech freedom between the two of us.

[00:14:27] Speaker 04:
And that's the relationship that the foundation has with employees.

[00:14:30] Speaker 04:
And I'll reserve what time I have left.

[00:14:33] Speaker 03:
Thank you.

[00:14:41] Speaker 03:
Mr. Ballew.

[00:14:42] Speaker 05:
Thank you.

[00:14:44] Speaker 05:
Good morning to the court, may it please the court.

[00:14:45] Speaker 05:
My name is David Ballou and I'm speaking on behalf of the three teams for local union defendants in this case to request the court affirm the summary judgment motions the district court granted to all parties.

[00:14:59] Speaker 05:
The court obviously understands the recent changes in the law to organizational standing and that's how this case came before the court and since this case began we believe the bar has gotten higher.

[00:15:10] Speaker 05:
I understand plaintiff

[00:15:11] Speaker 05:
thinks it's better for them, but I think the Supreme Court and the Ninth Circuit's decisions show otherwise.

[00:15:18] Speaker 05:
We talk about core activities.

[00:15:20] Speaker 05:
The core activities of the foundation, according to their own complaint, is to, they're dedicated to educating and encouraging employees to essentially withdraw from the union and withdraw their financial support.

[00:15:32] Speaker 05:
They're not able to show that those core activities are in any way, those pre-existing core activities have been impacted by the state statute.

[00:15:41] Speaker 05:
The lower court detailed its methods.

[00:15:45] Speaker 05:
It has many ways that they do this.

[00:15:48] Speaker 05:
They have a website where people can fill out a card and print it out, send it in themselves.

[00:15:52] Speaker 05:
They can check a box, and the plaintiff will send them a self-addressed envelope.

[00:15:56] Speaker 05:
They just have to send it in.

[00:15:58] Speaker 05:
None of those things are impacted by the statute.

[00:16:01] Speaker 05:
The plaintiff's counsel did say the statute requires the use of mail.

[00:16:04] Speaker 05:
That is not the case.

[00:16:06] Speaker 05:
Mail is not mentioned at all in the statute.

[00:16:09] Speaker 05:
It must be in writing.

[00:16:10] Speaker 05:
Third-party intermediaries are not mentioned at all in the statute.

[00:16:14] Speaker 05:
That's important because it goes to causation, which is another hurdle that the plaintiff cannot surmount in this case.

[00:16:22] Speaker 05:
As we know from the Hippocratic Medicine case, the causation is substantially more difficult to establish when, as here, the plaintiff is challenging government regulation of someone else.

[00:16:35] Speaker 05:
Well, most of that.

[00:16:37] Speaker 03:
That is true.

[00:16:40] Speaker 03:
I think everything you just said applies to their facial challenge to the statute.

[00:16:45] Speaker 03:
Correct.

[00:16:45] Speaker 03:
But with respect to their claims against the unions, I understood what they were saying to be part of our mission is helping employees opt out.

[00:16:56] Speaker 03:
We do that.

[00:16:56] Speaker 03:
Even before this lawsuit, we were doing that by sending things on behalf of the employees to the unions.

[00:17:03] Speaker 03:
If the unions are not going to accept them,

[00:17:05] Speaker 03:
doing that mission becomes much more expensive for us.

[00:17:08] Speaker 03:
So that seems like even under Alliance for Retired Americans, that seems like the sort of impairment of pre-existing core activities that's adequate.

[00:17:19] Speaker 05:
Sure, and we would characterize that more as that glancing blow to their core activities that what we know from the FDA case is it requires an actual and concrete harm that directly and actually affects their pre-existing core activities.

[00:17:34] Speaker 05:
The brief contains an analysis of the

[00:17:36] Speaker 05:
small numbers in terms of what this plaintiff does, in terms of what this has done.

[00:17:42] Speaker 05:
But it all kind of gets away from the fact that this is a case brought for a constitutional violation.

[00:17:48] Speaker 05:
They're alleging state action, and they can talk about those things, about what impact it's had, but the statute, that tie does not directly lead to that.

[00:17:58] Speaker 05:
And that's one of their obligations, to show a predictable chain of events leading from the government action to the asserted injury.

[00:18:06] Speaker 05:
We don't have.

[00:18:07] Speaker 05:
And the court in the FDA case means you have to avoid speculative links.

[00:18:14] Speaker 05:
It has to be a direct line.

[00:18:16] Speaker 05:
And as I said, the statute of stealth does not require mail.

[00:18:19] Speaker 05:
It does not even address third parties.

[00:18:23] Speaker 05:
There's a question of redressability, too.

[00:18:25] Speaker 05:
And the court's questions earlier addressed that in terms of what do you want from the governor?

[00:18:30] Speaker 05:
Well, it's interesting.

[00:18:30] Speaker 05:
What is the foundation seeking from the court for the Teamsters is an order from this court

[00:18:37] Speaker 05:
that the teamsters must open mail from the Freedom Foundation.

[00:18:41] Speaker 05:
And that in itself raises the question of compelled speech.

[00:18:45] Speaker 05:
Janice Case made clear that freedom of association presupposes a freedom not to associate.

[00:18:51] Speaker 05:
So this notion that they're asking if the teamsters think

[00:18:55] Speaker 05:
that these pieces of mail contain revocations, they need to open it.

[00:19:00] Speaker 03:
I'm sorry, are you suggesting that an order compelling the unions to open the mail would violate a First Amendment right that the union has to not open mail?

[00:19:14] Speaker 05:
It could, in terms of engaging in association with the Freedom Foundation.

[00:19:17] Speaker 05:
If the unions decide, we don't see eye to eye, we don't appreciate your view.

[00:19:24] Speaker 05:
indicates there's nothing on the face of this indicates these are revocation notices.

[00:19:29] Speaker 03:
But that would be a defense on the merits, right?

[00:19:31] Speaker 03:
Correct.

[00:19:31] Speaker 03:
I mean, that doesn't really go to whether they have an injury that's redressable, right?

[00:19:35] Speaker 05:
Well, it could.

[00:19:36] Speaker 05:
But just in terms of redressability, it is a concept that this is what's being requested of the court, and we don't think that's appropriate.

[00:19:45] Speaker 05:
There was talk on third parties standing, and some of the questions, I think Judge Malloy's questions, went to it in terms of in that situation,

[00:19:53] Speaker 05:
In addition to injury causation and redress, plaintiffs have been unable to show any kind of special ongoing relationship, which is one of two requirements that the courts have imposed for third party standing.

[00:20:06] Speaker 05:
By their own characterization, their interactions with these individuals, it's a one and done relationship.

[00:20:14] Speaker 05:
They fill something out on the internet, run them at the mall, they go door to door, there's no

[00:20:19] Speaker 05:
fiduciary relationship between them, as courts have often looked to for attorney clients, real estate agents, looking out for people that have a pre-existing fiduciary relationship.

[00:20:30] Speaker 05:
That's absent here.

[00:20:31] Speaker 05:
The other factor is they have made no showing that these individuals are hindered on their own from protecting their own interests.

[00:20:40] Speaker 05:
Your Honor brought up, Judge Miller brought up the unfair labor practice potential for the Public Employee Relations Commission.

[00:20:47] Speaker 03:
By the way, what is your answer to the question I asked your friend on the other side?

[00:20:53] Speaker 03:
Do you think that state law gives unions the discretion to decide not to open mail if they think it contains an opt-out request?

[00:21:06] Speaker 05:
That could come down to a state law question.

[00:21:09] Speaker 05:
decision to violate a duty of fair representation.

[00:21:12] Speaker 05:
That's what my question is.

[00:21:15] Speaker 05:
Yes, that would be a judicial under Public Employee Relations Commission.

[00:21:18] Speaker 05:
Could also be a state law contract claim, and that gets back to this court's decision in Belgao and Wright, which is important in terms of that.

[00:21:29] Speaker 03:
Would that be a meritorious state law contract claim or unfair labor practice charge?

[00:21:36] Speaker 05:
You know, not necessarily.

[00:21:37] Speaker 05:
There would be defenses that could be brought in terms of that.

[00:21:40] Speaker 03:
So you think maybe you do have discretion under state law and not to process requests that you get?

[00:21:47] Speaker 05:
Well, it's not been addressed under state law because this is under federal law, and we've been addressing the constitutional implications of that.

[00:21:54] Speaker 05:
There's been no issues.

[00:21:55] Speaker 05:
There's been, there's not a single employee that's complained about a delay or any revocation.

[00:22:01] Speaker 05:
We haven't had any indication that anybody suffered any injury.

[00:22:04] Speaker 05:
So there would be no state law claim without an injury.

[00:22:07] Speaker 05:
And, but in terms of their first amendment freedom of association, it presumes that the employees are filling out these cards have a constitutional right.

[00:22:18] Speaker 05:
They characterize it, they're exercising their constitutional right to terminate union membership.

[00:22:23] Speaker 05:
Post Janus, that might have been an argument in 2017, but in Janus, the court made clear that an employee's voluntary decision to enter into a written agreement to join and financially support a union does not implicate the Constitution.

[00:22:37] Speaker 05:
The court made clear that by agreeing to pay, employees are waiving their First Amendment rights.

[00:22:44] Speaker 05:
And post Janus, it's clear there's nothing in the state law that compels financial support.

[00:22:49] Speaker 05:
There's nothing in a union contract that compels financial support.

[00:22:53] Speaker 05:
as a condition of employment.

[00:22:55] Speaker 05:
These are not agency fees, and the court made that clear in Belgao and Wright as addressed in Janice.

[00:23:02] Speaker 05:
I know the court's well familiar with that.

[00:23:03] Speaker 05:
I want to point out one thing.

[00:23:05] Speaker 05:
In Belgao, this court was analyzing Washington state statute 4181-100.

[00:23:13] Speaker 05:
That is a statute that applies to employees of the state of Washington.

[00:23:17] Speaker 05:
The statute in this case, another Washington statute, RCW 4156-110,

[00:23:23] Speaker 05:
That applies to employees of cities and counties.

[00:23:26] Speaker 05:
It's the same language, Howard.

[00:23:27] Speaker 05:
It's the same language this court has already interpreted in Belgao.

[00:23:31] Speaker 05:
And so as in Belgao, the case involves voluntary agreements that employees entered into with the union, included obligation to pay monthly dues pursuant to those terms.

[00:23:42] Speaker 05:
So there's no constitutional claim because there's no state action.

[00:23:46] Speaker 05:
And that resolves that.

[00:23:50] Speaker 05:
In terms of that, and I think the plaintiff overstates the standard of a likelihood of an injury here.

[00:23:56] Speaker 05:
Its causation under the FDA case is much more compelling than that.

[00:24:02] Speaker 05:
It has to be a strict line.

[00:24:04] Speaker 05:
So with that, the court has any other questions?

[00:24:09] Speaker 05:
Thank you very much.

[00:24:09] Speaker 03:
Appreciate it.

[00:24:17] Speaker 00:
May it please the court, Alicia Young, here for the governor of the state of Washington.

[00:24:23] Speaker 00:
As everyone seems to agree, at this point, the Freedom Foundation lacks Article III standing to pursue the rights of state employees who aren't parties to this case.

[00:24:30] Speaker 00:
Additionally, the Freedom Foundation lacks standing to pursue its own claim against the governor because the state simply does not restrict or otherwise regulate the foundation's freedom to associate or engage in expressive activities.

[00:24:43] Speaker 00:
nor does it coerce the union into rejecting mail from the Freedom Foundation.

[00:24:48] Speaker 00:
So the Freedom Foundation has not shown an injury that is directly traceable to the governor, or the state, or that could be redressed by any prospective relief against the governor.

[00:24:58] Speaker 00:
For similar reasons, Freedom Foundation's claim fails as a matter of law.

[00:25:02] Speaker 00:
Should the court reach that question?

[00:25:04] Speaker 00:
In any event, summary judgment should be affirmed.

[00:25:07] Speaker 00:
I want to emphasize, as this court has recognized, this is a facial challenge to RCW 4156-110, as far as the governor goes.

[00:25:14] Speaker 00:
And nothing in that statute restricts or addresses the Freedom Foundation's right to associate or to engage in expressive activity.

[00:25:24] Speaker 00:
The Freedom Foundation seems to argue that the statute frustrates their mission or makes it harder to do what they do.

[00:25:31] Speaker 00:
That's not a recognizable right under the First Amendment right of association.

[00:25:36] Speaker 00:
There's a difference between restrictions on speech and expression and the government's response or lack thereof to being receptive to that speech or association.

[00:25:46] Speaker 00:
Here, there are simply no facts that the Freedom Foundation can rely on to show any impairment of their right of expression or association.

[00:25:56] Speaker 00:
It highlights a huge problem with this case.

[00:25:59] Speaker 00:
There are no employees.

[00:26:00] Speaker 00:
There are no declarations from employees.

[00:26:01] Speaker 00:
There is no facts suggesting that any employee has been unable to, well, I guess that would be irrelevant anyway because the Freedom Foundation is here in its own accord.

[00:26:13] Speaker 00:
I guess to answer your honor's question, too, on the union's discretion, I think you're asking about the ability to reject mail and whether that would be a state law violation.

[00:26:29] Speaker 00:
It very well could be.

[00:26:31] Speaker 00:
It would depend on facts that we don't have here.

[00:26:34] Speaker 02:
But certainly- So when you say state law, what are you referring to?

[00:26:39] Speaker 00:
An unfair labor practice.

[00:26:40] Speaker 00:
Right.

[00:26:40] Speaker 02:
You're not talking about the statute that's issued here.

[00:26:42] Speaker 00:
Correct.

[00:26:43] Speaker 00:
Correct.

[00:26:44] Speaker 00:
And or contractual rights.

[00:26:46] Speaker 00:
Both the employees and the unions have entered into contracts with each other, and these are largely questions of contract law as far as how employees can effectively cancel their dues authorizations once they voluntarily agree to them.

[00:27:03] Speaker 03:
You heard Mr. Snowball describing the sort of order that they would want directed against the governor.

[00:27:14] Speaker 03:
Is the governor the right person under state law to grant that, to do all those things?

[00:27:26] Speaker 03:
Assuming that it was appropriate for a federal court to order the state to

[00:27:30] Speaker 03:
to set up a labor law regime of the sort that's being described.

[00:27:37] Speaker 03:
Is the governor the person who would do that?

[00:27:41] Speaker 00:
That's a challenging question to answer just because the relief that the Freedom Foundation has sought in this case and their claims have evolved as the cases progressed.

[00:27:55] Speaker 00:
The governor is the state employer for purposes of collective bargaining.

[00:28:00] Speaker 00:
rather than name an individual payroll agent of the state, we don't contest that the governor would be appropriate in that capacity.

[00:28:10] Speaker 00:
Certainly the governor is not the payroll agent for cities and counties and other entities of the state.

[00:28:18] Speaker 00:
So again, I guess it would depend on the particular claim, but not necessarily depending on the relief that the Freedom Foundation is ultimately seeking here.

[00:28:27] Speaker 00:
We'd ask the court to affirm.

[00:28:29] Speaker 01:
Thank you.

[00:28:37] Speaker 04:
Well, thank you again, Your Honors.

[00:28:38] Speaker 04:
I'll move very quickly.

[00:28:39] Speaker 04:
I just want to be clear here.

[00:28:41] Speaker 04:
We're not asking the court.

[00:28:42] Speaker 04:
The court doesn't need to address the merits.

[00:28:44] Speaker 04:
The Belgao case and those lines of cases are entirely irrelevant to the questions before the court.

[00:28:48] Speaker 04:
We are purely here on an issue of Article III standing.

[00:28:53] Speaker 04:
I will point out that my friend on the other side representing the Teamsters did not answer the court's question.

[00:28:58] Speaker 04:
Our position based on the record is that they do claim the discretion, clearly based upon their actions and clearly we think.

[00:29:03] Speaker 02:
So where in the statute does it say that they have the discretion?

[00:29:07] Speaker 04:
That would be in 3A, Your Honor, the portion that I pointed out before.

[00:29:10] Speaker 02:
We think that's the... The word discretion is not in there.

[00:29:13] Speaker 02:
The word discretion is not in there, but... It's all by implication.

[00:29:16] Speaker 02:
Correct, Your Honor.

[00:29:17] Speaker 02:
So the statute doesn't say restrict it one way or the other, correct?

[00:29:23] Speaker 02:
By the plain words.

[00:29:25] Speaker 04:
Correct, and we think that that's part of the problem, Your Honor.

[00:29:27] Speaker 02:
I will point out also that— Well, a facial challenge is kind of challenging to you.

[00:29:31] Speaker 02:
If the plain words that you're claiming restrict your associational rights aren't in the statute, that's pretty tough to maintain a facial challenge to it.

[00:29:43] Speaker 04:
Potentially, Your Honor.

[00:29:44] Speaker 04:
I will point out that those cases, the Hippocratic Oath cases and the California cases, only apply to the Governor, not to my friend from the Teamsters.

[00:29:52] Speaker 04:
So those cases being discussed.

[00:29:54] Speaker 02:
My question was confined to the Governor.

[00:29:56] Speaker 04:
I see that I'm out of time.

[00:29:57] Speaker 04:
We would ask you to reverse and remand.

[00:29:59] Speaker 04:
Thank you.

[00:29:59] Speaker 03:
Thank you.

[00:30:00] Speaker 03:
We thank all counsel for their arguments and the case is submitted.