my kingdom for a Hudson packet: agency shop fees and free speech rights

A work in progress. See here for the purpose.

By passing Initiative 134, Washington's electorate declared, among other things,

RCW 42.17.760 A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual.

Way back in 1997, nonmembers brought suit against the Washington Education Association, charging that the union's "opt-out" procedure--sending a "Hudson packet" in the mail twice annually to nonmembers--violated the "affirmative authorization" clause of sec.760.

After a legal battle lasting almost a decade, the Washington State Supreme Court finally ruled that sec.760 is unconstitutional, and that the WEA's "opt-out" procedure is therefore permissible under precedents established in Abood v. Detroit Board of Education and Chicago Teachers Union v. Hudson.

First, the Court determined that no, the Hudson packet does not suffice to "affirmatively authorize" the use of agency shop fees--even though no one, not even the State, could determine what sort of affirmative authorization it would require. (Written authorization was out, since it was clearly not intended or codified.)

So it was clear to the Court that opting out didn't satisfy the statute--but that the statute also created a conflict of free speech rights. Did nonmembers' "affirmative authorization" muffle the voice of union members, or did the Hudson process coerce some nonmembers to support an opposing viewpoint?

The Court summarized the WEA's position thusly:

The WEA contends... that the statute is unconstitutional because its requirement of affirmative authorization amounts to an impermissible presumption that each nonmember objects to the union's use of his or her fees for political activities.

The Court agreed, and also continued,

The State argues that sec.760 has no impact on the First Amendment rights of members because sec.760 only requires the affirmative authorization of nonmembers. However, this argument denies the obvious, significant expense involved in complying with sec.760.

In other words, since the statute presumed that nonmembers wouldn't support union activities, and since the burden of achieving (vaguely defined) "affirmative authorization" upset the balance of rights between dissenting nonmembers and supportive nonmembers (never mind dissenting nonmembers and supportive members), the statute was unconstitutional.

More on the dissent later.