Boardman v. Inslee, No. 19-35113 (9th Cir. 2020)
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Washington ballot initiative 1501 prohibits public access to certain government-controlled information, including the personal information of in-home care providers, but permits that information to be disclosed to the providers’ certified exclusive bargaining representatives. The law was challenged under 42 U.S.C. 1983 by in-home providers, required by Washington law to participate in statewide collective bargaining, who are not members of their respective unions and do not pay agency fees. They wanted to inform other individual in-home providers of their right to not pay union agency fees and were unable to obtain the necessary contact information.
The Ninth Circuit affirmed summary judgment in favor of the defendants. The First Amendment does not guarantee a general right of access to government-controlled information. Whether to disclose government-controlled information is generally left to the political processes but the First Amendment forbids a state from discriminating invidiously among viewpoints. A state does not engage in viewpoint discrimination by disclosing the personal information of public or quasi-public employees to the employees’ certified bargaining representative while denying equal access to the public. Initiative 1501 does not implicate the plaintiffs’ associational freedom; the plaintiffs lack standing to assert the rights of other in-home care providers. Initiative 1501 does not violate the Equal Protection Clause; the challenged provisions satisfy rational-basis review. The state has a legitimate interest in protecting seniors and other vulnerable individuals from identity theft and other financial crimes. There was no evidence that those who voted in favor of Initiative 1501 were motivated by an irrational prejudice or desire to harm the plaintiffs or their message.
Court Description: Civil Rights. The panel affirmed the district court’s summary judgment in favor of Washington state defendants in an action brought pursuant to 42 U.S.C. § 1983 challenging the constitutionality of ballot initiative 1501, passed by Washington voters, which prohibits public access to certain government-controlled information, including the personal information of in-home care providers, but permits that information to be disclosed to the providers’ certified exclusive bargaining representatives. Plaintiffs-Appellants are a nonprofit organization and individual in-home providers who are required by Washington law to participate in statewide collective bargaining. Although the individual Appellants are members of their collective bargaining units, they are not members of their respective unions and do not pay agency or “fair share” fees—fees paid to a union by nonmembers to support activities that are germane to a union’s duties as a collective- bargaining representative. Appellants seek to inform other individual in-home providers of their right to opt out of paying agency fees to their unions. After the passage of Initiative 1501, however, Appellants were unable to obtain the contact information of other in-home providers. Appellants allege that Part III of Initiative 1501 violates the First Amendment by discriminating among viewpoints and impairing their freedom of association. Additionally, they allege that the initiative transgresses the Equal Protection 4 BOARDMAN V. INSLEE Clause of the Fourteenth Amendment, because it burdens their fundamental rights and is motivated by animus. Citing Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) (plurality opinion), the panel first acknowledged the well- settled principle that the First Amendment does not guarantee a general right of access to government information or sources of information within the government’s control. The panel further stated that although the decision whether to disclose government-controlled information is generally a task which the Constitution has left to the political processes, the First Amendment forbids a state from discriminating invidiously among viewpoints in the provision of information within its control. However, a state does not engage in viewpoint discrimination by simply disclosing the personal information of public or quasi-public employees to the employees’ certified exclusive collective bargaining representative, while denying equal access to the public. The panel concluded that Initiative 1501 did not impose viewpoint-based conditions on the disclosure of provider information, did not discriminate between the competing views of Appellants and their Service Employee Unions, and did not implicate the individual Appellants’ associational freedom. The panel rejected Appellants’ claim that Initiative 1501 violates the First Amendment rights of other in-home care providers by denying the providers the right to determine for themselves if they want to hear plaintiffs’ messages. The panel held that Appellants did not have standing to assert the rights of other in-home care providers. Finally, the panel rejected Appellants’ claim that Initiative 1501 violated the Equal Protection Clause. The BOARDMAN V. INSLEE 5 panel concluded that the challenged provisions of Initiative 1501 satisfied rational-basis review. The panel stated that the State has a legitimate interest in protecting seniors and other vulnerable individuals—and all of its residents, for that matter—from identity theft and other financial crimes, and Washington voters could have rationally decided that generally prohibiting public access to the personal information of in-home care providers—many of whom work within the homes of their clients—would further that interest. The panel further rejected Appellants’ contention that Initiative 1501 was motivated by animus. The panel stated that here was no evidence in the record indicating that the more than 2.2 million Washington voters who voted in favor of Initiative 1501 were motivated by an irrational prejudice, or a bare desire to harm Appellants or their message against the Unions. Dissenting, Judge Bress stated that the text and operation of I-1501 and a troubling documentary record demonstrate exactly what was going on here: transparent viewpoint discrimination. The State was effectively using an information embargo to promote the inherently “pro-union” views of the incumbent unions, while making it vastly more difficult for those with opposing views—and particularly those with views opposite unions—to reach their intended audience. Judge Bress would hold that I-1501 fails First Amendment scrutiny.
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