U.S. Supreme Court declines to hear appeal over Washington law giving unions access to employee data

In our Oct. 1 edition, we detailed the petitions involving public-sector labor law pending in the U.S. Supreme Court at the start of the term. This week, we give an update on one of those cases. 

U.S. Supreme Court declines to hear appeal over Washington law giving unions access to employee data 

On Oct. 12, the U.S. Supreme Court declined to take up an appeal over a Washington state law that grants unions representing in-home healthcare providers  access to employee contact information.

What is at issue

On Nov. 8, 2016, Washington voters approved Initiative 1501. It exempts the “sensitive personal information” of “vulnerable individuals and in-home caregivers for vulnerable populations” from public disclosure laws. “Vulnerable individuals” include seniors with “functional, mental, or physical disabilities” and the developmentally disabled, among others. “Sensitive personal information” includes names, addresses, and telephone numbers. 

Initiative 1501’s disclosure limits do not extend to unions. The law authorizes the state to release personal information about in-home caregivers to unions representing those caregivers. 

The parties to the suit

The plaintiffs were three Washington in-home caregivers (Bradley Boardman, Deborah Thurber, and Shannon Benn) and the Freedom Foundation, a nonprofit whose self-described mission is “to advance individual liberty, free enterprise, and limited, accountable government.” Before Initiative 1501’s, the plaintiffs had made public-records requests to obtain caregiver contact information “to inform other individual providers of their right to opt out of paying agency fees.” 

The defendants were the Campaign to Prevent Fraud and Protect Seniors (the political committee that supported Initiative 1501) and several state officers in their official capacities. SEIU 775, which represents 45,000 long-term care workers in Washington, was the primary donor to the Campaign to Prevent Fraud and Protect Seniors, contributing about $1.6 million to the campaign. 

How lower courts ruled 

In April 2017, the plaintiffs filed suit in the U.S. District Court for the Western District of Washington, arguing that, “by giving the incumbent unions exclusive access to provider information, Initiative 1501 discriminates on the basis of viewpoint, in violation of the First Amendment.” On Jan. 10, 2019,  Judge Benjamin Settle, a George W. Bush (R) appointee, ruled in favor of the defendants, concluding that Initiative 1501 “does not discriminate based on viewpoint.” Settle said, “It is more accurate to characterize the access policy as based on the status of the respective unions rather than their views.” 

The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit. On Oct. 22, 2020, a three-judge panel voted 2-1 to uphold the lower court’s ruling. The panel concluded that “laws restricting public access to records do not implicate the First Amendment.” Judges N. Randy Smith and Milan D. Smith (both Bush appointees) formed the majority. Judge Daniel A. Bress (a Donald Trump (R) appointee)  dissented. The Ninth Circuit’s unfavorable ruling prompted the plaintiffs’ appeal to the U.S. Supreme Court. 

How the Supreme Court reacted 

The U.S. Supreme Court denied the petition for a writ of certiorari, meaning the Court will not hear the appeal. Associate Justices Thomas, Alito, and Gorsuch said that they would have granted the petition. 

The case name and number are Boardman v. Inslee (20-1334).

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No public-sector union bills saw activity this week.