Davenport v. Washington Educ. Ass'n

Decision Date12 December 2008
Docket NumberNo. 28375-1-II.,28375-1-II.
PartiesGary DAVENPORT, Martha Lofgren, Walt Pierson, Susannah Simpson, and Tracy Wolcot, Respondents, v. WASHINGTON EDUCATION ASSOCIATION, Appellant.
CourtWashington Court of Appeals

Steven T. O'Ban, Ellis Li & McKinstry PLLC, Seattle, WA, for Respondents.

Judith A. Lonnquist, Law Offices of Judith A. Lonnquist, P.S., Seattle, WA, Harriet Kay Strasberg, Attorney at Law, Olympia, WA, for Appellant.

Edward Earl Younglove, III, Younglove Lyman & Coker PLLC, Olympia, WA, Joaquin M. Hernandez, Schwabe, Williamson & Wyatt, P.C., Seattle, WA, Amicus Curiae on behalf of Washington Federation of State Employees.

James D. Oswald, Law Offices of James D. Oswald, Seattle, WA, Amicus Curiae on behalf of Washington State Labor Council.

MORGAN, J.P.T.1

¶ 1 After filing this case as a class action, the plaintiffs alleged that each of them is a representative nonmember of the Washington Education Association (WEA); that each one's employer deducted an agency shop fee from his or her salary and paid it to WEA under RCW 41.59.100 and .060(2); and that WEA later spent the money in violation of former RCW 42.17.760.2 The trial court denied WEA's CR 12 motion for judgment on the pleadings, ruled that the statute of limitations on one of plaintiffs' claims was five years, and granted the plaintiffs' motion to certify a class. On this remand from the United States Supreme Court and the Washington Supreme Court, we hold that the plaintiffs do not have a private statutory cause of action for violating former RCW 42.17.760 or a common law cause of action for conversion, but that they do have a common law cause of action for restitution. Accordingly, we affirm, except for holding that the statute of limitations is three rather than five years.

¶ 2 Since 1975, the Educational Employment Relations Act (EERA)3 has recognized the right of public school employees4 to form, by majority vote,5 a union to bargain collectively6 with their school-district employers.7 The EERA, however, does not require that the union must be joined by every employee who benefits from its collective bargaining activity.8 Instead, it mandates, if the union and the employer so provide in a collective bargaining agreement (CBA), that each benefited employee who opts to join must pay union dues, and that each benefited employee who opts not to join must pay an "agency shop fee" equivalent to such dues.9 It further mandates, by virtue of RCW 41.59.060(2) and .100, that the employing school district deduct dues or the equivalent "agency shop fee" from the employee's salary. RCW 41.59.060(2) states in part:

If an agency shop provision is agreed to and becomes effective pursuant to RCW 41.59.100 ... the agency fee equal to the fees and dues required of membership in the exclusive bargaining representative shall be deducted from the salary of employees in the bargaining unit.

And RCW 41.59.100 reiterates, subject to an exception not pertinent here:

If an agency shop provision is agreed to [in the CBA], the employer shall enforce it by deducting from the salary payments to members of the bargaining unit the dues required of membership in the bargaining representative, or, for nonmembers thereof, a fee equivalent to such dues.

¶ 3 From 1975 until December 1992, Washington law did not restrict the manner in which a union could later spend agency shop fees after receiving them. Effective December 3, 1992, however, Washington voters enacted Initiative 134 (I-134). In Section 16 of I-134, the voters stated:

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.

The voters also directed in Section 33 of I-134 that Section 16 be codified in chapter 42.17 RCW, and the code reviser designated Section 16 as former RCW 42.17.760. For convenience, we refer interchangeably to Section 16 as "Section 16" or "former RCW 42.17.760."

¶ 4 In August 2000, the Evergreen Freedom Foundation (EFF) complained to the Washington State Public Disclosure Commission (PDC) that WEA had used agency shop fees for political purposes without affirmative authorization from its fee-paying nonmembers. On September 25, 2000, WEA stipulated in writing, at a hearing before the PDC, that it had received and deposited agency shop fees into its general fund, that it had expended money from that fund for political purposes without its nonmembers' authorization, and that it had "committed multiple violations of former RCW 42.17.760."10

¶ 5 In October 2000, following a referral of EFF's complaint to the Washington State Attorney General (AG), the AG filed an action (hereafter "the AG's case") related to but different from the one that we are now reviewing. The AG alleged that the public was entitled to relief in the nature of fines and penalties, but not that individual nonmembers should recover money that WEA might have spent for political purposes without their affirmative authorization. As the AG stated in a contemporaneous press release, "The lawsuit is aimed at enforcing the law on behalf of the citizens of Washington and is not intended to recover fees paid by individuals to the WEA."11

¶ 6 In the summer or fall of 2001, the trial court held a bench trial in the AG's case. Finding that WEA had received an agency shop fee from each of about 4,000 nonmembers, and applying RCW 42.17.400(1) and .390(3), the trial court multiplied the estimated number of nonmembers by $25 and assessed a penalty in favor of the State.12 Finding that WEA had acted intentionally, and applying RCW 42.17.400(5), the trial court doubled the penalty and awarded costs and fees to the State, for a total judgment of more than half-a-million dollars.13

¶ 7 Meanwhile, on March 19, 2001, Gary Davenport and four other nonmembers of WEA (hereafter "the Davenport plaintiffs") commenced the action that we are now reviewing (hereafter "the Davenport case"). The Davenport plaintiffs alleged in their complaint, as later amended, that WEA was a labor organization to which they had "paid mandatory agency fees in amounts equivalent to union dues," that WEA had "used their fees to influence elections and to support political committees," and that they had not authorized this use.14 The Davenport plaintiffs also alleged that WEA had so many nonmembers during the relevant time period that it was not practical to join all of the others, that their claims were typical of the others' claims, and that they would fairly and adequately protect the interests of the class. Attaching a copy of the written stipulation that WEA had presented to the PDC, the Davenport plaintiffs asserted that WEA had violated former RCW 42.17.760, that they had a private statutory cause of action and a common law cause of action for conversion, that the case should be certified as a class action, and that they and the class should receive judgment.

¶ 8 In the summer of 2001, WEA moved to dismiss the Davenport case under CR 12, and the Davenport plaintiffs moved for an order certifying a class. In January 2002, the trial court denied WEA's motion to dismiss because, in its view, the Davenport plaintiffs had adequately alleged a private statutory cause of action based on former RCW 42.17.760 and a common law cause of action for conversion. Ruling that the statutory cause was subject to the five-year statute of limitations set forth in RCW 42.17.410, and recognizing that the plaintiffs had filed their complaint on March 19, 2001, the trial court also granted the plaintiffs' motion to certify a "class of all public school employees who, between March 19, 1996 and August 31, 2001 (inclusive), were nonmembers paying agency shop fees to Defendant WEA."15 Finally, the trial court recommended that the parties seek interlocutory review and made other rulings not pertinent here.16

¶ 9 WEA appealed the AG's case as a matter of right and sought discretionary review in the Davenport case. We granted discretionary review in the Davenport case, with the result that both cases came before us at the same time. The main issue raised in both cases was whether former RCW 42.17.760 was unconstitutional, and hence unenforceable, because it violated the First Amendment. A majority of the panel answered yes,17 so we dismissed both cases without reaching any other issues.18

¶ 10 The AG in her case and the Davenport plaintiffs in theirs asked the Washington Supreme Court to review our decision. After granting review, a majority of the court19 held that former RCW 42.17.760 violated the First Amendment, and affirmed our judgments of dismissal.20

¶ 11 The AG in her case and the Davenport plaintiffs in theirs asked the United States Supreme Court to review the Washington Supreme Court's decision. After granting review, the high Court held that former RCW 42.17.760 did not violate the First Amendment, vacated both judgments, and remanded both cases to the Washington Supreme Court.21

¶ 12 When the Washington Supreme Court received the two cases back on remand, it decided to retain jurisdiction over the AG's case, but to transfer the Davenport case to us for further proceedings. We heard additional oral argument and invoked RAP 12.1(b) as the basis for requesting supplemental briefs on whether the Davenport plaintiffs had stated a common law cause of action for restitution.

¶ 13 Having now received and reviewed the parties' supplemental briefs, we are met at the outset by WEA's reminder that the trial court has not yet made any findings of fact.22 That is true — and immaterial to this appeal.23 When reviewing a trial court's ruling on a motion for judgment on the pleadings brought under CR 12(c), we must take the facts alleged in the complaint, as well as hypothetical facts consistent therewith, in the light most...

To continue reading

Request your trial
51 cases
  • Reliable Credit Ass'n, Inc. v. Progressive Direct Ins. Co.
    • United States
    • Court of Appeals of Washington
    • October 30, 2012
    ...Langham, 153 Wash.2d at 566, 106 P.3d 212. ¶ 26 This court has similarly applied the modem approach. Davenport v. Wash. Educ. Ass'n, 147 Wash.App. 704, 197 P.3d 686 (2008). In Davenport, the plaintiffs' employers deducted an agency shop fee from the plaintiffs' salaries and paid it to the W......
  • In re Kelly
    • United States
    • Court of Appeals of Washington
    • September 18, 2012
    ...instrument.” RCW 4.16.080(3). ¶ 22 RCW 4.16.080(3) has been applied to a variety of equitable claims. See Davenport v. Wash. Educ. Ass'n, 147 Wash.App. 704, 197 P.3d 686 (2008) (applying to unjust enrichment case); Goodman v. Goodman, 128 Wash.2d 366, 907 P.2d 290 (1995) (applying to constr......
  • Keodalah v. Allstate Ins. Co., 95867-0
    • United States
    • United States State Supreme Court of Washington
    • October 3, 2019
    ...for violations of RCW 48.01.030 ’s duty of good faith was intentional. See Davenport v. Wash. Educ. Ass’n , 147 Wash. App. 704, 718-19, 197 P.3d 686 (2008) (noting the ease with which the drafters could have expressed a private statutory cause of action, "we think that the omission implies ......
  • Protect the Peninsula's Future v. City of Port A., 43252–8–II.
    • United States
    • Court of Appeals of Washington
    • June 19, 2013
    ...enacted. Fisk v. City of Kirkland, 164 Wash.2d 891, 895, 194 P.3d 984 (2008); see Davenport v. Wash. Educ. Ass'n, 147 Wash.App. 704, 719, 197 P.3d 686 (2008). ¶ 19 Arguing to the contrary, Kailin asserts that she is a member of “the class of people who would be adversely affected by a legen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT