Boardman v. Inslee

Decision Date22 October 2020
Docket NumberNo. 19-35113,19-35113
Citation978 F.3d 1092
Parties Bradley BOARDMAN, a Washington Individual Provider ; Deborah Thurber, a Washington Family Childcare Provider; Shannon Benn, a Washington Family Childcare Provider; Freedom Foundation, a Washington nonprofit organization, Plaintiffs-Appellants, v. Jay Robert INSLEE, Governor of the State of Washington; Robert Hines, Director of the Washington Department of Social and Health Services (DSHS); Ross Hunter, Secretary of the Washington Department of Children, Youth, and Families (DCYF), Defendants-Appellees, Campaign to Prevent Fraud and Protect Seniors, Intervenor-Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

N.R. SMITH, Circuit Judge:

Although the decision whether to disclose government-controlled information is generally a "task which the Constitution has left to the political processes," Houchins v. KQED, Inc. , 438 U.S. 1, 12, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (plurality opinion), 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’ exclusive collective bargaining representative, while denying equal access to the public. See Perry Educ. Ass'n v. Perry Local Educators’ Ass'n , 460 U.S. 37, 49, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

Initiative 1501, a ballot initiative passed by Washington voters, prohibits public access to certain government-controlled information, including the personal information of in-home care providers. Under the initiative, in-home care providers’ personal information must still be disclosed to their exclusive bargaining representatives. Appellants, who have been denied access to this information, challenge Initiative 1501 under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The district court rejected Appellants’ claims on summary judgment. So do we.


In this opinion, we are concerned only with the constitutionality of Initiative 1501. However, in order to address that issue, we must begin our analysis a few years prior to the initiative's passage.


Appellants, Bradley Boardman, Deborah Thurber, and Shannon Benn, provide home-based care services in the State of Washington. Boardman is an "individual provider" who provides Medicaid-funded healthcare services for a disabled family member. See Wash. Rev. Code § 74.39A.240(3) (" ‘Individual provider’ means a person ... who, under an individual provider contract with the department [of social and health services] or as an employee of a consumer directed employer, provides personal care or respite care services to persons who are functionally disabled or otherwise eligible under [various Medicaid- or state-funded programs]."). Thurber and Benn are "family child care providers" who provide state-subsidized childcare services for low-income families. See id. § 41.56.030(7) (" ‘Family child care provider’ means a person who: (a) Provides regularly scheduled care for a child or children in the home of the provider or in the home of the child or children for periods of less than twenty-four hours or, if necessary due to the nature of the parent's work, for periods equal to or greater than twenty-four hours; (b) receives child care subsidies; and (c) ... is either licensed by the state or is exempt from licensing.").

As in-home care providers, Appellants are required by Washington law to participate in statewide collective bargaining. Id. §§ 41.56.028, 74.39A.270. Individual providers and family child care providers compose two separate collective bargaining units, each of which is represented by an exclusive bargaining representative elected by a majority of providers within the unit. Id. §§ 41.56.028(2), 74.39A.270(2)(a), (7). Currently, Service Employees International Union Healthcare 775NW ("SEIU 775") represents individual providers, and Service Employees International Union Local 925 ("SEIU 925") represents family child care providers (collectively, the "Unions"). As the exclusive bargaining representatives of in-home care providers, the Unions must represent all the providers within each of their collective bargaining units without regard to union membership. Id. § 41.56.080.

Although they are members of their collective bargaining units, Boardman, Thurber, and Benn are not members of the Unions. They do not pay agency or "fair share" fees—fees paid to a union by nonmembers to support "activities that are ‘germane to the union's duties as collective-bargaining representative,’ " see Janus v. Am. Fed'n of State, Cty., and Mun. Emps., Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 2460, 201 L.Ed.2d 924 (2018) (alteration adopted) (quoting Abood v. Detroit Bd. of Educ. , 431 U.S. 209, 235, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), overruled by Janus , 138 S. Ct. at 2486 ), nor do they otherwise support the Unions’ collective bargaining efforts on their behalf. In fact, Thurber and Benn serve on the board of directors of Pacific Northwest Family Child Care Association ("PNFCCA"), a rival union of SEIU 925. With the help of Appellant Freedom Foundation (a § 501(c)(3) non-profit organization), Thurber and Benn have campaigned for several years to replace SEIU 925 with PNFCCA as the exclusive bargaining representative for family child care providers. To do so, PNFCCA must first obtain 30% support among family child care providers to force an election, a milestone they have yet to achieve. See Wash. Rev. Code § 41.56.070. The Freedom Foundation has also assisted Boardman in his efforts to inform other individual providers of their right to opt out of paying agency fees to SEIU 775.1

To promote their various causes, Appellants have had to obtain the contact information of in-home care providers. This has not been a simple task. More than 40,000 providers work in homes dispersed throughout Washington. They do not share workplaces, supervisors, or clients, and they have a notably high turnover rate. Consequently, to collect in-home care providers’ contact information, Appellants have relied largely on Washington's Public Records Act ("PRA"), which requires state agencies to "make available for public inspection and copying all public records," unless a specific exemption applies. Id. § 42.56.070(1); see also Doe ex rel. Roe v. Wash. State Patrol , 185 Wash.2d 363, 374 P.3d 63, 67 (2016) ("Despite the PRA's presumption of openness and transparency, the legislature has made certain public records exempt from production."). Through PRA requests, Appellants have obtained lists of in-home care providers’ personal information that had been maintained in the custody of the Department of Social and Health Services ("DSHS") and the Department of Early Learning ("DEL") (now the Department of Children, Youth, and Families ("DCYF"))the state agencies that administer home-care programs. See Wash. Rev. Code § 74.39A.240 ; Serv. Emps. Int'l Union Local 925 v. Dep't of Early Learning , 194 Wash.2d 546, 450 P.3d 1181, 1182 (2019). With this information, Appellants were able to identify in-home care providers and contact them through the mail and by door-to-door canvassing, which proved to be a relatively efficient way of spreading their messages and voicing their opposition to the Unions.

Naturally, the Unions opposed Appellants’ efforts to replace SEIU 925 with a rival union and to otherwise diminish the Unions’ support among in-home care providers. In 2014, the Unions began challenging AppellantsPRA requests in state court, seeking to enjoin disclosures of DSHS's and DEL's lists of in-home care providers’ information. For a time, Appellants were successful in obtaining in-home care providers’ information, despite the litigation spawned by their PRA requests. But due to in-home care providers’ high turnover, these lists soon became outdated. Therefore, Appellants continued to request updated lists from DSHS and DEL to facilitate in spreading their messages among a wide audience of in-home care providers.


In November 2016, Washington voters passed Initiative 1501, a ballot initiative designed to "protect the safety and security of seniors and vulnerable individuals" (e.g., the elderly and individuals with developmental disabilities, see Wash. Rev. Code § 9.35.005(7) ) from various financial crimes. Seniors and Vulnerable Individuals’ Safety and Financial Crimes Prevention Act, 2017 Wash. Legis. Serv., ch. 4, I.M. No. 1501, § 2 (West). Initiative 1501 was comprised of three parts. Part I amended the definition of first-degree identity theft under Washington's criminal code to include "knowingly target[ing] a senior or vulnerable individual in" committing an identity crime. Id. § 6 (codified at Wash. Rev. Code § 9.35.020(2) ). Part II enacted a treble-damages provision applicable in any civil cause of action in which the plaintiff "was victim to consumer fraud that targeted him or her as a senior or vulnerable individual." Id. (codified at Wash. Rev. Code § 9.35.060 ).

Part III of Initiative 1501—which forms the basis of this dispute—exempted a new category of public records from disclosure under the PRA. It provided:

To protect vulnerable individuals and their children from identity crimes and other forms of victimization, neither the state nor any of its agencies shall release sensitive personal information of vulnerable individuals or sensitive personal information of in-home caregivers for vulnerable populations , as those terms are defined in [ Revised Code of Washington section 42.56.640 ].

Id. § 10 (codified at Wash. Rev. Code. § 43.17.410 ) (emphasis added). Additionally, Part III directly amended the PRA to exempt the sensitive personal information of vulnerable individuals and their in-home care providers from "inspection and copying under [the PRA]." Id. § 8 ...

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