Hendrickson v. AFSCME Council 18

• Citation: 434 F.Supp.3d 1014
• Decision Date: 22 January 2020
• Docket Number: No. CIV 18-1119 RB/LF,CIV 18-1119 RB/LF
• Parties: Brett HENDRICKSON, Plaintiff, v. AFSCME COUNCIL 18; Michelle Lujan Grisham, in her official capacity as Governor of New Mexico; and Hector Balderas, in his official capacity as Attorney General of New Mexico, Defendants.
• Court: U.S. District Court — District of New Mexico

434 F.Supp.3d 1014

Brett HENDRICKSON, Plaintiff,

v.AFSCME COUNCIL 18; Michelle Lujan Grisham, in her official capacity as Governor of New Mexico; and Hector Balderas, in his official capacity as Attorney General of New Mexico, Defendants.

No. CIV 18-1119 RB/LF

United States District Court, D. New Mexico.

Filed January 22, 2020

Brian K. Kelsey, Reilly Stephens, Liberty Justice Center, Chicago, IL, Patrick Joseph Rogers, Patrick J. Rogers, LLC, Albuquerque, NM, for Plaintiff.

Shane C. Youtz, James A. Montalbano, Stephen Curtice, Youtz & Valdez PC, Alfred A. Park, Lawrence M. Marcus, Park & Associates, LLC, Albuquerque, NM, Stefanie Wilson, Eileen Goldsmith, Scott Kronland, Altshuler Berzon LLP, San Franscisco, CA, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT C. BRACK, SENIOR U.S. DISTRICT JUDGE

For most of his employment with the New Mexico Human Services Department (HSD), Plaintiff Brett Hendrickson was a dues-paying member of Defendant AFSCME Council 18 (the Union). Recently in Janus v. AFSCME , ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018), the United States Supreme Court overruled long-standing precedent and found that the common union practice of collecting agency fees from nonunion members violates their constitutional rights. After Janus , Mr. Hendrickson resigned from his Union membership. He now brings suit against the Union, as well as Governor Lujan Grisham and Attorney General Balderas (the State Defendants), for violations of his First Amendment rights to free speech and free association. He seeks monetary damages for dues that he paid to the Union and declarations that the Union's dues authorization revocation policy and provisions of the related state statutory scheme are unconstitutional.

Mr. Hendrickson and the Union filed cross motions for summary judgment, and the State Defendants moved to dismiss. For the reasons discussed herein, the Court will grant the Union's motion for summary judgment, grant the State Defendants' motion to dismiss, deny Mr. Hendrickson's motion for summary judgment, and dismiss this lawsuit.

II. Legal Standards

A. Summary Judgment Standard of Review

Summary judgment is appropriate when the Court determines "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Garrison v. Gambro, Inc. , 428 F.3d 933, 935 (10th Cir. 2005). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation marks and citation omitted). The Court examines the record and makes all reasonable inferences in the light most favorable to the nonmoving party. Gutierrez v. Cobos , 841 F.3d 895, 900 (10th Cir. 2016).

In analyzing cross-motions for summary judgment, a court "must view each motion separately, in the light most favorable to the non-moving party, and draw all reasonable inferences in that party's favor." United States v. Supreme Court of N.M. , 839 F.3d 888, 906–07 (10th Cir. 2016) (quotation marks and citations omitted). "Cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another." Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n , 483 F.3d 1025, 1030 (10th Cir. 2007) (quotation omitted).

The Court notes that Mr. Hendrickson fails to respond to or specifically dispute the material facts set forth in the Union's motion (see Docs. 42; 45 at 7) or in the Union's response to his own motion (see Docs. 39 at 8–11; 47) in contravention of Local Rule 56. See D.N.M. LR-Civ. 56(b). However, Mr. Hendrickson's material facts are largely consistent with the Union's statement of facts in its own motion. (See Doc. 39 at 8 (citing Doc. 32 at 2–8).) Consequently, for the purposes of both motions for summary judgment, the Court will accept as true the facts as presented in the Union's motion (Doc. 32) and response (Doc. 39).

B. Motion to Dismiss Standard of Review

In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." In re Gold Res. Corp. Sec. Litig. , 776 F.3d 1103, 1108 (10th Cir. 2015) (quotation omitted). "To survive a motion to dismiss," the complaint does not need to contain "detailed factual allegations," but it "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

II. Background

Mr. Hendrickson has been employed with the HSD, a public employer, since 2001. (Docs. 21 (Am. Compl.) ¶¶ 3, 16.) He is covered by the Public Employee Bargaining Act (PEBA), N.M. Stat. Ann. §§ 10-7E-1 –-26 (1978), which gives public employees the right to join—or not to join—a labor organization for the purposes of bargaining with public employers regarding the terms of their employment. N.M. Stat. Ann. §§ 10-7E-5, 10-7E-15. The Union and the State are parties to a collective bargaining agreement (CBA), and Mr. Hendrickson is a member of a bargaining unit as defined in the CBA. (Doc. 32-4 ¶¶ 3–4.) See also § 10-7E-13. The Union is the democratically-elected exclusive representative for Mr. Hendrickson's bargaining unit for purposes of the PEBA. (See Doc. 32-4 ¶ 3.) See also § 10-7E-14.

While New Mexico has "never required membership in the Union as a condition of public employment" (Doc. 32 at 11¹ (citing Doc. 32-4 ¶ 6); see also § 10-7E-5 ), employees in Mr. Hendrickson's pre- Janus bargaining unit were required to make a choice: pay dues and join the Union as a member to receive full member benefits, or decline to join and pay a lower amount of "fair share fees" as a nonmember. (Doc. 32-4 ¶¶ 7, 35, 63; Am. Compl. ¶¶ 16, 22.) See also 138 S. Ct. at 2459–60. At the time, these fair share fees were lawful under Abood v. Detroit Board of Education , 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) and the PEBA. "Represented bargaining unit employees have never been required to become Union members nor required to publicly endorse the Union's positions in any respect." (Doc. 32-4 ¶ 29.)

Mr. Hendrickson chose to join the Union and authorized monthly dues deductions by signing the Union's membership agreement. (Doc. 32-4 ¶ 36.) He signed this agreement on three occasions: originally on May 7, 2004 (id. ; see also Doc. 32-4-2); in 2007 when he returned to SPD after a short stint with a non-bargaining unit (Am. Compl. ¶¶ 17, 20; Docs. 32-4 ¶ 38; 32-4-2); and on April 7, 2017 (Docs. 32-4 ¶ 40; 32-4-3). The membership agreement provides:

Effective: [April 7, 2017], I authorize AFSCME Council 18 as my exclusive bargaining representative, and I accept membership in AFSCME Council 18. I request and authorize the State of New Mexico to deduct union dues from my pay and transmit them to AFSCME Council 18. The amount of dues deduction shall be the amount approved by AFSCME's membership as set forth in the AFSCME constitution and certified in writing to my employer. This authorization shall be revocable only during the first two weeks of every December, or such other time as provided in the applicable collective-bargaining agreement.²

(Doc. 32-4-3.) Thus, Mr. Hendrickson was able to resign his "union membership at any time, but ... he would continue to have union dues deducted from his paycheck unless he gave the Union and the State written notice of revocation of his dues deduction authorization during the first two weeks of December in each calendar year." (Doc. 32-4 ¶ 44.)

On June 27, 2018, the United States Supreme Court decided Janus, 138 S. Ct. 2448. In Janus , the Court examined the constitutionality of requiring nonunion state employees to pay agency fees for union representation, such as the "fair share" fees in New Mexico. Id. at 2459–60. It found that this practice violates nonmembers' First Amendment rights, because it "compel[s] them to subsidize private speech on matters of substantial public concern." Id. at 2460. The Court held, therefore, that "States and public-sector unions may no longer extract agency fees from nonconsenting employees ... unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed." Id. at 2486 (citations omitted).

On July 2, 2018, the Union sent the State Personnel Office (SPO) a letter and "asked the State to immediately stop deducting fair share fees from non-members and to immediately stop transmitting those fees to the Union." (Docs. 32-4 ¶ 65; 32-4-13.) The State and the Union "have agreed that provisions of the [CBA] that required the payment of fair share fees by non-members are now invalid and unenforceable and ... those provisions are accordingly no longer in effect." (Doc. 32-4 ¶ 71.)

Mr. Hendrickson emailed the SPO about withdrawing his Union membership on August 9, 2018. (Docs. 33-1 ¶ 5; 33-1-1.) He filed his original complaint in this Court on November 30, 2018. (Doc. 1.) He had not contacted the Union regarding resignation or termination of his dues deductions before he filed his original complaint. (See Doc. 32-4 ¶¶ 43, 47.) On December 6, 2018, Ms. Connie Derr, Executive Director of the Union, wrote a letter to Mr. Hendrickson and stated:

It has come to our attention through the filing of a lawsuit that you wish to resign your union membership and cancel your authorization for the deduction of membership dues. We have no prior record that you made any such request to the union.

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