Pocatello Educ. Ass'n v. Heideman

• Decision Date: 05 October 2007
• Docket Number: No. 06-35004.,06-35004.
• Citation: 504 F.3d 1053
• Parties: POCATELLO EDUCATION ASSOCIATION; Idaho Education Association; Professional Fire Fighters of Idaho, Inc.; Service Employees International Union, Local 687; AFL-CIO, Plaintiffs-Appellees, v. Mark HEIDEMAN, in his official capacity as Bannock County Prosecuting Attorney, Defendant, and Ben Ysursa, in his official capacity as Secretary of State for the State of Idaho; Lawrence Wasden, in his official capacity as Attorney General for the State of Idaho, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

504 F.3d 1053

POCATELLO EDUCATION ASSOCIATION; Idaho Education Association; Professional Fire Fighters of Idaho, Inc.; Service Employees International Union, Local 687; AFL-CIO, Plaintiffs-Appellees, v. Mark HEIDEMAN, in his official capacity as Bannock County Prosecuting Attorney, Defendant, and Ben Ysursa, in his official capacity as Secretary of State for the State of Idaho; Lawrence Wasden, in his official capacity as Attorney General for the State of Idaho, Defendants-Appellants.

No. 06-35004.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 9, 2007.

Filed October 5, 2007.

Clay R. Smith, Idaho Deputy Attorney General, Boise, ID, for the defendants-appellants.

Jeremiah A. Collins, Bredhoff & Kaiser, Washington, D.C., for the plaintiffs-appellees.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CV 03-0256 BLW.

Before: WILLIAM C. CANBY, JR., A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.

TASHIMA, Circuit Judge:

Plaintiff labor organizations ("Plaintiffs") sued officials of the State of Idaho, claiming that the Voluntary Contributions Act ("VCA"), Idaho Code §§ 44-2004(2) and -2601 to -2605, violated Plaintiffs' constitutional rights under the First Amendment as well as other constitutional provisions. Before the district court, the State officials conceded that all challenged provisions were unconstitutional, except Idaho Code § 44-2004(2), which prohibits any payroll deductions for "political activities." The district court held the ban on payroll deductions to be constitutional as applied to the state government itself, but unconstitutional as applied to private and local government employers. The State officials contend on appeal that the payroll deduction ban may be constitutionally applied to local government employers. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We hold that Idaho Code § 44-2004(2), as applied to local government employers, violates the First Amendment because it is a content-based law for which the State officials assert no compelling justification. Moreover, the State officials have not demonstrated that the law should be reviewed under the more relaxed standard applicable to speech restrictions in nonpublic fora. In particular, they have not shown that the State of Idaho may properly assert a proprietary interest in controlling access to the payroll systems that constitute the fora in this case. Caselaw suggests that the authority over local governments the State possesses by operation of law is not enough to associate the local workplaces or payroll deduction programs with the State of Idaho, and the State officials have adduced no specific evidence that the State actually does own, administer, or control the payroll deduction programs.

STANDARD OF REVIEW

We review de novo the district court's decision on cross-motions for summary judgment, Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir.2002), applying the same standard used by the trial court under Federal Rule of Civil Procedure 56(c), Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110, 1131 (9th Cir.2003). We must decide whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir.2001). Mixed questions of law and fact and ultimate conclusions of law receive de novo review. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). We may affirm the district court's grant of summary judgment on any ground supported by the record. Enlow v. Salem-Keizer Yellow Cab Co., 371 F.3d 645, 649 (9th Cir.2004).

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, the Idaho legislature enacted the VCA, a series of amendments to Title 44 of the Idaho Code, including an amendment to Chapter 20 ("Right to Work"). See 2003 Idaho Sess. Laws Ch. 97, 340 (enacting H.B. 329 and S.B. 1176); id. Ch. 340 (S.B.1176). The Chapter 20 amendment states: "Deductions for political activities as defined in chapter 26, title 44, Idaho Code, shall not be deducted from the wages, earnings or compensation of an employee." Idaho Code § 44-2004(2).¹ "Political activities" are defined as "electoral activities, independent expenditures, or expenditures made to any candidate, political party, political action committee or political issues committee or in support of or against any ballot measure." Idaho Code § 44-2602(1)(e).

Plaintiffs filed suit challenging the constitutionality of the VCA, naming as defendants Bannock County Prosecuting Attorney Mark Heideman, Idaho Attorney General Lawrence Wasden, and Secretary of State Ben Ysursa (collectively, "Defendants"). Plaintiffs sought declaratory and injunctive relief from enforcement of § 44-2004(2) as violative of their rights to free speech and equal protection under the First and Fourteenth Amendments.²

Defendants conceded that several provisions of the VCA were unconstitutional because they restricted the ability of labor organizations to solicit political contributions, namely, Idaho Code §§ 44-2601 to -2605. On cross-motions for summary judgment with respect to the remaining substantive provision banning payroll deductions for political activities, the district court held that the payroll deduction prohibition violated the First Amendment to the extent it applied to local government employers and private employers. It also held, however, that the payroll deduction ban could be applied constitutionally to the State's own payroll system, i.e., to employees of the State of Idaho. Accordingly, the court granted in part and denied in part both motions. Pocatello Educ. Ass'n v. Heideman, 2005 WL 3241745 (D.Idaho 2005). Ysursa and Wasden ("Appellants") now appeal the district court's ruling that § 44-2004(2) is unconstitutional with respect to local government employers and school district employers.³

ANALYSIS

Idaho Code § 44-2004(2) burdens speech by diminishing Plaintiffs' ability to conduct any of the activities defined by the Idaho Code as "political." The term "political activities" is broadly defined to include virtually all types of electioneering, including "electoral activities" as well as spending on behalf of or against candidates, ballot measures, political action or issue committees, or parties. See Idaho Code § 44-2602(1)(e).

The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the Government for a redress of grievances." The Fourteenth Amendment renders that prohibition applicable to the States. See, e.g., Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) (explaining that freedom of speech is one of the fundamental personal rights and liberties secured against state abridgment by the Fourteenth Amendment).

This restriction on voluntary political contributions burdens political speech, which is protected by the First Amendment; indeed, political speech is a "central concern" of First Amendment jurisprudence. See Burson v. Freeman, 504 U.S. 191, 196, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (plurality opinion); accord, Fed. Election Comm'n v. Wis. Right to Life, Inc., ___ U.S. ___, 127 S.Ct. 2652, 2664, 168 L.Ed.2d 329 (2007); Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 657, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990); Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1008 (9th Cir. 2003). "[T]here is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966).

The law does not prohibit Plaintiffs from participating in political activities, but it hampers their ability to do so by making the collection of funds for that purpose more difficult. The district court found that unions face substantial difficulties in collecting funds for political speech without using payroll deductions because of their members' concerns over identity theft associated with other electronic transactions, as well as the time-consuming nature of face-to-face solicitation. The district court found that the payroll deduction ban would decrease the revenues available to Plaintiffs to use for political speech. Restricted funding will, therefore, diminish Plaintiffs' ability to engage in political speech, and § 44-2004(2) is properly viewed as a regulation of protected speech. Cf. Meyer v. Grant, 486 U.S. 414, 420-23, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988) (holding that a Colorado law prohibiting the payment of circulators of initiative petitions is properly viewed as a burden on political speech because its effect was to limit the number of voices who would convey a petition's message, limit the size of the audience who would receive the message, and make it less likely the petition would gain enough signatures to earn placement on the state ballot).

The law on its face prohibits payroll deductions only for political activities. This is subject-matter discrimination, which is a form of content discrimination. Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 537-38, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980); see also Burson, 504 U.S. at 197, 112 S.Ct. 1846 (holding a Tennessee law prohibiting speech related to a political campaign near polling places to be a content-based restriction); Bayless, 320 F.3d at 1009 (holding a state statute restricting only expenditures which expressly advocate...