United Food & Commercial Workers Local 99 v. Brewer

• Decision Date: 23 September 2011
• Docket Number: No. CV–11–921–PHX–GMS.,CV–11–921–PHX–GMS.
• Parties: UNITED FOOD AND COMMERCIAL WORKERS LOCAL 99 et al., Plaintiffs,andArizona Education Association, et al., Plaintiff–Intervenors, v. Jan BREWER, in her capacity as Governor of the State of Arizona, et al., Defendant.
• Court: U.S. District Court — District of Arizona

191 L.R.R.M. (BNA) 2903

817 F.Supp.2d 1118

UNITED FOOD AND COMMERCIAL WORKERS LOCAL 99 et al., Plaintiffs,andArizona Education Association, et al., Plaintiff–Intervenors,

v.Jan BREWER, in her capacity as Governor of the State of Arizona, et al., Defendant.

No. CV–11–921–PHX–GMS.

United States District Court, D. Arizona.

Sept. 23, 2011.

Validity Called into Doubt

A.R.S. § 23–361.02

Gerald Barrett, Ward Keenan & Barrett PC, Phoenix, AZ, Andrew Joseph Kahn, Elizabeth A. Lawrence, Davis Cowell & Bowe LLP, San Francisco, CA, for Plaintiff.

Michael L. Artz, AFL–CIO, Alice O'Brien, Jason Walta, National Education Ass'n, Jessica R. Robinson, AFSCME, David J. Strom, American Federation of Teachers, Washington, DC, Samantha Elizabeth Blevins, Alice Finn Gartell, Arizona Education Ass'n, Roopali H. Desai, Coppersmith Schemer & Brockelman PLC, Stanley Lubin, Lubin & Enoch PC, Phoenix, AZ, P. Casey Pitts, Michael Rubin, Jennifer Sung, Jonathan Weissglass, Altshuler Berzon LLP, San Francisco, CA, for Intervenor Plaintiffs.Maria Brandon, J. Scott Dutcher, Ann Thompson Uglietta, Maricopa County Attorney's Office, Phoenix, AZ, Michael King Goodwin, Office of Attorney General for Defendant.

ORDER

G. MURRAY SNOW, District Judge.

Pending before this Court are Plaintiffs' Motion for Preliminary Injunction and Plaintiff–Intervenors' Motion for Preliminary Injunction. (Docs. 14, 77). For the reasons stated below, Plaintiff–Intervenors' Motion is granted and Plaintiffs' Motion is dismissed as moot.

BACKGROUND

An employee in the state of Arizona may authorize his or her employer to withhold certain amounts from the employee's pay and to transfer those funds to a separate entity. Through such payroll deduction programs, employees pay their health care or other welfare benefit premiums to insurance companies, invest for retirement with banks and financial institutions, make donations to charitable organizations, and pay dues to their unions. All of these organizations are permitted to engage in political activity, including lobbying, by using money in their general operating fund. See Citizens United v. FEC, ––– U.S. ––––, 130 S.Ct. 876, 904, 175 L.Ed.2d 753 (2010). ¹

On April 18 and 19, 2011, the Arizona House and Senate passed Senate Bill 1365, the “Protect Arizona Employees' Paychecks from Politics Act,” 2011 Arizona Session Laws, Chapter 251, which Governor Janice K. Brewer signed into law on April 26, 2011. The law amended Title 23, Chapter 2, Article 7 of the Arizona Revised Statutes (“A.R.S.”) by adding section 23–361.02. The statute requires that organizations collecting funds through checkoff payroll deductions either affirm to the employers who process the deductions that none of their general fund is used for “political purposes,” or specify the percentage of their general fund so used. A.R.S. § 23–361.02(B). The law defines “political purposes” to mean “supporting or opposing any candidate for public office, political party, referendum, initiative, political issue advocacy, political action committee, or other similar group.” Id. § 23–361.02(I). Employers may not deduct the percentage of an employee's contribution used for political purposes without written authorization from the employee; consent must be reauthorized each year. Id. § 23–361.02(B), (C). An organization receiving funds from payroll deduction that spends more of its operating fund on political purposes than the percentage it reported to the employer is subject to a minimum civil fine of $10,000. Id. § 23–361.02(D).

While the law is written to have general application to all payroll deductions, it explicitly exempts a number of types of deductions from its scope, including, among others, deductions for the benefit of charitable organizations and organizations that provide employee health care, retiree, or welfare benefits. Id. § 23–361.02(E). In addition, SB 1365 excludes from its definition of employee “any public safety employee, including a peace officer, firefighter, corrections officer, probation officer or surveillance officer.” Id. § 23–361.02(H). As a result, no public safety employee union would be obliged to comply with the statute to obtain its dues through payroll deductions from public safety employees. The law is scheduled to go into effect on October 1, 2011. Id. § 23–361.02(A).

On May 9, 2011, Plaintiffs United Food & Commercial Workers 99, et al. filed a complaint challenging SB 1365's companion legislation, SB 1363, as unconstitutional. (Doc. 1). Plaintiffs amended their complaint to allege that SB 1365 is also unconstitutional. (Doc. 8). Plaintiffs further moved for a preliminary injunction to prevent SB 1365 from going into effect. (Doc. 14). ² This Court granted leave to the American Education Association and other unions to intervene as Plaintiffs. (Doc. 47). Plaintiff–Intervenors moved for a preliminary injunction on August 4, 2011. (Doc. 77). This Order considers the claims made in both Plaintiffs' and Plaintiff–Intervenors' motions.

DISCUSSION

I. SUBJECT–MATTER JURISDICTION AND RIPENESS

In their response, Defendants apparently incorporate the arguments made in their Motion to Dismiss on lack of subject-matter jurisdiction, lack of ripeness, and immunity from suit under the Eleventh Amendment to the United States Constitution. (Doc. 50). To the extent they do so, these arguments lack merit. Federal courts have subject-matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Plaintiffs allege that SB 1365 is pre-empted by the Supremacy Clause of the U.S. Constitution, and Plaintiff–Intervenors allege that SB 1365 violates the First Amendment. (Docs. 8, 52). The Court has jurisdiction to entertain constitutional challenges to state statutes. 28 U.S.C. § 1331. To the extent that the parties allege they may choose to restrict their own speech in order to comply with an unconstitutional law, the complaint is ripe for adjudication. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th Cir.2000) (holding that a court may hear a constitutional challenge to a law that has not yet been enforced when “the plaintiff intends to engage in ‘a course of conduct arguably affected with a constitutional interest’ and that there is a credible threat that the challenged provision will be invoked against the plaintiff.”) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). Finally, Plaintiff–Intervenors are seeking injunctive relief against the Attorney General to prevent him from enforcing an allegedly unconstitutional state law; such suits are not barred by the Eleventh Amendment because “official-capacity actions for prospective relief are not treated as actions against the State.” Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); see also Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).³

II. LEGAL STANDARD

To be granted a preliminary injunction, a plaintiff must establish four elements. A plaintiff must establish “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat'l Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); see Fed. R. Civ. P. 65. The Ninth Circuit continues to analyze these four elements using a “sliding scale” approach, in which “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011). The element of irreparable injury is not subject to balance; the moving party must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22, 129 S.Ct. 365 (emphasis in original). Should the moving party demonstrate a very high likelihood of injury, however, the likelihood of success on the merits may be relaxed. In such cases, an injunction may be granted when “serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor.” Wild Rockies, 632 F.3d at 1135, quoting The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008).

III. MERIT OF CLAIMS

Plaintiffs make three broad arguments regarding SB 1365. First, they argue that the statute is unconstitutional under the Supremacy Clause because it is pre-empted by the Labor Management Relations Act (“LMRA”) and the National Labor Relations Act (“NLRA”). Next, they argue that the statute is impermissibly vague and overbroad. Finally, they claim that the statute is pre-empted by the Federal Election Campaign Act (“FECA”). (Doc. 14). Plaintiff–Intervenors argue that the law violates the First Amendment, both because it burdens protected political speech and it discriminates on the basis of speaker and viewpoint. Next, they argue that the law violates the Fourteenth Amendment because its exception for public safety unions is not rationally related to a legitimate governmental interest. They also argue that the law imposes unconstitutional conditions on payroll deductions. They claim that the law violates the Contracts Clause of the United States Constitution. They also assert that the statute is unconstitutionally vague. (Doc. 77).

This Order addresses the First Amendment challenges in detail. Because the Court determines that Plaintiffs are likely to succeed in demonstrating that SB 1365 violates the First Amendment, Defendants are from enforcing it, pending determination on the merits. It will therefore not be necessary to discuss Plaintiffs' and Plaintiff–Intervenors' remaining claims.

The statute specifically exempts from its regulatory structure payroll deductions for contributions to charitable organizations; payments to organizations that administer...