United Food v. Bennett

Decision Date29 March 2013
Docket NumberNo. CV–11–00921–PHX–GMS.,CV–11–00921–PHX–GMS.
Citation934 F.Supp.2d 1167
CourtU.S. District Court — District of Arizona
PartiesUNITED FOOD & COMMERCIAL WORKERS LOCAL 99; et al., Plaintiffs, and Arizona Education Association, et al., Plaintiff–Intervenors v. Ken BENNETT, in his capacity as Secretary of the State of Arizona; et al., Defendants.


Held Unconstitutional

A.R.S. §§ 12–1809, 12–1810, 23–361.02, 23–1321(1)(A, B), 23–1322, 23–1323, 23–1324(B), 23–1325, 23–1327(A)(4, 5), 23–1329.


A.R.S. §§ 23–352, 23–361.02(F), 23–1321(1)(A), (4), 23–1322(B), 23–1325.

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

Jason Walta, National Education Association, Washington, DC, Roopali H. Desai, Coppersmith Schermer & Brockelman PLC, Samantha Elizabeth Blevins, Arizona Education Association, Phoenix, AZ, for PlaintiffIntervenors.

Christopher Arthur Munns, Michael King Goodwin, Office of the Attorney General, Ann Thompson Uglietta, J. Scott Dutcher, Maricopa County Attorneys Office, Phoenix, AZ, for Defendants.


G. MURRAY SNOW, District Judge.

Pending before the Court are five motions for summary judgment: PlaintiffIntervenors' Motion for Partial Summary Judgment as to the Constitutionality of SB 1365 (Doc. 156), Plaintiffs' Motion for Summary Judgment re: SB 1365 (Doc. 158), Plaintiffs' and PlaintiffIntervenor SEIU Arizona's Joint Motion for Partial Summary Judgment regarding SB 1363 (Doc. 160), Defendants Horne and Bennett's Motion for Summary Judgment re: SB 1363 (Doc. 165), and Defendant Horne's Motion for Summary Judgment re: SB 1365 (Doc. 166). For the reasons discussed below, Plaintiffs' and PlaintiffIntervenors' Motions are granted as to SB 1365 and granted in part and denied in part as to SB 1363. Defendant Horne's Motion as to SB 1365 is denied and the two Defendants' Motion as to SB 1363 is granted in part and denied in part. 1


In 2011, two Arizona bills were signed into law: SB 1363 and SB 1365. (Doc. 8 at 2–3.) Generally speaking, SB 1363 is a series of amendments and additions to existing law relating to harassment, trespass, assembly, and picketing in the context of labor relations. SB 1363, 50th Leg., 1st Reg. Sess. (Ariz. 2011). SB 1365 adds a new section to Chapter 2, Title 7 of the Arizona Revised Statutes relating to paycheck deductions. SB 1365, 50th Leg., 1st Reg. Sess. (Ariz. 2011). The details of these laws are explained in their respective sections below.

On May 9, 2011, Plaintiffs, a group of unions and their officers and members, filed suit for injunctive and declaratory relief. (Doc. 8 at 1, 5–6.) Plaintiffs challenged both statutes as unconstitutional. ( Id. at 2.) PlaintiffIntervenors, a second group of unions and members who also wished to challenge the two statutes, were granted permission to intervene on June 20, 2011. (Doc. 47.) Plaintiffs and PlaintiffIntervenors both moved for preliminary injunctions to prevent SB 1365 from going into effect (Docs. 14, 77), and on September 23, 2011, this Court granted PlaintiffIntervenors' Motion for Preliminary Injunction on the ground that they were likely to succeed on their claim that SB 1365 violated the First Amendment. 817 F.Supp.2d 1118 (D.Ariz.2011).

PlaintiffIntervenors now move for summary judgment as to SB 1365 on the grounds that: SB 1365 (1) is viewpoint discriminatory in violation of the First Amendment, (2) violates the equal protection clause, (3) is unconstitutionally vague, and (4) imposes unconstitutional conditions on payroll deductions. (Doc. 156.) Plaintiffs, in a separate Motion for Summary Judgment, incorporate all arguments made by PlaintiffIntervenors against SB 1365, but argue additionally that the Court should find that SB 1365 is preempted by federal law. (Doc. 158.) Defendant Horne, in a Cross–Motion for Summary Judgment, contends that SB 1365 is constitutional under either strict scrutiny or rational basis review and is not preempted. (Doc. 166.)

In addition, Plaintiffs and PlaintiffIntervenor SEIU Arizona bring a Joint Motion for Summary Judgment contending that SB 1363 is unconstitutional because: (1) it is viewpoint discriminatory, (2) it imposes unconstitutional restrictions on assembly,and these restrictions are preempted by the National Labor Relations Act (NLRA), (3) it unconstitutionally restricts speech about employers, (4) it unconstitutionally prohibits labor picketing and secondary boycotts, (5) the wage withholding provision is unconstitutional, and (6) it provides unconstitutional remedies. (Doc. 160.) Defendants Horne and Bennett, in a second cross-motion, assert that they are entitled to summary judgment because SB 1363 is constitutional. (Doc. 165.)

I. Legal Standard for Summary Judgment

Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). [A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party opposing summary judgment “may not rest upon the mere allegations or denials of [the party's] pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); see also LRCiv. 1.10( l )(1) (“Any party opposing a motion for summary judgment must ... set[ ] forth the specific facts, which the opposing party asserts, including those facts which establish a genuine issue of material fact precluding summary judgment in favor of the moving party.”). If the nonmoving party's opposition fails to specifically cite to materials either in the court's record or not in the record, the court is not required to scour the entire record for evidence establishing a genuine issue of material fact or obtain the missing materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028–29 (9th Cir.2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417–18 (9th Cir.1988).

II. Constitutionality of SB 1365

SB 1365, or the “Protect Arizona Employees' Paychecks from Politics Act,” amends Title 23, Chapter 2, Article 7 of the Arizona Revised Statutes by adding Section 23–361.02. SB 1365, 50th Leg., 1st Reg. Sess. (Ariz. 2011). The statute requires employees to annually provide written or electronic authorization to their employers if they wish to allow paycheck deductions “for political purposes.” A.R.S. § 23–361.02(A) (2011). In addition, if an entity wishes to collect funds through payroll deductions, it must either affirm to the employer that none of its general fund is used for political purposes or specify the percentage of its fund that will be so used. Id. § 23–361.02(B). If the entity ends up spending more of its fund on political purposes than it initially reported to the employer, it is subject to a minimum civil fine of $10,000. Id. § 23–361.02(D). “Political purposes” are defined in the statute as “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).

The general application of SB 1365 is accompanied by a wealth of exceptions, such as deductions for savings or charitable contributions and deductions for employee health care, retiree, or welfare benefits. Id. § 23–361.02(E)(2), (3). Thus, entities that collect funds for these purposes are permitted to use those funds for “political purposes” without subjecting themselves to a projected percentage limitation on such spending. In addition, SB 1365 exempts from the definition of “employee” any “public health safety employee, including a peace officer, fire fighter, corrections officer, probation officer or surveillance officer, who is employed by this state or a political subdivision of this state.” Id. § 23–361.02(H). Thus, entities that collect funds through payroll deductions from these employees are also free from the requirement that they provide, in advance, binding limits on their annual political spending to employers.

SB 1365 also provides that an employee may rescind payroll deduction authorization for any organization from which she has resigned. Employers are prohibited from processing payroll deductions for employees who have submitted written notice of their rescissions. Id. § 23–361.02(F).

In the Order granting a preliminary injunction against enforcement of SB 1365, this Court found that PlaintiffIntervenors were likely to succeed in demonstrating that SB 1365 was facially unconstitutional because it is viewpoint discriminatory. PlaintiffIntervenors renew that argument in their Motion for Summary Judgment, as well as asserting that SB 1365 violates the equal protection clause, is impermissibly vague, and imposes an unconstitutional condition on paycheck deductions. Plaintiffs make the additional argument that SB 1365 should be declared unconstitutional because it is preempted by § 302 of the Labor Management Relations Act (LMRA), and assert that the Court should reach the preemption issue first. In response, and in a cross-motion for summary judgment, Defendant Horne contends that SB 1365 is neither viewpoint discriminatory nor preempted, and that it is otherwise constitutional.2

A. Preemption

As the Supreme Court has noted, preemption claims, though “constitutional in nature,” are “treated as ‘s...

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