About This Document

On Nov. 13, 2006, the Mackinac Center for Public Policy filed a brief of amicus curiae[*] with the United States Supreme Court in two consolidated cases, Davenport v. Washington and Washington v. Washington Educ. Ass’n. The legal dispute centers on a state of Washington law, Wash. Rev. Code § 42.17.760, that prohibits labor unions from using fees from nonmembers to either operate a political committee or to influence an election.

The law was one of many enacted in a 1992 initiative that dealt in large part with campaign finance issues. It was meant to protect the First Amendment right of a nonunion employee not to subsidize political speech he disagrees with, but ironically, the Washington Supreme Court held that the law violated the union’s free speech rights. The Center’s brief, which was authored by Senior Legal Analyst Patrick J. Wright, contained arguments both that the Washington law was constitutional and that the First Amendment extends even more protections to nonunion workers than the Washington law provides.

This matter began after the Washington Education Association admitted that it serially violated § 42.17.760 by only giving refunds to nonmembers who requested them. This led to two lawsuits. In the first, the state of Washington sued the union seeking civil penalties. In the second, some nonunion teachers sued the union and claimed that they were entitled to civil damages from the union.

In holding that § 42.17.760 was unconstitutional, the Washington Supreme Court relied on a phrase from a 1961 United States Supreme Court decision, “dissent is not to be presumed.” The Washington Supreme Court held that § 42.17.760 presumes that nonmembers do not want to support the union’s political activity and that this violates the union’s right to communicate with the nonmembers. The United States Supreme Court granted certiorari, and oral argument occurred on Jan. 10, 2007. A decision is expected by the end of June 2007.

[*] “Amicus curiae” means “friend of the court.” Thus, the Mackinac Center is not a litigant in these cases, but rather an interested observer supplying additional legal reasoning for the U.S. Supreme Court to consider.