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Boardman v. Inslee

United States District Court, W.D. Washington, Tacoma

May 11, 2017

BRADLEY BOARDMAN, et al., Plaintiffs,
JAY R. INSLEE, Governor of the State of Washington, et al., Defendants.


          BENJAMIN H. SETTLE United States District Judge.

         This matter comes before the Court on the motion to intervene of the Campaign to Prevent Fraud and Protect Seniors (“Campaign”). Dkt. 17. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.


         On April 5, 2017, Plaintiffs filed their complaint against the State of Washington (the “State”) and moved for an emergency temporary restraining order (“TRO”). Dkts. 1, 2. On April 10, 2017, the State responded. Dkt. 15. Later that day, the Court held a hearing and denied the motion for TRO. Dkt. 21.

         Also on April 10, 2017, the Campaign moved for permissive intervention. Dkt. 17. On April 21, 2017, Plaintiffs responded in opposition to the motion. Dkt. 25. On April 28, 2017, the Campaign replied.


         This case deals with Plaintiffs' constitutional challenge to Washington State Initiative I501 (“I-1501”). Washington voters adopted I-1501 in the 2016 general election. I-1501 made several changes to laws regarding “vulnerable adults” and their homecare providers. It increased penalties for criminal identity theft and civil consumer fraud targeting seniors or vulnerable adults. I-1501 also created an exemption to Washington's Public Records Act (“PRA”). The PRA generally makes publicly available all records prepared, owned, used, or retained by government entities. See RCW 42.56.010(3); .070. Unless exempted by the PRA or other statute, public records must be provided upon request, or the public entity will face harsh monetary penalties. RCW 42.56.070(1); RCW 46.56.550(4). See e.g., Zink v. City of Mesa, 162 Wn.App. 688, 701 (2011). Specifically, I-1501 exempted from public disclosure personal information of vulnerable individuals, as well as the information of their homecare providers, including names, addresses, GPS coordinates, telephone numbers, email addresses, social security numbers, driver's license numbers, or other personally identifying information. RCW 42.56.640.

         Plaintiffs, in particular Plaintiff Freedom Foundation, have been attempting for years to obtain up-to-date public records of contact information for state-funded homecare providers (identified by statute as “Individual Providers”). Plaintiffs use the information in the records to contact homecare providers to inform them of their constitutional right as partial-state employees to opt out of union membership and dues, as announced in Harris v. Quinn, 134 S.Ct. 2618 (2014). However, due to efforts by SEIU unions (who represent the applicable bargaining units as majority unions), a lengthy litigation process prevented Plaintiffs from obtaining up-to-date records, despite state court rulings that Plaintiffs were entitled to receive the records. See Dkt. 2 at 7-8; Dkt. 6; Dkt. 26. When the records were finally released in September of 2016, they were out-of-date and therefore useless to Plaintiffs' outreach efforts.

         While the state courts grappled with Plaintiffs' rights to receive the records under the then-applicable provisions of the PRA, the Washington State legislature was dealing with proposals by certain unions to create a new exemption under the PRA that would prevent disclosure of the records. These efforts in the legislature failed. However, unions SIEU 775 and SEIU 925 also sponsored I-1501 through the 2016 general election ballot initiative process. Ultimately, I-1501 was passed by the state electorate and, through the initiative process, the unions' efforts successfully resulted in a PRA exemption that prevents the disclosure of contact information for members of the unions' bargaining units. As a result of I-1501, the State has denied Plaintiffs' recent PRA requests seeking up-to-date contact information for homecare providers, thereby hindering Plaintiffs' ability to efficiently identify and contact homecare providers to inform them of their First Amendment right to opt out of union dues and membership. Plaintiffs challenge the constitutionality of I-1501 on the basis that it abridges their First Amendment rights and violates the Equal Protection Clause of the Fourteenth Amendment.


         The Campaign moves to intervene in order to defend the constitutionality of I-1501. Dkt. 17. Plaintiffs object to the addition of the Campaign to this action under the permissive intervention rule, Fed.R.Civ.P. 24(b), arguing that intervention by the Campaign will poses a significant risk of delay and prejudice. Dkt. 25 at 12-13.

         Permissive intervention is available to any party at the Court's discretion. In relevant part, Fed.R.Civ.P. 24(b) provides:

(1) . . . On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with ...

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