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Freedom Foundation v. Washington Department of Ecology

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

December 3, 2019

FREEDOM FOUNDATION, a Washington State Nonprofit Corporation, Plaintiff,
WASHINGTON DEPARTMENT OF ECOLOGY, a Washington State Agency; SANDI STEWART, in her official capacity as Director of Human Resources for the Washington Department of Ecology, Defendants.




         THIS MATTER is before the Court on competing Motions for Summary Judgment [Dkt. #s 27 and 30]. For the reasons stated below, Plaintiff Freedom Foundation's Motion for Summary Judgment [Dkt. #27] is DENIED, and Defendants' Motion for Summary Judgment [Dkt. #30] is GRANTED. Freedom Foundation's Complaint is DISMISSED with prejudice.


         The facts are largely undisputed. Freedom Foundation is a Washington non-profit organization devoted to individual liberty, free enterprise, and limited, accountable government. Its work includes public advocacy, research, canvassing, and litigation. Freedom Foundation canvasses to notify government employees of their rights with respect to public sector unions. It particularly canvasses about the opportunity to opt-out from financial support of union activities. Janus v. AFSME, 138 S.Ct. 2448 (2018). Freedom Foundation canvassers go door-to-door and visit government office buildings. This case arises from Freedom Foundation's desire and effort to hand out information in the lobby area of the Department of Ecology headquarters. It argues that its canvassers can contact more employees and distribute their message more effectively there than outside the building.

         The Washington State Department of Ecology's mission is to protect, preserve, and enhance the environment for current and future generations. The Legislature created Ecology to manage and develop Washington State's “air and water resources in an orderly, efficient, and effective manner, and to carry out a coordinated program of pollution control” to protect those resources. Wash. Rev. Code § 43.21A.020 (2018).

         Ecology's statewide headquarters is located at 300 Desmond Drive SE, in Lacey, Washington. The building is three stories, 323, 000 gross square-feet, and is open for business from 8:00 a.m. to 5:00 p.m., Monday through Friday. The building houses approximately 900 Ecology employees, in addition to staff for three tenant agencies: the U.S. Environmental Protection Agency, the Washington State Conservation Commission, and Pollution Liability Insurance Agency. Desmond Drive runs north to south on the west side of Ecology's headquarters. A one-way driveway, extending perpendicular from Desmond Drive, traverses the entire length of the north side of the building. The driveway leads to staff and visitor parking east of the headquarters building, curves, and then returns to Desmond Drive.

         Ecology headquarters has one visitor entrance on the north side of the building, in front of a large square patio area. The visitor entrance opens into the headquarters lobby. Both the north and south sides of the lobby are floor-to-ceiling glass windows. The lobby is an atrium that is open to the building's ceiling. The two floors above the lobby are open to the atrium, such that sound from the lobby carries upward and into the workspaces on those floors.

         There are reception and security desks adjacent to the visitor entrance, and a placard in front of the entrance directs visitors to sign in upon arrival. Visitors must also obtain a visitor's badge and provide their name, the agency or company they represent, the employee they are visiting or public meeting they are attending, time of arrival, badge number from the visitor's badge they receive, and time of departure. By requiring visitors to sign in, Ecology can determine their purpose for being present in the building, and account for building occupants in the event of an emergency.

         On the west end of the lobby, locked glass doors secured by keycard access separate most of Ecology's first-floor workspace from the lobby. Access to the workspace requires an Ecology-issued keycard, and an Ecology employee (or one of its tenant's employees) must escort all visitors entering the area. A workspace previously used by Ecology's Sustainability Coordinator is in a cubicle in a sunken part of the southwest corner of the lobby. There are four other sunken areas with glass cases displaying artifacts related to the history of Ecology and its work. There are also seating areas for visitors and Ecology staff to use while waiting to conduct Ecology-related business.

         The parking structure and parking lots for employees and visitors are located on the east side of the headquarters buildings. Employees enter the building from the parking structure, through a keycard secured entrance that leads into the east end of the lobby. Employees then must pass through the lobby to access the workspaces on the west end of the lobby. Conversely, Ecology employees who work in the west end workspaces must also pass through the lobby to access the cafeteria and meeting rooms in the eastern portion of the building.

         The purpose for the entire headquarters building, and the employees it houses, is to conduct the work required of Ecology for the State of Washington. Accordingly, visitors are not allowed to loiter in the lobby, nor are they able to reserve it for private use. Only Ecology employees and tenants may request to use the lobby for meetings or events, and permission is given only if such uses are consistent with state ethics laws and Ecology policies.

         In December 2015, Freedom Foundation sent canvassers to the Thurston County lobbies of the Washington Department of Natural Resources, the Washington Department of Enterprise Services, and Ecology. The canvassers dressed in Santa Claus costumes and carried holiday-themed materials. At each location, one or two canvassers carried a poster, a sign, and handouts. The poster was red, white, and green and decorated with snowflakes. At the top of the poster, in large font, were the words. “Give Yourself a Raise.” Below, in smaller font, it said: “You work hard for your money-keep more of it.” And, at the bottom, the poster explained how to opt out.

         In December 2015, the Foundations' outreach director, Matthew Hayward, and canvasser Elmer Callahan visited Ecology headquarters in Lacey, Washington. They checked in at the front desk, informed the receptionist why they were there, and gave her a Freedom Foundation business card. The security guard on duty, Ken Nasworthy, was under the mistaken impression that the Freedom Foundation employees were from the union-Freedom Foundation staff were ...

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