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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
TACOMA DIVISION

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DALE DANIELSON, a Washington State
employee; BENJAMIN RAST, a Washington
State employee; TAMARA ROBERSON, a
Washington State employee; as
individuals, and on behalf of all others
similarly situated,

No. 3:18-cv-5206
COMPLAINT – CLASS ACTION

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Plaintiffs,
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v.
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GOVERNOR JAY INSLEE, in his official
capacity as Governor of the State of Washington;
DAVID SCHUMACHER, in his official capacity
as Director of Washington State Office of
Financial Management; and AMERICAN
FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES COUNCIL 28,
AFL-CIO, a labor organization,
Defendants.

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I. INTRODUCTION
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1. Plaintiffs DALE DANIELSON, BENJAMIN RAST, and TAMARA ROBERSON are
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state employees and bring this class action on behalf of themselves and all others similarly situated,
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seeking redress for the defendants’ past and ongoing violations of their constitutionally protected
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rights. The plaintiffs allege as follows:
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2. The imposition of compulsory agency fees violates Plaintiffs’ rights under the First and
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Fourteenth Amendments to the U.S. Constitution. The representative plaintiffs seek for themselves

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and the proposed class: (a) a declaratory judgment against the State and the Union (collectively,

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“Defendants”) that the imposition of compulsory agency fees violates Plaintiffs’ rights under the

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First Amendment to the U.S. Constitution; (b) injunctive relief that prohibits Defendants from

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seizing agency fees from the representative plaintiffs and the class; (c) an award of damages for

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agency fees wrongfully seized from the representative plaintiffs and the class; and (d) an award of

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reasonable attorneys’ fees, costs, and expenses pursuant to 42 U.S.C. § 1988.

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II. JURISDICTION AND VENUE
3. This action arises under 42 U.S.C. § 1983 to redress the deprivation, under color of state
law, of rights, privileges, and immunities secured to the representative plaintiffs and the class
(“Plaintiffs”) by the First and Fourteenth Amendments to the U.S. Constitution.
4. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. § 1331 because
they arise under the U.S. Constitution and 28 U.S.C. § 1343 because the Plaintiffs seek relief under
42 U.S.C. § 1983. This Court has authority under 28 U.S.C. §§ 2201 and 2202 to grant declaratory
relief and other relief based thereon.
5. Venue is proper in this Court because the Defendants do business and operate in this
district. 28 U.S.C. § 1391(b). Assignment to the Tacoma Division is proper because the claims
arose in Thurston County and because all Defendants’ principal places of business are in Thurston
County. See Local Civil Rule 3(e)(1).

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III. PARTIES

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6. Plaintiff Dale Danielson resides in Yakima County, Washington. He is employed by

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Washington’s Department of Social and Health Services in a bargaining unit exclusively

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represented by Defendant American Federation of State, County, and Municipal Employees
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Council 28, AFL-CIO, doing business as the Washington Federation of State Employees

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(“WFSE”). Mr. Danielson is not a member of the Union but is compelled to pay an agency fee to

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the union as a condition of employment.

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7. Plaintiff Benjamin Rast resides in Pierce County, Washington. He is employed by

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Washington’s Department of Labor and Industry in a bargaining unit exclusively represented by

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WFSE. Mr. Rast is not a member of the Union but is compelled to pay an agency fee to the union

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as a condition of employment.

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8. Plaintiff Tamara Roberson resides in Pierce County, Washington. She is employed by

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Tacoma Community College and in a bargaining unit exclusively represented by WFSE. Ms.

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Roberson is not a member of the Union but is compelled to pay an agency fee to the union as a

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condition of employment.

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9. Defendant WFSE is a labor union that represents over 35,000 public employees in

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Washington, and is headquartered at 1212 Jefferson St., Suite 300, Olympia, Washington 98501.

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10. Defendant David Schumacher is the Director of the Washington State Office of Financial

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Management with an office in Olympia. As such, and on information and belief, he is charged with

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the responsibility of negotiating and enforcing the collective-bargaining agreement on behalf of

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the governor with WFSE pursuant to RCW 41.80.010. These responsibilities are handled by the

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Labor Relations Division of the Office of Financial Management, over which Schumacher exerts

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direct authority. He is sued only in his official capacity.

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11. Defendant Jay Inslee is the Governor of the State of Washington with an office in Olympia,

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Washington. Governor Inslee is the bargaining representative of the state and is sued only in his

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official capacity.

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IV. FACTUAL ALLEGATIONS

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12. State employee collective bargaining is governed by RCW 41.80. The State of Washington

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is the employer of State employees, including Plaintiffs and the class. RCW 41.80.005(8).
13. The State’s bargaining representative is the governor or the governor’s designee. RCW

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41.80.010.

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14. By contract with the state, WFSE has been designated as the exclusive bargaining

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representative of many Washington public employees, as described in the Collective Bargaining

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Agreement (“CBA”) between WFSE and the state.1

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15. RCW 41.80.050 states that employees have the right to refrain from union activities,

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“except to the extent that they may be required to pay a fee to an exclusive bargaining

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representative under a union security provision authorized by this chapter.”

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16. RCW 41.80.100(1) outlines union security provisions and authorizes the state employer to

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withhold an agency fee “that represents a pro rata share of expenditures for purposes germane to

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the collective bargaining process[.]”

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17. In accordance with these statutes, the state and WFSE created Article 40.3 of the current

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Collective Bargaining Agreement (“CBA 40.3”), describing “Union Security” and union

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nonmembers’ payment obligations. In relevant part, it reads:
All employees covered by this Agreement will, as a condition of employment, either
become members of the Union and pay membership dues or, as nonmembers, pay a fee as
described in Subsections 40.3 A, B, and C below, no later than the 30th day following the
effective date of this Agreement or the beginning of their employment.
A. Employees who choose not to become union members must pay to the Union, no
later than the 30th day following the beginning of employment, an agency shop fee equal
to the amount required to be a member in good standing of the Union…
C. The Union will establish a procedure that any employee who makes a request may
pay a representation fee equal to a pro rata share of the full membership fee that is related

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Collective Bargaining Agreement for the State of Washington and the Washington Federation of State Employees,
July 1, 2017 thru June 30, 2019, at Appendix A available at
https://www.ofm.wa.gov/sites/default/files/public/legacy/labor/agreements/17-19/wfse_gg.pdf.

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to collective bargaining, contract administration and the pursuit of matters affecting wages,
hours and other terms and conditions of employment rather than the full membership fee.

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18. The State deducts agency fees, in an amount determined by WFSE, from the wages of
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Plaintiffs and remits those monies to WFSE. The Union acts under color of state law by contracting
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for and participating in the administration of agency fee deductions from Plaintiffs’ wages.
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19. All of WFSE’s activities that state law and CBA 40.3 compel Plaintiffs to support by way
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of agency fees, including actions taken as an exclusive bargaining representative in the public
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sector, are inherently political activities by the union.
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20. Compulsory agency fees fund, inter alia, WFSE’s efforts to maintain its exclusive
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bargaining representative status against competing unions or employee de-unionization efforts.
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Plaintiffs are thus compelled to fund through agency fees activities directly contrary to their
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associational interests.
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21. Plaintiffs are compelled to pay agency fees to WFSE, which frees up resources for WFSE
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to spend on political and ideological activities, which Plaintiffs oppose.
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22. Plaintiffs object to paying agency fees to WFSE, and believe this compulsory obligation
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violates their constitutional rights. Absent statutory and contractual requirements compelling them
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to do so, they would pay no fees to the Union.
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23. The Supreme Court’s ruling in Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), which
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upheld the constitutionality of public-employee union shops and the forced imposition of “agency
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fees” on non-union members, has been so undermined by subsequent Supreme Court rulings and
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doctrinal developments that it need not be regarded as binding precedent, even though the Supreme
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Court has yet to explicitly overrule that decision. Harris v. Quinn, 134 S. Ct. 2618, 2632-34 (2014)
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(criticizing Abood’s analysis as “questionable on several grounds” and claiming that Abood
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“seriously erred” and “fundamentally misunderstood” the earlier decisions of the Court); Knox v.
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Serv. Employees Int'l Union, Local 1000, 567 U.S. 298, 314 (2012) (“By authorizing a union to

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collect fees from nonmembers… our prior decisions approach, if they do not cross, the limit of

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what the First Amendment can tolerate.”) (emphasis added).

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24. Lower courts frequently treat a doctrinally antiquated precedent as non-binding when

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supported by more recent cases challenging the precedent’s authoritative value. In cases preceding

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the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015), the vast

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majority of federal district courts and federal appellate courts disregarded the holding of Baker v.

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Nelson, 409 U.S. 810 (1972), and recognized a constitutional right to same-sex marriage—even

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though the Supreme Court did not overrule Baker until its pronouncement in Obergefell. See, e.g.,

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Bostic v. Schaefer, 760F.3d 352, 375 (4th Cir. 2014) (“[W]e decline to view Baker as binding

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precedent); Waters v. Ricketts, 48 F. Supp. 3d 1271, 1284 (D. Neb. 2015) (“Doctrinal

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developments since the Baker case indicate the Supreme Court’s summary ruling in Baker is no

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longer reliable or binding.”); Searcy v. Strange, 81 F. Supp. 3d 1285, 1287 (S.D. Ala. 2015)

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(refusing to follow Baker because “Supreme Court decisions since Baker reflect significant

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‘doctrinal developments’ concerning the constitutionality of prohibiting same-sex relationships”

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(citation omitted)).

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25. There are other examples of lower courts that disregard Supreme Court precedent after

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concluding that a previous ruling no longer enjoys the support of five justices—and the Supreme

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Court has affirmed those rulings without criticizing the lower court for anticipating the Supreme

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Court’s repudiation of its earlier ruling. See Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003)

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(declaring the juvenile death penalty unconstitutional and refusing to follow Stanford v. Kentucky,

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492 U.S. 361 (1989)), aff’d by Roper v. Simmons, 543 U.S. 551 (2005); United States v. Booker,

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375 F.3d 508, 513 (7th Cir. 2004) (Posner, J.) (declaring the federal sentencing guidelines

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unconstitutional even though this contradicted the Supreme Court’s holding in Edwards v. United

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States, 523 U.S. 511 (1998)), aff’d and remanded by United States v. Booker, 543 U.S. 220 (2005).

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26. Plaintiffs bring suit at this time to preserve the class members’ ability to seek retrospective

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relief against the defendants for as far back as the statute of limitations will allow.

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V. CLASS ALLEGATIONS
27. This is a class action brought by named Plaintiffs Dale Danielson, Benjamin Rast, and
Tamara Roberson for themselves and all others similarly situated, pursuant to Federal Rule of Civil
Procedure 23(b)(1)(A), (b)(2), and/or 23(b)(3). The class consists of all individuals who: (1) are
employees of the State of Washington; and, (2) have had any union agency fees deducted from the
monies paid to them by the state and remitted to WFSE or its affiliates; and (3) have chosen not to
become members of WFSE by not signing membership cards or by choosing to become agency
fee payers.
28. The number of persons in the class makes joinder of individual class members impractical.
29. There are questions of fact and law common to all class members. Factually, all class
members are public employees and union nonmembers compelled to pay agency fees to WFSE as
a condition of employment. Legally, the U.S. Constitution affords the same rights under the First
Amendment to each and every member of the class.
30. The named Plaintiffs’ claims are typical of other members of the class, because each and
every member of the class has objected to WFSE membership yet is forced by state law and
contract provisions to financially support WFSE and its inherently political activities.
31. The named Plaintiffs adequately represent the interests of the class, and have no interests
antagonistic to the class. Moreover, the undersigned counsel represent Plaintiffs and the class pro
bono and are employed by a long-established charitable organization experienced in furnishing

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representation to unionized public and partial-public employees whose constitutional rights have

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been violated.

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32. A class action can be maintained under Rule 23(b)(1)(A) because separate actions by class
members could risk inconsistent adjudications on the underlying legal issues.

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33. A class action can be maintained under Rule 23(b)(1)(B) because an adjudication

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determining the constitutionality of compulsory agency fees will, as a practical matter, be

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dispositive of the interests of all class members.

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34. A class action can be maintained under Rule 23(b)(3) because the common questions of

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law and fact identified in the Complaint predominate over any questions affecting only individual

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class members. A class action is superior to other available methods for the fair and efficient

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adjudication of the controversy because, among other things, all class members are subjected to

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the same violation of their constitutional rights, but the amount of money involved in each

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individual's claim would make it burdensome for class members to maintain separate actions.

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VI. CLAIMS FOR RELIEF
CLAIM 1
First Amendment, through 42 U.S.C. §1983
Compelling Plaintiffs to pay agency fees violates their First Amendment rights
35. The Plaintiffs re-allege and incorporate by reference the paragraphs set forth above.
36. RCW 41.80.100 and CBA 40.3 compel Plaintiffs to pay agency fees to WFSE as a
condition of employment. Defendants, acting under state law and color of state law have created,
administered, and enforced these obligations. In so doing, Defendants have violated and continue
to violate Plaintiffs’ First Amendment rights to free speech and association as secured by the
Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.
37. State law and collective-bargaining agreements permitting and imposing compulsory

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agency fee obligations upon public employees who do not wish to associate with or support WFSE

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are not narrowly tailored to serve a compelling government interest.

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38. Thus, RCW 41.80.100 and CBA 40.3 violate Plaintiffs’ freedom of speech and association,

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in violation of the First Amendment, as secured against state infringement by the Fourteenth

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Amendment and 42 U.S.C. § 1983.

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VII. DEMAND FOR RELIEF
The Plaintiffs respectfully request that this Court:
A. Certify a class consisting of all individuals who: (1) are employees of the State of
Washington; and, (2) have had any union agency fees deducted from the monies paid to them by
the state and remitted to WFSE or its affiliates; and (3) have chosen not to become members of
WFSE by not signing membership cards or by choosing to become agency fee payers.
B. Issue a declaratory judgment against Governor Inslee, in his official capacity, Director
Schumacher, in his official capacity, and WFSE that:
1. It is unconstitutional under the First Amendment, as secured against State
infringement by the Fourteenth Amendment and 42 U.S.C. § 1983, to seize or require
payment of agency fees from the Plaintiffs and other public employees;
2. RCW 41.80.100(1) is unconstitutional under the First Amendment, as secured against
State infringement by the Fourteenth Amendment and 42 U.S.C. § 1983, and is null
and void.
3. Article 40.3 of the CBA is unconstitutional under the First Amendment, as secured
against State infringement by the Fourteenth Amendment and 42 U.S.C. § 1983, and
is null and void.
C. Permanently enjoin WFSE, along with its officers, agents, servants, employees, attorneys,

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and any other person or entity in active concert or participation with it, from collecting “agency

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fees” or any other type of money from public employees.

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D. Permanently enjoin Defendants Inslee and Schumacher, along with their officers, agents,

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servants, employees, attorneys, and any other person or entity in active concert or participation

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with them, from enforcing RCW 41.80.100(1) and collecting “agency fees” from public

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employees.

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E. Permanently enjoin the defendants, along with their officers, agents, servants, employees,

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attorneys, and any other person or entity in active concert or participation with them, from

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enforcing any law or policy that prevents or deters employees from canceling or revoking their

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membership in the Washington Education Association or their future provision of “agency fees”

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or any other type of money to the Washington Education Association.

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F. Order WFSE to disgorge and refund all agency fees that were unlawfully collected from
Plaintiffs and their fellow class members, along with pre-judgment and post-judgment interest.
G. Award Plaintiffs their reasonable attorneys’ fees, costs, and expenses pursuant to 42.
U.S.C. § 1988.

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H. Award any other relief this Court deems just and proper.

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RESPECTFULLY SUBMITTED on March 15, 2018.

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By: s/ Jonathan F. Mitchell
JONATHAN F. MITCHELL, WSBA #52483
559 Nathan Abbott Way
Stanford, California 94305
(650) 723-1397
jfmitche@stanford.edu

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s/ David M.S. Dewhirst
DAVID M.S. DEWHIRST, WSBA # 48229
s/ Hannah S. Sells
HANNAH S. SELLS, WSBA #52692
c/o Freedom Foundation
P.O. Box 552, Olympia, WA 98507
p. 360.956.3482   f. 360.352.1874
DDewhirst@freedomfoundation.com
HSells@freedomfoundation.com

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Attorneys for Plaintiffs and the Proposed Class
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