State Supreme Court Throws Out Think Tank's Attack on Union Political Activity

The Freedom Foundation failed to meet a deadline in several campaign finance lawsuits it brought against unions, the Washington State Supreme Court ruled in a recent 5-4 decision.

The conservative nonprofit think tank alleged to the attorney general and prosecutors that the unions had violated Washington's Fair Campaign Practices Act by not reporting money spent on political activity.

After the government didn't take enforcement action, the Freedom Foundation filed so-called "citizen actions," in Superior Court, but not within a deadline required by state law at the time, a majority of the state's high court ruled.

"... the FCPA allows private citizens to alert the government of potential violations and, in limited circumstances, to bring enforcement actions — known as 'citizen's actions' — against suspected violators in court," Justice Debra L. Stephens wrote for the majority in the Thursday opinion. "These consolidated appeals have one central question in common: whether the Freedom Foundation satisfied the FCPA's prerequisites before filing these citizen's actions. In each case, the superior courts ruled the Foundation failed to meet a 10-day deadline required by the FCPA and, accordingly, entered judgment for respondents. We agree and affirm."

The court was dealing with an old version of the law. The citizen actions were filed in 2017 and 2018, before changes the Legislature made to the Fair Campaign Practices Act. Those changes require the Public Disclosure Commission to have a chance to review the complaint before a member of the public can bring a lawsuit, among other things.

The high court's opinion explains the foundation "developed a 'Union Transparency and Reform Plan,' which seeks to 'enforce campaign finance laws against unions through investigations, complaints, and lawsuits.'" It filed citizen actions against Teamsters Local 117 and the Service Employees International Union Political Education and Action Fund. It also filed a citizen action against Gov. Jay Inslee and the Department of Social and Health Services, and Service Employees International Union 775.

Teamsters 117 secretary-treasurer John Scearcy said in a statement Monday: "We agree with the Court's ruling in the case. But ultimately the issue is not whether the Freedom Foundation adhered to statutory timelines. They clearly did not. Instead, the case represents another failed attempt by an anti-union organization to strip away the rights of workers and deprive working families of a voice."

The Freedom Foundation argued in a press release that it filed two citizen actions "against labor unions in Washington state and one against a national union for failure to disclose millions of dollars in political spending, and one against the state of Washington for illegally assisting in union political fundraising." The news release said "the justices threw out the Freedom Foundation's remaining citizen action cases on a technicality based on an unprecedented and indefensible interpretation of the decades-old process, effectively letting the state and unions off the hook for their violations."

The Freedom Foundation sent two notices of the alleged violations in each case to the Attorney General and prosecutors. There's an enforcement period after each notice during which the government can start an enforcement action. The high court found that the law required the Freedom Foundation to file its citizen's action within 10 days of the second enforcement period if the government hadn't acted.

In the Teamsters Local 117 case it took 74 days, in the SEIU PEAF case it took 16 days, and in the Inslee case it took more than a year and a half.

"We interpret the FCPA's former citizen's action provisions to require a person to file their citizen's action within 10 days after the government's second enforcement period has passed without the government taking action on the person's allegations," Stephens wrote in the opinion signed by Justices Charles W. Johnson, Susan Owens, Mary I. Yu and Raquel Montoya-Lewis. "This interpretation gives meaning and purpose to every part of the law. The Foundation's proposed alternatives render some text superfluous, strain the natural meaning of words and phrases, and undermine legislative intent as expressed in the plain words of the statute."

Justices Steven C. González, Barbara A. Madsen, Sheryl Gordon McCloud and G. Helen Whitener dissented.

"I can barely figure out what that notice provision means," Gordon McCloud wrote. "It is almost impossible to tell the subject to which its 'ten days' applies or the day those 10 days start to run. It's not fair to force plaintiffs to comply with that kind of indecipherable notice provision on pain of losing their right to come to court at all."

Gordon McCloud's dissent continued in part: "I would interpret the notice provision in a different, more commonsense manner: one providing a deadline for the proposed plaintiff to send a second notice, which gives the government a second chance to act on the private citizen's complaint and thereby preempt the citizen's proposed action, and which preserves the two-year statute of limitations as the only deadline for the filing of a private citizen's action."

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