Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

In Davenport v. Washington Ed. Assn., the U.S. Supreme Court held that “opt-in” schemes to permit unions to use fees paid by non-unions members for political purposes are constitutional.  The case involved fees paid by non-union members to the Washington Education Association, a union representing education workers in the State of Washington.  Through payroll deduction, it collects fees from nonmembers. , and used approximately $10 of those fees per contributor for political activity.  The Washington Supreme Court  determined the statute violated the first amendment, as it interfered with the union’s right of expressive association.

The U.S. Supreme Court reversed, finding that because the state had the power to determine the union’s ability to collect fees from nonmembers in the first place—in essence, a power to tax government employees—that right necessarily included the ability to place limitations upon the use of such fees.  Unions have no constitutional right to fees from nonunion members. The statute’s does not restrict “how the union can spend ‘its’ money”; it places a condition on “the union’s extraordinary state entitlement to acquire and spend other people’s money.”

The decision does address not the constitutionality of opt-in requirements for private-sector unions that  “collect agency fees through contractually required action taken by private employers rather than by government agencies” and therefore present “a somewhat different constitutional question.”

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In Paramount Land Co. v. California Pistachio Commission, the Ninth Circuit vacated an injunction issued to prevent the collection of subsidies from pistachio growers.  The Court held that the growers had failed to make a sufficient showing of a likelihood of success in its claim that the subsidy was unconstitutional.  The subsidy is collected from pistachio producers and importers, and used to pay for the budget of the Pistachio commission, including its advertising campaign dedicated to increasing sales of California pistachios. The Court held that the pistachio advertising is the government’s own speech, and therefore, exempt from first amendment requirements.  

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FBI agent’s infiltration of NAMBLA not unconstitutional

In U.S. v. Mayer, the Ninth Circuit rejected the claim an FBI agent’s undercover membership in the North American Many Boy/Love Association (NAMBLA) violated Mayer’s constitutional rights.   The agent maintained the membership for a number of years, gradually gaining the trust of other members, learning their names and predilections.  This knowledge enabled the agent to suggest to defendant a trip to Mexico where Mayer would be able to have a “special friend” provided to him.  The agent sent a link to a website with such offerings, without revealing, of course, that the website was a fake created by the FBI.  Mayer booked a trip, and traveled to San Diego, where he and others were arrested and charged with travel with intent to engage in illicit sexual conduct.   The Court rejected Mayer’s proposed agent provocateur doctrine, under which an agent could not infiltrate a first-amendment protected organization and provoke illegal conduct, noting that any constitutional violations that might arise already had adequate remedies. 

The captivating aspect of this opinion is the description of the agent’s progress in the organization, such as participating in a Christmas card program that sent holiday greetings to imprisoned pedophiles, and, ironically, serving on the privacy committee, for which he even wrote a policy statement. The agent also volunteered to host the 2005 NAMBLA conference.  Mayer’s arrest ended that volunteer position, and, sadly, the conference had to be canceled.    Mayer offered this example in support of his claims that the infiltration violated constitutional rights since it interfered with the organization’s activities.  The Court was slightly more impressed with this argument than with others made by Mayer, but only slightly.

As a fiction writer, I sometimes feel disheartened when I read cases like this.  I have a damn good imagination, but I could never have thought this up.  And if I had written a story like this, it would undoubtedly be rejected as implausible.

NAMBLA “U.S. v. Mayer”  “agent provocateur” “1^st amendment” “4th amendment” “5^th amendment”

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In Flint v. Dennison, the Ninth Circuit upheld the limits on campaign spending imposed by the University of Montana for its student government elections.   Flint spent more than double the school’s $100 campaign spending limit to win his student senator seat. In a previous year, he and a co-candidate running for executive positions also exceeded campaign limits, for which both candidates received a censure.  The second time he exceeded the limits, the school refused to allow Flint to take office.  Flint sued, claiming the campaign limitations violated the 1^st amendment.  

The Court upheld the decision, finding the student government elections was a limited public forum, and the limitations were content neutral and reasonable. The Court rejected the school’s argument that. Because the purpose of the student government was to offered educational opportunities in leadership to students, the election was not public forum at all.

Although Flint had graduated by the time the Court considered the appeal, the issue was not moot as Flint’s prayer for relief in his complaint had included expungement of the adverse decision from his student record. Additionally, because such expungement would be prospective, rather than retroactive injunctive relief, the school officials sued in their official capacity were not entitled to immunity under the Eleventh Amendment.

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