is a gentleman who is a health care ip health care provider who provides care for his disabled sister in their home he is receives a modest income from being paid for medicare medicaid benefits he while he no longer has to pay union dues he still is required to be a member of the bargaining unit he would like to speak to the other members of the bargaining unit as would our other individual dependen the bargaining unit of the two unions counsel i i respect the fact that you want to get the information about who these folks are but what is it in one thousand five hundred and one that says if you can't communicate each of the things you'd like to communicate with there's nothing in there is as you may not speak to health care providers about this subject that you know there is nothing like that in their insurance so you can't associate with them it doesn't say that put a burden on the right to speak one on one which and i went back to what i hear our supreme court has said that we must look at the effect of a regulation in the real and appreciable way it has in this reality situation this is a unique situation because these people are scattered clear across the state they don't even know what we do know there are and are not able to contact them or know who they are absent getting the information from the government there is no other way to get that information out cases i'm thinking specifically of los angeles police department versus united reporting and hooch and versus k q e d that disavow any government obligation under the st amendment to disclose government information record actually you're out of this court h not say that there is no right is there is not a general right but there is a limited right under certain circumstances we believe these are the certain circumstances and why is this so because of the unique circumstances of these people they are required by the government to be associated with forty five thousand strangers that are scattered across the state they would like to be able to talk to those forty five thousand strangers about this compelled association by the state in the bargaining unit i didn't take your argument to be that the foundation or anybody else has just an inherent st amendment right to get this information which would mean a lot of resistance from the cases that judge has just reference i take your argument to be that what this statute does is essentially get that information that is part of it but the information is respect if you had if you had another union that you actually do that if you know another union or anybody else they're not allowed to get that i mean  it's not just limited to you nobody can get that information except the collective bargaining unit right you are i think if you look at the context of when this came up prior to one thousand five hundred and one the only people that were seeking this information were my clients right and it's undisputed that the union sponsored and finance this initiative for the purpose of stopping my clients from being a seventy percent of the people of the state of washington who voted decided that it was a good thing that doesn't just because the majority of people like it doesn't mean it's constitutionally honored i get that but i'm just saying that there's no cyan true there's no nothing of that nature they weren't trying to discriminate against your st amendment rights were they the union certainly wasn't sponsoring and financing but the people who voted for fifteen no one are you ascribe in that to them w your own are certainly and even the campaign in the state admitted this there were plenty of newspaper articles for the voters there was also the voter's guide which talked about statement by michael that talked about what the real reason was behind sponsoring  and one so the court could find that that was part of the motivation behind the voters in passing and it's true the campaign did not say oh we're doing this to stop freedom foundation from city to say that is in fact all that happened how does that have a constitutional dimension in this case now i would i would like to go back to the mire versus grant case which is the colorado case in which the state took away the right from the speakers to be able to pay the burden because it reduced the number of voices that could speak one on one with the intended audience we just had a case involving the state of arizona where we found illegal the ability of  there can be limits on what people can get the state to do have the state permit i just struggle with your your issue here because i don't see where there's discrimination against your message the day the internet you know it can you put up a site that says you know everybody is working in the health care field like this side as well as tell you about this or take some t v ads out or something like that now i think you have to look at the decades of cases out of our supreme court that protected emphasized the importance of one on one communication of a just a minute what is the case that i look at that invalidates a statutory i'm trying to make this decision in a rational basis but i have a tough time for the statutory public records exemption as no discrimination on the face there of was done exactly for the reason it was done is right in the statute if that's required to do what it had to do and now i'm going to invalidate that because of free speech yes you know because i think you have to look at it what the correct that that was in the end decided on statutory grounds but i think the fact that this bench went through the whole explanation of the constitutional issues even though it was deciding on status seven statutory grounds it could have said simply we can decide this on statutory grounds and we're not even going to discuss the constitutionalist fact that there's a lot of good language in there that doesn't have anything to do with the real decision i should seize on to that and say that's exactly what we got to say i think that's in one place or another there was no facial burden upon the speakers in that case they could still have volunteers to go out and talk but what the court family was that by requiring them to by preparing them partly from taking away from them the right to pay this petition gatherers they reduced the number of voices they could talk one on one and you know i'll just quote from that case that the colorado regulation restricted access restricted access to the most effective fundamental and perhaps economical avenue of political discourse direct one on one communication and that when that didn't meet the well nigh insurmountable scrutiny and that's why they found it was a burden on st amendment speech the court told us in janice everything public sector unions do is political and involves more public issues but it doesn't really say that collective bargaining is inherently political yes actually they do it i don't think they do speech i believe place in janice i believe when you look at genesis in the in the court talks about the fact that every time a union says to its public sector employer you need to pay us more money that impacts budgets that impacts spending on other should get the information that see it then what it but it did is target my of my clients the appellant's for the purposes of keeping them from speaking to the members of this collective bargaining unit if in fact that's the case why wouldn't i  political brian says that this is the great burden it's ok if it furthers an important or substantial government government interest if the government interest is unrelated to the suppression of free expression and if the incidental restriction on which is is all that my client ever asked for with the names of the i p s not all the other identifying information they sought the names of the eyepiece giving the names to the people or giving them is essential to the further ads of the statute that's exactly what the statutes in washington these are the only ones who can negotiate for these workers they're the only ones statutorily allowed to negotiate with the government about them and then they allow them to get the information that's all where is i i read the essential thing being that the central part of one thousand five hundred and one which was i read into the essential for the further and so the governmental interest in having this statute which is fifty no one and the soften dentally theft let's say that it does that is part of what it said but it does it play any role in that or was it entirely theirs i enter behind the whole thing there was no benefit to the public in terms of helping to stop a doubt that there is no evidence whatsoever that there is any any benefit to stopping and on it any theft by prohibiting the release of the names of the eyepiece or owner you have the fact that at the time that fifty no one was being campaigned on you had people who were fighting identity theft among seniors and so forth who refused to endorse it because it had nothing ineffective seniors and then said and we're going to do this by not letting the know who their ips are i don't think that is essential further to the instances of protecting adenike that the people the time who are experts that it was not we have not there is not a single evidence of any public records request leading to identity theft and when you particular you then throw in that you we have a voter registration list which has people's names addresses dates of birth sex and anybody can go get that information by saying i won't misuse it the state finds no problem with that as a protection for i can't identify theft they also say they also allow the our union can get this information by promising it will maintain the confidentiality of it that is enough to protect against identity theft it was not necessary to keep the appellant's from getting the names the ip is to protect against identity theft which was the function of one thousand five hundred and one is it what was it a rational basis did it satisfy rational basis if if the state in drafting this or the union whoever did it it satisfies a rational basis is that sufficient if you get it on its face doesn't discriminate against viewpoint doesn't prohibit you from communicating a particular way it is difficult to overturn a rational basis your honor i understand but i don't think this even meets rational basis that you don't think any rational i thought you said that the union did it to protect itself the union did it to protect freedom foundation from talking to with the ips about the union but was that not rational from their perspective but that's not the base that's what i used it that's not what the but i guess my point is simply the when a legislature or in this case the people at the legislature passed a law it's almost i could emic that somebody some special interest group somebody is behind the law it doesn't people and appellants do not that is more than rational basis review that's got to be the higher the high rises when your case would you cite again as we've all discussed on the face of it none of the normal things that would bring about strict scrutiny are here you know restriction in the content of speech this is a really ten general issue why is just not rational basis and its rational basis what's the problem your honor i would go back to meyer again if saying that you can't pay petition gatherers is so much of a burden that it is well nice strict scrutiny insurmountable scrutiny to say to take away from my clients the ability to identify the audience and speak on them one on one then  people of washington violate the constitution when they exempt an additional category of government information from public disclosure and the answer is no and your honour's have touched on the key issue here already the supreme court has set forth a rule that distinguishes between a law or policy that impacts access to government information and the use of that government information to carry out or exercise constitutional rights in the mcburney case justice alito speaking for unanimous supreme court stated the rule while he said this court has repeatedly been clear that there is no constitutional right to obtain all the information provided by force and let me i think that's pretty well established and so i agree with you but the problem here is that the statute on its face says that the union is allowed to get this information all of it and nobody else is allowed to get any of it and so the issue that this raises is not just access to information but whether the government is discriminating in making that information available so i take it you agree at least that that states a st amendment claim that theory is a cognizable st amendment theory it's a theory and that you must examine and see why is it that eleven entity may be able to receive information and another entity may not and here claim again is as your honor pointed out the claim of the is that this is viewpoint discrimination it's allowing one entity that has a certain viewpoint in their view than coming union to be able to access information and denies that the freedom foundation who wants to use it for their own political purposes and st there is pro union and in fact was part of the campaign to vote yes on fifty no one if they mean the exact same request for public information that the freedom foundation did the answer would be the same no you're right at doesn't really get at the problem with this law right the problem with the law is that it allows the unions viewpoint to be presented by allowing them vastly superior access to the identities of the home providers and so it doesn't really matter that fuse or anybody else is not allowed the point is it's subsidy to the unions to be able to pick promote their speech that's that's how it works in operation and fact well i think that that's not the case here and i'd point the court to the perry case where the supreme court looked at differential access to workers in a collective bargaining unit between an incumbent union and then a rival in which is essentially the situation we have here and the supreme court said that was not a constitutional issue because the distinction was based on the status of the right but as you point out in your brief that's really a public forum case so you know  the state were to host a conference for home providers and they invited the union to come in but they didn't invite the freedom foundation to come in i think there's a whole different set of considerations at play here but that's not this case is about access to govern information so i don't think perry really answers that question well i think the rationale of kerry when it looks and you are is correct that there is a public forum case for the rationale on why the distinction is made and there was a viewpoint discrimination claim in that case is because of the unique status of an incoming union an incumbent union has statutory duties under the law to represent all of the workers in the collective bargaining regardless of whether or not those workers are members regardless of whether or not  they pay dues they have an obligation there's a question of how could they adequately represent those workers if they can't communicate with them that says here is simply the information so that they can know who is within their bargaining unit and communicate with them and that may be but but the problem is of course that excludes other people from getting access to it as well and so it may be a good argument that the union needs this information to p able to communicate with his members and that could be given a fact subsidy of speech at the same time the supreme court noted that incumbent yinz are granted and a half of special privileges are the terms is the term the supreme court uses and and those special privileges  accessing information about the workers in the unit and cites to the illinois law if you look to that provision janice illinois law if you look at it it's a very broad category of information that is available to them  their contact information but i know i i did look at the law and that the difference though is that although that law gives the union an ability to access this information perhaps even an ability to access it more easily it doesn't deny that information to everybody else and so that are you aware of any law like this state of washington law that allows the incumbent union to have access to the identities of the employees but  doesn't allow anybody to have any other access because the on oil law is much different than this washington law well in terms of access to information i think that this public records act that issue is the law that governs that for access to union information was the names the contact information people have been recently arrest not easily to no information they had been using that information in order to conduct connect those recent arrestees with lawyers of counselors or was it was a business for them referral business type california amended its public records law so that that recent arrest information was not available you know we know the case i mean so what but what do you take from that case because i think in so far is that the petitioners  are making a facial challenge and then that case presents some issues for them but i don't read them to be making that challenge or making it as a blind challenge and so this sort of gets into the question left open by l a p d by by united reporting so i'm not sure what the case does for you other than that well i think the case has two things that are interesting one is that it does differentiate between commercial speakers a constantly protected form of speech and allowing the information generally to be made public there is five broad exceptions in the laws or owners know even under that analysis as applied he agreed with the majority that it was still an access to government information case and therefore did not even go into a central hudson balancing analysis to determine whether or not  mean ask you this what are we supposed to do with the evidence in the record that the foundation came forward with these internal e mails emails sent to the governor's office and other and other documents that even the disregard of knowledge pretty clearly on their face indicate that it is an intention of people who are pushing this initiative was to silence the foundation's advocacy well what are we supposed to do with that evidence well i think the answer to that is that even assuming all that's true and even assuming that that was the intent of the unions behind proposing the law it does not actually make substantive difference in the outcome of this case and that's because there is not even an allegation in the complaint that the people of washington the nappers of the law acted within the animists courts when they're looking at a missed st look to the text of the law itself nothing in fifty no one demonstrates anim within the text and when they look beyond the text they look to the intent of then after it's knowledge that it would be very difficult to scribe some sort of group wide animist to an entire population of voters but when you're looking at a law that on its face gives one speaker access to information and nobody else and when we know from janice that the speaker who has the information is not in a political entity when you have that couple with all this evidence that the real motivation was to put limits on what the foundation and other people were doing are you suggesting we just turn a blind eye to all that well i'm suggesting that going back and looking at any particular laws proposed would create significant issues for the courts administer i mean as your honour's know most laws at the state level at the federal level they're proposed by some interest it could be a lobbyist it could be  industry group they draft laws they propose them what those lobbyist what those funders what those special interests have in mind when they're trying to get that one act of whether it's a benefit to them or perhaps something that would hurt their competitors that is never a don't go to the st amendment analysis if you're looking at whether it's just denial of government information i take it i mean if the government here if the law had just allowed only one political party access to this information and disallowed everybody else i think you'd agree that that law is not going to pass constitutional muster is that fair that's absolutely for sure ok i mean if the statute here had given this is say the freedom foundation if it said only the freedom foundation can gain access to these provider identities but nobody else can would you think that would be ok i think you have to look and say why is it that the distinction is made again justice stevens in the l a p d dissent says that a l generally prohibits access to government from ation but allows for reasonable limited unjustified exceptions poses no constitutional issue and that and that was in his dissent the majority had already agreed there was no constitutional issue so you'd have to look and say why is the freedom foundation being granted access to the records no one else here and come in unions have a statutory duty is to feel they have a unique place that janice court recognized that did not see that special privileges as a as in the should be affirmed on that basis alone but even if a free speech and analysis were to be applied freedom foundation has failed to show a violation as has been discussed already some the initiative does not discriminate based on viewpoint furthers a substantial government interest and otherwise does not violate equal protection or freedom of association on the question of viewpoint discrimination this  initiative does not just give the information to the unions and to nobody else in fact there are other exceptions that basically if you look at those exceptions even see the intent to not have this information widely available to the public in order to serve its purpose of protecting vulnerable individuals and their caregivers but recognizing that there were some circumstances really for the government to function in which the information had to be disclosed if a contract required it if federal law required it to give it to residential care facilities to give it to yes the unions and in that same exemption it states it gives it to the unions or as necessary to provide fringe benefits to employees so the the initiative sets forth the various exemptions that all relate not to any particular viewpoint or political position that those entities might entertain but instead to the roles that they play in it ministering the system and that's exactly what the perry court did address that my colleague discussed at some point there the united states supreme court looked at the question of whether or not giving access it was a public forum case your honor that was correct but whether giving preferential access to the incumbent union and denying it to a rival union was viewpoint discrimination and although there are aspects of that opinion that are not a political here because it is a public forum case that aspect of its opinion was distinct they st addressed well let's st determine whether there is viewpoint discrimination here because that's going to impact the level of scrutiny that we're going to apply and the court held that in fact they view that not as discriminating on the basis of viewpoint but rather on the basis of the status of the you know i mean you're right the there's passages in that opinion that say there's no evidence of viewpoint discrimination associated with the policy but do you agree that's the case here there's no evidence of viewpoint discrimination given all these documents that we have in the record that do on their face say people should pass this law to limit what the freedom foundation can say i would say your honor that there's no evidence of viewpoint discrimination on behalf of the people who acted the legislation and in fact there's not even an allegation in the complaint that the people acted out of an  to prevent the freedom foundation from content i mean these individuals that's going to be true and probably every case involving a ballot initiative because it would be a very hard thing to say that an entire populace was motivated by animus but at the same time the fact that you have an amendment to the st amendment which is designed to protect minority rights it is obviously implicated in the situation in which the majority has decided that there's going to be some restrictions like the kind we have  here i agree your honor there may be some additional obstacles to determining legislative intent when we're talking about an initiative as opposed to something passed by the legislature but nevertheless in the very rare instances in which the supreme situations in not just in which a sponsor or an individual legislator or the proponents or the financial backers may have had an ulterior motive what we could see was the evidence that the public records requests were creating identity thefts was there any i'm not aware of any records that would suggest in other words a reported case of somebody using a public records request to obtain information but that kind of information would be extremely difficult to hold and indeed the public records was also exempt information such as social security number and other information such as that i'm not aware of any instance in which a public records request was used to obtain a social security number in order to then commit identity theft or other financial fraud nevertheless it is entirely rational to say that we don't want to disclose that information because it could lead to identity theft or other i think your honor if we were talking about a different statute such is the hypothetical provided that if information was provided to the libertarian party and no other party that was viewpoint discrimination it would be a strict scrutiny analysis that we find viewpoint discrimination here what scrutiny should we apply i think it would also be strict scrutiny your honor if it's a viewpoint discrimination then the old ignore case is a pretty good so the government is resting on the fact that this is not viewpoint discrimination and if it is then it will be strict scrutiny period yes your honor we are relying on on the u s supreme court that states that it's not the only thing that i'm trying to figure out is i looked at the o'brien case where it says it's a furthers an important or substantial government interest if the government interest is unrelated to the suppression of free expression and if the incidental restriction on the  is no greater than is essential to the further into that interest then you would apply a different test and we agree that the o'brien test is one that should be applied here in the event that the court determined there was any  infringement incidental infringement of free speech at all which we don't think is the case but the o'brien case is somewhat instructive because that case of course was about the the law passed prohibiting the drafting excuse me burning draft cards which at the time was clearly political speech and even though the statute clearly did have that incidental infringement on that political speech which we would contend is certainly more like viewpoint discrimination then this past year the council despite our are you aware of any other statute like washington's i've seen ones that give the incumbent union some preferred access some specialized access but how about one like this that gives the incumbent unions all the information about the identities of the employees but doesn't allow anybody else to have an i'm not aware of a specific statute your honor i would be very surprised if the other states did not provide this information to the unions because i think it is certainly required by labor law perhaps required constitutionally to provide this information to an incumbent union and so if there were more general confidentiality laws in those states that did not allow that kind of information to be disclosed i think nevertheless they would be requiring that to the unions ok so i guess i guess the unions but you're not you're not aware of a law like the one address probably for the comments on the perry case in viewpoint discrimination i think was really critical to the analysis of the core on the viewpoint discrimination issue that while they said denying access to the official mail boxes for frankly either union to use for union advocacy reasons as opposed to communicating the official work of the union the school district allowed their rival union to be in court in classrooms to use the public speaker system to get  site to hand out their messages the political messages even in perry though the rock the incumbent union could not use those mailboxes to advocate its position for continued  continue to continue to be the representative and i think that also plays into what we have here with the state is telling these people you're going to have to be in this part of the union we're going to give you this thirty day process where you can identify three percent of the people to change your representative or to disserve are the representative but we're not going to tell you who those people are you have in effect isn't a loser rewrite to be able to change your representative at that point because you need to be able to communicate with those to like twenty seconds are there any questions that i can answer for the court thank you so much i appreciate your time thank you we thank all of counsel for their argument this is obviously an interesting case and a challenging case ok just argued is submitted and the court stands in recess for the day