good morning and welcome to the one hundred and thirty eight also judge kristen and i want to welcome our colleague judge harpole from the western district of missouri sitting by designation so we welcome him the st case on the calendar today if how is the state a party to the agreement when in fact there's a washington statute that you know prohibits state interference with the formation of collective bargaining agreement how is the state an actor or i party simply enforcing the agreement which is i think really acts as a pass through here so how do you distinguish the death field you're either with respect to for twenty four it just makes plain that they hadn't decided the state action question that they had preserved it but certainly expressed hesitation but if you're not familiar with i'm not i wasn't a trick question i just wonder if you want to comment on it  circuit i'm familiar with i'm from there with a seven circuits case i was just wondering if you wanted to comment on the on the supreme court's footnote but it's fine i don't interrupt your argument that's fine well be a valid waiver good morning matthew murray from the washington federation of state employees take ten minutes counsel for the state will take five one hundred washington law union membership is voluntary the state only deduct union membership dues from an employee if the individual employee affirmatively authorizes those dues the st amendment per prohibits government compulsion but there is no government compulsion here the state simply implements the employee's own voluntary private choices what about the argument that the union employees could not have waived their rights preach janice because they didn't realize the full extent of rights that they had plenty of argument would require that millions of union membership agreements signed before janice were all invalid the supreme court made clear in janice that it was not requiring that kind of revolution in state labor relations law and footnote twenty seven dollars the court said except for agency fees states can keep their labor relations exactly as they are all contracts are signed based on the currently existing law and it's well established that a change at a later change in the law affecting an rejected the argument in a civil context that a party could ring egg on its contractual agreement on its agreement based on a subsequent supreme court case that changed the alternatives relative to that  party and i think that it's important to recognize that the plaintiff's argument here is that when the supreme court and janice said by agreeing to pay nonmembers are waving their st amendment rights and such a waiver cannot be presumed the are used focusing on that word waiver and saying that by using that word the supreme court intended to import into this context the special heightened waiver standards that apply to protections in the fair criminal trial context the knowing intelligent voluntary waiver standard the court the supreme court in the schneck law vs bustamante case rejected that kind of reasoning the court there said that waiver is a vague word that has many different meanings in the law good or bad and the stick the context matters so inch neckcloth the court held that an individual could waive validly waive their th amendment right against unreasonable searches and seizures by voluntarily consenting that the knowing and intelligent waiver standard does not apply in that context and important an individual can agree to a search without being warned in advance that they have a right to say no without knowing that they have a right to say no in janice itself the supreme court did not say that the knowing intelligent waiver standard applies the court in jannah said in the context of fees for nonmembers which is not the factual situation we're addressing here the employer must affirmatively consent the court cited some waiver by silence cases in which the courts had rejected the argument that individual had waived a constitutional right by doing nothing by remaining silent and the court said that in this context the state cannot imposed as a condition of employment a requirement an employee pay a nonmember employee pay a fee to a union and the state also cannot presume by that employee's silence that they wish to support a union and require them to opt out of such a payment what about that period after they decide they want to give up the ship and then they're kind of held hostage till the end of that when your period are they not in a compelled situation they're the source of the obligation to pay plaintiff's own private voluntary agreements with the union's agreements to pay money to a private organization or entity for a set period of time in exchange for consideration aren't forced all the i just appreciate hearing your position on state action whether we should reach it but you don't have to reach the state action issue in this case the right to say that but what's your position please there's no state the terms of plaintiff's volunteer agreements with their unions are not state action the how do we distinguish what that the seven circuits decision on remained in tennis in janice in the supreme court in the th circuit and the fair share fee cases in general of the state action was the state requirement the state pay the fees was the employee's own voluntary voluntary affirmative agreement with the unions this court's in force voluntary agreements all the time that touch upon st amendment rights but isn't in some ways isn't sta being implemented in force by the state so if you take take that construct you have to figure out if this is what the state is doing so is state action because it it kind of begs the question to say well it's private he said yeah it's a private agreement but you have the state action there there are two ways you could do angles you could look at this case from you could say is what the state doing violate the st amendment the answer is no the state is simply honoring the private choices of their it's employees the supreme court and colon versus cows media said the st amendment doesn't give violated when the state in that case and forcing promissory estoppel law when the state and force is probably private agreements that doesn't violate the st amendment that is enough to affirm the district court below the other way to look at the other angle which would be similar to the way the court in the roberts case the duffield case looked at it and the context of an arbitration agreement is that what is the source of the obligation here the obligation at issue was the plaintiff's obligation to pay the money and the source of that obligation was their own private agreement the state in they they are green the state did not tell them you have to pay money you have to pay union dues you have to join the union the state said we'll do whatever you want and the plaintiffs said i want to join the union i want to pay dues for a one year period and the state said ok that doesn't amendment under this court cases and roberts oh no would be a way to analyze the state action principle the supreme court's argument case cohen would be a way to look at it from the lens of what is the state doing and does that violate the st amendment it does not adopting the plaintiff's position would require a revolution in both state action and basic contract principles courts would have to reconsider the enforcement of arbitration agreements non disclosure agreements well if evil legally he's correct are we supposed to make our decision because it might turn into a contract revolution i mean is that really we supposed to infuse public policy into our decision are we supposed to look at what the law says you look at what the law says and the example i gave are just examples of why what he's saying is not legally correct i think it's a another important point to consider in the situation is that the st amendment rights at issue the right to not support a union the flipside of that is a st amendment  support a union in the plaintiff's year exercise to that right they chose to join a union and support that union and to impose a special heightened standard on those type of agreements between private parties in the context of a union or that doesn't apply in the context of any agreement to join any other voluntary association so are you arguing that it had they had different plaintiffs or had had they had plaintiffs that were situated as in janice who would not opt in that there would be state action here under washington's had they had plaintiffs that we had not opted in and were required to pay fair share fees before janice by the state that would have been state action had they had plaintiffs who fees immediately after janice i see my time is up and i don't so you didn't answer the question and the question is then please if they'd had different plaintiffs if they had plaintiffs similarly situated to those in janice who had not opted into the union is your answer that under washington scheme as it existed at that time there would have been state action yes thank you  it please the court at least the young deputy solicitor general and i'm here on behalf of the state police the state complies with the st amendment by making union dues deductions only after its employees voluntarily and affirmatively authorized them plaintiff's real challenge here is to the validity of their private agreements with the union which is not state action in which the city is not a party to the state's policy to follow the dues deduction instructions contained in those agreements is exactly what the st amendment requires and summary judgment should be affirmed as counsel alluded to the dual nature of the st amendment rights is very important in cases like this because the state has to balance both the right to associate with the union and the right to decline to associate and state laws have struck a very careful balance to protect both sides of that right here state law precludes the state from interfering with the relationship between unions and their members and involving himself in the in the development of union membership agreements but the law also requires the state to comply with the employee's expressed wishes and directions to make the union dues deductions and that's what happens here here the plaintiffs expressly voluntarily and affirmatively authorized the union dues deductions and so there is no st amendment problem as as my co counsel alluded to the st amendment only precludes state compulsion it does not preclude the state from making deductions that its employees authorize and the kind of arguments that are being made here by the plaintiffs would call into question the state's ability to make charitable deductions that are authorized by its employees under the plaintiff's theory the state would be required to investigate whether the charity engages in expressive activity and then explicitly inform the employees that the charity doesn't gauge inexpressive activity perhaps how much in what way and then according to the plaintiffs would have to essentially get the kind of no involuntary and intelligent waiver that a criminal defendant has to give before they would give up their right to a fair trial what about that that kind of no man's land after you revoke but you can't really get out that is a limited time period and it's essentially when the employee joins the union and avail themselves of union membership benefits they've agreed to essentially in a one year commitment or a financial commitment it's no different than if the employee had paid the annual membership dues on day one of signing up for the member for the union or had agreed to do it over a twelve month installment which is essentially what happened here but but the difference of course is if you don't want to pay the money you want to be able to get out what if the contract were deemed not to be enforceable as a private contract because of waiver or because of not entering the contract what would that do to this orphan period if the contract were not a valid contract and there would not be valid consents correct and if there is not valid consent the state cannot make the deduction all right so that would if if you don't get passed if you get past the st hurdle that state is home free if you can't get past it then the state then would have a st amendment problem most likely i would i really have to think about the to you just have a just about a minute left ok mind if i interrupt which is not it i question please your please position please on state action whether we should reach it i think i realized this was unpublished but i believe in that case parties asked us to not reach a state action and memory serves because this case was percolating up what's your position on whether we should reach that question please it is a threshold question and so the court obviously does not mean to but we think the court should decide this case based on the fact that the source of the constitution or the source of the harm that plaintiffs are complaining about is not state action so you do have us affirm the district court's ruling and the rationale to use a shorthand ok yes so that that would then leave the individual plaintiffs with or a claim against the union correct if they thought that they should have paid it all well  in this case the only claim left would be an unjust enrichment claim against the union crowd i think as a court as well understands janos the state action  i think as we've already said the state action was a law that required the payment as a condition of employment that's not what we have here and so i report to affirm thank you thank you me let me ask you a question i guess i'm confused are you saying that any time the state honors an employee's request to take a deduction from his paycheck that that is sta action or that was a mistake then has an obligation to look into the source of where the money's going to go and whether or not they're engaged in certain activities is it the mean there's a lot of disputes and health plans over abortion and other services and routinely employees have their health plan deducted by the state does that mean the state by agreeing to of verses in this lee is submitted the next case for argument is chauncy williams versus the united states thank you