Grossman v. Haw. Gov't Emps. Ass'n/AFSCME Local 152

611 F.Supp.3d 1033

Patricia GROSSMAN, Plaintiff,

v.HAWAII GOVERNMENT EMPLOYEES ASSOCIATION/AFSCME LOCAL 152, et al., Defendants.

Case No. 18-cv-00493-DKW-RT

United States District Court, D. Hawai‘i.

Signed January 31, 2020

Brian K. Kelsey, Pro Hac Vice, Jeffrey M. Schwab, Pro Hac Vice, Reilly Stephens, Pro Hac Vice, Liberty Justice Center, Chicago, IL, Robert H. Thomas, Damon Key Leong Kupchak Hastert, Honolulu, HI, for Plaintiff.

Jonathan E. Spiker, Koshiba Price Gruebner & Mau, Derek T. Mayeshiro, Elisabeth A.K. Contrades, Joseph F. Kotowski, III, Office of General Counsel University of Hawaii, Richard H. Thomason, Office of the Attorney General, Honolulu, HI, Matthew J. Murray, Pro Hac Vice, Scott Alan Kronland, Altshuler Berzon LLP, San Francisco, CA, for Defendants.

ORDER (1) DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT; (2) GRANTING DEFENDANTS' CROSS-MOTIONS FOR SUMMARY JUDGMENT; AND (3) DISMISSING THIS ACTION

Derrick K. Watson, United States District Judge

The vigorously disputed issues in this case concern unions and the First Amendment. Plaintiff Patricia Grossman is a University of Hawaii (University) employee. Because she recently terminated her membership in Defendant Hawaii Governmental Employees Association (HGEA), she no longer pays any union dues. Grossman, however, moves for partial summary judgment, Dkt. No. 60, seeking reimbursement of "all union dues collected from [her]" since her employment with the University began in 1995 because, she contends, Janus v. American Federation of State, County, & Municipal Employees, Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018) effectively invalidates the union membership agreement she entered into over two decades ago. Grossman further urges this Court to strike down Haw. Rev. Stat. § 89-4(c) (as recently amended) and enjoin its enforcement because the statute violates the First Amendment by restricting union members to an annual 30-day time window in which they may withdraw their membership. Defendants HGEA, the President of the University of Hawaii, and the Hawaii Attorney General have each filed a separate cross-motion for summary judgment, contending Grossman's claims should be dismissed on multiple grounds. Dkt. Nos. 63, 66, 68.

The Court concludes that the good faith defense bars Grossman's claim for pre- Janus damages. And although the record suggests that after Grossman requested to resign her HGEA membership, dues were deducted from her pay for several months, during which she was forced to remain a member pursuant to Haw. Rev. Stat. § 89-4(c), until after she filed this lawsuit, because it is undisputed that Grossman has since received the precise amount that was wrongfully deducted and because she cannot reasonably be subjected to the terms of Section 89-4(c) in the future, Grossman's claims for post- Janus damages and prospective equitable relief are moot. Accordingly, Grossman's motion is DENIED, and Defendants' respective motions are GRANTED.

FACTUAL & PROCEDURAL BACKGROUND

A. Relevant Legal History

In 1977, the United States Supreme Court decided Abood v. Detroit Board of Education , 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). Abood determined that teachers who were not union members may nonetheless be required to pay the union, as a condition of employment, an agency fee proportionate to the percentage of union dues connected to activities "germane to [the union's] duties as collective-bargaining representative" without running afoul of the First Amendment. Id. at 211–12, 235–36, 97 S.Ct. 1782. Nonmembers, however, could not be compelled to fund the union's political or ideological activities. Id. at 235–36, 97 S.Ct. 1782 ; see id. at 225–226. Abood was the law for 41 years.

On June 27, 2018, the Supreme Court overruled Abood in Janus v. American Federation of State, County, & Municipal Employees, Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 2460, 201 L.Ed.2d 924 (2018). In Janus , the Court held that mandatory agency fees "violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern." Id. ; see id. at 2478. This shift in precedent is at the heart of Grossman's claims.

B. Factual Background

1. Grossman's Union Membership

As demonstrated by the parties' joint stipulation of undisputed facts, Dkt. No. 57, the material facts are largely uncontested. Grossman is an employee of the public University. Id. at ¶ 5. Like many other States, Hawaii has granted public employees the right to unionize for the purpose of collective bargaining. Haw. Rev. Stat §§ 89-1(b)(1), 89-3. Employees in a bargaining unit vote for the union that will represent them, and the union that receives a majority of the votes is certified by the Hawaii Labor Relations Board as "the exclusive representative of all employees in the unit." See Haw. Rev. Stat. §§ 89-7, 89-8(a). In this case, Defendant HGEA is the certified collective bargaining representative for Unit 8, covering the administrative, professional, and technical employees of the University. Dkt. No. 57, ¶ 4.

Before June 27, 2018 (when Janus was decided), employees in Unit 8 had two choices: (1) become an HGEA member by signing a membership card that authorizes the deduction of union dues from their pay; or (2) remain a nonmember and pay agency fees (or "fair-share fees"), which were approximately 75% of full-member dues. See Dkt. No. 57, ¶¶ 7–8, 13; Haw. Rev. Stat. §§ 89-3, 89-4(a) – (b).¹ In other words, employees in Unit 8 were "not required to become members of HGEA" as a condition of employment. Dkt. No. 57, ¶ 8. While HGEA members paid more out-of-pocket than nonmembers, HGEA members have the right to run for union office, vote in union officer elections, and participate in HGEA's internal affairs. Nonmembers do not have these same rights. Id. at ¶ 10.

In 1995, Grossman elected to become a member by signing the HGEA membership application card. Dkt. No. 57, ¶ 11; Dkt. No. 57-1. Grossman's membership application states, "membership will continue ... until [the employee] submit[s] written resignation of membership." Dkt. No. 57-1 at 1. Unit 8 employees are paid through the State of Hawaii Department of Accounting and General Services (DAGS). Dkt. No. 57, ¶ 6. After Grossman became an HGEA member, DAGS deducted union dues from Grossman's pay and remitted those dues to HGEA. Id. at ¶ 12; see also Haw. Rev. Stat. § 89-4(b).

When the Supreme Court decided Janus on June 27, 2018, "DAGS immediately stopped deducting and HGEA stopped receiving fair-share fees from nonmembers." Dkt. No. 57, ¶ 13. The University communicated this information to its employees via email on July 6, 2018, and advised employees to direct any questions they may have to their respective union representative. Dkt. No. 57-2 at 3; cf. Dkt. No. 57, ¶ 14. On July 7, 2018, Grossman sent an email to HGEA, Hawaii Island Division, "to verify that I am a non-member of HGEA UH Unit 8." Dkt. No. 57-2 at 8. On July 9, 2018, a representative for HGEA responded to Grossman: "Our records show that you have been an HGEA member since 1995." Id. at 7.

Grossman also exchanged emails with HGEA's Hawaii Island Division Chief, Lorena Kauhi. See Dkt. No. 64-2, ¶ 1. In an email to Kauhi, dated July 9, 2018, Grossman asked, "What determines ‘membership’ in HGEA Union 8? ... The 5 July 2015 pay stub shows a deduction for [statutory deductions] ... please explain[.]" See id. at 2. In a separate email sent on July 10, 2018, on which Kauhi was copied, Grossman asserted, "my status is non-member," and requested that HGEA "confirm my status" and "have it reported to DAGS within the next ten business days[.]" Id. at 5–6.

HGEA Division Chief Kauhi replied by email to Grossman on July 10, 2018. In relevant part, Kauhi explained:

[A]lthough DAGS sent the notice ... in response to the Janus ruling, recent legislation (HB 1725) was passed this last session and enacted into law (Act 007) designating a "window" where active members can elect to discontinue dues deductions. Since your records show that you did activate your membership in 1995, you'd [sic ] be subject to this window. If, after our discussion, you'd still like to move forward with suspending your dues, your "window" for discontinuing dues would fall next year between 5/23/19–6/23/19 (appears you signed up around 5/23/95).

Dkt. No. 57-2 at 6 (emphasis added); see H.B. 1725, 29th Leg., Reg. Sess. (Hi. 2018), 2018 Hi. Act. 7 (codified at Haw. Rev. Stat. § 89-4 ) [hereinafter "Act 7"]. Act 7 amended Section 89-4(c) by limiting when union members may resign their membership and end dues deductions. Under the current version of Section 89-4(c),² union members may do so only within an annual 30-day window prior to the anniversary date of the employee's union membership.

2. Grossman Resigns Her Union Membership

In July 2018, Grossman wrote to HGEA's Hawaii Island Division office and the University to advise that, "effective immediately[,]" she was resigning her HGEA membership and revoking her consent to withdraw dues from her paycheck. Dkt. No. 57-3 at 2; Dkt. No. 57, ¶ 15. That July 13, 2018 letter was received by HGEA's Hawaii Island Division office on July 14, 2018. Dkt. No. 57, ¶ 15. When DAGS nonetheless continued to deduct dues from Grossman's paycheck, Grossman brought this lawsuit on December 20, 2018 under 42 U.S.C. Section 1983 against HGEA; David Lassner, in his official capacity as the President of the University; and Clare E. Connors, in her official capacity as Attorney General of Hawaii. See Dkt. No. 1, ¶ 30.³ On January 9, 2019—nearly six months after HGEA's Hawaii Island Division office received Grossman's letter—HGEA notified DAGS of Grossman's request to stop dues deductions, and dues deductions from Grossman's pay ended. Dkt. No. 57, ¶ 16.

The parties dispute why Grossman's dues deductions did not cease upon HGEA's receipt of Grossman's July 2018 letter. See, e.g. , Dkt. No. 79 at 3–6. According to HGEA, its...