Kurk v. L. Rios Classified Emps. Ass'n

540 F.Supp.3d 973

Kristine KURK, Plaintiff,

v.LOS RIOS CLASSIFIED EMPLOYEES ASS'N, et al., Defendants.

No. 2:19-cv-00548-KJM-DB

United States District Court, E.D. California.

Signed May 18, 2021

Filed May 19, 2021

Mariah Rose Gondeiro, Karin Moore Sweigart, Shella Sadovnik, Freedom Foundation, Olympia, WA, for Plaintiff.

Gary Marc Messing, Messing Adam & Jasmine LLP, Sacramento, CA, Monique Alonso, Messing Adam & Jasmine LLP, San Francisco, CA, for Defendant Los Rios Classified Employees Association.

Spencer Elgant Covert, Jr., Parker & Covert LLP, Tustin, CA, for Defendants Los Rios Community College District, John Knight.

Maureen C. Onyeagbako, Department of Justice, Office of the Attorney General, Sacramento, CA, for Defendant Xavier Becerra.

ORDER

Kimberly Mueller, CHIEF UNITED STATES DISTRICT JUDGE

Plaintiff Kristine Kurk ("Kurk"),¹ defendant Los Rios Classified Employees Association ("LRCEA") and defendant Xavier Becerra,² in his official capacity as California Attorney General, each have filed a motion for summary judgment. For the following reasons, the court grants defendants’ motions . Plaintiff's motion is denied as moot .³

I. BACKGROUND

Kurk is a "public school employee" with Los Rios Community College District ("defendant school district"). Compl. ¶¶ 2–3, ECF No. 1. On June 24, 1997, Kurk signed a document titled, "Dues Check Off Form." Jt. Stip., Ex. A ("Dues Check Off Form") at 1, ECF No. 38-7. This Dues Check Off Form expressly stated three options, as follows:

(1) Union Membership Deduction: $14.00⁴ $13.00 per month, or currently authorized dues rate; (2) Non-Membership, Agency Service Fee Deduction: $14.00 $13.00 per month, or currently authorized dues rate ...; and (3) Application for Religious Conscientious Objector Status: $14.00 per month, or currently authorized dues rate deduction to authorized non-religious charitable organization – (separate form).

Dues Check Off Form at 1. Kurk selected "Union Membership Deduction," to become a member of LRCEA, signed and dated the Dues Check Off Form. Id . On July 1, 2017, defendant school district⁵ extended its Collective Bargaining Agreement ("CBA") with LRCEA as the exclusive representative for Kurk's bargaining unit, effective July 1, 2017 through June 30, 2020. Compl. ¶¶ 22–23. LRCEA has represented Kurk since June 24, 1997. See LRCEA's Admis. at 6, ECF No. 43-4.

The CBA provides in pertinent part:

The organizational security provisions described in this article of the Agreement constitute an Agency Shop. Within thirty (30) calendar days of the effective date of this Agreement or the employee being employed into a position in the Bargaining Unit, whichever comes first, each employee shall either join LRCEA as a member and pay its membership dues ("dues"), remain a non-member of LRCEA and pay the fair share service fee ("fee") it charges, or, if qualified pursuant to Section 3546.3 of the [Educational Employment Relations Act] EERA, pay the charitable contribution required by this Agreement.

CBA § 3.1.1 at 13, ECF No. 38-9 (bracketed text added).

California's EERA expressly authorizes the collection of agency fees as follows:

Notwithstanding any other provision of law, upon receiving notice from the exclusive representative of a public school employee who is in a unit for which an exclusive representative has been selected pursuant to this chapter, the employer shall deduct the amount of the fair share service fee authorized by this section from the wages and salary of the employee and pay that amount to the employee organization ...

Cal. Gov't Code § 3546(a) ; see also Cal. Gov't Code § 3540.1(i)(1).

A separate section of the CBA provides that "[e]ach employee who is a member of [LRCEA] on the effective date of this Agreement or who subsequently becomes a member of [LRCEA] shall, from that date forward, remain as a member of [LRCEA] and pay its dues for the duration of this Agreement and in accordance with the EERA." CBA § 3.1.2 at 13 (brackets added).

In June 2018, the Supreme Court decided Janus v. AFSCME , ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018), holding that payments to unions could not be collected from public employees without the employees’ affirmative consent. On September 13, 2018, after learning of the Supreme Court's decision in Janus , Kurk sent LRCEA a written notice requesting to end her union membership and revoke her previous authorization for dues deductions. Compl. ¶ 27. LRCEA informed Kurk she would have to remain a union member unless she resigned within the 30-day period following the expiration of the CBA in June 2020. See Id. ¶ 28; see also LRCEA Response at 4, ECF No. 38-10. Kurk alleges LRCEA relied on the EERA to compel her to remain a union member and continued to deduct union dues from her paychecks each pay period, without her consent. See Compl. ¶¶ 28–30.

On March 28, 2019, Kurk filed this suit. After the suit was filed, LRCEA ultimately confirmed Kurk was discharged from union membership, effective July 1, 2020. See Bartholome Decl. ¶ 5, ECF No. 45-1. In the complaint, Kurk names LRCEA, the defendant community college district and its President of the Board of Trustees John Knight,⁶ alleging deprivation of her First and Fourteenth Amendment rights to refrain from subsidizing the union's speech through dues, without adequate consent as provided in Janus . See Compl. ¶¶ 43–46, 52. Kurk alleges these defendants violated her First Amendment rights in three ways: (1) deducting LRCEA's dues from her paychecks; (2) claiming the authority to prevent her resignation from LRCEA at a time of her choosing; and (3) enforcing LRCEA's revocation policy with respect to her dues deductions. Compl. ¶¶ 6, 53. In her complaint, Kurk also names the Attorney General and mounts a facial and as-applied challenge to Cal. Gov't Code §§ 3540.1(i)(1) and 3546(a), see id. ¶¶ 21 & 24, asserting these statutes violate her right to free speech and association, id. ¶ 45. Kurk seeks a permanent injunction prohibiting LRCEA from enforcing the "Maintenance of Membership" provision in the CBA, a judgment declaring the Cal. Gov't Code §§ 3540.1(i)(1) and 3546 violate her First and Fourteenth Amendment rights under the United States Constitution, as well as monetary damages for the alleged violation of her First Amendment rights and recovery of all dues deducted from her wages since her resignation from LRCEA and attorneys’ fees and costs under 42 U.S.C. § 1988. Compl. at 10–11 (Prayer for Relief).

Three motions are pending in this case: (1) Kurk's motion for summary judgment ("Kurk MSJ"), ECF No. 37; (2) LRCEA's motion for summary judgment ("LRCEA MSJ"), ECF No. 38; and (3) the Attorney General's motion for summary judgment, accompanied by a request for judicial notice of the information linked to footnotes ("AG MSJ"), ECF No. 39. Finally, plaintiff filed a request for judicial notice ("Req. Judicial Not."), ECF No. 51.

On September 25, 2020, the court held a videoconference hearing on these motions. Shella Sadovnik and Mariah Gondeiro appeared on behalf of plaintiff, Monique Alonso appeared for LRCEA and Maureen Onyeagbako appeared on behalf of the California Attorney General. Following hearing, the court granted the parties leave to file supplemental briefing addressing: (1) two recent cases, Belgau v. Inslee , 975 F.3d 940 (9th Cir. 2020) and Savas v. California State Law Enf't Agency , 485 F.Supp.3d 1233 (S.D. Cal. 2020), and (2) whether Kurk's First Amendment freedom of association claim raises a question of first impression not addressed by these recent decisions. See Minutes, ECF No. 56. The court's recent order in Woltkamp addresses the same issue of first impression raised by plaintiff here. See Case No. 2:20-00457, ECF No. 50.

The court submitted the matter after receiving supplemental briefing from Kurk ("Kurk Suppl. Br."), ECF No. 58, and objections from LRCEA, Obj., ECF No. 59. The Attorney General filed a notice of intent not to file supplemental briefing. See ECF No. 57. The court addresses all three pending motions here.

II. LEGAL STANDARD

A court will grant summary judgment "if ... there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If that party bears the burden of proof at trial, as plaintiff does here in establishing defendants’ liability, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (9th Cir. 2007). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To carry their burdens, both parties must "cit[e] to particular parts of materials in the record ...; or show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1) ; see also Matsushita , 475 U.S. at 586, 106 S.Ct. 1348 ("[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts."). Moreover, "the requirement is that there be no genuine issue of material fact .... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary...