Utah Educ. Ass'n v. Shurtleff

565 F.3d 1226

UTAH EDUCATION ASSOCIATION; Utah State AFL-CIO; American Federation of Teachers-Utah; American Federation of State, County, and Municipal Employees Local 1004; Utah School Employees Association; and Professional Firefighters of Utah, Plaintiffs-Appellees, v. Mark SHURTLEFF, in his official capacity as Attorney General of the State of Utah, Defendant-Appellant Sutherland Institute; Utah Taxpayers Association; Evergreen Freedom Foundation; Parents for Choice in Education; National Right to Work Legal Defense Foundation, Inc., Amici Curiae.

No. 06-4142.

United States Court of Appeals, Tenth Circuit.

April 21, 2009.

Nancy L. Kemp, Assistant Utah Attorney General, Salt Lake City, UT, (Mark L. Shurtleff, Utah Attorney General, and Thom D. Roberts, Assistant Utah Attorney General, with her on the briefs), for Defendant-Appellant.

Jeremiah A. Collins, Bredhoff & Kaiser, P.L.L.C., Washington D.C. (Michael T. McCoy and Clover R. Meaders, Utah Education Association, Murray, UT, Arthur F. Sandack, Salt Lake City, UT, David J. Strom and Stephanie Baxter, Washington, D.C; Thomas A. Woodley and Douglas L. Steele, Woodley & McGillivary, Washington, D.C; Larry P. Weinberg, Washington, D.C, with him on the brief), for the Plaintiffs-Appellees.

Maxwell A. Miller and Scott S. Bell, Parsons Behle & Latimer, Salt Lake City, UT, filed an amici curiae brief on behalf of Defendant-Appellant.

Before LUCERO and MURPHY, Circuit Judges, and ROBINSON,^* District Court Judge.

ORDER

This matter is before the court on Utah's petition for rehearing with suggestion for rehearing en banc. The petition was abated pending resolution by the United States Supreme Court of Pocatello Education Ass'n v. Heideman, 504 F.3d 1053 (9th Cir.2007), cert. granted sub nom. Ysursa v. Pocatello Education Ass'n, ___ U.S. ___, 128 S.Ct. 1762, 170 L.Ed.2d 538 (2008). We now have the Supreme Court's decision in hand, Ysursa v. Pocatello Education Ass'n, ___ U.S. ___, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009), and grant panel rehearing. We vacate our January 10, 2008, opinion, Utah Education Ass'n v. Shurtleff ("Shurtleff II"), 512 F.3d 1254 (10th Cir.2008), and replace it with the opinion issued herewith.¹

LUCERO, Circuit Judge.

Utah's Voluntary Contributions Act ("Utah VCA") prohibits any state or local public employer from withholding voluntary political contributions from its employees' paychecks. Utah Code Ann. § 34-32-1.1. Appellees, comprising several Utah labor unions ("Unions"), assert that the Utah VCA violates the First Amendment by restricting public employees' political speech. The district court held that the Utah VCA was unconstitutional as applied and granted the Unions' motion for summary judgment. Utah Educ. Ass'n v. Shurtleff ("Shurtleff I"), 511 F.Supp.2d 1106, 1110 (D.Utah 2006). After this court affirmed, Utah Education Ass'n v. Shurtleff ("Shurtleff II"), 512 F.3d 1254 (10th Cir.2008), Utah petitioned for rehearing or, in the alternative, rehearing en banc.

Having granted panel rehearing, we hold that under the Supreme Court's decision in Ysursa v. Pocatello Education Ass'n, ___ U.S. ___, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009), we must uphold the Utah VCA. Utah is under no obligation to aid the Unions' exercise of their First Amendment rights utilizing payroll systems, Ysursa, 129 S.Ct. at 1098, regardless of whether a payroll system is administered at the state or local level, id. at 1101. Failing such an obligation, the Utah VCA is subject only to rational basis review. Id. at 1098. Utah argues that it has an interest in avoiding the entanglement of governmental workplaces with partisan politics, and Ysursa obligates us to conclude that this provides a rational basis for the law. See id. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we vacate our earlier decision, Shurtleff II, 512 F.3d 1254, and reverse the district court.

I

Five Utah labor organizations and one association of labor unions brought this suit against Utah Attorney General Mark Shurtleff, seeking a declaration that the Utah VCA is unconstitutional as applied to all public employers other than the state itself. These organizations represent several thousand Utah public employees, including teachers and other school employees, county and municipal employees, and firefighters. Before the district court, all parties agreed on the following stipulated facts.¹

Many public employers in Utah facilitate voluntary contributions to labor union political funds by withholding money from an employee's paycheck at the employee's request. In 2001, the Utah legislature attempted to end this practice by enacting the Utah VCA. Under the Utah VCA, public employers are barred from deducting political contributions, including those to labor union political funds, when issuing paychecks. Specifically, the Utah VCA provides:

A public employer may not deduct from the wages of its employees any amounts to be paid to: (a) a candidate ...; (b) a personal campaign committee ...; (c) a political action committee ...; (d) a political issues committee ...; (e) a registered political party ...; (f) a political fund ...; or (g) any entity established by a labor organization to solicit, collect, or distribute monies primarily for political purposes as defined in this chapter.

Utah Code Ann. § 34-32-1.1(2) (emphasis added).

As defined in the Utah VCA, "political purposes" include any action intended to "directly or indirectly" influence individuals to vote in a particular manner at "any caucus, political convention, primary, or election." § 34-32-1.1(1)(b). Covered "public employers" include both the state itself and all political subdivisions of the state, such as municipal governments, school districts, and special service districts. § 34-32-1.1(1)(d). Application of these provisions is purely prospective; the Utah VCA does not invalidate existing payroll deduction agreements between public employers and employees. In a letter to school districts and other public employers, however, Attorney General Shurtleff advised that "[t]he vast majority" of existing school district contracts that he had reviewed contain provisions that would violate the Utah VCA if renewed.

On September 29, 2006, the Unions moved for summary judgment, arguing that the Utah VCA as applied to local public employers was an unlawful, content-based restriction on political speech.² In a succinct memorandum opinion, the district court found that the statute violated the First Amendment. Shurtleff I, 511 F.Supp.2d at 1110. Concluding that the Utah VCA restricted speech based on its content, id. at 1108, the district court applied strict scrutiny, id. at 1110. Because it found that the political purposes provision was not narrowly tailored to serve a compelling state interest, the court declared the statute unconstitutional. Id.

Utah appealed, arguing that the payroll systems of local governments and school boards are nonpublic fora and that the district court instead should have applied reasonableness review. Following oral argument, we affirmed. Shurtleff II, 512 F.3d at 1256.

Utah then sought panel rehearing and suggested rehearing en banc. Before our panel ruled on Utah's petition, the Supreme Court granted certiorari in Ysursa. Because the question presented by Ysursa was identical in substance to that presented by this case, we abated Utah's petition pending the Court's decision in that case. On February 24, 2009, the Court issued its opinion in Ysursa, upholding Idaho's identically-named Voluntary Contributions Act, Idaho Code Ann. §§ 44-2004, 2601 to 2605 ("Idaho VCA"). 129 S.Ct. at 1101.

II

A

In a First Amendment case, we review de novo the district court's findings of constitutional fact, conclusions of law, and grant of summary judgment. Abilene Retail # 30, Inc. v. Bd. of Comm'rs of Dickinson County, 492 F.3d 1164, 1170 (10th Cir.2007). Because the district court relied entirely on the parties' stipulated facts in ruling on the summary judgment motion, we take these facts as given. We limit our review to conclusions of law.

An individual's right to be free from government abridgement of speech is protected by the Free Speech Clause of the First Amendment. U.S. Const. amend. I; Ysursa, 129 S.Ct. at 1098. When a state abridges speech based on content, we presume the restriction to be invalid and subject the action to strict scrutiny. Ysursa, 129 S.Ct. at 1098 (citing Davenport v. Wash. Educ. Ass'n, 551 U.S. 177, 188, 127 S.Ct. 2372, 168 L.Ed.2d 71 (2007)). However, a state "is not required to assist others in funding the expression of particular ideas, including political ones." Id. Thus, when a state merely declines to assist or subsidize speech, it does not infringe upon an individual's First Amendment rights, and we do not subject such action to strict scrutiny. Id. Rather, such decisions are subject to rational basis review. Id. Accordingly, we must decide whether the Utah VCA, as applied to local Utah government employers, merely prohibits the state from assisting or subsidizing the political speech of its employees and, if so, whether the Act has a rational basis.

B

In Ysursa, the Supreme Court upheld the Idaho VCA. Id. at 1101. Like the Utah VCA, the Idaho VCA prohibits "[d]eductions for political activities," Idaho Code Ann. § 44-2004(2), which include "electoral activities, independent expenditures, or expenditures made to any candidate, political party, political action committee or political issues committee or in support of or against any ballot measure," § 44-2602(1)(e).

The Supreme Court first held that, as applied to the state payroll, the Idaho VCA need only survive rational basis review because it "does not suppress political speech but simply declines to promote it through public employer checkoffs for political activities." Ysursa, 129 S.Ct. at 1099. Under rational basis review, the Court held that "[t]he ban on [political payroll] deductions plainly serves the State's...