The Freedom Foundation on Wednesday appealed to the U.S. Supreme Court a ruling issued against it in January by the Washington State Supreme Court that, left unchallenged, would have a chilling effect not only on its own efforts but on the ability of advocacy groups throughout the country to provide deserving citizens with legal assistance.
The original lawsuit dates back to 2014, when attorneys for the Freedom Foundation — a West Coast-based nonprofit think tank — represented citizen activists in the Washington cities of Sequim, Chelan and Shelton following their unsuccessful efforts to place labor reform initiatives on their communities’ local election ballots.
The measures, intended to make collective bargaining negotiations between the cities and their employees more transparent, were bitterly opposed by public-sector unions, which pressured city leaders to deny them a spot on the ballot.
The Freedom Foundation argued the cities, by preemptively suppressing lawfully submitted ballot measures, had denied residents their right of citizen initiative as set forth in Washington state law. But judges in all three cases sided with the cities, so the initiatives never made it to the ballot nor was there any campaign.
Adding insult to injury, the unions then filed a complaint with the Washington Attorney General’s Office alleging the Freedom Foundation was required to report its legal assistance to the activists as a campaign contribution. But the unions never reported the assistance of their own lawyers.
The charge was absurd on its face, given that the initiatives were denied a spot on the ballot. If there was never an election, how could there be a campaign finance violation? By all accounts, the wording of the State’s Fair Campaign Practices on that point is, at best, confusing and ambiguous.
Nonetheless, Washington Attorney General Bob Ferguson — who has already banked hundreds of thousands of dollars in campaign donations from government employee unions and almost certainly anticipates asking for more if he ultimately runs for governor in 2020 — unsurprisingly agreed to file a nakedly political lawsuit.
A Thurston County Superior Court judge in 2016 rejected the AG’s arguments, but his ruling was later overturned by the Court of Appeals. When the Freedom Foundation challenged that decision in Washington State Supreme Court, the overwhelmingly liberal justices in January handed down a 5-4 ruling siding with Ferguson and the unions.
“This is clearly a freedom of speech issue,” said Freedom Foundation Senior Litigation Counsel Eric Stahlfeld. “Even the justices who ruled against us conceded the wording of the Fair Campaign Practices Act concerning when an initiative becomes subject to the law is “at odds with” local initiative procedures. Relying on this ambiguous provision to claim a local initiative not yet on the ballot is subject to Washington’s election laws does not give fair notice to citizens who want to exercise basic First Amendment freedom to participate in local government activity.”
In her strongly worded dissent, Justice Gordon McCloud noted:
The majority resolves that ambiguity against the speaker and in favor of the government. But resolving an ambiguity in a statute implicating free speech against the speaker and in favor of the government violates controlling precedent of this court and of the United States Supreme Court.
“By its very nature, the legal system is stacked against individuals in cases like this,” Stahlfeld said. “When they challenge the government in court, they’re normally using their own money to pay needed attorneys while the government has its own in-house attorneys and a seemingly unlimited supply of tax dollars.”
Organizations like the Freedom Foundation exist to level the playing field.
“It’s hard enough for the average citizen to begin with,” Stahlfeld said. “The courts shouldn’t hand governments an even bigger advantage by interpreting wording no one can understand in a way that penalizes an advocacy group for providing an individual his or her only opportunity for equal justice.”
