Politics & Government

AG Ferguson doesn’t have to turn over key document in union dues fight, judge says

Attorney General Bob Ferguson has prevailed in a lawsuit filed by a conservative group that accused him and his office of violating the state’s public records law to conceal a “political relationship” with attorneys general from two other West Coast states as well as two nationwide unions that represent home caregivers.

Thurston County Superior Court Judge James Dixon recently ruled in favor of Ferguson and the Attorney General’s Office in the lawsuit that the Freedom Foundation filed in February. Dixon agreed with the state’s argument that the records sought by the free-market group are exempt from release under state law.

In June 2018, the Freedom Foundation filed a public records request with the Attorney General’s Office for documents, emails or other records containing the word “Janus.” That referred to the U.S. Supreme Court decision released last year that said public employees do not have to pay fees to unions to cover collective bargaining costs. The ruling, which overturned four decades of precedent, said requiring workers to pay the fees violated their First Amendment rights.

The Attorney General’s Office provided several highly-redacted emails it had exchanged with state legal officials in California and Oregon, a law firm and the Service Employees International Union and the American Federation of State, County and Municipal Employees. Several of the e-mails included a reference in the subject line to a “confidential common interest agreement.”

In October 2018, the Freedom Foundation filed a second public records request, asking for a copy of the agreement. The Attorney General’s Office denied the request.

The Freedom Foundation in February filed the lawsuit against Ferguson and his office, accusing them of “illegally ignoring the (Public Records Act) to hide a political relationship between two powerful special interest groups.” The group called on the court to order the state to disclose the records immediately.

In response, the Attorney General’s Office said the documents clearly were exempt from release under state law.

“If the work product privilege means anything, it means parties are entitled to make strategic decisions about litigation without the prying eyes of third parties,” wrote assistant attorney general Andrew Hughes in a May 13 filing.

That same day, the attorneys general of California, Washington state, Oregon, Connecticut and Massachusetts filed a lawsuit alleging that the U.S. Department of Health and Human Services and its director, Secretary Alex Azar, are “unlawfully attempting to re-interpret the Medicaid Act, disrupting well-established collective bargaining relationships authorized for decades by state labor laws.”

“As part of its effort, HHS also repealed a federal rule that explicitly allowed states to deduct customary employee benefits and union dues from payments to workers in Medicaid home- and community-based services programs,” according to a summary of the lawsuit by Ferguson’s office.

That lawsuit is pending in the U.S. District Court for the Northern District of California.

California was the lead state among the five that filed the lawsuit. It was the 50th lawsuit that California Attorney General Xavier Becerra, a Democrat, has filed against the Trump administration.

Becerra said in a written statement that the federal government offered “no evidence to suggest that Medicaid payments were being inappropriately diverted.”

Maxford Nelsen, director of labor policy for the Freedom Foundation, said SEIU, AFSCME and other unions since the 1990s have unionized Medicaid-paid home caregivers “by persuading sympathetic state governments to pass laws permitting them to do so.”

Referring to the federal lawsuit that Washington state and others filed May 13, Nelsen said, “It’s no surprise that these states, which are all run by elected officials closely allied with labor unions, are seeking to perpetuate unions’ ability to seize dues and political contributions from home caregivers’ Medicaid payments.”

Nelsen said the Freedom Foundation is “confident federal courts will ultimately see this for what it is — a political move, not a legal one — and will uphold the Trump administration’s effort to prevent special interest groups from illegally hijacking Medicaid funds.”

On Tuesday, Ferguson filed another lawsuit against the Trump administration, challenging its “conscience rule” which he said “gives health care professionals broad discretion to refuse lawful and medically necessary care to patients for religious or moral reasons, even when the patient’s life is at risk.”

The lawsuit, filed in U.S. District Court for the Eastern District of Washington, argues that if the rule is implemented, it would restrict access to reproductive health care, particularly for low-income, rural and working poor patients. It also enables providers to discriminate against LGBTQ people, the lawsuit states.

A press release noted that Ferguson has filed 38 lawsuits against the Trump Administration without losing a case and he has 22 “legal victories” since Trump took office. Ferguson, a Democrat, is exploring a possible run for governor if Jay Inslee does not seek a third term. Inslee is seeking the Democratic nomination for president.

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