Katherine Miller v. Jay Inslee

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CYNTHIA MENTELE, No. 16-35939
Plaintiff,
D.C. No.
and 3:15-cv-05134-RBL

KATHERINE MILLER,
Plaintiff-Appellant, OPINION

v.

JAY INSLEE, in His Official
Capacity as Governor of the
State of Washington; KEVIN W.
QUIGLEY, in His Official
Capacity as Director of the
Washington State Office of
Financial Management; DAVID
SCHUMACHER, in His Official
Capacity as Director of the
Washington State Office of
Financial Management; SERVICE
EMPLOYEES INTERNATIONAL
UNION, LOCAL 925, a labor
organization,
Defendants-Appellees.
2 MILLER V. INSLEE

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding

Argued and Submitted December 3, 2018
Seattle, Washington

Filed February 26, 2019

Before: Susan P. Graber, M. Margaret McKeown,
and Morgan Christen, Circuit Judges.

Opinion by Judge Christen;
Concurrence by Judge Graber

SUMMARY*

Civil Rights

The panel affirmed the district court’s summary judgment
for the State of Washington in an action brought pursuant to
42 U.S.C. § 1983 alleging that Washington’s authorization
for the Service Employees International Union Local 925
(SEIU) to act as the exclusive collective bargaining
representative for Washington’s publicly subsidized childcare
providers violated plaintiff’s First Amendment rights.

Plaintiff, a Washington State childcare provider, alleged
that Washington’s arrangement with SEIU violated her rights

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 MILLER V. INSLEE 3

of free speech and association. Applying Minnesota State
Board for Community Colleges v. Knight, 465 U.S. 271
(1984), the panel held that Washington’s authorization of an
exclusive bargaining representative did not infringe plaintiff’s
First Amendment rights. The panel further held that even
assuming that Knight no longer governed the question
presented in light of the Supreme Court’s decision in Janus
v. American Federation of State, County, & Municipal
Employees, Council 31, 138 S. Ct. 2448 (2018), the panel
would still conclude that Washington’s exclusive bargaining
arrangement with SEIU was constitutionally permissible.
The panel noted that the childcare providers were partial state
employees for whom SEIU’s scope of representation was
relatively circumscribed and that the State’s exclusive
bargaining arrangement with SEIU served the compelling—
and enduring—state interest of labor peace.

Concurring, Judge Graber wrote separately to state her
view that, with respect to plaintiff’s associational rights, she
would follow the Eighth Circuit’s analysis in Bierman v.
Dayton, 900 F.3d 570, 574 (8th Cir. 2018), and hold that
there was no “meaningful distinction” between this case and
the Supreme Court’s decision in Minnesota State Board for
Community Colleges v. Knight, 465 U.S. 271 (1984).

COUNSEL

Milton L. Chappell (argued), National Right to Work Legal
Foundation, Inc., Springfield, Virginia; James G. Abernathy
and David M.S. Dewhirst, Freedom Foundation, Olympia,
Washington; for Plaintiff-Appellant.
4 MILLER V. INSLEE

Callie A. Castillo (argued), Deputy Solicitor General; Gina L.
Comeau and Alicia O. Young, Assistant Attorneys General;
Robert W. Ferguson, Attorney General; Attorney General’s
Office, Olympia, Washington; for Defendants-Appellees Jay
Inslee, Kevin W. Quigley, and David Schumacher.

Scott A. Kronland (argued), Altshuler Berzon LLP, San
Francisco, California; Schwerin Campbell Barnard and
Robert H. Lavitt, Iglitzin & Lavitt LLP, Seattle, Washington;
for Defendant-Appellee Service Employees International
Union Local 925.

OPINION

CHRISTEN, Circuit Judge:

The State of Washington authorized the Service
Employees International Union Local 925 (SEIU) to act as
the exclusive collective bargaining representative for
Washington’s publicly subsidized childcare providers.
Katherine Miller, a Washington childcare provider,
challenges that arrangement as an infringement of her First
Amendment rights of free speech and association. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the
district court’s order granting summary judgment to SEIU
and Washington State.

I.

Washington provides financial assistance to qualifying
families for childcare costs. Under the terms of this program,
families choose independent childcare providers and pay
 MILLER V. INSLEE 5

them on a scale commensurate with the families’ income
levels. The State covers the remaining cost.

Before 2006, Washington unilaterally determined subsidy
levels and other policies governing its childcare assistance
programs, through legislation and regulations. But in 2006,
Washington re-categorized the providers as “public
employees” for purposes of the State’s collective bargaining
legislation and authorized the providers to elect an exclusive
collective bargaining representative to negotiate with the
State on their behalf. Wash. Rev. Code § 41.56.028. Because
the childcare providers are state employees only for purposes
of collective bargaining, they are considered “partial” state
employees, rather than full-fledged state employees, and
Washington law limits the scope of their collective
bargaining agent’s representation. For example, families
continue to be the providers’ primary employers, id.
§ 41.56.028(4)(a); the providers are not allowed to strike, id.
§ 41.56.028(2)(e); and the bargaining agent cannot negotiate
about certain issues, id. § 41.56.028(2)(c) (“[r]etirement
benefits shall not be subject to collective bargaining”).

The childcare providers elected SEIU as their exclusive
bargaining representative, and SEIU negotiated a number of
terms and conditions for them as part of a state-wide
collective bargaining agreement. Childcare providers are not
required to join SEIU, but SEIU is nonetheless “required to
represent[] all the public employees within the unit without
regard to membership.” Id. § 41.56.080. SEIU members pay
union dues to support SEIU. Non-union members previously
paid “agency fees” to support SEIU’s collective bargaining
efforts, but SEIU and the State eliminated the agency fees
provision from their collective bargaining agreement after the
Supreme Court’s decision in Harris v. Quinn, 134 S. Ct. 2618
6 MILLER V. INSLEE

(2014) (holding that states may not compel partial state
employees to pay agency fees for union representation).1

Katherine Miller and Cynthia Mentele, two Washington
state childcare providers, filed suit in March of 2015 against
State officials and SEIU. Miller is a former SEIU member;
the record is unclear about whether Mentele was a member.
Both plaintiffs alleged that their First Amendment right to
expressive association was violated when Washington
recognized SEIU as the exclusive bargaining representative
for all childcare providers because SEIU necessarily spoke
and negotiated on their behalf. Miller and Mentele sought
declaratory and injunctive relief pursuant to 42 U.S.C.
§ 1983. The complaint did not clearly define the nature of the
relief Miller and Mentele sought, but the briefing filed with
our court clarified that they sought neither the opportunity to
negotiate with the union themselves nor the complete
elimination of a collective bargaining representative.

The parties filed cross-motions for summary judgment.
The district court granted the motion filed by the State and
SEIU, while denying the motion filed by Miller and Mentele.
The parties stipulated to the dismissal of Mentele’s additional
claim that sought reimbursement of past union dues.

Miller alone appeals the district court’s judgment. We
review de novo the district court’s order granting summary
judgment. Stanford Univ. Hosp. v. Fed. Ins. Co., 174 F.3d
1077, 1082 (9th Cir. 1999).

1
Agency fees are reduced union dues paid by non-union member
employees to support the union’s collective bargaining efforts. See, e.g.,
Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct.
2448, 2460–61 (2018).
 MILLER V. INSLEE 7

II.

A.

Our analysis relies largely on two Supreme Court cases
that discuss the propriety of exclusive bargaining
representation for public employees: the Supreme Court’s
decision in Minnesota State Board for Community Colleges
v. Knight, 465 U.S. 271 (1984); and its recent decision in
Janus v. American Federation of State, County, & Municipal
Employees, Council 31, 138 S. Ct. 2448 (2018). Two other
cases provide important context for our decision: Abood v.
Detroit Board of Education, 431 U.S. 209 (1977), and Harris,
134 S. Ct. 2618. SEIU and the State argue that Knight
controls the outcome of this appeal; Miller argues that we are
bound by Janus.

Knight involved a challenge by community college
professors to two statutory provisions under Minnesota law:
(1) a “meet and negotiate” provision, which required the State
to meet and negotiate with the faculty’s exclusive bargaining
representative (e.g., the faculty’s union) concerning the terms
and conditions of employment; and (2) a “meet and confer”
provision, which required the State to meet and confer with
the exclusive representative regarding “policy questions
relating to employment but outside the scope of mandatory
bargaining.” Knight, 465 U.S. at 273–75, 279. The Court
summarily affirmed the “meet and negotiate” requirement, id.
at 279, and separately concluded that the exclusion of non-
union members from the State’s “meet and confer” provision
did not infringe the non-union members’ First Amendment
rights:
8 MILLER V. INSLEE

Appellees’ speech and associational rights,
however, have not been infringed by
Minnesota’s restriction of participation in
“meet and confer” sessions to the faculty’s
exclusive representative. The state has in no
way restrained appellees’ freedom to speak on
any education-related issue or their freedom
to associate or not to associate with whom
they please, including the exclusive
representative.

Id. at 288. The Court explained that the non-union members
had not been denied access to a public forum, id. at 280–83,
that state employees had no right to be heard by, or negotiate
individually with, a public body, id. at 283–85, and that the
non-union members were free to form advocacy groups or
otherwise make their views known to the State and associate
with whomever they wished to associate, id. at 288–90. The
Court concluded that the non-union members’ rights to free
speech and association were not abridged by the meet and
confer provision.

Significant for the present appeal, Knight was decided a
few years after the Court’s decision in Abood v. Detroit
Board of Education. In Abood, the Court concluded that,
although compulsory agency fees impinge employees’ First
Amendment rights to some extent, the mandatory fees were
nevertheless justified by the State’s compelling interest in
“labor peace”; i.e., the logistical and managerial benefits that
accrue when an employer negotiates only with one exclusive
representative. 431 U.S. at 232–37. Though it followed
Abood by a few years, Knight never mentioned labor peace
and instead upheld Minnesota’s meet and confer provision by
concluding that it did not infringe the non-union members’
 MILLER V. INSLEE 9

First Amendment associational rights at all. In this way,
Knight expressly cabined Abood, explaining that the First
Amendment infringement in Abood was the result of the
“compulsory collection of dues” from non-union members,
and observing that Abood did not address whether exclusive
representation infringed the non-union members’
associational rights. See Knight, 465 U.S. at 291 n.13
(emphasis added).

Following Knight, every circuit court to address the
constitutionality of exclusive bargaining arrangements (as
distinct from the constitutionality of compelling financial
support for such bargaining arrangements) has concluded that
these provisions do not violate the First Amendment.
D’Agostino v. Baker, 812 F.3d 240, 242–44 (1st Cir. 2016)
(Souter, J., by designation); Hill v. Serv. Emps. Int’l Union,
850 F.3d 861, 864–65 (7th Cir.), cert. denied, 138 S. Ct. 446
(2017); Bierman v. Dayton, 900 F.3d 570, 574 (8th Cir.
2018), petition for cert. filed, ___U.S.L.W. ___ (U.S.
Dec. 13, 2018) (No. 18-766); Jarvis v. Cuomo, 660 F. App’x
72, 74–75 (2d Cir. 2016) (order) (unpublished).

In 2014, thirty years after it decided Knight, the Court
addressed the constitutionality of compelling agency fees
from non-union members who are partial state employees like
the childcare providers here. Harris, 134 S. Ct. 2618. Harris
acknowledged Abood’s “labor peace” justification for
compelling agency fees to support exclusive bargaining
representation, but it did not extend Abood’s rationale to
union representation of partial state employees. Id. at 2640.
In fact, contrary to Abood’s rationale, in Harris the Court
decided that compelled fees are not necessary to ensure labor
peace because public sector unions can effectively operate
with the support of the dues paid by union members alone.
10 MILLER V. INSLEE

Id. at 2640–41. In any event, Harris reasoned, there are
minimal labor peace benefits to be gained when partial
employees are represented because the scope of their unions’
representation is limited. Id. at 2640.

The Court decided Janus in 2018. Janus alluded to the
propriety of exclusive representation arrangements, but it
primarily considered the constitutionality of compelling full-
fledged, non-union member state employees to pay agency
fees. 138 S. Ct. at 2459–60. Janus reaffirmed that labor
peace is a compelling state interest, but it overruled Abood’s
holding that labor peace justifies requiring non-union
members to pay agency fees. Id. at 2465–66. Janus then
went on to observe:

It is also not disputed that the State may
require that a union serve as exclusive
bargaining agent for its employees—itself a
significant impingement on associational
freedoms that would not be tolerated in other
contexts. We simply draw the line at allowing
the government to go further still and require
all employees to support the union
irrespective of whether they share its views.

Id. at 2478. In this passage, Janus suggested that exclusive
bargaining representation does significantly impinge on
associational freedoms, but in the same breath the Court
stated that this degree of impingement is justified or
“tolerated” in the context of collective bargaining agents. Id.
Janus explained that “States can keep their labor-relation
systems exactly as they are”; they just “cannot force
nonmembers to subsidize public-sector unions,” id. at 2485
n.27 (emphasis added). Also in Janus, the Supreme Court
 MILLER V. INSLEE 11

expressly distinguished between compelling non-union
members to pay agency fees (constitutionally impermissible)
and mandating that any union representation be exclusive,
which the Court suggested is a tolerated impingement of non-
union members’ First Amendment rights.

Miller contends that we are bound by Janus’s observation
that exclusive union representation of non-union members
impinges First Amendment rights. Appellees contend that
Knight controls because Janus’s reference to exclusive
representation is dictum unnecessary to Janus’s primary
holding.

B.

We conclude that the Supreme Court’s holding in Knight
is the most appropriate guide. The salient rationale from
Knight merits repeating:

[T]he First Amendment guarantees the right
both to speak and to associate. Appellees’
speech and associational rights, however,
have not been infringed by Minnesota’s
restriction of participation in “meet and
confer” sessions to the faculty’s exclusive
representative. The state has in no way
restrained appellees’ freedom to speak on
any education-related issue or their freedom
to associate or not to associate with whom
they please, including the exclusive
representative. . . .

....
12 MILLER V. INSLEE

. . . [A]ppellees’ associational freedom has
not been impaired. Appellees are free to form
whatever advocacy groups they like. They are
not required to become members of [the
union], and they do not challenge the
monetary contribution they are required to
make to support [the union’s] representation
activities.

Knight, 465 U.S. at 288–89. The Court further summarized
in a footnote that the appellees’ “speech and associational
freedom have been wholly unimpaired” by the meet and
confer provision. Id. at 290 n.12 (emphasis added). Given
the importance of that analysis to the Court’s opinion, we do
not view those statements as dictum.

Miller insists that Knight is not precisely on point. We
acknowledge that Knight’s recognition that a state cannot be
forced to negotiate or meet with individual employees2 is
arguably distinct from Miller’s contention that employees’
associational rights are implicated when a state recognizes an
exclusive bargaining representative with which non-union
employees disagree. For Miller, the fact that she is free to
communicate her opinions or associate with whomever she
chooses does not alleviate her concern that a union she
dislikes is speaking for her. Miller is not complaining about
an inability to speak herself; she just wants to be “left alone
to make her own decisions regarding associations and her
speech.”

2
See 465 U.S. at 283–84 (citing Bi-Metallic Inv. Co. v. State Bd. of
Equalization, 239 U.S. 441 (1915)).
 MILLER V. INSLEE 13

Despite these differences, Knight is a closer fit than
Janus. See Agostini v. Felton, 521 U.S. 203, 237 (1997)
(explaining “the Court of Appeals should follow” the
precedent that has “direct application”). Knight addressed the
First Amendment rights of non-union members who were
excluded from union meetings with the State, and Miller
claims that her First Amendment rights are infringed when
SEIU purports to speak on her behalf even though she abhors
the union. Knight acknowledged that exclusive bargaining
required the State to treat the union representatives as
expressing “the faculty’s official collective position” even
though “not every instructor agrees with the official faculty
view on every policy question.” 465 U.S. at 276. In this
way, Knight addresses Miller’s objection because
Minnesota’s exclusion of non-union faculty members from
meet and confer sessions necessarily meant that union
representatives expressed the faculty’s “official collective
position” on behalf of even dissenting non-union members.
Knight expressly concluded that such a system “in no way
restrained appellees’ . . . freedom to associate or not to
associate with whom they please, including the exclusive
representative,” id. at 288 (emphasis added), and it approved
the requirement that bound non-union dissenters to exclusive
union representation.

Miller argues that Janus overruled Knight and that Janus
controls the outcome of this case, but we are not persuaded.
The cases presented different questions, as we have
explained, and Janus never mentions Knight. To accept
Miller’s argument, we would have to conclude that the brief
passage Miller relies upon (two sentences at most), which
addresses a question that was not presented or argued and
which was unnecessary to the Court’s holding, was
nevertheless intended to overrule the Court’s earlier decision
14 MILLER V. INSLEE

in Knight sub-silentio. See Bierman, 900 F.3d at 574
(concluding that Janus did not overrule Knight). We are
unwilling to make that leap. The same passage Miller
identifies as evidence that Knight did not survive Janus goes
on to expressly affirm the propriety of mandatory union
representation, which is consistent with Knight. Janus is also
clear that the degree of First Amendment infringement
inherent in mandatory union representation is tolerated in the
context of public sector labor schemes. 138 S. Ct. at 2478
(“We simply draw the line at allowing the government to go
further still and require all employees to support the union
irrespective of whether they share its views.”). Janus’s
reference to infringement caused by exclusive union
representation, even in the context of its broader discussion
of Abood and the Court’s long history of relying on labor
peace to justify certain provisions in collective bargaining
agreements, is not an indication that the Court intended to
revise the analytical underpinnings of Knight or otherwise
reset the longstanding rules governing the permissibility of
mandatory exclusive representation. The Supreme Court has
directed that we should “leav[e] to [the Supreme] Court the
prerogative of overruling its own decisions,” and follow
“direct[ly] applica[ble]” precedent, even if subsequent
decisions call into question some of that precedent’s
rationale. Agostini, 521 U.S. at 237; see Bierman, 900 F.3d
at 574. Consistent with that directive, we apply Knight’s
more directly applicable precedent, rather than relying on the
passage Miller cites from Janus, and hold that Washington’s
authorization of an exclusive bargaining representative does
not infringe Miller’s First Amendment rights.
 MILLER V. INSLEE 15

The Eighth Circuit reached the same conclusion, for
essentially the same reasons, in Bierman, the only circuit-
court decision to have addressed this issue after the Supreme
Court decided Janus. Bierman concerned Minnesota’s law
authorizing in-home care providers to elect an exclusive
representative to negotiate employment terms with the State.
900 F.3d at 572. A group of providers challenged the law,
arguing that it “unconstitutionally compels them to associate
with the exclusive negotiating representative.” Id. The
Eighth Circuit concluded that Janus did not affect this
analysis, followed the reasoning in Knight, and rejected the
providers’ argument. Id. at 574; accord Reisman v.
Associated Faculties of Univ. of Me., No. 1:18-cv-00307-
JDL, 2018 WL 6312996, at *2–5 (D. Me. Dec. 3, 2018)
(order); Uradnik v. Inter Faculty Org., Civ. No. 18-1895
(PAM/LIB), 2018 WL 4654751, at *2 (D. Minn. Sept. 27,
2018) (unpublished).

C.

Even if we assume that Knight no longer governs the
question presented by Miller’s appeal, we would reach the
same result: SEIU’s authorized position as the childcare
providers’ exclusive representative is constitutionally
permissible.

At least in the context of organized labor, the
impingement of First Amendment rights must, at a minimum,
satisfy “exacting scrutiny”; i.e., it must “serve a compelling
state interest that cannot be achieved through means
significantly less restrictive of associational freedoms.”
Janus, 138 S. Ct. at 2465. (quoting Knox v. Serv. Emps. Int’l
16 MILLER V. INSLEE

Union, Local 1000, 567 U.S. 298, 310 (2012)).3 “Exacting
scrutiny encompasses a balancing test. In order for a
government action to survive exacting scrutiny, the strength
of the governmental interest must reflect the seriousness of
the actual burden on First Amendment rights.” Ctr. for
Competitive Politics v. Harris, 784 F.3d 1307, 1312 (9th Cir.
2015) (internal quotation marks omitted). We therefore begin
by assessing the seriousness of the burden on Miller’s
associational rights.

The childcare providers here are partial state employees
for whom SEIU’s scope of representation is relatively
circumscribed. See Wash. Rev. Code § 41.56.028 (describing
limitations of representative’s bargaining power). The
providers are not allowed to strike, SEIU cannot negotiate
their retirement benefits, families retain the right to choose
and terminate any provider, and the legislature retains the
unilateral right to adopt personnel requirements and to make
programmatic modifications. See id. § 41.56.028(2)(c), (2)(e)
& (4)(a); see also Harris, 134 S. Ct. at 2634–37 (describing
similarly limited scope of the union’s bargaining authority).
Because of SEIU’s limited role in representing partial

3
The Court in Janus applied “exacting scrutiny” to the question
whether compelling agency fees from non-union members is permissible,
as it had done in Harris and in Knox. 138 S. Ct. at 2465. But the Court
noted that strict scrutiny may be more appropriate due to the First
Amendment rights at stake. Id. The Court did not need to resolve that
question in Janus because the statute at issue failed even exacting
scrutiny, id., but we note that the Court previously applied exacting
scrutiny to challenges of free association rights. See, e.g., Roberts v. U.S.
Jaycees, 468 U.S. 609, 623 (1984). If we concluded that Miller’s First
Amendment rights were infringed by SEIU’s representation, we would be
obliged to apply “exacting scrutiny” to decide whether the infringement
is constitutionally permissible, because this was the test the Court applied
in Roberts, Knox, Harris, and Janus. See Agostini, 521 U.S. at 237.
 MILLER V. INSLEE 17

employees, any impingement of the employees’ speech and
associational freedoms is correspondingly reduced.

Against that backdrop, we conclude that the State’s
exclusive bargaining arrangement with SEIU serves the
compelling—and enduring—state interest of labor peace.
Janus did not revisit the longstanding conclusion that labor
peace is “a compelling state interest,” 138 S. Ct. at 2465, and
the Court has long recognized that exclusive representation is
necessary to facilitate labor peace; without it, employers
might face “inter-union rivalries” fostering “dissension within
the work force,” “conflicting demands from different unions,”
and confusion from multiple agreements or employment
conditions, id. (quoting Abood, 431 U.S. at 220–21). For the
following reasons, Washington’s continued compelling
interest in labor peace justifies the minimal infringement
associated with SEIU’s exclusive representation. Accord
Uradnik, 2018 WL 4654751, at *3.

First, Washington has an interest in negotiating with only
one entity, at least for the sake of efficiency and managerial
logistics, and that interest persists even if, per Harris,
Washington’s interest in the payment of fees to support the
union dwindles with the reduced union representation.
Washington’s scheme calls for the negotiation of
comparatively few conditions, but it does not eliminate the
State’s interest in avoiding the competing demands of rival
representatives, the potential confusion that would result from
multiple agreements, and possible dissension among the
providers. See Janus, 138 S. Ct. at 2465–66.
18 MILLER V. INSLEE

Second, Janus specifically acknowledged that exclusive
representation is constitutionally permissible. Id. at 2478.
The Court reaffirmed that “[s]tates can keep their labor-
relation systems exactly as they are—only they cannot force
nonmembers to subsidize public-sector unions.” Id. at 2485
n.27. This statement is consistent with Harris, which
concluded that compulsory agency fees are not justified for
public sector unions representing partial employees, in part
because of the union’s limited scope of representation, see
134 S. Ct. at 2640; and it follows from Janus’s own statement
that exclusive bargaining systems are acceptable for public
employees, even though compulsory agency fees are not,
138 S. Ct. at 2478. These cases establish a bright line
distinction between allowing exclusive representation and
mandating the payment of agency fees.

Finally, applying an exacting standard, we know of no
alternative that is “significantly less restrictive of
associational freedoms.” Id. at 2465. Because SEIU’s
limited representation already reduces the level of any
infringement, it is difficult to imagine an alternative that is
“significantly less restrictive” than the one Washington
employs. Id. (emphasis added). Miller has not suggested an
alternative way for the State to solicit meaningful input from
childcare providers while simultaneously avoiding the chaos
and inefficiency of having multiple bargaining
representatives or negotiating with individual providers. See
Wash. Rev. Code § 41.56.010 (declaration of purpose).
Miller wants to be left alone, but it is unclear what sort of
system Washington would or could implement to satisfy this
demand, apart from unilaterally deciding the terms of
employment for partial employees.
 MILLER V. INSLEE 19

Even assuming that Knight no longer governs the question
presented, we would still conclude that Washington’s
exclusive bargaining arrangement with SEIU is
constitutionally permissible.

AFFIRMED.

GRABER, Circuit Judge, concurring:

I concur in full in the opinion. I write separately only to
state my view that the conclusion we reach in Part II-B is less
tenuous than the opinion makes it sound. I agree entirely
with the Eighth Circuit’s reasoning in Bierman v. Dayton,
900 F.3d 570, 574 (8th Cir. 2018), a case similar to ours. I
would follow the Eighth Circuit’s analysis and hold that, with
respect to Plaintiffs’ associational rights, there is no
“meaningful distinction” between this case and the Supreme
Court’s decision in Minnesota State Board for Community
Colleges v. Knight, 465 U.S. 271 (1984). Bierman, 900 F.3d
at 574. Accordingly, we are bound by Knight. Agostini v.
Felton, 521 U.S. 203, 237 (1997).