¶67 (dissenting) —
Sanders, J.That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.[7]
¶68 The majority turns the First Amendment on its head. Unions have a statutory, not constitutional, right to cause employers not only to withhold and remit membership dues but also to withhold and remit fees from nonmem*572bers in an equivalent amount.8 Absent this statutory mechanism for the withholding and remission of agency fees (or membership fees for that matter), there is no right, constitutional or otherwise, for the union to require it. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977).
¶69 Many other states have markedly different statutory schemes: Some entirely bar union security agreements and outlaw agency shops as well.9
¶70 Should the legislature of the state of Washington choose to repeal the mandatory withholding provisions of RCW 41.59.060 and .100, there would be no constitutional impediment to doing so. And no party to this proceeding claims there is.
¶71 However the existence of these mandatory withholding statutes does raise a very definite constitutional problem insofar as the statute is used to compel the nonmember to support the political advocacy of the union without his *573consent. Nearly every case cited by the majority concerns precisely that eventuality. However that constitutional problem can no longer arise in the state of Washington by virtue of a further statute, RCW 42.17.760, which provides in its entirety:
A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual.
¶72 There is nothing ambiguous about this statute. No labor organization may use agency fees for political purposes absent “affirmative authoriz [ation] ” by the individual. Nonaction or acquiescence is not “affirmative authoriz [ation].”
¶73 Given that the legislature could constitutionally repeal the whole statutory scheme allowing withholding in the first place, I find it nearly beyond comprehension to claim that the legislature, or the people acting through their sovereign right of initiative, could not qualify these statutes to ensure their constitutional application.
f 74 In short, the majority turns the First Amendment on its head to invalidate a state statute enacted to further protect the constitutional rights of nonunion members who are required to pay agency fees as the price of their employment.
¶75 While the First Amendment protects the right to organize and to express ideas on behalf of an organization, it “does not impose any affirmative obligation on the government to listen, to respond or ... to recognize the association and bargain with it.” Smith v. Ark. State Highway Employees, 441 U.S. 463, 465, 99 S. Ct. 1826, 60 L. Ed. 2d 360 (1979). See also Brown v. Alexander, 718 F.2d 1417, 1421-22 (6th Cir. 1983). Following from this basic premise, there is no constitutional right to have the government deduct union dues (and, by logical extension, agency fees) from paychecks. Ark. State Highway Employees v. Kell, 628 F.2d 1099 (8th Cir. 1980).
*574¶76 “Although loss of payroll deductions may economically burden the [union] and thereby impair its effectiveness, such a burden is not constitutionally impermissible.” S.C. Educ. Ass’n v. Campbell, 883 F.2d 1251, 1256 (4th Cir. 1989). “[T]he First Amendment does not impose an affirmative obligation on the state to assist the program of an association by providing payroll deduction services.” Id. at 1257. The Fourth Circuit, examining whether payroll deductions were constitutionally required, quoted the United States Supreme Court, “ ‘[A] legislature’s decision not to subsidize the exercise of a fundamental right does not infringe that right.’ ” Id. at 1256 (quoting Regan v. Taxation With Representation of Wash., 461 U.S. 540, 549-50, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) (citing Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976))). The court concluded by stating, “[t]he state’s failure to authorize payroll deductions for the [union] does not deny [union] members the right to associate, to speak, to publish, to recruit members, or to otherwise express and disseminate their views.” Id. at 1257.
¶77 The Ohio legislature eliminated wage checkoffs for the support of any “candidate, separate segregated fund, political action committee, legislative campaign, political party, or ballot issue.” Ohio Rev. Code Ann. § 3599.031(H) (LexisNexis 2006). The United States Court of Appeals for the Sixth Circuit found this constitutional. Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307, 319-21 (6th Cir. 1998).
¶78 Therefore, it would be perfectly constitutional if the State chose to eliminate the payroll deduction for collection of agency shop fees altogether. How then could merely placing a procedural condition on the collection of a small portion of such shop fees (those that would be used to influence an election or to operate a political committee) violate the constitution?
¶79 The majority chooses not to address this line of cases. Instead it distorts cases delineating the requirements protecting dissenting union members and nonmem*575bers from having their dues used to support political activities with which they disagree to do the opposite: limit the State’s ability to protect such dissenters.
¶80 Simply put, all of the cases cited by the majority involve claims by dissenters that certain steps were required to protect their constitutional right not to associate and not to have their money spent supporting political positions with which they disagreed.10 I cannot improve upon Judge Hunt’s dissent from the case below: “[T]hese cases do not support the converse, advanced by the majority here, that an ‘opt-in’ provision such as Washington’s is constitutionally barred.” State ex rel. Wash. State Pub. Disclosure Comm’n v. Wash. Educ. Ass’n, 117 Wn. App. 625, 642, 71 P.3d 244 (2003) (Hunt, J., dissenting).11 Judge Hunt’s learned dissent cogently analyzes each of the cases relied upon by the majority and reaches the correct conclusion.12
¶81 Our majority takes “dissent is not to be presumed”13 out of the context in which it was written — the context of unions categorically violating the rights of dissenters. That language simply served to limit the actions a union must *576undertake in the absence of a statutory scheme. The holdings of all the cases cited by the majority amount to a simple proposition: the constitution requires at least an opt-out scheme to protect dissenters’ rights.14 None of these cases stand for the proposition that the constitution limits a different legislative approach to protecting dissenters’ rights, including an opt-in scheme.
¶82 From the majority’s misconstruction of the “dissent is not to be presumed” language, a false “balance” requirement is invented. Other than general paeans to the right of association, the majority cites no other precedent for its holding that the “balance” between the associational rights of dissenters and nondissenters is upset by requiring one to register assent, rather than register dissent.15 Again, if the elimination of a payroll deduction does not abridge the constitutional rights of union members and nonobjecting nonmembers to associate, it is inconceivable that requiring *577assent as a precondition to using funds generated by a payroll deduction abridges such rights.
¶83 In fact, an “opt-in” legislative scheme has explicitly been constitutionally upheld. In Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997), the Sixth Circuit upheld a statute that read:
“[A] labor organization may solicit or obtain contributions for a separate segregated fund ... on an automatic basis, including but not limited to a payroll deduction plan, only if the individual who is contributing to the fund affirmatively consents to the contribution at least once in every calendar year.”
Id. at 1248-49 (emphasis added) (quoting Mich. Comp. Laws Ann. § 169.255(6) (West 1966)).
¶84 The statutory scheme in Michigan prohibited labor unions from making political contributions from general funds, requiring them to maintain a “segregated” fund for such contributions. Id. at 1244. Thus, in order to solicit or obtain funds that would be used for political purposes— even from its own members, let alone nonmembers — the union had to obtain “affirmative consent” for the deduction every calendar year.
¶85 This is a more restrictive scheme than the Washington statute at issue since it applies to all union members while the Washington statute applies only to nonmembers.16 But the statute mirrors Washington’s in requiring “affirmative consent” — substantively identical to “affirmative authorization” — before using payroll deductions for political purposes. And even given the Michigan statute’s broader effects in applying to union members, the Sixth Circuit stated:
*578[T]he suggestion that asking people to check a box once a year unduly interferes with the speech rights of those contributors borders on the frivolous.
Id. at 1253.
¶86 The majority’s treatment of this case borders on the inexplicable. It claims that the primary issue in Miller was the equal application of the reverse checkoff to unions, corporations, nonprofits, and other groups. Majority at 565 n.6. It was nothing of the sort. The three sections of the opinion are labeled “Facts” (id. at 1243), “Intervention” (id. at 1245), and “The First Amendment and § 169.255(6)” (id. at 1248). There are no sections involving equal protection challenges.17
¶87 As Miller recognized, the suggestion that a legislative choice to protect dissenting nonmembers by requiring affirmative authorization before using their agency shop fees to influence an election or to operate a political committee violates the first amendment to the United States Constitution “borders on the frivolous.”
¶88 The majority claims this statute violates the First Amendment associational rights of the union, citing Boy Scouts of America v. Dale, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000).
¶89 This argument’s flaw is at its foundation: association is a two-way street requiring a mutual desire to *579associate by all concerned. But here nonunion employees have elected not to associate. This does not violate the associated rights of the union or its members since it had no constitutional right to compel membership, much less monetary support, from nonmembers in the first place.
¶90 Moreover, this argument for unconstitutionality was never advanced by the parties and is therefore not properly considered by the court. See RAP 9.12 (limiting review of summary judgment to “evidence and issues called to the attention of the trial court”); see also Nelson v. McGoldrick, 127 Wn.2d 124, 140, 896 P.2d 1258 (1995); Simpson Tacoma Kraft Co. v. Dep’t of Ecology, 119 Wn.2d 640, 649, 835 P.2d 1030 (1992) (refusing consideration of issues not raised before trial court); cf. Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 240, 119 P.3d 325 (2005) (refusing consideration of 42 U.S.C. § 1983 claim raised only in reply brief).
¶91 However even if it is properly before the court, it is not meritorious since this statute does not apply to union members, only to nonmembers who must pay agency fees because of their refusal to join the union. The right of these nonunion employees to refuse to join the union is itself protected by the First Amendment right of association as “ ‘[f freedom of association . . . plainly presupposes a freedom not to associate.’ ” Boy Scouts, 530 U.S. at 648 (alteration in original) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984)); Good v. Associated Students of Univ. of Wash., 86 Wn.2d 94, 104, 542 P.2d 762 (1975). Boy Scouts protected the right of nonassociation. Were this statute to apply to union dues from voluntary union members, the analysis might be arguable. But it doesn’t, and it isn’t.
¶92 The majority confuses the analysis further by referring to “the union’s expressive association with agency fee payers,” majority at 568, and “its [union’s] expressive association with nonobjecting agency fee payers.” Id. at 569. But there is no association between the union and agency fee payers because by definition these individuals have *580refused to join (associate with) the union. The absence of membership defeats any claim that the regulation of statutorily required monetary support can possibly violate the right of union members to freely associate with one another for political advocacy. Rather it puts in jeopardy the First Amendment right of nonmembers to refuse to associate with a union which uses their money to advance a political agenda with which they might disagree. That is the concern of the First Amendment in this context, as it is the even more protective concern of RCW 42.17.760.
“Our Government has no more power to compel individuals to support union programs or union publications than it has to compel the support of political programs, employer programs or church programs. And the First Amendment, fairly construed, deprives the Government of all power to make any person pay out one single penny against his will to be used in any way to advocate doctrines or views he is against, whether economic, scientific, political, religious or any other.”
Good, 86 Wn.2d at 101 (quoting Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 791, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961) (Black, J., dissenting)).
¶93 I dissent.
Alexander, C.J., and Fairhurst, J., concur with Sanders, J.
Thomas Jefferson, Religious Liberty Guaranteed: Bill for Establishing Religious Freedom (1779), reprinted in A Documentary History of Religion in America 231 (Edwin S. Gaustad ed., 3d ed. 2003) (emphasis omitted).
RCW 41.59.060(2) (“If an agency shop provision is agreed to and becomes effective pursuant to RCW 41.59.100, except as provided in that section, the agency fee equal to the fees and dues required of membership in the exclusive bargaining representative shall be deducted from the salary of employees in the bargaining unit.”); RCW 41.59.100 (“A collective bargaining agreement may include union security provisions including an agency shop .... If an agency shop provision is agreed to, the employer shall enforce it by deducting from the salary payments to members of the bargaining unit the dues required of membership in the bargaining representative, or, for nonmembers thereof, a fee equivalent to such dues. . .. ”).
See Ala. Code §§ 25-7-6, 25-7-30 to 25-7-36 (Supp. 1992); Ariz. Rev. Stat. Ann. Const, art. XXV (West 1984) and §§ 23-1301 to 23-1303 (West 1995); Ark. Code Ann. §§ 11-3-301 to 11-3-304 (Michie Supp. 1996); Fla. Stat. Ann. Const, art. 1, § 6 (West 1991); Ga. Code Ann. §§ 34-6-20 to 34-6-28 (1998); Idaho Code Ann. §§ 44-2001 to 44-2012 (1997); Iowa Code Ann. §§ 731.1 to 731.5 (West 1993); Kan. Stat. Ann. Const, art. 15, § 12 (1988); La. Rev. Stat. Ann. §§ 23:981 to 23:985 (West 1998); Miss. Code Ann. § 71-1-47 (1995); Neb. Rev. Stat. Const, art. XV, § 13 (1995); Nev. Rev. Stat. Ann. §§ 613.230 to 613.300 (Michie 1996); N.C. Gen. Stat. §§ 95-78 to 95-84 (1997); N.D. Cent. Code §§ 34-01-14, 34-08-04 (1987); S.C. Code Ann. §§ 41-7-10 to 41-7-90 (Law Co-op. 1986); S.D. Codified Laws Const, art. VI, § 2 (Michie 1978) and §§ 60-8-3 to 60-8-8 (Michie 1993); Tenn. Code Ann. §§ 50-1-201 to 50-1-204 (1991); Tex. Lab. Code Ann. §§ 101.051 to 101.053 (West 1996); Utah Code Ann. §§ 34-34-1 to 34-34-17 (1997); Va. Code Ann. §§ 40.1-58 to 40.1-69 (Michie 1994); Wyo. Stat. Ann. §§ 27-7-108 to 27-7-115 (Michie 1997). Thirteen of these states outlaw agency shops as well as union shops. There is no indication that any state has been held to have violated union members’ rights by foreclosing mandatory collection of fees from nonmembers.
Mitchell v. Los Angeles Unified School District, 963 F.2d 258 (9th Cir. 1992) is no different. That case concerned the First Amendment right of nonunion employees to withhold financial support from union political activity. The court held the constitutional right of the nonunion employees was adequately protected by an opportunity to “opt-out” of full dues payment through an agency fee. The constitutional rights of the union were never at issue.
See also Irving M. Copi & Carl Cohen, Introduction to Logic 219-20 (9th ed. 1994) (converse of a given proposition not necessarily valid).
See State ex rel. Wash. State Pub. Disclosure Comm’n, 117 Wn. App. at 642-44 (Hunt, J., dissenting), analyzing Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961); Bhd. of Ry. & S.S. Clerks v. Allen, 373 U.S. 113, 83 S. Ct. 1158, 10 L. Ed. 2d 235 (1963); Abood, 431 U.S. 209; Ellis v. Bhd. of Ry., 466 U.S. 435, 104 S. Ct. 1883, 80 L. Ed. 2d 428 (1984); Mitchell, 963 F.2d 258. While Judge Hunt did not examine Weaver v. University of Cincinnati, 970 F.2d 1523 (6th Cir. 1992), that case arose in the identical context to the others: a claim that certain procedures, such as affirmative consent, were constitutionally required to protect dissenters’ rights. See Weaver, 970 F.2d at 1531. All of these cases dealt with the constitutional floor — a minimum level of process needed to protect dissenters’ rights. None of these cases dealt with the constitution as a ceiling limiting the discretion of legislators, or the people acting as legislators, in providing further protection to dissenters.
Street, 367 U.S. at 774; Abood, 431 U.S. at 238.
Even the language quoted by Justice Ireland demonstrates this: “ ‘[T]he Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object....”’ Majority at 559 (emphasis added) (alteration in original) (quoting Abood, 431 U.S. at 235-36). Further, Abood was a plurality opinion, and the concurring justices either explicitly chose not to address alternative remedies for the violations of dissenters’ rights, remedies such as RCW 42.17.760 {see Abood, 431 U.S. at 244 (Stevens, J., concurring)), or explicitly stated that the constitution does not require employees to “declare their opposition to the union and initiate a proceeding” in order to vindicate their First Amendment rights. Abood, 431 U.S. at 245 (Powell, J., concurring).
And even the cases cited as interpreting the “presumption of dissent” are misrepresented. Wagner v. Professional Engineers in California Government, 354 F.3d 1036, 1043 (9th Cir. 2004) is cited for the proposition that “[a] presumption of dissent fails to respect the nonmember’s First Amendment rights as ‘running both ways.’ ” Majority at 561 (quoting Wagner, 354 F.3d at 1043). Yet the issue discussed in that section of Wagner was whether the proper remedy for an inadequate Hudson notice (where no statutory scheme required assent prior to use) was return of the nonchargeable amounts to all fee payers, including those who did not object, or whether the proper remedy was a new, proper notice with a renewed opportunity to object and then to receive a refund with interest. Chi. Teachers Union v. Hudson, 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed. 2d 232 (1986). The case had nothing to do with whether requiring assent prior to use of nonobjecting nonmembers’ payroll deductions was constitutional. Indeed, the case stresses protection of dissenters in absence of a statutory scheme protecting them: “The fundamental right at issue is the right to be informed before making a choice whether to pay for non-chargeable expenditures.” Wagner, 354 F.3d at 1043.
The majority’s attempt to distinguish Miller on the basis that Washington has a statute, RCW 42.17.680(3), limiting union members’ payroll deductions is baffling. The fact that Washington also has a statute regulating union member payroll deductions (though in a different manner than Michigan’s) doesn’t affect the central premise of Miller — that an “opt-in” system regarding payroll deductions does not violate the First Amendment.
The challenge in Miller was to both associational and speech rights. Miller, 103 F.3d at 1250. Similarly, the majority frames the issue in both political speech and associational terms. Majority at 557. But while the majority chooses to focus on the line of United States Supreme Court cases concerning associational (and nonassociational) rights, the Sixth Circuit focused on the free speech cases. Under that line of cases, the Sixth Circuit looked at whether the requirement of affirmative consent for a payroll deduction was a content-neutral restriction on the potential speech of union members which would have been funded by the payroll deduction. Miller, 103 F.3d at 1250-53. The majority determined that the restriction on speech was content-neutral, and in making that determination, the court examined whether the statute was an invidious “attempt to limit contributions made to separate segregated funds or to favor one class of voters over another.” Id. at 1251. The court determined that there was no invidious purpose because the “statute applies evenhandedly.” Id. I of course agree that there is no violation of free speech rights in limiting a payroll deduction system and of course no violation of associational rights, as outlined above.