(concurring in part, dissenting in part) — I respectfully concur in part and dissent in part. I agree with the majority that under RCW 42.17.760, the union may collect agency fees, including those it ultimately intends to use for political purposes. But I disagree with the majority’s conclusion that the statute is unconstitutional in prohibiting the political use of fees collected from nonmembers without their prior affirmative authorization.
I also concur in the majority’s reversal of penalties assessed against the WEA. On the record before us, it appears that the WEA was operating under a good faith belief that its actions were lawful so long as it refunded agency fees to nonmembers upon request and used for political purposes only those nonmember fees for which employees had not expressly requested rebates.
*642I. Constitutionality of Statute
RCW 42.17.760, entitled, “Agency shop fees as contributions,” provides:
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.
(Emphasis added.) The cases the majority cites do not hold that the Constitution bars a statutory provision, such as RCW 42.17.760, which requires a nonmember employee’s affirmative authorization before a union can use his or her agency fee for political purposes.
For example, at 632 and 633, the majority cites two Railway Labor Act cases, International Association of Machinists v. Street, 367 U.S. 740, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961), and Brotherhood of Railway & Steamship Clerks v. Allen, 373 U.S. 113, 83 S. Ct. 1158, 10 L. Ed. 2d 235 (1963), for the proposition that an “opt in” provision is not constitutionally required; with this proposition I agree. But these cases do not support the converse, advanced by the majority here, that an “opt in” provision such as Washington’s is constitutionally barred.
Similarly, in a First Amendment case also cited by the majority, Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), the Supreme Court held that a public teachers’ union may not use a nonmember’s agency fees to underwrite the union’s political activity over the nonmember’s objection. In so holding, the Court sought to craft a fee-collection procedure that would prevent
compulsory subsidization of ideological activity by employees who object thereto [1] without restricting the Union’s ability to require every employee to contribute to the cost of collective-bargaining activities
*643and (2) without allowing “union members who do wish part of their dues to be used for political purposes ... [to be] ‘silenced by the dissenters.’ ” Abood, 431 U.S. at 237-38 (quoting Street, 367 U.S. at 773). In crafting this remedy, the Court sought “guidance” from Street and Allen, reciting that “dissent is not to be presumed.” Abood, 431 U.S. at 237-38. Nonetheless, Abood does not expand this clause to hold that that an “opt in” procedure is constitutionally impermissible, as the majority here infers.57
Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435, 104 S. Ct. 1883, 80 L. Ed. 2d 428 (1984), supports this limited reading of Abood as stopping short of finding a constitutional requirement that the burden of dissent rests on the objecting employee. The Court noted that Street, Allen, and Abood “did not, nor did they purport to, pass upon the statutory or constitutional adequacy of the suggested remedies.”58 Ellis, 466 U.S. at 443.
Similarly, in Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed. 2d 232 (1986), the Court addressed whether a specific union procedure adequately protected a dissenting employee’s right to “ ‘prevent the Union [ ] [from] spending a part of [his] required service fees to contribute to political [activity] . . . unrelated to its duties as exclusive bargaining representative.’ ” Hudson, 475 U.S. at 302 (citations omitted). The Court repeatedly stated that under that specified union procedure, the employee bore the burden of objecting. Hudson, 475 U.S. at 306-07, 309. Again, however, the Court *644did not hold that the Constitution mandates that such burden rest on the employee.59
In Mitchell v. Los Angeles Unified School District, 963 F.2d 258 (9th Cir. 1992), the Ninth Circuit Court of Appeals addressed the constitutional sufficiency of a school district union’s “opt out” procedure for nonmember employees. The employees argued that an “opt in” procedure was constitutionally required, to which the Court responded that “the Constitution does not mandate a system under which nonmembers pay full union dues only if they ‘opt in.’ ” Mitchell, 963 F.2d at 260 (emphasis added). The Ninth Circuit read the Supreme Court opinions mentioned above as holding “that nonunion members’ rights are adequately protected when they are given the opportunity to object to such deductions and to pay a fair share fee to support the union’s representation costs.” Mitchell, 963 F.3d at 261. Similar to these Supreme Court opinions, however, in approving an “opt out” procedure, the Mitchell court did not hold that the Constitution requires an “opt out” procedure in lieu of an “opt in” procedure like the one at issue here.
In short, the cases that the majority cites simply uphold “opt out” procedures as constitutional. None, however, hold that the Constitution requires an “opt out” procedure or that the burden of dissent must be on the objecting employee. Further, none of these cases hold that a statutory “opt in” procedure, such as the one in RCW 42.17.760, is constitutionally infirm, contrary to the majority’s finding here that an “opt out” procedure is constitutionally mandated.
II. Statutory Limitations
Washington’s statutory scheme allows unions to collect fees and dues from union members and equivalent agency fees from nonunion members. RCW 41.59.100, .060(2). *645Although employees have the right to refrain from joining a union, they may nonetheless be required to pay “a fee to any employee organization under an agency shop agreement.” RCW 41.59.060(1). But the union cannot spend such nonmembers’ fees for political purposes without such employees’ affirmative authorization. RCW 42.17.760. Rather, nonauthorizing nonmembers are entitled to rebates of that portion of their agency fees that would have gone for union political expenses. RCW 42.17.760.
Here, the parties’ jointly retained expert, Michael Gocke, testified that member dues alone were sufficient to cover all WEA political expenses. But the practical effect of such a scheme would be to shift a disproportionate share of the collective bargaining expenses onto nonmembers’ agency fees: In essence, the nonmembers would pay a portion of the members’ share of the collective bargaining expenses, thus freeing up a larger share of the members’ dues for political expenses. Such a scheme appears to contradict the legislature’s goals of (1) equal allocation of collective bargaining expenses between members and nonmembers, (2) equal allocation of political expenses between members and affirmatively assenting nonmembers, and (3) retention of the political expense portion of agency fees to nonassenting nonmembers. See RCW 41.59.060(1), .100; RCW 42.17.760.
Even taking the evidence here in the light most favorable to the WEA, the record supports the trial court’s findings that
WEA violates RCW 42.17.760 when it collects agency fees and then spends them for prohibited purposes in ratio to the total agency fees and dues collected without affirmative authorization.
Clerk’s Papers (CP) at 361.
WEA used agency fees, from each [nonmember] who did not receive any refund of part of their fees, for [political] expenditures.
CP at 371.
*646Accordingly, I would affirm the trial court’s conclusion of law that
[w]hen agency fees were commingled with other funds in the general treasury, expenditure of any general treasury monies to influence an election or support a political committee results in use of a proportionate share of agency fees for such purposes.
CP at 373. I would also uphold the trial court’s injunction prohibiting the WEA from collecting agency fees, equivalent to member dues, from nonmembers who do not first affirmatively authorize a portion for political expenditures as the legislature has prescribed in RCW 42.17.760.
III. Penalties
I would affirm the trial court’s finding that the WEA contravened the plain, and constitutional, language of RCW 42.17.760 when (1) it knowingly collected nonmember fees, in part for political expenditures, without those nonmembers’ prior affirmative authorization and (2) refunded such fees only when a nonmember specifically requested a rebate. Therefore, I dissent from the majority’s contrary holding on this point.
But I concur in the majority’s reversal of the penalties assessed against the WEA. The record shows that the WEA had a good faith basis for relying on its interpretation of the statute and for requiring nonmembers to request rebates following collection of agency fees. Clearly, the WEA read and interpreted the Supreme Court cases in a manner consistent with my learned colleagues’ reading — as rendering the “opt in” collection method unconstitutional. In spite of my dissention from the majority’s legal conclusion as to the constitutionality of the statute, I do not find the penalties against WEA warranted and, therefore, I concur in the majority’s reversal of the penalties assessed below.
Review granted at 150 Wn.2d 1032 (2004).
Moreover, Justice Stevens left the door open for alternative remedies. Abood, 431 U.S. at 244 (Stevens, J. concurring). Only Justice Powell, as the majority here notes at 634, reads the majority opinion in Abood as placing the burden of dissent on the objecting employee. Abood, 431 U.S. at 254-55 (Powell, J. concurring). In contrast, the majority in Abood does not go so far as to hold that the Constitution requires the burden of dissent to be placed on the objecting employee.
Although in Abood the Court did mention placement of the burden of dissent in the context of its discussion on remedies, Abood, 431 U.S. at 237-38, in Ellis, it neither mentioned nor addressed the burden of dissent.
Nor did the Hudson Court question the constitutionality of placing such a burden on the dissenting employee.