Kristine Kurk v. Los Rios Classified Employees

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 24, 2022
• Docket: 21-16257
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED AUG 24 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KRISTINE KURK, No. 21-16257

Plaintiff-Appellant, D.C. No. 2:19-cv-00548-KJM-DB

v. MEMORANDUM* LOS RIOS CLASSIFIED EMPLOYEES ASSOCIATION; et al.,

Defendants-Appellees,

and

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 620; et al.,

Defendants.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Submitted August 17, 2022**

Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Kristine Kurk appeals from the district court’s summary judgment in her 42

U.S.C. § 1983 action alleging a First Amendment claim arising out of union

membership dues paid to Los Rios Classified Employees Association (“union”).

We have jurisdiction under 28 U.S.C § 1291. We review de novo cross-motions

for summary judgment. JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d

1098, 1104 (9th Cir. 2016). We affirm.

The district court properly granted summary judgment on Kurk’s First

Amendment claim for damages because Kurk’s continued union membership and

the deduction of union membership dues arose from the private membership

agreement between the union and Kurk, and “private dues agreements do not

trigger state action and independent constitutional scrutiny.” Belgau v. Inslee, 975

F.3d 940, 946-49 (9th Cir. 2020), cert. denied, 141 S. Ct. 2795 (2021) (discussing

state action); see id. at 950-52 (concluding that the Supreme Court’s decision in

Janus v. American Federation of State, County & Municipal Employees, Council

31, 138 S. Ct. 2448 (2018), did not extend a First Amendment right to avoid

supporting the union and paying union dues that were agreed upon under

voluntarily entered membership agreements); Knutson v. Sirius XM Radio Inc., 771

F.3d 559, 565 (9th Cir. 2014) (discussing mutual assent).

Kurk’s claims for prospective relief are moot. Kurk is no longer a member

of the union, defendants stopped deducting union membership dues or enforcing

2 21-16257 the challenged statutes, and defendants demonstrated that they are unlikely to

rescind the policy changes. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc., 528 U.S. 167, 189-90 (2000) (explaining voluntary cessation and

mootness); Bain v. Cal. Teachers Ass’n, 891 F.3d 1206, 1211-14 (9th Cir. 2018)

(explaining that plaintiffs’ claims for prospective relief were moot when they

resigned their union membership and presented no reasonable likelihood that they

would rejoin the union in the future); cf. Thomas v. Anchorage Equal Rts. Comm’n,

220 F.3d 1134, 1139 (9th Cir. 2000) (en banc) (explaining that the mere existence

of a proscriptive statute does not create a constitutionally sufficient direct injury).

AFFIRMED.

3 21-16257