Our Response to the Federal Dismissal

I apologize to all for not getting new information shared to everybody, in a timely manner. Things have been extremely crazy busy the past couple weeks. Legal Counsel asked Open Our Oregon if we would be willing to continue pursuing the federal case and provide the financial support that would require. After much thought, Open Our Oregon has decided to commit to continue fighting the over-bearing and unconstitutional executive orders that continue to be issued by Governor Kate Brown. This means we desperately need your support, please consider using the PayPal link below to donate $100. We are currently at 10% of our estimated initial goal of $50,000. We appreciate your help and support in our battle to Open Our Oregon ! PayPal.Me/OpenOurOregon

With that, here is the response we filed in regards to the court’s ‘Denial’ for our lawsuit:

James L. Buchal, OSB No. 921618

MURPHY & BUCHAL LLP

3425 SE Yamhill Street, Suite 100

Portland, OR  97214

Tel:  503-227-1011

Fax:  503-573-1939

E-mail:  jbuchal@mbllp.com

Attorneys for Plaintiffs (see signature block)

Tyler Smith, OSB No. 75287

TYLER SMITH & ASSOCIATES PC

181 N. Grant Street, Suite 212

Canby, OR 97013

Tel:  503-266-5590

Fax:  503-213-6392

E-mail:  tyler@ruralbusinessattorneys.com

Attorney for Plaintiffs (see signature block)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

OPEN OUR OREGON, DA CIELO LLC, THE MOUNT HOOD MIXER SHOP, INC., UNDER THE SKIN TATTOO LLC, BRYANT LLC, KUEBLER’S FURNITURE, INC., KATHY SALDANA, as an individual; MICHELE KARPONTINIS, as an individual; and DAVID PARSON, as an individual,               Plaintiffs,   v.   KATE BROWN, in her official capacity as the Governor of the State of Oregon, LILLIAN SHIRLEY, in her official capacity as Public Health Director of the State of Oregon,          Defendants.No. 6:20-cv-00773-MC   PLAINTIFFS’ RESPONSE TO MOTION TO DISMISS      

TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………………………………………….

Response to the State’s Introduction……………………………………………………………………..

Counterstatement of Facts……………………………………………………………………………………

Argument………………………………………………………………………………………………………….

  1. RESPONSE TO THE STANDARDS ON MOTION TO DISMISS……………….
  1. THE CASE IS NOT MOOT……………………………………………………………………..
  1. PLAINTIFFS’ COMPLAINT ADEQUATELY STATES A CLAIM FOR VIOLATION OF THEIR SUBSTANTIVE RIGHT TO DUE PROCESS OF LAW……………………………………………………………………………………………………..
  1. PLAINTIFFS’ COMPLAINT ADEQUATELY STATES A CLAIM FOR VIOLATION OF THEIR PROCEDURAL RIGHT TO DUE PROCESS

OF LAW………………………………………………………………………………………………..

  • PLAINTIFFS’ COMPLAINT ADEQUATELY STATES A CLAIM FOR VIOLATION OF THEIR PROCEDURAL RIGHT TO EQUAL

PROTECTION OF LAW…………………………………………………………………………

  • PLAINTIFFS’ COMPLAINT ADEQUATELY STATES A CLAIM FOR VIOLATION OF THEIR FOURTH AND/OR FIFTH AMENDMENT

RIGHTS…………………………………………………………………………………………………

Conclusion………………………………………………………………………………………………………..

TABLE OF AUTHORITIES

Cases

Allgeyer v. Louisiana,

            165 U.S. 578, 17 S. Ct. 427 (1897)…………………………………………………………….

Ashcroft v. Iqbal,

556 U.S. 662, 129 S. Ct. 1937 (2009)…………………………………………………………

Bell Atl. Corp. v. Twombly,

550 U.S. 544, 127 S. Ct. 1955 (2007)…………………………………………………………

Bd. of Regents v. Roth, 408 U.S.

564, 92 S. Ct. 2701 (1972)………………………………………………………………………..

City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985)…………………………………………………………………………………

Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health,

186 U.S. 380 (1902)…………………………………………………………………………………

F.C.C. v. Beach Communications, Inc.,

508 U.S. 307 (1993)…………………………………………………………………………………

Harlow v. Fitzgerald,

457 U.S. 800, 102 S. Ct. 2727 (1982)…………………………………………………………

In re Smith,

146 N.Y. 68, 40 N.E. 497 (1895)……………………………………………………………….

Jacobsen v. Commonwealth of Massachusetts,

197 Or. 11 (1905)…………………………………………………………………………………….

Kirk v. Board of Health,

83 S.C. 372, 65 S.E. 387 (1909)………………………………………………………………..

Mathews v. Eldridge,

424 U.S. 319, 96 S. Ct. 893 (1976)…………………………………………………………….

Montgomery Envtl. Coal. v. Costle,

207 U.S. App. D.C. 233, 646 F.2d 568 (1980)…………………………………………….

Palko v. Connecticut,

302 U.S. 319 (1937)…………………………………………………………………………………

Penn Central Transp. Co. v. City of New York,

438 U.S. 104 (1978)…………………………………………………………………………………

Railroad Co. v. Husen,

95 U.S. 465 (1878)…………………………………………………………………………………..

Rochin v. California,

342 U.S. 165 (1952)…………………………………………………………………………………

Skinner v. Railway Labor Executives’ Ass’n,

489 U.S. 602 (1989)…………………………………………………………………………………

Takahashi v. Fish & Game Comm.,

334 U.S. 410, 68 S. Ct. 1138 (1948)…………………………………………………………..

Truax v. Raich,

239 U.S. 33, 36 S. Ct. 7 (1915)………………………………………………………………….

United States v. Carolene Products,

304 U.S. 144 (1938)…………………………………………………………………………………

Wisconsin Legislature v. Palm,

No. 2020AP765-OA (May 13, 2020)…………………………………………………………

Statutes

ORS 401.165……………………………………………………………………………………………………..

ORS 401.168……………………………………………………………………………………………………..

ORS 433.008……………………………………………………………………………………………………..

ORS 433.121……………………………………………………………………………………………………..

ORS 433.126……………………………………………………………………………………………………..

ORS 433.128……………………………………………………………………………………………………..

Rules and Regulations

Fed. R. Civ. P. 201(b)…………………………………………………………………………………………

Other Authorities

Charles Mackey, Extraordinary Popular Delusions and the Madness

of Crowds (1841)……………………………………………………………………………………………….

W. Parmet, Aids and Quarantine:  The Revival of Archaic Doctrine,

14 Hofstra L. Rev. 53 (1985)……………………………………………………………………………….

Response to the State’s Introduction

            Of course any regulation that reduces human contact reduces the risk of transmission of disease.  And of course people die of disease; an annual flu season has frequently killed more people than have died so far from COVID-19.  (See Cmplt. ¶ 44.)  But the notion that governors have exercised emergency powers like this “without controversy, for decades” (Motion at 1) is astoundingly false.

            This case is not about whether the State can quarantine sick individuals, or those who have come into contact with them; it is not about whether healthy people can be forced to get vaccinated in the midst of an epidemic; it is not about whether healthy people can be forced to wear masks, or take additional regulatory precautions.  Plaintiffs do not “nullify[] the steps the Governor has taken to protect Oregonians” (Motion at 1) in general, but only the most overreaching:  her categorical refusal to permit American citizens to associate with each other, entering into business contracts, merely because they must meet (and in some cases) touch each other (perhaps through gloves and behind masks) to do so.

            The State asserts that the emergency measures have worked to reduce deaths, but that is not a fact that can be taken as true for purposes of this motion.  Dr. Dodson’s declaration posits that suicide deaths from the economic disaster wrought by closing huge swathes of business may well exceed deaths from COVID-19, and this is not implausible at all:  a recent media report says “Suicide killing more in California than coronavirus warn doctors as they target lockdown”.[1]  For purposes of this motion, this Court cannot assume that the Governor’s orders prevented any deaths.

            It is clear that “[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 998 (2002), and among those facts that may be proved is that the Governor has taken her actions for collateral political purposes (Cmplt. ¶ 54), an allegation that should gain substantial credibility as the Governor and her political allies have refused to control mass gatherings around the state that promote her political party’s message concerning assertions of systemic racial injustice, even as she continues to threaten and fine small businesses across the state.

            Nor is it true, except in a technical sense, that the Governor has rescinded the challenged orders.  Almost identical language and restrictions appear in the new order, and in any event, there can be no more quintessential case of a controversy capable of repetition, yet evading review, than the scope of emergency powers.  If the Oregon Supreme Court upholds the Baker County injunction striking down Orders, this case will be moot, but otherwise not.

            Perhaps the most remarkable aspect of the Governor’s response is that her citizens have no “cognizable deprivations of due process or equal protection and have not been subject to seizures or takings”.  (Motion at 3.)  There are complex questions as to the scope of the Court’s review of plaintiffs’ rights, but to say the rights are not even “cognizable” betrays the utter indifference of the Governor to fundamental constitutional rights. 

            The real question presented by the State’s motion is whether, as a matter of law, the Governor of Oregon can do anything “rationally related” to reducing disease on the assertion of an ongoing “emergency,” irrespective of her motives, or whether fundamental Constitutional rights still have enough meaning in the federal courts to require some consideration of the facts, allowing this suit to go forward to gather and present them to the Court.

Counterstatement of Facts

            The facts concerning the Governor’s Orders restrictions on ordinary, healthy Oregonians and the result threats of criminal punishment for those violating them are undisputed.  (Cmplt. ¶¶ 25-32.) 

            Nor is it disputed that the initial rationale for lockdowns was “flattening the curve” (Cmplt. ¶ 33), which was long ago achieved (e.g., Cmplt. ¶ 39 (hospital admissions peaked briefly in March)).  There is no shortage of ventilators or hospital capacity, and hospitalizations are declining.  (Cmplt. ¶¶ 36-39.)  This is the State’s own data, and the Governor can hardly refute it.

            Lacking the more specific goal of preventing emergency rooms from being overwhelmed by a then-unknown disease, the Governor retreats to the notion that the Orders reduce the risk of disease transmission, essentially arguing that any restriction of rights that reduces the probability of death by disease must be categorically insulated from judicial review by the bare invocation of an “emergency.”  Plaintiffs, by contrast, believe that the Court should not dismiss the case without some understanding of the actual magnitude of the risk, and the Governor’s motives in adopting the Orders.

            Plaintiffs also disagree that the facts presented by the Governor, principally concerning rapidly changing and highly-politicized scientific issues, fall within the scope of Fed. R. Civ. P. 201(b).  (Cf. Motion at 3 n.4.)  The Governor may regard the World Health Organization (WHO), for example, as “highly respected and authoritative” (id.) others may reasonably regard the WHO as unreliable; critics on the Left and Right claim that WHO is currently run by a Marxist gangster[2] running cover for China by issuing staggeringly false information,[3] or at the least being played a fool by the Chinese.[4] 

            The facts advanced by the Governor are simply not the sort of facts to be regarded as “accurately and readily determined from sources whose accuracy cannot reasonably be questioned”.  Fed. R. Civ. P. 201(b).  Even the simple question of whether someone’s death was caused by COVID-19 has been contaminated with emergency directives that may—or may not—be grossly overstating deaths.  (See, e.g., Cmplt. ¶ 34 (noting payment incentives to exaggerate deaths).)

            And the single most important fact, the actual quantitative risk from COVID-19, has been a highly moving target, as to which judicial notice is particularly inappropriate.  The Governor does not dispute that the risks assessed have “dropped dramatically” (Cmplt. ¶ 33).  Nor does the Governor dispute that antibody testing reveals a sharp distinction between the fatality rate based on patients with symptoms severe enough to warrant testing and/or hospitalization, as opposed to the actual risk of death by reason of infection.  (Cmplt. ¶ 35.) 

            Nor it disputed that antibody testing has been available for nearly two months (id. ¶ 54(a)), which would show the prevalence of the disease in Oregon, and, in all likelihood, demonstrate that risks of death have been grossly overstated.  Instead, operating under a cloak of statutory secrecy (ORS 433.008), the State has blithely asserted that antibody testing in Oregon shows “false positives” that make it too misleading to disclose.[5]  Discovery, if the Court allowed it, will probably confirm that the data is being concealed because it undermines the case for continued restrictions.

            The Governor does not dispute that the April 29, 2020 projection assumed an infection fatality rate of only 0.8%.  (Cmplt. ¶ 41.)   Interestingly, the State raised this rate to 1.3% in its May 7th projections,[6] and eliminated disclosure entirely in its May 13th projections.[7]  In the meantime, the federal Center for Disease Control has reduced is estimate of the infection fatality rate to half this number, 0.4%.[8]  The CDC notes that its best estimates of age stratified infection fatality rates range from 1.3% for individuals over 65, 0.2% for individuals 50-64, and 0.05% for individuals under 49. 

            These are, in any rational comparative assessment, relatively minor risks, and it is consistent with the allegations of the Complaint to expect that the true numbers are even lower.  Among the facts that may be proved consistent with the allegations of the Complaint are those stated in the June 3, 2020 Wall Street Journal:

If you’re an average American living outside New York City, the epidemic was a period with barely noticeable increased risk. Your chance of being an extra fatality was about 1 in 5,000, somewhat higher than your chance of dying in an auto accident in a year. And if you were under 50 with no serious health conditions, your risk was in the ballpark of 1 in 50,000, similar to your risk of dying in a fire. In New York, those odds were approximately 1 in 300 and 1 in 3,000, respectively.”[9]

To be sure, the epidemic is not over yet, and these numbers may rise.  But also consistent with the Complaint are the ideas that we have never developed a vaccine against the common cold (a corona virus) and may never develop one for COVID-19, and that the gradual spread of the disease and resulting herd immunity is the only end state, with the Governor’s Orders having no purpose whatsoever once it became clear that the disease would not overwhelm the health care system. 

            Consistent with the allegations of the Complaint is the sworn testimony in the record that Oregon’s health care system can cope with the disease, that no medical consensus supports the Governor’s orders; that Oregon’s decisionmaking has been driven by statistical modelling (that is already becoming infamous[10]) rather than sound scientific judgment.  See generally Dodson Decl.  

            By all appearances, the emergent risk here is to sick and elderly people, generally in nursing homes, and, indeed, a single facility in SE Portland accounted for 29 of Oregon’s deaths before the State finally took action against it.[11]  By all appearances, the lockdown strategy has been a staggeringly poor substitute for the ancient (and plainly constitution) practice of quarantining the sick as soon as they are detected, rather than restricting the healthy to “reduce risk”. 

            Finally, allowing the Complaint to proceed will build a record from which this Court can understand that the entire “lockdown” strategy was a creation of the Bush Administration, and utterly unprecedented in U.S. history.  The New York Times, though lauding the strategy, traces it to a child’s science fair project pushed by federal bureaucrats, including her father;[12] more in-depth reporting concludes that the idea was “propelled not by science but politics,” and found its way into policy over the vigorous objection of medical experts who concluded

“There are no historical observations or scientific studies that support the confinement by quarantine of groups of possibly infected people for extended periods in order to slow the spread of influenza. . . .”[13]

The concept of disease control in this fashion is entirely new, entirely unsupported, and plaintiffs expect discovery to show that statistical studies were available to the Governor by the time this suit was filed showing no statistically-significant relationship between lockdown strategies and COVID-19 death rates.  It should make a difference whether the assertions of vast power to destroy fundamental rights are based on long-standing, unanimous expert opinion (e.g., the effectiveness of smallpox vaccination at the time of Jacobsen v. Commonwealth of Massachusetts, 197 Or. 11 (1905))or a novel theory pushed by now-discredited computer modelers and opposed by doctors and other health professionals.

            Much of the Governor’s response—and indeed this Court’s Order denying the TRO—has simply pointed to the decisions of others to react to perceived risks of COVID-19 without the benefit of any full factual record, and discovery of just what facts the Governor is not revealing.  But “[m]en, it has been well said, think in herds; it will be seen that they go mad in herds, while they only recover their senses slowly, one by one.”[14]  The Constitution, and this Court’s oath to uphold it, calls for a higher duty on the part of this Court to provide the rational and dispassionate analysis that is so lacking in times of asserted emergency.

            Finally, it is entirely inappropriate to argue, on a motion to dismiss where the facts pleaded are to be construed in favor of plaintiffs, that “plaintiffs can have no support for their unfounded [sic] belief that the Governor and Dr. Lillian were acting in any way other than what they believed to be in the best interests of the state and citizens”.  (Motion at 12.)  There is sworn testimony in the record from which anyone proceeding in good faith could see that the human costs of lockdowns is likely on the same order of magnitude as any deaths prevented.  (Dodson Decl. ¶¶ 7-13.)  And it takes thirty seconds on the Internet to see that “Red” and “Blue” approaches to COVID-19, entirely different, have evolved in response to political considerations having nothing to do with sound science.  Again, the utter refusal of the Governor to exercise power to enforce prohibitions on mass gatherings of political allies—when mass gatherings are perhaps the single most obvious vector of disease transmission—should drive a nail in the coffin of any theory that the strict compliance with the Orders is necessary to prevent disaster.

Argument

             “History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. . . . [W]hen we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.”  Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 635 (1989) (Marshall, J., dissenting).  The Governor asserts that it is too extravagant to endure the suggestion that healthy people can go about their business, associating with their customers, merely because they might spread a disease as to which numerous obvious lesser means of control exist, beginning with quarantines.

            It is difficult to understand just how bizarre the Governor’s shift away from the classic and time-tested remedy of quarantines toward the unprecedented and blunt instrument of economic shutdowns really is without understanding the longstanding nature of quarantine law in the United States.  See generally W. Parmet, Aids and Quarantine:  The Revival of Archaic Doctrine, 14 Hofstra L. Rev. 53 (1985).  The Court should be impressed that those testing positive with COVID-19 are not, despite the asserted enormous risk, confined in any facilities.  Instead of directly addressing the situation by limiting the liberty of the infected, the Governor has chosen to destroy the fundamental associational and property rights of the healthy. 

            All that plaintiffs seek is application of longstanding standards of judicial review of “whether interference with personal liberty or property was reasonably necessary to the public health, and, second, if the means used and the extent of the interference were reasonably necessary for the accomplishment of the purpose to be attained.”  Kirk v. Bd. of Health, 83 S.C. 372, 380, 65 S.E. 387, 390 (1909). 

            If these Orders stand without judicial rebuke, and we accept that the fundamental freedoms of healthy Americans may be removed on the basis of a disease whose fatality rate is probably less than 0.4% on average, and 0.05% for most of the population (and far less for populations like Oregon’s), America’s citizens will have been rendered subjects, for COVID-19 is but one of a plethora of risks that may be advance to restrict fundamental liberties.  

  1. RESPONSE TO THE STANDARDS ON MOTION TO DISMISS.

            In evaluating plaintiffs’ complaint, this Court is required to make the

“assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v.  Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974) (a well-pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S. Ct. 1955, 1965 (2007).

            There can be no greater death blow to the protection of the rights of American citizens, this Court’s highest duty, than a doctrine that erects special pleading rules out of nothing for allegations of misconduct by government officials.  The Governor characterizes the allegations that she was not making neutral, science-based decisions (Cmplt. ¶ 54) as “conclusory,” but ignores subsections (a)-(f) detailing the bases for that allegation.  Among those are a “refusal to weigh countervailing costs of restrictions in decisionmaking (including economic and noneconomic costs) (¶ 54(d)), which would include the likely increase in suicide rates so significant they may have already outweighed COVID-19 deaths. 

            This is not an action for damages, in which questions of the statutory immunities of government officials reign.  Harlow v. Fitzgerald, 457 U.S. 800, 817-818, 102 S. Ct. 2727 (1982), involved a review of the facts after discovery, not on a motion to dismiss, and articulated the rule that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Id. at 818.  But plaintiffs do not seek to hold the Governor personally liable for damages.  Rather, this action is sought to bring clarity to the proposition that the Constitution does not permit what is, in substance, the mass quarantining of healthy Americans because of the risk that they might become infected and might then infect others.

            Nor is this case analogous to Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1951 (2009), where the 9-11 detainee was trying to plead a claim “petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin.”  Id. at 667.  There, the detainee pleaded no more than a bare conclusion that “petitioners ‘knew of, condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions of confinement ‘as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.'”  Id. at 680.

  1. THE CASE IS NOT MOOT.

            You cannot defeat a lawsuit by rescinding an order and replacing it with one that has precisely the same effect, when the point of the lawsuit is to assess whether the Governor has authority to impose the very same restrictions.  Executive Order No. 20-25 reiterates in nearly identical terms the paragraphs of the earlier challenged Orders.  Specifically, paragraph 4(a) on page 6 repeats the prohibition on on-premises food consumption in restaurants (compare Order No. 20-07, paragraph 1), and paragraph 5(a) repeats the prohibition for broad categories of businesses (including those of many plaintiffs) (compare Order No. 20-12, at paragraph 2(a)).  Under the Order No. 20-25, the above restrictions “continue to apply until modified in Phase I”.  The State concedes that, at least in Multnomah County, they remain fully in effect—more than three weeks after this Complaint was filed, and nearly two-and-one-half months after the brief flurry of hospital admissions in Oregon, which quickly subsided (see Cmplt. ¶ 39).

            As federal courts have long held with respect to seriatim permits, “. . . a controversy concerning an initial permit may simply continue in the context of succeeding permits.  In earlier actions against the EPA, the Sixth Circuit has rejected mootness claims upon a finding of a ‘subsisting controversy between the petitioner and EPA over the authority of the Administrator of that agency’”.  Montgomery Envtl. Coal. v. Costle, 207 U.S. App. D.C. 233, 646 F.2d 568, 578-79 (1980) (string-cited citations omitted). 

            Under this rule, it is not necessary to require plaintiffs to replead the complaint to add a paragraph about Executive Order No. 20-25; it is obvious they are seeking an injunction against the Governor’s continuing exercise of power to shut down Oregon businesses.  The underlying controversy over the authority of defendants does not go away merely because defendants have reiterated the same restrictions in a different piece of paper. 

            Of course Multnomah County will eventually go into Phase I, but the underlying question over emergency powers remains one inherently one capable of repetition, yet evading review.  Even if the Governor lifts all restrictions before this motion is briefed and heard, the question will arise in the next epidemic, or in the next emergency of another kind. 

            This case meets both prongs of the exception to mootness.  That the duration of the challenged action is too short to be fully litigated is not disputed.  Rather, the Governor argues (though admitting that it may be “speculative hyperbole” (Response at 8)), that there is no reasonable expectation that the plaintiffs will be subjected to the same action again. 

            Here again, the Governor concedes “there may be another wave of COVID-19, perhaps next winter” (Response at 8), and speculates that circumstances might be different then.  If this sort of reasoning were the law, the question of abortion would never have reached final resolution in the federal courts, because it is always possible the particular plaintiffs there might never have gotten pregnant again, or might have at that juncture no longer wanted to respond to the pregnancy with abortion, or might have moved to a state where it might be legalized.

            Lurking within mootness doctrine is a recognition that some core questions of American civil rights are sufficiently important that they should be addressed and resolved, and the question of whether American citizens lose the most fundamental freedoms by virtue of effectively-unreviewable executive assertions of risk is one of them.  Unless the Oregon Supreme Court strikes down the Governor’s orders on state law grounds, this case is a quintessential case for applying this well-recognized exception to mootness, and there is no reason to dismiss any particular plaintiff at this juncture. 

  1. PLAINTIFFS’ COMPLAINT ADEQUATELY STATES A CLAIM FOR VIOLATION OF THEIR SUBSTANTIVE RIGHT TO DUE PROCESS OF LAW.

            The Governor argues that substantive due process only protects the right to pursue particular professions, specifically protecting those licenses issued by the State, but provides no authority for this proposition.  It is an astounding and tyrannical inversion of the very concept of inalienable rights upon which this Nation was founded to suggest that the locus of the fundamental rights protected by the Constitution is limited to business licenses issued by the State. 

            The Governor simply ignores all the case authority previously presented as to the extensive coverage of the Fourteenth Amendment:

“not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.”

Allgeyer v. Louisiana, 165 U.S. 578, 589, 17 S. Ct. 427, 431 (1897); see also Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7, 10 (1915) (“the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure”); Takahashi v. Fish & Game Comm., 334 U.S. 410, 416, 68 S. Ct. 1138, 1141 (1948). 

            More recently, those rights have expanded to include more personal rights, but the core rights remain unchanged:

“While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely  freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.” Meyer v. Nebraska, 262 U.S. 390, 399. In a Constitution for a free people, there can be no doubt that the meaning of “liberty” must be broad indeed. See, e. g., Bolling v. Sharpe, 347 U.S. 497, 499-500; Stanley v. Illinois, 405 U.S. 645.”

Bd. of Regents v. Roth, 408 U.S. 564, 572, 92 S. Ct. 2701, 2706-07 (1972). 

            It is the very essence of these fundamental constitutional rights that they existed before state law, exist independent of state law, and are protected by the Constitution.  They are the rights “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325-326 (1937), and their casual abridgement without any apparent rationale other than reducing “risk” should “shock[] the conscience,” Rochin v. California, 342 U.S. 165, 172 (1952). 

            It is no answer to say that plaintiffs’ perceptions that the Governor’s orders shock the conscience are “subjective” (Motion at 12).  It may be difficult for white-collar workers, working peacefully at home throughout the Governor’s orders to understand this, particularly those paid by the government, but a large class of Americans depends upon continuing human interactions of the type forbidden by the Orders to pay their rent, feed their families, and eke out a basic existence.  To them, the orders are shocking, so shocking that many are taking their own lives.  This Court exists to protect the rights of all Americans, not merely the well-off. 

            The due process clause of the Fourteenth Amendment imposed a new, national conception of the core rights of American citizens.  The federal judiciary’s expansion of Fourteenth Amendment rights to individual, personal matters in modern times does not require or infer any corresponding reduction in the fundamental rights and core privileges and immunities of American citizens, and in particular freedom from a form of government akin to that suffered by our forebears, victims of kings and tyrants.  As the Governor asserts direct regulatory control over businesses for months on end, she eviscerates the critical separation of powers that are an inherent attribute of the Constitutional government this Court is bound to guarantee, and a core component of the fundamental right of liberty granted to the People.  Wisconsin Legislature v. Palm, No. 2020AP765-OA (May 13, 2020) ((Bradley, J., concurring slip op. at 2-5)

            In short, the Governor’s Orders stand as “a plain, palpable invasion of rights secured by the fundamental law”.  Jacobsen v. Commonwealth of Massachusetts, 197 Or. 11, 31 (1905).  This Court’s suggestion that the Constitution permits “health law of every description” (Opinion and Order at 3 (citing Jacobsen) elevates this ancient dictum beyond all historical context.  This is not a case about the classic, and constitutional response to an epidemic:  the quarantining of the sick, or even about penalties for refusing vaccination in the face of an epidemic far, far more deadly than COVID-19. 

            The Jacobsen court carefully noted the longstanding use of vaccinations for smallpox, protection against which was a significant concern in early America.  This was a settled issue, not some brainchild of computer programs and high school students invented in 2006, and rolled out for the first time in the wake of panic in light of the lies and misinformation emerging for China.  The State never explains what about COVID-19 continues to give it the special, emergency character that makes its risk, falling every time additional scientific data is released, so special as to justify total abridgement of fundamental constitutional rights. 

            The historical roots of the Constitutional toleration of “health law” are far narrower than a blanket approval of any health-related measure:

“. . . statutes and ordinances requiring the removal or destruction of property or the isolation of infected persons, when necessary for the protection of the public health, do not violate the constitutional guarantee of the right of the enjoyment of liberty and property, because neither the right to liberty nor the right of property extends to the use of liberty or property to the injury of others.  The maxim, sic utere tuo ut alienum non leadas applies to the person as well as to the property of the citizen. The individual has no more right to the freedom of spreading disease by carrying contagion on his person than he has to produce disease by maintaining his property in a noisome condition.

Kirk v. Board of Health, 83 S.C. 372, 378, 65 S.E. 387, 389 (1909).  Plaintiffs of course assert no “right to the freedom of spreading disease by carrying contagion on his person”.

            There was until the advent of COVID-19 always a bright line between control of the infected, and interference with the liberty interests of those not infected.  As the New York Court of Appeals wrote in granting a writ of habeas corpus to a delivery man who might have been exposed to smallpox:

It is not alleged that the business had included the carrying of infected articles, or articles from infected centres, or that the relators had been exposed to contagion; but possibilities, merely, are alleged. It is alleged that the business may include the carrying of articles, which may come from infected centres and the relators might be seized with smallpox; and, if they were permitted to continue in their business without being vaccinated, they might be the means of serious consequences to other citizens with whom they came in contact. Such allegations fall far short of stating facts, upon which the commissioner of health would be authorized to take such drastic measures, as to effect the imprisonment of citizens by quarantining them in their houses.

In re Smith, 146 N.Y. 68, 76-77, 40 N.E. 497, 499 (1895).  It is emblematic of the irrationality of the Governor’s orders that she permits huge delivery companies to continue to operate at will in the most densely populated areas, while closing tiny, rural  local businesses.

            To be sure, the shutdown of a business is not quite as extreme as a full-blown quarantine, but the right to make a living in free association with others to enter into contracts is a fundamental component of liberty, and the idea that there “may” and “might” be risks from such behavior that allow its termination cannot be accepted as a matter of law.  

            The Governor ignores the body of law which limits even quarantine orders when “found to be arbitrary and unreasonable in relation to their goal of protecting the public health”.  Hickox v. Christie, 205 F. Supp. 3d 579, 592 (D.N.J. 2016) (discussing Jew Ho v. Williamson, 103 F. 10 (C.C.D. Cal. 1900) and In re Smith, 146 N.Y. 68, 40 N.E. 497 (N.Y. 1895)).   The latter case is particularly important insofar as it rejected the blanket quarantine of individuals who refused vaccination, when there was no reason to believe they had been infected or even exposed to that disease.

            To be sure, Jacobsen upheld a five-dollar fine, but the invasiveness of a fine to compel vaccination is quite distinct from a death sentence for a person’s livelihood.  Significantly, courts have recognized that it is both “the right to restrain the citizen in his personal liberty, or to interfere with his pursuit of a lawful avocation, demands a careful consideration of the provisions of law, under which the right is alleged to be conferred”.  In re Smith, 146 N.Y. at 73, 40 N.E. at 498 (1895) (emphasis added).  Early courts considered “[w]here such a right is claimed, it must appear very clearly and satisfactorily, not only that it has been conferred by the law, but, also, that in its exercise the facts were present which justified it.”  Id. (emphasis added).

            Until the recent round of COVID-19 cases, all of which have been the subject of hasty, preliminary and incomplete decisionmaking, the cases upholding the exercise of police powers to protect the public health have found support in specific statutes, passed by the Legislature, and actions taken in compliance with those statutes.  Just as an important line is crossed by destroying the rights of the healthy, so too is an important line crossed with upholding pure executive authority in this context, particularly months after the immediate emergency (a fear of overwhelming hospitals) is past.

            While we agree with the State that we have made no state law claims in this case, the State law makes it clear that unlike Jacobsen, the Legislature has never remotely contemplated the Governor’s orders here.  ORS 433.121 provides emergency authority for quarantines, but required the Public Health Director to at least “[i]dentify the person or group of persons subject to isolation or quarantine,” and critically, “[p]rovide information supporting the reasonable belief of the Public Health Director or the local public health administrator that the person or group of persons is, or is suspected to be, infected with, exposed to, or contaminated with a communicable disease or toxic substance that could spread to or contaminate others if remedial action is not taken”.   See also ORS 433.128 (“Isolation or quarantine must be by the least restrictive means necessary to prevent the spread of a communicable disease or possibly communicable disease to others or to limit exposure to or contamination with a toxic substance by others, and may include, but is not limited to, confinement to private homes or other public or private premises.”).

            The Governor leaps past all the careful structure for public health emergencies (and all of the concomitant procedural protections (see also ORS 433.126), all built against a backdrop where everyone understood (until now) the serious infringements on fundamental rights involved, and expected least restrictive means to be used. 

            Instead, she points to general authority in ORS 401.168:

Governor’s powers during state of emergency; suspension of agency rules.

      (1) During a state of emergency, the Governor has complete authority over all executive agencies of state government and the right to exercise, within the area designated in the proclamation, all police powers vested in the state by the Oregon Constitution in order to effectuate the purposes of this chapter.

      (2) During a state of emergency, the Governor has authority to suspend provisions of any order or rule of any state agency, if the Governor determines and declares that strict compliance with the provisions of the order or rule would in any way prevent, hinder or delay mitigation of the effects of the emergency.

      (3) During a state of emergency, the Governor has authority to direct any agencies in the state government to utilize and employ state personnel, equipment and facilities for the performance of any activities designed to prevent or alleviate actual or threatened damage due to the emergency, and may direct the agencies to provide supplemental services and equipment to local governments to restore any services in order to provide for the health and safety of the citizens of the affected area.

(Emphasis added.)  Again, it is clear the Legislature never intended statewide lockdowns.  See ORS 401.165 (“Any proclamation of a state of emergency must specify the geographical area covered by the proclamation. Such area shall be no larger than necessary to effectively respond to the emergency”).  Again, the fundamental constitutional concept of least restrictive alternatives is built into the statute, but the Governor blew by all that by issuing statewide orders, purporting to act as legislature, executive and judge.  The Supreme Court of Oregon may well uphold her orders, but this Court exist to protect the federal rights guaranteed by the Constitution, which requires least restrictive alternatives whether the State of Oregon thinks so or not.

            The only case of which plaintiffs are aware in which restrictions vaguely similar to those in the Orders were upheld on healthy individuals is Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380 (1902).  This is best understood as a case about anti-Italian bigotry, involving a boatload of Italian immigrants arriving in New Orleans a few years after eleven Italians were lynched,[15] and a bigoted local community that wouldn’t let them disembark, even though they were healthy.  As the dissent points out, (see id. at 400), even cows got better treatment than the Italians in the federal courts, because the Supreme Court had earlier held that a State could not stop a shipment of healthy cattle into a State based on the idea that the healthy cattle might somehow make disease worse among local cattle (Railroad Co. v. Husen, 95 U.S. 465 (1878)).  Upholding the Governor’s orders makes those Oregonians not sufficiently privileged to work from computer terminals mere cattle of the state, without the fundamental and inalienable rights guaranteed by the Constitution.

  1. PLAINTIFFS’ COMPLAINT ADEQUATELY STATES A CLAIM FOR VIOLATION OF THEIR PROCEDURAL RIGHT TO DUE PROCESS OF LAW.

            The Governor professes to see no due process interest whatsoever in the ability of plaintiffs to continue to enter into voluntary, contractual relations with their customers and operate their businesses.   The Governor asserts that “property interests are created by state law” and denies any “state-created entitlement” to operate a business.  (Motion at 14.)  Again, it is an astounding and tyrannical inversion of the very concept of inalienable rights upon which this Nation was founded to suggest that the most fundamental Constitutional rights must be “created by state law”. 

            The Governor does not and cannot deny that there was no process (other than this suit) of which plaintiffs might avail themselves.  Instead, the Governor baldly asserts that it was simply “not feasible” to offer every business in Oregon the right to a hearing because of the pandemic.  (Motion at 15).  This proposition cannot be accepted as true as a matter of law.    

            The reason we filed the Barnett Declaration, with its Oregon Isolation and Quarantine Bench Book (Exhibit 3), was to demonstrate that the State had already engineered the detailed procedures it then regarded as necessary to protect due process of law in an epidemic (including provisions for group quarantines), and then threw all those procedures out the window for reasons that have yet to be discovered—or even offered by the State. 

            The record before the Court is scarcely developed for

“. . . court identification of the specific dictates of due process[, which] generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 902-03 (1976).

            The Governor’s bare assertion that the COVID-19 emergency was so dire that, even as of May 12, 2020, when this suit was filed, nearly two months after the issuance of Order No. 20-07, no process could be provided without unreasonable peril to the public safety cannot be accepted as a matter of law.

  • PLAINTIFFS’ COMPLAINT ADEQUATELY STATES A CLAIM FOR VIOLATION OF THEIR PROCEDURAL RIGHT TO EQUAL PROTECTION OF LAW.

            Here the primary question is simply whether a “rational relationship” test applies to the Orders, or whether their extraordinary and unprecedented nature merits more careful review.  The Governor would characterize her Orders as merely implementing “social economic policy” rather than affecting “fundamental constitutional rights”.  (Motion at 21). 

            The cases she cites for that proposition, City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) and F.C.C. v. Beach Communications, Inc., 508 U.S. 307 (1993), are nothing like the Orders challenged here.  Cleburne involved denial of a special use permit contrary to the ordinary provisions of zoning laws, far from an Executive Order shutting down established businesses in compliance with all pre-existing statutes, rules and regulations.  And Beach Communications involved the regulation of cable television facilities and whether it should differ for buildings under common management.  These garden-variety regulatory issues frankly have nothing to do with the extraordinary orders at issue here. This is an outright ban on entire classes of perfectly lawful businesses, trades and occupations, selling perfectly lawful products and providing perfectly lawful services, under circumstances that should invoke additional protection.  (Cmplt. ¶ 54.)

            Nor does the State respond to the showing that this Court is bound to apply higher levels of scrutiny where, as here, disadvantaged “discrete and insular minorities” of Oregonians who have had their careers and businesses destroyed. United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938).  Plaintiffs seek the opportunity to build their case, assembling the evidence as to how the peculiar structure of the Governor’s orders was devised, with its manifestly irrational distinctions between such things as tribal and nontribal card rooms, between marijuana stores and furniture stories, etc.  If this Court upholds the dictatorial assertion of the entire police power of the State of Oregon to make such arbitrary distinctions, plaintiffs can only conclude that their Constitution has been so exsanguinated as to protect only newly-minted, modern and fashionable rights like abortion and gay marriage.  To deny any constitutional issue in this context is to discredit the Constitution.

  • PLAINTIFFS’ COMPLAINT ADEQUATELY STATES A CLAIM FOR VIOLATION OF THEIR FOURTH AND/OR FIFTH AMENDMENT RIGHTS

            Plaintiffs acknowledge that the federal judiciary has tended to assign claims such as these to either the Fourth or Fifth Amendment, but not both.  That being said, it is ludicrous for the Governor to argue that she has not caused any “meaningful interference with an individual’s possessory interest in . . . property” (Response at 17 (citation omitted)), when the property is a business and she has closed it.

            With regard to the Fifth Amendment issues, the State seeks to invoke the “balancing test in Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978)” (Response at 18).  It is clearly premature to engage in any such balancing as a matter of law.

Conclusion

            Defendants’ motion to dismiss should be denied.

DATED:  June 4, 2020.

/s/  James L. Buchal

James L. Buchal, OSB No. 921618

MURPHY & BUCHAL LLP

3425 SE Yamhill Street, Suite 100

Portland, OR  97214

Tel:     503-227-1011

Fax:     503-573-1939

E-mail:  jbuchal@mbllp.com

Attorney for Plaintiffs Open Our Oregon, Da Cielo LLC, The Mount Hood Mixer Shop, Inc., Under The Skin Tattoo LLC, Bryant LLC, and Kuebler’s Furniture, Inc.

/s/  Tyler Smith

Tyler Smith, OSB No. 075287

Tyler Smith & Associates PC

181 N. Grant Street, Suite 212

Canby, OR 9 7013

Tel:  503-266-5590

Fax:  503-213-6392

E-mail:  tyler@ruralbusinessattorneys.com

Attorney for Plaintiffs Kathy Saldana,

Michele Karpontinis, and David Parson

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing RESPONSE TO MOTION TO DISMISS on June 4, 2020, by notice of electronic filing using the CM/ECF System on the following parties listed below:

MARC ABRAMS #890149 Assistant Attorney-in-Charge CHRISTINA BEATTY-WALTERS #981634 Senior Assistant Attorney General Trial Attorney Department of Justice 100SW Market Street Portland, OR 97201 Tel (971) 673-1880 Fax (971) 673-5000 E-mail:  marc.abrams@doj.state.or.us E-mail:  tina.beattywalters@doj.state.or.us Of Attorneys for Defendants   

/s/  James L. Buchal


[1] https://www.express.co.uk/news/world/1286065/lockdown-end-coronavirus-california-donald-trump-gavin-newsom-suicide-death-toll (accessed May 27, 2020).

[2] https://www.counterpunch.org/2020/04/17/the-gangster-head-of-the-who/ (accessed May 27, 2020).

[3] https://foreignpolicy.com/2020/04/02/china-coronavirus-who-health-soft-power/ (accessed May 27, 2020).

[4] https://www.theatlantic.com/politics/archive/2020/04/world-health-organization-blame-pandemic-coronavirus/609820/ (accessed May 27, 2020).

[5] https://www.oregonlive.com/coronavirus/2020/05/coronavirus-antibody-tests-too-unreliable-to-analyze-for-public-health-purposes-oregon-officials-say.html (May 27, 2020). 

[6] https://www.oregon.gov/oha/PH/DISEASESCONDITIONS/DISEASESAZ/Emerging%20Respitory%20Infections/Oregon-COVID-19-Projections-2020-05-07.pdf (accessed May 27, 2020).

[7] https://www.oregon.gov/oha/PH/DISEASESCONDITIONS/DISEASESAZ/Emerging%20Respitory%20Infections/Oregon-COVID-19-Projections-2020-05-13.pdf (accessed May 27, 2020).

[8] https://www.cdc.gov/coronavirus/2019-ncov/hcp/planning-scenarios-h.pdf (accessed May 27, 2020) (Scenario 5 best estimate).

[9] https://www.wsj.com/articles/the-measure-of-new-yorks-coronavirus-devastation-11591140254?mod=opinion_lead_pos6 (accessed June 3, 2020).

[10] https://www.nationalreview.com/corner/professor-lockdown-modeler-resigns-in-disgrace/ (accessed May 27, 2020).

[11] https://www.oregonlive.com/coronavirus/2020/05/state-orders-southeast-portland-nursing-home-struck-by-the-coronavirus-to-shut-down.html (accessed May 25, 2020).

[12] https://www.nytimes.com/2020/04/22/us/politics/social-distancing-coronavirus.html (accessed May 27, 2020).

[13] https://www.aier.org/article/the-2006-origins-of-the-lockdown-idea/ (accessed May 27, 2020).

[14] Charles Mackey, Extraordinary Popular Delusions and the Madness of Crowds (1841).

[15] https://en.wikipedia.org/wiki/March_14,_1891_New_Orleans_lynchings (accessed June 3, 2020).

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