Opinion
1:20-cv-01332-CL
10-27-2022
FRANCIS STEFFEN HAYES, Plaintiff, v. STATE OF OREGON and KATE BROWN, Defendants.
FINDINGS AND RECOMMENDATION
CLARKE, UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Defendants' Motion for Summary Judgment (ECF No. 52) and Plaintiffs Motion for a Declaratory Judgment (ECF No. 54). For the reasons below, Defendants' motion should be GRANTED and Plaintiff's motion should be DENIED.
BACKGROUND
On March 8, 2020, Governor Kate Brown issued Executive Order 20-03 (“EO 20-03”) which read, in relevant part, as follows:
ORS 401.165 et seq. empowers the Governor to declare a state of emergency upon determining that an emergency has occurred or is
imminent. Pursuant to that authority, I find that the novel infectious coronavirus has created a threat to public health and safety, and constitutes a statewide emergency under ORS 401.025(1).
Office of Governor Kate Brown, Executive Order 20-03 (Mar. 8, 2020), available at https://www.oregon.gov/gov/eo/eo20-03.pdf (last accessed Oct. 27, 2022).
On July 26,2020, Plaintiff entered a store and was “accosted by black mask wearing thugs” who told Plaintiff he could not enter the store without a mask. FAC ¶ 1, ECF No. 26. Plaintiff alleges he was prevented from entering the store without a mask because of EO 20-03. Id.
On March 17,2022, Governor Brown issued Executive Order 22-03 (“EO 22-03”), . rescinding EO 20-03 and terminating the state of emergency. Office of Governor Kate Brown, Executive Order 22-03 (Mar. 17, 2022), available at https://www.oregon.gov/gov/eo/eo22-03.pdf (last accessed Oct. 27, 2022).
PROCEDURAL HISTORY
In August 2020, Plaintiff filed his original complaint. See Compl., ECF No. 1. Plaintiff also filed a motion for a temporary restraining order (“TRO”) and an emergency motion for a preliminary injunction. See ECF Nos. 1, 8. The Honorable Ann L. Aiken denied these motions, finding that Plaintiff “failed [to] demonstrate any likelihood of success on the merits or substantial questions going to the merits.” Op. & Order 5, ECF No. 9. Plaintiff subsequently filed another motion for a preliminary injunction, see ECF No. 11, which Judge Aiken also denied for the same reasons, see Op. & Order, ECF No. 19. Plaintiff appealed Judge Aiken's denial of his, motion for a preliminary injunction. See ECF No. 15. The Ninth Circuit affirmed Judge Aiken's decision and denied Plaintiff's motions for emergency interlocutory relief. Mem., ECF No. 25-1.
In September 2021, Plaintiff filed an amended complaint. See ECF No. 26. In January 2022, Plaintiff filed another motion for a preliminary injunction. See ECF No. 40. Judge Aiken denied the motion for the same reasons as her previous denials. See Op. & Order, ECF No. 43. Plaintiff sought reconsideration of that order, see ECF No. 44, and Judge Aiken denied it, see' Op. & Order, ECF No. 51.
In April 2022, Defendants filed a motion for summary judgment. See Defs.' Mot., ECF No. 52. In May 2022, Plaintiff filed a motion for a declaratory judgment. See Pl.'s Mot., ECF No.54.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T. W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass 'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all . reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T. W. Elec., 809 F.2d at 630.
DISCUSSION
In his FAC, Plaintiff appears to allege: (1) ORS 401.165 violates the Fourteenth Amendment because it is impermissibly vague; and (2) Defendants have violated Plaintiffs right to “a Republican Form of Government” in violation of Article IV, Section 4 of the U.S. Constitution. FAC ¶¶ 2-7, ECF No. 26.
In their motion, Defendants argue: (1) Plaintiffs requests for injunctive and declaratory relief are moot; (2) the void-for-vagueness doctrine does not apply to ORS 401.165 because it does not direct Plaintiff to do or refrain from doing anything; and (3) Plaintiff cites no basis for enforcing a Republican form of government. Defs.' Mot. 7-8, ECF No. 52; Defs.' Reply 1, ECF No. 56. For the reasons that follow, Defendants' motion for summary judgment (ECF No. 52) should be granted. Because no claim survives summary judgment, Plaintiffs motion for a declaratory judgment (ECF No. 54) should be denied. .
I. Injunctive and Declaratory Relief
Among his various requests for relief, Plaintiff asks the Court “[t]o end the unlawful usurpation of and by Kate Brown, [and] to end the injury to the People of Oregon, to which [Plaintiff] is one.” FAC 6, ECF No. 26. In his request, Plaintiff references EO 20-03. Id. The Court construes Plaintiffs request as a request for injunctive relief. Plaintiff also asks the Court to “declar[e] an ‘emergency' that has never, in reality, existed and does not exist now as ORS 401.165 is rendered unconstitutional by the vague, ambiguous, and capricious definition of ‘emergency' at ORS 401.025(1)[.]”
Defendants argue Plaintiffs requests for injunctive and declaratory relief are moot because EO 20-03 has been rescinded and the state of emergency has ended. Defs.' Mot. 7, ECF No. 52. Plaintiff argues “the deprivation of right is ongoing as the unlawful actions of Kate Brown and other State actors caused a criminal charge of trespass” that “carries with it a demand that Plaintiff never return to contract for goods and services.” Pl.'s Resp. 7, ECF No. 53..
Plaintiff argues that he “was denied entry into a government franchise” because EO 20-03 converted the store in question into a “government franchise.” Pl.'s Resp. 4, ECF No. 53. Plaintiff cites no authority to support this proposition, and the Court is unpersuaded by Plaintiffs argument.
A federal court has no authority “to give opinions upon moot questions or abstract propositions, or to declare principles or rules, of law which cannot affect the matter in issue in the case before it.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (citation omitted). “[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (citing Preiser v. Newkirk, 422 U.S. 395,401 (1975)). “[A] case is moot when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (citations omitted). The central question of a mootness, challenge is “not whether the precise relief sought at the time the [action] was filed is still available,” but rather “whether there can be any effective relief.” West v. Sec'y of Dep't of Transp., 206 F.3d 920, 925 (9th Cir. 2000) (quotation marks omitted). The party asserting mootness carries the “heavy burden” of demonstrating that the controversy is moot. Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (quotation marks omitted).
Here, it would be impossible to grant Plaintiff any effective relief given that EO 20-03 is, no longer in effect and the state of emergency has ended. Additionally, to the extent Plaintiff seeks to challenge a trespass conviction, such a claim is barred by the Rooker-Feldman doctrine See Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004)Rooker-Feldman prohibits a federal district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court judgment.”). As such, Plaintiff's requests for injunctive and declaratory relief are moot, and Defendants' motion should be granted.
In his Response, Plaintiff argues “he was denied the right to peacefully assemble with others, as invited to do so by the government franchise open to the public for profit, therefore abridging Plaintiffs First Amendment right.” Pl.'s Resp. 20, ECF No. 53. However, as explained above, the Court is unpersuaded by Plaintiffs assertion that EO 20-03 converted a private store into a “government franchise.” As such, Plaintiff s argument is unavailing.
II. Fourteenth Amendment Claims
Plaintiff alleges ORS 401.165 is impermissible vague because the terms “widespread,” “financial loss,” “injury,” “imminent,” “determining,” and “threatens” are vague in the definition of “emergency” under ORS 401.025. FAC ¶ 2, ECF No. 26; Pl.'s Resp. 1, ECF No. 53.
Under ORS 401.165, “[t]he Governor may declare a state of emergency by proclamation . at the request of a county governing body or after determining that an emergency has occurred or is imminent.” ORS 401.165. “Emergency” is defined as “a human created or natural event or circumstance that causes or threatens widespread loss of life, injury to person or property, human suffering or financial loss, including but not limited to ... disease, blight, [and] infestation[.]” ORS 401.025.
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Groyned v. City of Rockford, 408 U.S. 104, 108 (1972). A statute may be void for vagueness when it “(1) fails to give a ‘person of ordinary intelligence a reasonable opportunity to know what is prohibited;' (2) ‘impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application;' or (3) ‘abut(s) upon sensitive areas of basic First Amendment freedoms, [ ] operating] to inhibit the exercise of (those) freedoms.'” Hunt v. City of Los Angeles, 638 F.3d 703, 712 (9th Cir. 2011) (citation omitted, alterations in original). When the law “implicates First Amendment rights ... a ‘more demanding' standard of scrutiny applies.” Id. (citations omitted).
Here, Plaintiff's void-for-vagueness argument fails because ORS 401.165: (1) does not prohibit any specific action; (2) does not delegate any matters to policemen, judges, or juries; and (3) based on Plaintiffs allegations, does not abut upon Plaintiffs First Amendment freedoms,2 Defendants have met their burden of showing the absence of a genuine issue of material fact. Plaintiff, however, fails to go beyond the pleadings and identify facts which show a genuine issue for trial. Cf. Hill v. Colorado, 530 U.S. 703, 733 (2000) (“[S]peculation about possible vagueness in hypothetical situations not before [a court] will not support a facial attack on a statute when it is surely valid ‘in the vast majority of its intended applications[.]'”) (citation omitted). As such, Defendants' motion should be granted as to Plaintiffs claim.
III. Article IV, Section 4
Plaintiff alleges Defendants have violated Plaintiffs right to “a Republican Form of Government” under Article IV, Section 4 of the U.S. Constitution. FAC ¶ 3, ECF No. 26. The Guarantee Clause states that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.” U.S. CONST, art. 4, § 4. “[The Supreme] Court has several times concluded, however, that the Guarantee Clause does not provide the basis for a justiciable claim.” Rucho v. Common Cause, 139 S.Ct. 2484, 2506 (2019) (citation omitted). As such, Defendants' motion should be granted 1 as to Plaintiffs claim.
RECOMMENDATION
For the reasons above, Defendants' motion (ECF No. 52) should be GRANTED and Plaintiff's motion (ECF No. 54) should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153,1157 (9th Cir. 1991).