Boquist v. Courtney

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRIAN J. BOQUIST,

Plaintiff, Civ. No. 6:19-cv-001163-MC

v. OPINION AND ORDER

OREGON STATE SENATE PRESIDENT

PETER COURTNEY, in his official

capacity, SENATOR FLOYD

PROZANSKL, in his official capacity as

Chairman of the Senate Special Committee on

Conduct, SENATOR JAMES MANNING,

in his official capacity as member of the

Special Senate Conduct Committee,

DEXTER JOHNSON, in his official capacity

as Legislative Counsel, DARON HILL, in his

official capacity as Legislative Administration

Director, JESSICA KNIELING, in her

official capacity as interim Human Resources

Director, BRENDA BAUMGART &

MELISSA HEALY, in their official capacity

as contract investigators to the Oregon State

Senate, and all in their official capacities in

the Legislative Branch of the State of Oregon,

Defendants.

MCSHANE, Judge:

This case stems from a political impasse in the Oregon State Senate. Eleven Republican

senators, wanting to avoid a quorum vote, brought the legislative function to a halt by leaving the

Oregon State Capitol. Oregon Governor Kate Brown ordered State Police to arrest the absent

senators, including Plaintiff Brian Boquist, and bring them back to the Capitol. Governor Brown

also imposed a $500 fine for each day a given senator was absent during the legislative session.

1 — OPINION AND ORDER

State Police did not arrest Plaintiff, but Governor Brown did levy a $3,500 fine against him.

Plaintiff paid the fine, but it was ultimately vacated and his money was returned. Due to several

statements Plaintiff made during the ordeal that some perceived as threatening, Senate leadership

determined that Plaintiff may only enter the Capitol if he provides a 12-hour notice of his intent

to do so.

Plaintiff now brings this action against Defendants—who are eight individual employees

or elected officials in the Legislative Branch of the State of Oregon—alleging that the 12-hour

notice requirement is unlawful and Defendants violated his state and federal constitutional rights.

Defendants move to dismiss Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6)—or, in the

alternative, for summary judgment pursuant to Fed. R. Civ. P. 56—arguing that Plaintiff fails to

state a claim for which relief can be granted. Defs.’ Mot. 1–2, ECF No. 8. Because Plaintiff fails

to establish that Defendants’ actions were unlawful, Defendants’ Motion to Dismiss (ECF No. 8)

is GRANTED.

BACKGROUND

In May 2019, the Republican caucus of the Oregon State Senate participated in a

walkout. Pl.’s First Am. Compl. ¶¶ 44, 86, ECF No. 6 (“FAC”); Defs.’ Mot. 3. As a result, the

absent legislators faced $500 per day in fines and potential arrest, imprisonment, and

investigation. Defs.’ Mot. 3. On July 19, 2019, Plaintiff, an elected Republican state senator, told

Senate President Peter Courtney, “Mr. President, and [sic] if you send the [S]tate [P]olice to get

me, Hell’s coming to visit you personally.” FAC ¶ 46; Defs.’ Mot. 3. During the walkout,

Plaintiff said that State Police should “send bachelors and come heavily armed.” Defs.’ Mot. 2.

Ultimately, none of the missing senators were arrested and any fines that were levied against

them were vacated. Id. at 3. However, Plaintiff was disciplined for what some perceived as

threatening language and his access to the Capitol was conditioned on him giving 12-hour

advance notice of his presence to the Secretary of the Senate. Id. Although it is not always clear

from the Amended Complaint which of the Defendants did what, Plaintiff alleges that some of

the Defendants are responsible for the disciplinary order regulating his access to the Capitol.

Plaintiff also alleges that some Defendants are secretly investigating him and have denied him

access to public records related to this investigation. FAC ¶¶ 8, 11, 13, 15, 17, 70, 75. Finally,

Plaintiff alleges that some of the Defendants are responsible for the orders to fine and arrest him.

Id. at ¶ 11–13, 15.

Plaintiff brought this action on July 26, 2019 and filed an Amended Complaint on

September 24. See Pl.’s Compl., ECF No. 1; FAC. Plaintiff alleges violations of: (1) his First,

Fifth, and Fourteenth Amendment rights under the U.S. Constitution; (2) his rights under Article

I, Section 26 and Article IV, Section 9 of the Oregon Constitution; and (3) 25 C.F.R. §§ 11.404

and 11.448. FAC ¶¶ 5, 10, 12, 13. Plaintiff seeks declaratory judgments stating: (1) that he has

free, unfettered access to the Capitol; (2) that the investigation of him is unconstitutional; (3) that

Defendants violated his First Amendment rights; (4) that Defendants violated his Fifth and

Fourteenth Amendment due process rights; (5) that he is free from fines without due process; (6)

that he is free from arrest without due process; and (7) what the definition of “compel” is under

the Oregon State Constitution. FAC ¶¶ 105–25.

STANDARDS

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain

sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual

allegations allow the court to infer the defendant’s liability based on the alleged conduct.

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the

mere possibility of misconduct.” Id. at 678.

When considering a motion to dismiss, the court must accept all allegations of material

fact as true and construe those facts in the light most favorable to the non-movant. Burget v.

Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). However, the court is

“not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550

U.S. at 555. If the complaint is dismissed, leave to amend should be granted unless “the pleading

could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494,

497 (9th Cir. 1995).

DISCUSSION

I. Non-Legislator Defendants

Plaintiff fails to state a cognizable claim against Defendants Dexter Johnson, Daron Hill,

Jessica Knieling, Brenda Baumgart, and Melissa Healy.

Ms. Knieling is the Oregon State Legislature’s Interim Human Resources Director. FAC

¶ 33; Defs.’ Mot. 7. Mr. Hill is Ms. Knieling’s immediate supervisor and the Legislative

Administration Director. FAC ¶¶ 33, 36. Mr. Johnson is Legislative Counsel for the State of

Oregon. Id. at ¶ 32; Defs.’ Mot. 6. Ms. Baumgart is a contract investigator who works for Stoel

Rives LLP. FAC ¶ 34; Defs.’ Mot. 7. Ms. Healy is an attorney who works for Stoel Rives LLP.

FAC ¶ 95; Defs.’ Mot. 8.

Plaintiff alleges that Ms. Knieling, Mr. Johnson, and Ms. Baumgart produced a

memorandum for Defendants Courtney and Prozanski. FAC ¶¶ 56, 71. Plaintiff alleges that this

memorandum recommended that officials remove Plaintiff from the workplace pending the end

of an investigation. Id. at ¶¶ 56, 74. Plaintiff also alleges that Mr. Johnson personally authored

legal opinions recommending fines, arrest, use of physical force, and imprisonment of absent

senators. Id. at ¶ 74. Plaintiff further alleges that the Senate Special Committee illegally

organized a conduct hearing, which met on July 8, 2019. Id. at ¶ 71. Finally, Plaintiff alleges that

Ms. Baumgart spoke at the hearing and “was or is using” Ms. Healy in her secret investigation of

Plaintiff. Id. at ¶¶ 34, 71, 95; Defs.’ Mot. 7 (citing Abrams Decl. Exs. B and C, ECF Nos. 9-2

and 3).

In order to maintain a constitutional claim against an individual, a plaintiff must

adequately allege that an individual subjected plaintiff or caused plaintiff to be subjected to the

deprivation of constitutional rights, privileges, or immunities. Wyatt v. Cole, 504 U.S. 158, 161

(1992). Here, Plaintiff points the finger at individuals who were only tangentially involved in the

alleged constitutional violations. None of these Defendants directly imposed any of the sanctions

on Plaintiff; rather, they appear to have provided legal analysis for the legislative Defendants

who are alleged to have imposed sanctions. These Defendants are dismissed from this case.

II. Legislative Assembly’s Actions

This Court has jurisdiction over Plaintiff’s federal law claims against members of the

legislature. The Eleventh Amendment provides the states with “sovereign immunity,” allowing a

state the privilege not to be sued, whether by its own citizens or those of another state, without its

consent. U.S. Const. amend. XI; Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253

(2011). Absent a waiver or congressional abrogation, federal courts cannot entertain an

individual’s suit against a state. Stewart, 563 U.S. at 253. The courts may, however, entertain an

individual’s suit against state officials in their official capacity under federal law for injunctive

and declaratory relief. Ex parte Young, 209 U.S. 123, 155–56 (1908); see also Stewart, 563 U.S.

at 254–55 (explaining that “when a federal court commands a state official to . . . refrain from

violating federal law, he is not the State for sovereign-immunity purposes.”). Here, Plaintiff

seeks declaratory relief. See FAC ¶¶ 105–25.

This Court does not, however, have jurisdiction over Plaintiff’s claims regarding the

Oregon Constitution. See Belt v. Ind. Parole Dep't, 241 F. Supp. 2d 905, 907 (N.D. Ind. 2003)

(holding that the Eleventh Amendment precluded the court from interpreting Indiana’s

constitution and requiring state officials to conform their conduct); Cornwell v. Joseph, 7 F.

Supp. 2d 1106, 1108 (S.D. Cal. 1998) (citation omitted) (holding that the Eleventh Amendment

precluded “federal supplemental jurisdiction over state law claims against state officers sued in

their official capacities.”). Plaintiff’s Oregon Constitution claims are dismissed.

III. First Amendment

Plaintiff argues that Defendants violated his First Amendment rights by acting in

response to his expression of free speech on the Senate floor and in the Capitol, blocking his

“practice and expression of religious beliefs” on the Senate floor, and preventing him from freely

assembling with citizens in his office. FAC ¶¶ 8–10.

The First Amendment provides that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the government for a redress of grievances.

U.S. Const. amend. I. The First Amendment is applicable to the states through the Fourteenth

Amendment. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). A government employee

alleging that his employer violated his right to free speech must satisfy five elements:

(1) [W]hether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff

spoke as a private citizen or public employee; (3) whether the plaintiff's protected speech

was a substantial or motivating factor in the adverse employment action; (4) whether the

state had an adequate justification for treating the employee differently from other

members of the general public; and (5) whether the state would have taken the adverse

employment action even absent the protected speech.

Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc) (citation omitted).

Here, Plaintiff makes conclusory allegations and fails to satisfy the Dahlia factors. See

FAC ¶¶ 8–10, 14, 23, 38. Plaintiff relies heavily on Bond v. Floyd, in which the Court held that

the disqualification of a member of the Georgia House of Representatives in response to

statements he made opposing the Vietnam War violated the First Amendment. See 385 U.S. 116,

137 (1966). Here, Plaintiff is being disciplined not for a political viewpoint, but for the perceived

threats toward others embodied in his statements. He remains a senator and retains all of the

powers attendant to that position.

Even if Plaintiff satisfied the Dahlia factors, Defendants’ 12-hour rule is a reasonable

time, place, and manner restriction. The government may place “content neutral” time, place, and

manner regulations on speech “so long as they are designed to serve a substantial governmental

interest and do not unreasonably limit alternative avenues of communication.” City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 46–47 (1986) (citing Clark v. Cmty. for Creative Non-

Violence, 468 U.S. 288, 293 (1984)); City Council of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789, 807 (1984); Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647–

648 (1981)). The government may not use such restrictions as a pretext for silencing a particular

viewpoint. See, e.g., Edwards v. City of Coeur d'Alene, 262 F.3d 856, 862 (9th Cir. 2001).

Here, Defendants felt it reasonable to restrict Plaintiff’s access to the Capitol to ensure

others’ safety after he made threatening statements to Defendant Courtney, State Police, and

Legislative Assembly members and staff. See Defs.’ Mot. 2–4, 12. Plaintiff must give 12 hours’

notice of his intent to enter the Capitol. Defendants have not limited the duration or frequency of

Plaintiff’s visits nor the nature of the statements he may make while there.

While both sides can point fingers and complain that the other is overreacting to a

political situation, Plaintiff’s chosen words on the Senate floor were those of a bully on the

playground. As such, they are unprotected fighting words. See Chaplinsky v. New Hampshire,

315 U.S. 568, 572 (1942) (holding that insults or words which, “by their very utterance inflict

injury or tend to incite an immediate breach of the peace,” are not an essential part of expression

and are of such slight social value that the social interest in order and morality outweighs any

benefit they may have). Remarkably, Plaintiff argues that his statement to Defendant Courtney—

“if you send the [S]tate [P]olice to get me, Hell’s coming to visit you personally”—was a

statement of religious expression. FAC ¶¶ 38, 46. But here, Plaintiff seems to overlook the fact

that he sounds more like a character out of a Clint Eastwood movie than he does Mother Theresa.

In Chaplinsky, the Court reasoned that cursing a public officer was not the exercise of religion.1

315 U.S. at 571. Moreover, Plaintiff made this statement in anticipation of his potential arrest,

not during a religious discussion. Plaintiff also said that if the State Police were to arrest him,

they should “send bachelors and come heavily armed.” Defs.’ Mot. 2. These statements, apart

and together, resonate more as threats than the expression of theological ideas. Senate leadership

has a legitimate interest in assuring that debate on the Senate floor is not suppressed by the

threatening behavior of one of its members. And while it may be that Plaintiff’s words were no

more than dramatic flourishes for media consumption, it is not this Court’s job to second guess

the finding of a state legislative body that some of its members felt frightened by what the

Plaintiff said. Words, it turns out, sometimes have consequences.

Defendants did not violate Plaintiff’s First Amendment rights.

1 In Chaplinsky, a street preacher called a police officer a “God damned racketeer and a damned Fascist.” Brief for

Appellee at 18–19, 315 U.S. 568 (1942) (No. 255), 1942 WL 53569.

IV. Due Process Under the 5th and 14th Amendments

Plaintiff alleges that Defendants violated his Fifth and Fourteenth Amendment due

process rights by fining him, ordering his arrest and imprisonment, and conducting a secret

investigation. FAC ¶ 11.

To prevail on these claims, Plaintiff must establish: “(1) a liberty or property interest

protected by the Constitution; (2) a deprivation of the interest by the government; (3) lack of

process.” Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). “The fundamental

requirement of due process is the opportunity to be heard at a meaningful time and in a

meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotations

omitted). Due process rights are flexible, depending largely on the specific factual circumstances

along with a weighing of the governmental and private interests involved. Id. at 334 (internal

citations omitted); Mullane v. Cent. Hannover Bank & Trust Co., 339 U.S. 306, 313 (1950)

(explaining that due process tolerates variances in procedure “appropriate to the nature of the

case.”). Each setting invites its own assessment under Mathews, but generally persons holding

interests protected by the due process clause are entitled to “some kind of a hearing.” See

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citation omitted).

Plaintiff alleges that he paid the $3,500 fine and Defendants vacated it and returned his

payment in response to the filing of his Complaint. FAC ¶¶ 62, 91, 98. Plaintiff filed his initial

Complaint on July 26, 2019. ECF No. 1. Defendants returned Plaintiff’s payment on September

9, 2019. Abrams Decl. Ex. A, at 1, ECF No. 9-1. However, Defendants withdrew fines against

every senator who participated in the walkout, not just Plaintiff. See Ben Botkin, Oregon Senate

leaders drop plan to collect fines from Republicans who walked out, Salem Statesman Journal

(last updated Aug. 23, 2019, 3:48 p.m.).2 Regardless, Plaintiff fails to establish that the fine

deprived him of a liberty or property interest without due process of law. Next, Plaintiff

concedes that State Police never attempted to arrest or imprison him. FAC ¶ 47. Even if the

Court granted Plaintiff leave to amend his Complaint to cure these defects, Governor Brown

ordered the senators’ arrests and imposed these fines, and Plaintiff has not named Governor

Brown in this action. Finally, Plaintiff cites no authority to support his allegations that a “secret

investigation” of him violates his constitutional rights. Unless and until Defendants pursue civil

or criminal penalties, they have not deprived Plaintiff of a liberty or property interest.

Defendants did not violate Plaintiff’s Fifth and Fourteenth Amendment due process

rights.

V. Code of Federal Regulations

Plaintiff alleges violations of 25 C.F.R. §§ 11.404, false imprisonment, and 11.448, abuse

of office. FAC ¶ 22. Sections 11.404 and 11.448 are part of 25 C.F.R. Part 11, the “Courts of

Indian Offenses and Law and Order Code.” This Code applies to members of Native American

tribes that the Federal Government recognizes as eligible for Bureau of Indian Affairs services

“and any other individual who is an ‘Indian’ for the purposes of 18 U.S.C. 1152–1153.” 25

C.F.R. § 11.106. Plaintiff does not allege that he is a tribal member or Native American. Even if

he were, he admittedly was never arrested or falsely imprisoned and fails to allege specific facts

to support a claim for abuse of office.

2 This article is available at https://www.statesmanjournal.com/story/news/politics/2019/08/23/oregon-senate-drops-

plan-to-collect-fines-from-republicans-who-walked-out-salem/2099522001/.

VI. Requests for Relief

Plaintiff seeks various declaratory judgments regarding his claims. See FAC ¶¶ 105–25.

Because each of Plaintiff’s claims are dismissed as explained above, Plaintiff’s requests for relief

are dismissed.

CONCLUSION

Because Plaintiff fails to state a cognizable claim for relief and amendment would be

futile, Defendants’ Motion to Dismiss (ECF No. 8) is GRANTED and the dismissal is with

prejudice.

IT IS SO ORDERED.

Dated this 7th day of January, 2020.

__s/Michael J. McShane_______

Michael McShane

United States District Judge