The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
OPEN OUR OREGON, et al.,
Plaintiffs, Civ. No. 6:20-cv-773-MC
v. ORDER
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.
_____________________________
MCSHANE, Judge:
Plaintiffs are numerous businesses who have been financially impacted by the
government’s response to the Coronavirus pandemic. Plaintiffs argue that the governor’s
response to the pandemic violates their civil rights, is arbitrary and capricious, is based on
unsound data and science, and is politically motivated to disproportionately impact Republicans.
Plaintiffs seek:
1 – OPINION AND ORDER
1. A judgment declaring that the Governor’s Executive Order Nos. 20-07 and
20-12, are null and void, of no effect, insofar as those orders forbit the
operation of Oregon businesses.
2. A judgment and orders temporarily, preliminarily, and finally enjoining
defendants, and all those in active concert or participation with them, from
enforcing, attempting to enforce, threatening to enforce, or otherwise
requiring compliance with Executive Order No. 20-07 and Executive Order
No. 20-12, insofar as those orders forbid the operation of Oregon businesses.
Compl. 21-22.
In May, the Court denied Plaintiffs’ motion for injunctive relief, noting Plaintiffs
demonstrated no likelihood of success on the merits of their claims. The order noted:
The Supreme Court “has distinctly recognized the authority of a state to enact
quarantine law and health law of every description.” Jacobson v. Commonwealth
of Massachusetts, 197 U.S. 11, 25 (quotations omitted). “According to settled
principles, the police power of a state must be held to embrace, at least, such
reasonable regulations established directly by legislative enactment as will protect
the public health and public safety.” Id. Like the Plaintiffs here, the Plaintiff in
Jacobson argued mandatory vaccination laws were unreasonable, arbitrary and
capricious, and violated his constitutional rights. In rejecting those arguments, the
Court noted:
But the liberty secured by the Constitution of the United States to
every person within its jurisdiction does not import an absolute
right in each person to be, at all times and in all circumstances,
wholly freed from restraint. There are manifold restraints to which
every person is necessarily subject for the common good. On any
other basis organized society could not exist with safety to its
members. Society based on the rule that each one is a law unto
himself would soon be confronted with disorder and anarchy. Real
liberty for all could not exist under the operation of a principle
which recognizes the right of each individual person to use his
own, whether in respect of his person or his property, regardless of
the injury that may be done to others. This court has more than
once recognized it as a fundamental principle that persons and
property are subjected to all kinds of restraints and burdens in
order to secure the general comfort, health, and prosperity of the
state; of the perfect right of the legislature to do which no question
ever was, or upon acknowledged general principles ever can be,
made, so far as natural persons are concerned. In Crowley v.
Christensen, we said: The possession and enjoyment of all rights
2 – OPINION AND ORDER
are subject to such reasonable conditions as may be deemed by the
governing authority of the country essential to the safety, health,
peace, good order, and morals of the community. Even liberty
itself, the greatest of all rights, is not unrestricted license to act
according to one’s own will. It is only freedom from restraint
under conditions essential to the equal enjoyment of the same right
by others. It is, then, liberty regulated by law.
Id. at 26-27 (citations and quotations omitted).
May 19, 2020 Opinion and Order, 3-4; ECF No. 28.
Although Plaintiffs argue the governor’s orders violate their constitutional rights,
Jacobson remains binding precedent and confirms Plaintiffs fail to state a claim for relief.
Recently, in declining to enjoin a similar restriction, Chief Justice Roberts stated:
The Governor of California’s Executive Order aims to limit the spread of
COVID-19, a novel severe acute respiratory illness that has killed thousands of
people in California and more than 100,000 nationwide. At this time, there is no
known cure, no effective treatment, and no vaccine. Because people may be
infected but asymptomatic, they may unwittingly infect others. The Order places
temporary numerical restrictions on public gatherings to address the extraordinary
health emergency. State guidelines currently limit attendance at places of worship
to 25% of building capacity or a maximum of 100 attendees.
* * * *
The precise question of when restrictions on particular social activities should be
lifted during the pandemic is a dynamic and fact-intensive matter subject to
reasonable disagreement. Our Constitution principally entrusts “[t]he safety and
the health of the people” to the politically accountable officials of the states “to
guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). When
those officials “undertake[] to act in areas fraught with medical and scientific
uncertainties,” their latitude “must be especially broad.” Marshall v. United
States, 414 U.S. 417, 427 (1974). Where those broad limits are not exceeded, they
should not be subject to second-guessing by an “unelected federal judiciary,”
which lacks the background, competence, and expertise to assess public health
and is not accountable to the people. See Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 58, 545 (1985).
This is especially true where, as here, a party seeks emergency relief in an
interlocutory posture, while local officials are actively shaping their response to
changing facts on the ground. The notion that is it “indisputably clear” that the
Government’s limitations are unconstitutional seems quite improbable.
3 – OPINION AND ORDER
South Bay United Pentecostal Church v. Newsom, 2020 WL 2813056, *1 (U.S. S. Ct. May 29,
2020) (Roberts, C.J., concurring) (alterations in original).
There is no doubt that the orders in question, which limit the number of people coming
into close contact with one another, were rationally related to stemming the spread of the disease.
In their response, Plaintiffs acknowledge as much. Response, 2 (recognizing that “of course any
regulation that reduces human contact reduces the risk of transmission of disease.”). Although
Plaintiffs firmly believe the Governor should have taken different steps in response to the
pandemic, this disagreement in the face of a rapidly-evolving public health crisis does not
support claims that the orders violated Plaintiffs’ constitutional rights.
There are additional, fatal defects with Plaintiffs’ claims. For example, although Plaintiffs
seek only injunctive relief, the executive orders they seek to enjoin are no longer in effect.
Plaintiffs do not bother addressing Defendants’ arguments that, because Plaintiffs’ businesses are
now permitted to reopen, the individual Plaintiffs must be dismissed for lack of standing.
Plaintiffs specific claims fare no better. Although Plaintiffs bring an equal protection claim, they
include no allegation or argument that any plaintiff is a member of a protected class. Although
Plaintiffs argue the orders violate their fundamental rights to run their businesses, they point to
no case remotely supporting the argument that temporary restrictions such as the orders in
question rise to a complete government restriction on their right to engage in a chosen
occupation. And although Plaintiffs generally allege the orders were enacted to harm Governor
Brown’s political opponents, such an allegation flies in the fact of the fact that virtually every
governor in the country, of every political stripe, enacted similar restrictions.
Ultimately, as Jacobsen bars Plaintiffs’ claims, the Court need not delve into the
numerous deficiencies in each of Plaintiffs’ specific claims (or their request to declare the
4 – OPINION AND ORDER
specific orders, which are no longer in effect, null and void). Defendants’ Motion to Dismiss,
ECF No. 29, is GRANTED. This action is DISMISSED, with prejudice.
IT IS SO ORDERED.
DATED this 8th day of September, 2020.
______/s/ Michael McShane_______
Michael J. McShane
United States District Judge
5 – OPINION AND ORDER