# Miller v. Heimuller

> District Court, D. Oregon · March 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10397171

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10397171

## How later opinions describe it (automated extraction)

- rejecting “the view that freedom of speech and association, as protected by the First and Fourteenth Amendments, are ‘absolutes’” (citation omitted)
- explaining that the Supreme Court has “long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

TYLER MILLER, Case No. 3:23-cv-293-SI

Plaintiff, OPINION AND ORDER

v.

HENRY HEIMULLER, in his official
capacity as Board Member of the Columbia 9-
1-1 Communications District; BRUCE
HOLSEY, in his official capacity as Board
Member of the Columbia 9-1-1
Communications District; JEFF FLATT, in
his official capacity as Board Member of the
Columbia 9-1-1 Communications District;
SHELLEY HENNESSY, in his official
capacity as Board Member of the
Columbia 9-1-1 Communications District; and
the COLUMBIA 9-1-1
COMMUNICATIONS DISTRICT, an
Oregon municipal corporation,

Defendants.

Clifford S. Davison and Drew L. Eyman, SNELL & WILMER LLP, 601 SW Second Avenue,
Suite 2000, Portland, Oregon, 97204. Of Attorneys for Plaintiff.

Karen O’Kasey, HART WAGNER LLP, 1000 SW Broadway, Suite 2000, Portland, Oregon, 97205.
Of Attorneysfor Defendants.
Michael H. Simon, District Judge.

Plaintiff Tyler Miller (Miller) brings this action against the Columbia 9-1-1
Communications District (District or C911) and Henry Heimuller, Bruce Holsey, Jeff Flatt, and
Shelley Hennessy in their official capacities as board members of the District. Miller seeks relief
under 42 U.S.C. § 1983, alleging (1) violations of his First Amendment right to expression and
right to expressive association, and (2) retaliation in violation of the First Amendment. Miller
also alleges a violation of Oregon Revised Statutes (ORS) § 192.630(4). Before the Court is
Miller’s Motion for Partial Summary Judgment (ECF 94). For the reasons explained below, the Court
grants in part and denies in part Miller’s motion.
STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255
(1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
BACKGROUND
The District is the entity in Columbia County that answers 9-1-1 calls and dispatches
public safety responses. The Board of Directors (Board) is the governing body of the District.
Miller is a resident of Scappoose, Oregon, a town located in Columbia County. From 2016
to 2017, Miller worked as a consulting subcontractor for the District. Second Miller Decl. ¶ 5

(ECF 69). In 2020, Miller was elected to the Scappoose City Council, which appointed Miller as
their liaison to the District. First Miller Decl. ¶ 3 (ECF 3); Third Miller Decl. ¶ 10 (ECF 76).
Miller has attended more than 100 public District meetings since 2015. First Miller Decl. ¶ 5.
Miller attended more than 70 District meetings in person between October 22, 2015 and
April 23, 2020, at which point the District meetings switched to an all-virtual format (sometimes
referred to in this Opinion and Order as “virtual-only” meetings) during the COVID-19
pandemic. The District resumed holding in-person meetings on March 31, 2022, and Miller has
attended 15 in-person meetings since then. Second Miller Decl. ¶ 10.
A. Miller’s Opposition to C911 Proposals
At the District meeting on January 11, 2023, the Board discussed two proposals:

(1) allowing Motorola to submit a sole source contracting proposal, and (2) merging the
Columbia County emergency communications system with Washington County’s system. First
Miller Decl. ¶ 6 (ECF 3). In connection with the two proposals, the Board passed
Resolution 2023-001. See First Miller Decl. Ex. 5 (ECF 3-1 at 14-15) (resolution text).
Resolution 2023-001 directed the District to engage with Motorola and Washington County and,
afterward, to present to the Board a sole source proposal from Motorola for the District’s new
public safety radio system (the Proposals). See id.
Miller opposed the Proposals and spoke out against them at least a dozen times before
February 2023. Third Miller Decl. ¶ 2 (ECF 76). After the District meeting on January 11, 2023,
Miller requested a private meeting with a Board member, who did not reply; Miller then emailed
several other Board members, stating his concerns about the Proposals. First Miller Decl. ¶ 7;
Ex. 1 (ECF 3-1 at 1-2) (email).
On January 18, 2023, the District communicated through its outside council, Michael
Peterkin, to the Scappoose City Council and the Mayor of Scappoose, Joe Backus, requesting

that Miller refrain from further comment and criticism of the Proposals until after the Board
could complete its evaluation. First Miller Decl. Ex. 2 (ECF 3-1 at 3-4). The email was
forwarded to Scappoose City Attorney Peter Watts who responded later that day, noting that
community members had expressed questions and concerns about the radio system procurement
process. First Miller Decl. Ex. 3 at 1 (ECF 3-1 at 5). On January 20, 2023, Peterkin contacted
Watts, clarifying the early stage of the procurement process and requesting that Miller not
contact the District directly. First Miller Decl. Ex. 4 at 1 (ECF 3-1 at 7). Watts and Peterkin had
several phone calls during January and February 2023. Watts Decl. ¶ 2 (ECF 71). At no point
during these calls, however, did Peterkin raise with Watts any concerns related to Miller’s

actions during District meetings or his behavior generally, other than Miller’s comments and
criticisms described above relating to the Board’s decisions. See id. ¶ 3. Mayor Backus met with
Michael Fletcher, the District’s Executive Director, on February 1, 2023; Fletcher also did not
report any concerns about Miller to Mayor Backus. Backus Decl. ¶¶ 2-3 (ECF 77).
On February 17, 2023, Miller posted his concerns about the Proposals on his “Tyler
Miller: Scappoose City Council” Facebook page. First Miller Decl. Ex. 5 at 13 (ECF 3-1
at 11-13). Miller urged residents to attend the District meeting on February 23rd and to oppose
the Proposals. Miller also stated that three seats on the Board were up for election on May 16,
2023. Id.
At the February 23rd District meeting, the Board voted to ban Miller from attending
District meetings in person. Peterkin then sent Miller a letter notifying Miller that he was not
permitted to enter the District’s premises or property. First Miller Decl. ¶ 12; Ex. 6 (ECF 3-1
at 16). The District purported to justify its ban on the grounds that Miller’s past behavior had
“created a hostile work environment,” implying that Miller had sent “sexually explicit images” to

District employees. The District threatened Miller with legal action if he violated this ban. Id.
(terms of the ban). The District sent a copy of the letter to the Scappoose City Attorney and to
local law enforcement agencies. Id. The District also explained to Miller that the District would
provide an access link so that Miller could watch future District meetings remotely and make
remote presentations. Id.
B. Employee Complaints
In February 2020, District employee Chandra Egan participated in a deposition related to
a different lawsuit brought by Miller against other District employees.1 At her deposition on
February 4, 2020, Egan testified that she stopped being on “friendly terms” with Miller because
she wanted to separate her personal life from her professional life, adding that nothing had

triggered this shift in their relationship. Egan Dep. Tr. 8:16 - 9:12 (Second Miller Decl. Ex. 2
(ECF 69-2)). Egan had shared with Fletcher copies of portions of text messages between Egan
and Miller between 2016 and 2017, some of which Egan stated that she had found harassing and
intimidating at the time. Fletcher Decl. ¶ 3 (ECF 54). Fletcher acknowledges that in 2020, he saw
the 2016 and 2017 text messages between Egan and Miller. Id.
According to Egan, on or around January 3, 2023, Egan brought to Fletcher’s attention
her concerns about Miller’s past behavior. Egan Decl. ¶ 4 (ECF 55). Egan had become aware

1 That lawsuit, styled as Miller v. Watson, No. 3:18-cv-562-SB (D. Or.), was dismissed.
that Miller might seek reinstatement as a reserve deputy sheriff for Columbia County, which
could give Miller access to the District’s building and communication systems. Id.
Fletcher also states in his declaration that other employees came to him in late 2022 and
early 2023 with complaints about Miller’s conduct at District meetings and concerns about
Miller’s potential reinstatement as a reserve deputy sheriff. Fletcher Decl. ¶ 4 (ECF 54).

According to Fletcher, District employees Egan, Dannell Hooper, and unspecified others
reported to Fletcher that they were “fearful and concerned about attending board meetings as
required by their job duties because of Miller’s presence at the board meetings and his behavior
after the meetings.” Id. ¶ 6. Hooper adds that District staff avoid Miller when he attends public
meetings, and Hooper will rearrange furniture to separate herself from Miller during those
meetings. Hooper Decl. ¶ 6 (ECF 56). She also states that Miller has pushed the podium “to a
position to confront staff and the board members.” Id. According to Hooper, staff feel unsafe
after the meetings conclude when Miller remains on District property to speak with other
attendees. Id. ¶ 7. Egan explained that she now attends District meetings remotely to avoid Miller

because she is “fearful for [her] personal safety when he is present” and she states that she once
had an “escape plan” from the building in case Miller’s behavior turned violent. Egan Decl. ¶¶ 5-
6. Other declarants, however, have stated that Miller is respectful and well-behaved during
District meetings. See Watts Decl. ¶ 4 (ECF 71); McHugh Decl. ¶¶ 4-6 (ECF 70).
Hooper also reported concerns about Miller’s conduct outside of District meetings.
Hooper states that Miller misused emergency communication systems to harass and intimidate
dispatchers when Miller had served as a reserve deputy sheriff. Hooper Decl. ¶ 2 (ECF 56).
According to Miller, however, all District emergency, non-emergency, and administrative
telephone lines are recorded and reporting any misuse of these systems is required, but there
were never any such reports or complaints made about such misuse by him. Second Miller Decl.
¶¶ 11-12 (ECF 69); see also Hald Decl. ¶¶ 10-13 (ECF 72).
Aside from concerns raised by Egan and Hooper, Heather Van Meter’s investigative
report was prompted by anonymous complaints about Miller. Van Meter Decl. ¶¶ 1, 3 (ECF 66).
Van Meter, a lawyer from Bullard Law who represented the District in November 2021,

interviewed five employees in January 2023 and discussed her conclusions and
recommendations to the District in a report issued on February 6, 2023. Id. ¶¶ 1, 4; see also Van
Meter Decl. Ex. 2 at 1 (Van Meter Report) (ECF 42-1). The report discusses Miller’s text
messages with Egan and other communications with employees, alleged intimidation and
harassment attributed to Miller, and personal safety and retaliation concerns. See generally Van
Meter Report. Based on the employee interviews and Miller’s other past dealings with the
District, Van Meter recommended that the District restrict Miller’s communication to one
designated phone or email address and restrict his access to District property and public
meetings, among other recommendations. See id. at 13-17. Van Meter states that during her

investigation, she was unaware of Miller’s attendance at the January 11, 2023 District meeting or
Miller’s February 17, 2023 Facebook post. Van Meter Decl. ¶ 3 (ECF 66).
Miller states that he was unaware of any complaints about him made by Egan or Hooper,
or that the District had conducted an investigation into the complaints. Third Miller Decl. ¶ 9
(ECF 76). Miller presents declarations from past colleagues who describe their personal
interactions with Miller as well as his reputation in the community. See, e.g., Smith Decl. ¶¶ 3-6
(ECF 78) (describing interactions with Miller as “positive and professional.”). Former District
employees who interacted with Miller in his capacity as a reserve deputy sheriff state that they
do not recall any time when Miller was rude, harassing, or unprofessional to anyone, and that
Miller was generally well-liked and respected. See Jenkins Decl. ¶¶ 4-7 (ECF 85); Copeland
Decl. ¶¶ 4-9 (ECF 84).
C. Temporary Restraining Order and Preliminary Injunction
On March 1, 2023, Miller filed a motion for a Temporary Restraining Order (TRO) in
response to Defendants’ ban on Miller’s in-person attendance at District meetings. ECF 2. After

a hearing, the Court granted Miller’s TRO, concluding that “Plaintiff may physically attend any
public meetings that the C911 board conducts in person that is otherwise open to the public. . . .
[And Defendants] may not prohibit Tyler Miller from physically attending any public, in-person
C911 meetings.” ECF 20 at 16. Miller then moved for a preliminary injunction on the same
grounds. ECF 27. On May 15, 2023, the Court granted in part Miller’s request for a preliminary
injunction.2 ECF 52 at 17. The Court concluded that “Miller is likely to suffer irreparable,

2 In the Court’s Preliminary Injunction Opinion and Order, the Court enjoined
Defendants in relevant part as follows:
Defendants may not preclude Plaintiff from physically attending
any public meetings that the C911 board conducts in person that is
otherwise open to the public.
Defendants may not preclude Plaintiff from physically attending
any other public, in-person meetings hosted on C911 property.
Defendants Henry Heimuller, Bruce Holsey, Jeff Flatt, and Shelley
Hennessy, and any persons working in active concert with them,
may not prohibit Tyler Miller from physically attending any
public, in-person meetings on C911 property.
Defendants may not prohibit Plaintiff from contacting C911
employees, except for the following specific C911 employees:
Chandra Egan and Darnell Hooper. Defendants may, upon a
showing of good cause, petition the Court to expand this list to
include additional named employees.
imminent harm if he is denied attendance from any public meetings that the C911 board conducts in
person that are otherwise open to the public.” ECF 52 at 16 (emphasis in original).
D. Virtual Meetings
After the Court issued its TRO on March 13, 2023, the Board held four public District
meetings remotely by Zoom. During the first of these virtual-only District meetings on
March 23, 2023, Miller could not see any other public participants and found it difficult to hear

the Board members. Third Miller Decl. ¶ 3 (ECF 76). Miller was only able to see the District
executive director and the two Board members on the screen. Id. In addition, Miller could only
see the Board members when they were speaking and could not witness the reactions of other
meeting participants. Id. Miller was only able to message the “hosts and panelists” but not any
other public attendees. Id.
In previous District meetings conducted over Zoom during the COVID-19 public health
emergency, the District allowed participants to view and message the other participants. Id. ¶ 4.
Other members of the public who have publicly opposed the Proposals experienced the same
limitations as Miller during the March 23rd meeting. Ryan Decl. ¶¶ 3-4 (ECF 80); Plantz Decl.

¶¶ 2-3 (ECF 79). During the April 27, 2023 virtual-only District meeting, the Board imposed the
same virtual restrictions as the March 23rd District meeting. Fifth Miller Decl. ¶ 3 (ECF 95). At
subsequent virtual-only District meetings on May 25, 2023, and June 15, 2023, Miller could see
the other meeting attendees, but was still only able to message the meeting host. Id. ¶ 4.

Defendants may not preclude Plaintiff from petitioning the public
body or making public records requests in the manner specified by
Defendants for all members of the public.
ECF 52 at 22-23.
DISCUSSION
In Count One of Miller’s first claim for relief, Miller asserts that Defendants violated his
First Amendment right of expression. In Count Two of Miller’s first claim for relief, Miller
contends that Defendants separately violated his First Amendment right of expressive
association. Miller argues that he is entitled to summary judgment on those Counts. Miller also

moves for summary judgment on his second claim for relief, asserting that Defendants violated
ORS § 192.630(4)(a) by holding virtual-only District meetings.
A. First Amendment
Among other things, the First Amendment protects an individual’s right “to speak freely,
to advocate ideas, to associate with others, and to petition his government for redress of
grievances.” Smith v. Ark. State Highway Emps., Loc. 1315, 441 U.S. 463, 464 (1979). The
Constitution’s “prohibition on encroachment of First Amendment protections is not an
absolute. Restraints are permitted for appropriate reasons.” Elrod v. Burns, 427 U.S. 347, 360
(1976); see also Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 (1961) (rejecting “the view that
freedom of speech and association, as protected by the First and Fourteenth Amendments, are

‘absolutes’” (citation omitted)). For example, “[n]othing in the Constitution requires the
Government freely to grant access to all who wish to exercise their right to free speech on every
type of Government property without regard to the nature of the property or to the disruption that
might be caused by the speaker’s activities.” Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788, 799-800 (1985).
Although infringements on First Amendment protections may be tolerated in appropriate
circumstances, the Supreme Court has counseled that the First Amendment “reflects a profound
national commitment to the principle that debate on public issues should be uninhibited, robust,
and wide-open.” Boos v. Barry, 485 U.S. 312, 318 (1988) (quotation marks omitted). The Ninth
Circuit has emphasized that “[c]itizens have an enormous first amendment interest in directing
speech about public issues to those who govern their city.” White v. City of Norwalk, 900
F.2d 1421, 1425 (9th Cir. 1990).
1. Right to Expression
In Count One of Miller’s first claim for relief, Miller contends that Defendants violated

his First Amendment right to expression by banning Miller’s in-person attendance at public
District meetings. Defendants contend that the District did not ban Miller from expressing
himself but merely changed the medium—from in-person to virtual—through which Miller
could express himself.
The Supreme Court has articulated a three-part test for evaluating a restriction on
expression. This tests directs courts to consider: (1) whether the First Amendment protects the
plaintiff’s expression; (2) the nature of the forum; and (3) whether the justifications offered for
limiting or excluding speech from the relevant forum satisfy the requisite standards. See
Cornelius, 473 U.S. at 797. The parties agree that District meetings are limited public fora. See
Reza v. Pearce, 806 F.3d 497, 503 (9th Cir. 2015) (“[C]ity council meetings, where the public

has the opportunity to address officers of local government or local government agency, are
limited public fora.”).
a. Protected Expressive Conduct
To fall within the protection of the First Amendment, expressive conduct must possess
“sufficient communicative elements,” meaning that the conduct must have “an intent to convey a
particularized message” and there is a great likelihood “that the message would be understood by
those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (cleaned up). In certain
circumstances, a person’s presence, standing alone, can have sufficient communicative elements
to qualify as protected expression. See, e.g., Brown v. Louisiana, 383 U.S. 131, 142 (1966)
(holding that black protestors’ silent presence in a segregated public facility is protected
expression). In other cases, presence alone is not enough to qualify for First Amendment
protection. Cf. Roulette v. City of Seattle, 97 F.3d 300, 305 (9th Cir. 1996) (concluding that
sitting or lying on a sidewalk, in and of itself, is not conduct sufficiently associated with
expressive speech to justify a facial attack on an ordinance prohibiting such activity). “[T]he

inquiry into whether certain conduct is expressive must be carried out on a case-by-case-basis,
examining the circumstances surrounding the conduct in question.” Hightower v. City & County
of San Francisco, 77 F. Supp. 3d 867, 876 (N.D. Cal. 2014) (citing City of Erie v. Pap’s
A.M., 529 U.S. 277, 289-90 (2000) (plurality opinion)); Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503, 505-14 (1969)).
Miller is a city council member for the city of Scappoose and is tasked with advocating
for the city council. In his role as a city council member, he is the council’s liaison to the
District. Miller has expressed himself through running commentary during District meetings. As
a city council advocate, Miller spoke out at least a dozen times against the Proposals, both to the

Board and to the District’s executive director. Considering Miller’s past opposition to the
Proposals, even if Miller chose not to speak at District meetings, whether it be virtual or in-
person, his presence—particularly when the Proposals are discussed—conveys a particular
message to the attendees, the District, and the Board members. Thus, the evidence shows that
Miller’s presence at District meetings was intended to convey a message and it was likely to be
understood as such by those who viewed it. The Court finds that Miller’s presence at District
meetings possess “sufficient communicative elements” to be protected under the First
Amendment. See Johnson, 491 U.S. at 404.
b. Regulating Expression in a Limited Public Forum
In a limited public forum, restrictions on speech “are permissible if they are viewpoint
neutral and reasonable in light of the purpose served by the forum.” Hills v. Scottsdale Unified
Sch. Dist. No. 48, 329 F.3d 1044, 1049 (9th Cir. 2003); see also Kindt v. Santa Monica Rent
Control Bd., 67 F.3d 266, 271 (9th Cir. 1995) (“[L]imitations on speech at [city council and city

board] meetings must be reasonable and viewpoint neutral, but that is all they need to be.”).
i. Viewpoint Neutrality
“Viewpoint discrimination occurs when the government prohibits speech by particular
speakers, thereby suppressing a particular view about a subject.” Moss v. U.S. Secret Serv., 572
F.3d 962, 970 (9th Cir. 2009) (cleaned up); see also Ctr. for Bio-Ethical Reform, Inc. v. City &
County of Honolulu, 345 F. Supp. 2d 1123, 1136 (D. Haw. 2004) (“‘Viewpoint’ restrictions . . .
are those that limit speech with regard to the particular issue the speaker intends to address, or
the opinion the speaker holds regarding that issue.”), aff’d, 448 F.3d 1101 (9th Cir. 2006).
Neither party’s briefing at summary judgment directly addresses whether Defendant’s
ban on Miller’s in-person attendance was viewpoint neutral, but the parties have addressed this

issue at the TRO and preliminary injunction stage. Although the ban targets only Miller and does
not apply to other members of the public, Defendants contend that the motivation for the
District’s ban on Miller’s in-person attendance at District meetings is related to the purported
safety concerns he poses to other attendees—not because of his views on the Proposals or any
other subject. Miller, on the other hand, categorically rejects Defendants’ representation about
why the District banned him. Based on this conflicting evidence, there is a triable issue as to
whether Defendants’ in-person ban is viewpoint neutral.
ii. Reasonableness
Because Miller may prevail on summary judgment by showing that there is no genuine
issue of fact on the issue of the reasonableness, the Court next addresses the reasonableness of
Defendants’ in-person ban against Miller. A restriction on protected speech must be “reasonable
in light of the purpose served by the forum.” Reza, 806 F.3d at 504 (quotation marks

omitted); see also Healy v. James, 408 U.S. 169, 180 (1972) (“First Amendment rights must
always be applied ‘in light of the special characteristics of the . . . environment’ in the particular
case.” (quoting Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969) (alteration in
Healy)). “There is no requirement that a governmental regulation of a limited public forum be
the ‘most reasonable’ or the ‘only reasonable’ limitation on the forum.” Cogswell v. City of
Seattle, 347 F.3d 809, 818 (9th Cir. 2003). Moreover, reasonableness in this context “is not the
legal equivalent of narrow tailoring or least restrictive means.” Flint v. Dennison, 488 F.3d 816,
834-35 (9th Cir. 2007). In a limited public forum the “inquiry into the reasonableness of
restrictions takes into account whether the restrictions imposed leave open alternative channels
of communication.” Reza, 806 F.3d at 504. The government’s “failure to select . . . simple

available alternative[s] suggests” that a restriction is not reasonable. Tucker v. State of Cal. Dep’t
of Educ., 97 F.3d 1204, 1216 (9th Cir. 1996) (quoting Multimedia Publ’g Co. of S.C. v.
Greenville-Spartanburg Airport Dist., 991 F.2d 154, 161 (9th Cir. 1993) (alterations in Tucker)).
Miller analogizes this case to Walsh v. Enge, 154 F. Supp. 3d 1113 (D. Or. 2015), and
argues that a prospective ban on Miller’s in person attendance is unreasonable as a matter of law.
In Walsh, Walsh challenged a 60-day exclusion from Portland City Hall public meetings and
property after Walsh had engaged in disruptive conduct during a city council meeting. The city
government justified this exclusion on grounds that Walsh had violated the Rules of Conduct for
City of Portland Properties and that his behavior created an unsafe and hostile environment for
City employees and visitors conducting City business. Id. at 1122. Walsh could participate in the
City Council proceedings during the period of exclusion in specific ways: “he could view City
Council meetings live online, submit written comments on the posted agenda to the Council
Clerk before meetings, and schedule appointments with other City offices, which the offices
might request take place at locations other than City Hall.” Id. The Court granted summary

judgment to Walsh, holding that the ordinance that authorized his exclusion was unreasonable in
light of purpose of the limited public forum. See id. at 1134.
Relying on Walsh, the Court concluded in its Opinion and Order at both the TRO and
preliminary injunction stage that “even if the factual allegations made by C911 against Miller are
true, a prospective ban that targets Miller’s speech is unreasonable.” ECF 20 at 13 (TRO Opinion
and Order); ECF 52 at 14 (Preliminary Injunction Opinion and Order) (emphasis in originals).
Miller urges the Court to adopt this conclusion as to the reasonableness of the Defendants’ ban
on Miller’s in-person attendance at summary judgment. When deciding a motion for summary
judgment, however, a district court is not bound by its earlier findings at the preliminary

injunction stage. S. Or. Barter Fair v. Jackson County, 372 F.3d 1128 (9th Cir. 2004)
(“Decisions on preliminary injunctions require the district court to assess the plaintiff’s
likelihood of success on the merits, not whether the plaintiff has actually succeeded on the
merits. . . . [T]he general rule [is] that decisions on preliminary injunctions are not binding at
trial on the merits, and do not constitute the law of the case[.]” (cleaned up)).
The facts of this case are sufficiently distinguishable from Walsh to preclude a
straightforward application of Walsh’s analysis at summary judgment. In Walsh, the prospective
ban was unreasonable in part because the city council could have excluded Walsh if (or when) he
became disruptive (i.e., after the “harm” occurred). Here, in contrast, viewing the record in the
light most favorable to Defendants, there is a factual dispute about whether and when Miller’s
presence at District meetings causes harm. A reasonable factfinder could conclude that the harm
to the Defendants’ interest in public safety and the safety of District employees occurs as soon as
Miller is present in attendance at an in-person District meeting. A reasonable factfinder could
also conclude that Miller’s presence at District meetings causes no harm to the Defendants’

identified interest. The factual determination about whether and when the harm occurs affects the
reasonableness of the restrictions on Miller’s in-person attendance. Because “reasonableness
becomes a question of law appropriate for determination on motion for summary judgment when
only one conclusion about the conduct’s reasonableness is possible,” see West v. State Farm Fire
& Cas. Co., 868 F.2d 348, 351 (9th Cir. 1989), the Court declines to grant summary judgment to
Miller on Count One of his first claim for relief.
2. Right to Association
In Count Two of Miller’s first claim for relief, Miller contends that Defendants’ ban on
his in-person attendance at District meetings, and the later shift to virtual-only meetings, violated
Miller’s First Amendment right to association. Miller argues at summary judgment that the First

Amendment right to association protects both Miller’s in-person attendance at District meetings
and protects against the restrictions imposed by Defendants’ during the virtual-only District
meetings. Defendants argue that Miller has no constitutional right to require the District to hold
its public meetings in-person.
a. Expressive Association Test
The First Amendment protects, among other rights, the right to freely associate and
assemble. See U.S. Const. amend. I; Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984)
(explaining that the Supreme Court has “long understood as implicit in the right to engage in
activities protected by the First Amendment a corresponding right to associate with others”).
“The Constitution guarantees freedom of association . . . as an indispensable means of preserving
other individual liberties.” Roberts, 468 U.S. at 618. “Protected association furthers ‘a wide
variety of political, social, economic, educational, religious, and cultural ends,’ and ‘is especially
important in preserving political and cultural diversity and in shielding dissident expression from
suppression by the majority.’” Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2382

(2021) (quoting Roberts, 468 U.S. at 622). “The right to associate for expressive purposes is not,
however, absolute.” Roberts, 468 U.S. at 623. The right to expressive association “can be
infringed upon if that infringement is: (1) unrelated to the suppression of expressive association;
(2) due to a compelling government interest; and (3) narrowly tailored.” Givens v. Newson, 459
F. Supp. 3d 1302, 1314 (E.D. Cal. 2020) (citing Roberts, 468 U.S. at 623). Additionally,
“[p]arties bringing an expressive-association claim under the First Amendment must demonstrate
that they are asserting their right to associate ‘for the purpose of engaging in those activities
protected by the First Amendment—speech, assembly, petition for the redress of grievances, and
the exercise of religion.’” Id. (quoting Roberts, 468 U.S. at 618).

Viewing the facts in the light most favorable to Defendants, the record reflects a triable
issue of fact on the first and second steps of the above-described test. The parties dispute whether
the District’s in-person ban and the later shift to virtual-only meetings were intended to chill
Miller’s right to associate with other concerned, likeminded citizens, or whether the District’s
actions were motivated only by District employees’ safety concerns. This conflicting evidence
gives rise to a factual dispute not suitable for determination at summary judgment.
The expressive association test, however, requires that the state actor satisfy all three
parts to survive summary judgment. Accordingly, the Court discusses the “narrowly tailored”
requirement first in the context of Defendants’ in-person ban, and second, in the context of the
virtual restrictions associated with the shift to all-virtual District meetings.
b. “Narrowly Tailored” Requirement
An infringement on expressive association satisfies the “narrowly tailored” requirement
when furtherance of the identified compelling state interest “cannot be achieved through means

significantly less restrictive of associational freedoms.” Roberts, 468 U.S. at 623. Defendants do
not expressly argue that the ban on Miller’s in-person attendance at District meetings is narrowly
tailored to protecting the District’s compelling interest, or that their compelling interest cannot be
achieved through significantly less restrictive means. Defendants have, however, submitted
evidence of District employees’ legitimate concerns about Miller’s presence at District meetings.
As explained above in the Court’s discussion of reasonableness, there is a factual dispute about
whether and when Miller’s presence causes harm at District meetings. The determination about
whether the ban on Miller’s in-person attendance is narrowly tailored is necessarily informed by
a factual determination about the harms at issue in this case. Thus, the Court finds that there is a
triable issue as to whether the Defendant’s ban on Miller’s in-person attendance is narrowly

tailored. Accordingly, the Court declines to grant summary judgment on this aspect of Count
Two of Miller’s first claim for relief.
Miller also moves for summary judgment on the ground that Defendants infringed his
right to expressive association during the virtual-only District meetings held on March 23rd,
April 27th, May 25th, and June 15th. According to Miller, Defendants restricted him from
associating with other participants in various ways during the virtual-only meetings. For
instance, Miller offers evidence that during the March 23rd virtual-only District meeting: (1) the
District blocked Miller from seeing other participants’ video; (2) Miller was only able to see the
District executive director and two Board members; (3) the video of feed showed only one Board
member while they were speaking, which hindered Miller’s ability to witness the reactions of
fellow attendees; (4) Miller could not message other attendees for much of the meeting and after
the public comment section was closed; (5) the District changed the meeting settings halfway
through the meeting so that Miller could only message the meeting hosts and panelists but not
the attendees; and (6) the video feed would not show which members of the public were

speaking. Miller also states that the March 23rd virtual-only District meeting was the first
meeting—including when District held virtual-only meetings because of the COVID-19
emergency—that the District imposed these heightened virtual restrictions.3 Miller states that
during the pandemic, meeting participants could see those in attendance and could use the chat
function to message other participants directly and collectively. Miller states that the District
meeting held on April 27th was subject to the same heightened virtual restrictions as the
March 23rd meeting.4 Miller explains that during the May 25th and June 15th virtual-only
District meetings, Defendants removed one of the heightened restrictions imposed during the
March and April meetings so that Miller could see the other meeting attendees, but contends that

he was still unable to message any attendee or participant other than the meeting host.
The question before the Court is whether Defendants’ restrictions on virtual meeting
participants—particularly when juxtaposed against the less-restrictive virtual meeting settings

3 Defendants admitted in their Answer that “in March of 2023 the district changed to a
different Zoom account that allowed the moderator to mute participants and changed the chat
feature so that the chats only went to the moderator.” ECF 92. This admission may be considered
at summary judgment. See, e.g., Am. Title Ins. v. Lacelaw Corp., 861 F.2d 224, 226 (9th
Cir. 1988) (explaining that “[a] statement in a complaint, answer or pretrial order is a judicial
admission”).
4 It is unclear whether Miller also experienced a change in the virtual meeting settings
halfway through the April 27th virtual-only District meeting, or whether that occurred only
during the March 23rd meeting.
imposed during the COVID-19 emergency—were narrowly tailored to achieve the District’s
compelling interest in public and staff safety. Defendants fail to address the “narrow tailoring”
requirement for the restrictions related to the District’s virtual-only meetings, and do not offer
any evidence that would create a disputed issue of fact on this issue.
Defendants argue that Miller’s “written and/or verbal communication was never

restricted in any way.” This statement is conclusory and lacks evidentiary support. Defendants
assert that “Miller was free to post, write, comment, record, and respond live during meetings to
all topics raised during the public comment sessions.” (emphasis added). But Miller does not
contend that he was never allowed to comment during the virtual-only meetings—in fact,
evidence shows that he could, at certain times, comment and express his views. What Miller
argues is that Defendants increased the restrictions on his and other attendees’ ability freely to
associate, and he offers evidence in the form of a sworn declaration in support of these
contentions. Defendants offer no evidence to the contrary.
When considering the District’s COVID-19 virtual-only meeting settings, which were

less restrictive than those that the District imposed during the four virtual-only District meetings
described above, it is clear that the District did not use narrowly tailored means to achieve its
compelling state interest. Defendants do not offer any evidence to suggest that imposing stricter
settings during the virtual meeting made District employees or meeting attendees safer, nor do
Defendants provide any justification for the enhanced restrictions. Instead, the evidence suggests
that the heightened virtual restrictions served to restrict the participants’ ability to freely
associate with one another. Accordingly, the Court finds that Defendants violated Miller’s First
Amendment right of expressive association by imposing heightened restrictions on the March 23,
April 27, May 25, and June 15, 2023 virtual-only meetings and therefore grants partial summary
judgment to Miller on this limited basis.
B. Oregon Public Meetings Law
Miller also moves for summary judgment on his second claim for relief, asserting that
Defendants’ virtual-only meetings violated a provision of the Oregon Public Meetings Law,5

ORS § 192.630(4)(a). This provision contains requirements for the locations in which public
body meetings must be held. Defendants raise two arguments in response. First, Defendants
argue that the statutorily defined terms applicable to the Oregon Public Meetings Law contained
in ORS § 192.610 authorize the District’s virtual-only meetings. Second, Defendants argue that a
separate provision of the Oregon Public Meetings Law, ORS § 192.670, contains independent
authorization for the District to conduct virtual-only meetings.
ORS § 192.630(4)(a), the provision that Miller contends Defendants violated by moving
to virtual-only District meetings, states:
(4)(a) Meetings of the governing body of a public body shall be
held:
(A) Within the geographic boundaries over which the
public body has jurisdiction;
(B) At the administrative headquarters of the public body;
(C) At the nearest practical location; or
(D) If the public body is a state, county, city or special district
entity, within Indian country of a federally recognized Oregon

5 C911 is a district within the meaning of ORS Chapter 198, which defines “district” to
include 9-1-1 communications districts. ORS § 198.010(24). A “district” is a “public body”
under ORS § 192.610(6). C911, therefore, is a “public body.” A “governing body” means “the
members of any public body which consists of two or more members, with the authority to make
decisions for or recommendations to a public body on policy or administration.” ORS
§ 192.610(5). The Board, therefore, is a “governing body.” Thus, both the District and the Board
must comply with the Oregon Public Meetings Law.
Indian tribe that is within the geographic boundaries of this state.
For purposes of this subparagraph, “Indian country” has the
meaning given that term in 18 U.S.C. 1151.
As noted, this provision contains requirements for the locations in which public body meetings
must be held, and the locations specified are all physical in nature. The provision’s emphasis on
physical locations supports the conclusion that ORS § 192.630(4)(a) does not authorize public
body meetings to be held in a virtual-only setting. This is not the end of the Court’s inquiry,
however, and the Court next addresses Defendants’ arguments about the statutory authority for
virtual-only District meetings.
1. ORS § 192.610
The term “meeting,” as used in ORS § 192.610 through ORS § 192.705, “means the
convening of a governing body of a public body for which a quorum is required in order to make
a decision or to deliberate toward a decision on any matter.” ORS § 192.610(7)(a) (emphasis
added). Effective on September 24, 2023, the legislature added “convening” to the defined terms
applicable to provisions within the Oregon Public Meetings Law. The September 24, 2023
amendments provide that the term “convening” means: “(a) Gathering in a physical location;

(b) Using electronic, video or telephonic technology to be able to communicate
contemporaneously among participants; (c) Using serial electronic written communication
among participants; or (d) Using an intermediary to communicate among participants.” ORS
§ 192.610(1). Defendants contend that the effect of this statutory amendment is that any District
meeting held in a virtual-only format is now expressly authorized under the statute.
The Court does not understand Defendants to argue that the September 24, 2023
amendments retroactively authorized Defendants to hold the March 23rd, April 27th, May 25th,
and June 15th District meetings in a virtual-only format. Instead, Defendants argue that “[a]s a
matter of law, any virtual meetings that the district holds in the future are statutorily
permissible.” The issue of whether Defendants may hold virtual-only meetings in the future is
not before the Court, and the Court does not reach that issue here.
2. ORS § 192.670
Defendants further argue that another statutory provision—ORS § 192.670—expressly
authorizes the District to conduct Board meetings in a virtual-only setting. ORS § 192.670

provides, in part:
(1) Any meeting, including an executive session, of a governing
body of a public body which is held through the use of telephone
or other electronic communication shall be conducted in
accordance with ORS 192.610 to 192.705.
(2) When telephone or other electronic means of communications
is used and the meeting is not an executive session, the governing
body of the public body shall make available to the public at least
one place where, or at least one electronic means by which the
public can listen to the communication at the time it occurs. A
place provided may be a place where no member of the governing
body of the public body is present.
Although these subsections refer to public meetings held though the use of telephone and other
electronic means, the Court cannot conclude that ORS § 192.670(1)-(2) expressly authorizes
public bodies to hold meetings in a virtual-only format. Subsection (1) simply contemplates that
meetings of public bodies must be in accordance with ORS §§ 192.610 to 192.690 when a
meeting is “held through the use of a telephone or other electronic communications.”
Subsection (2) states that when a public body uses virtual means to conduct meetings, the public
body must make available a physical space for the public or grant the public access to the
meeting through “one electronic means by which the public can listen to the communication at
the time it occurs.” Nothing in the plain text of ORS § 192.670(1)-(2) specifically authorizes
public bodies to hold public meetings by virtual-only means.
In 2021, the Oregon legislature added a new subsection to ORS § 192.670:
(3) All meetings held by a governing body of a public body,
excluding executive sessions, must provide to the members of the
general public, to the extent reasonably possible, an opportunity to:
(a) Access and attend the meeting by telephone, video or other
electronic or virtual means;
(b) If in-person oral testimony is allowed, submit during the
meeting oral testimony by telephone, video or other electronic or
virtual means; and
(c) If in-person written testimony is allowed, submit written
testimony, including by electronic mail or other electronic means,
so that the governing body is able to consider the submitted
testimony in a timely manner.
This newly added subsection, which became effective on January 1, 2022, contemplates the use
of technology to allow attendance at public body meetings virtually and provides parameters and
additional rights for public attendees who attend meetings remotely: subsection (3)(a) provides
that all public body meetings must provide a virtual means for public attendance; subsection
(3)(b) provides that if a public body meeting allows in-person testimony, the public body must
allow remote testimony, which indicates that in-person and remote attendees share the same
rights; and subsection (3)(c), similarly to subsection (3)(b), provides additional rights for remote
attendees. Notably, however, subsection (3) does not authorize all-virtual public body meetings.
This provision also must be read in “accordance with” ORS § 192.630—which expressly
contemplates physical presence, e.g., the geographic location, the administrative headquarters, or
the nearest physical location, of public body meetings—and the Court does not read into this
provision an implicit authorization for public bodies to hold virtual-only meetings. See Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012)
(explaining that under the “Harmonious-Reading Canon,” which is a contextual canon, “[t]he
provisions of a text should be interpreted in a way that renders them compatible, not
contradictory”). Thus, Defendants’ reliance on ORS § 192.670 as authorization for public bodies
to hold virtual-only meetings is misplaced.
Further support for the Court’s conclusion that ORS § 192.670 does not authorize public
bodies to hold virtual-only meetings is found in the now-repealed Oregon House Bill 4212. See
H.B. 4212, 80th Leg., 2020 First Spec. Sess. (Or. 2020), 2020 Or. Laws First Spec. Session 1.

This bill—enacted in response to the COVID-19 emergency—echoes the language in the
Emergency Order issued by Governor Kate Brown on April 15, 2020, in which Governor Brown
expressly authorized public bodies to hold meetings virtually. See Exec. Order No. 20-16.
Oregon’s House Bill 4212 provides in relevant part:
Sec. 1. (1) Notwithstanding ORS 192.610 to 192.690, the
governing body of a public body may hold all meetings by
telephone or video conferencing technology or through some other
electronic or virtual means. When a governing body meets using
telephone or video conferencing technology, or through other
electronic or virtual means, the public body shall make available a
method by which the public can listen to or observe the meeting. If
a governing body meets using telephone or video conferencing
technology, or through other electronic or virtual means:
(a) The public body does not have to provide a physical space for
the public to attend the meeting; and
(b) If the telephone or video conferencing technology allows the
public body to do so, the public body shall record the meeting and
make the recording available to the public. This paragraph does not
apply to executive sessions.
SECTION 2. Section 1 of this 2020 special session Act is repealed
30 days after the date on which the declaration of a state of
emergency issued by the Governor on March 8, 2020, and any
extension of the declaration, is no longer in effect.
(emphases added). As indicated in Section 1, the legislature authorized public bodies to use
virtual-only means to conduct public meetings, notwithstanding the existing provisions in ORS
§ 192.610 to 192.690. If ORS § 192.610 to 192.690 already authorized virtual-only meetings,
this temporary authorization during the COVID-19 pandemic would not have been necessary,
and would not have needed to emphasize that the authorization was “notwithstanding” the
current provisions.
As stated in Section 2, however, this bill was to be repealed after the end of the COVID-
19 state of emergency. Governor Brown subsequently terminated the COVID-19 emergency

order on April 1, 2022, effectively repealing House Bill 4212. Exec. Order No. 22-03. Thus, the
Oregon state legislature temporarily authorized public bodies to hold all-virtual meetings through
House Bill 4212. House Bill 4212 was thereafter automatically repealed with the recission of
Governor Brown’s state of emergency declaration. The legislature did not codify the virtual-only
authorization in House Bill 4212 and allowed the repeal of this authorization.
For these reasons, the Court concludes that ORS § 192.670 does not authorize
Defendants to conduct virtual-only District meetings. Defendants thus violated ORS
§ 192.630(4)(a) by holding public meetings in a virtual-only format on March 23rd, April 27th,
May 25th, and June 15th. Miller is entitled to summary judgment on his second claim for relief.

CONCLUSION
For the reasons stated, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s
Motion for Partial Summary Judgment (ECF 94) as described herein.
IT IS SO ORDERED.

DATED this 12th day of March, 2024.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397171. Public record. Not legal advice.