HomeMy WebLinkAbout2020CV2192 - DONNA WALTER & MARK MILLIMAN V. GOVERNOR JARED POLIS, JEFFREY J. ZAYACH, TOM GONZALEZ, AND DARIN ATTEBERRY - 025 - ZAYACH'S MOTION TO DISMISS1
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-2192-RBJ
DONNA WALTER, and
MARK MILLIMAN
Plaintiffs,
v.
GOVERNOR JARED POLIS, in his official capacity as Governor of Colorado;
JEFFREY J. ZAYACH, in his official capacity as Executive Director, Boulder County
Public Health;
TOM GONZALEZ, in his official capacity as Director, Larimer County Dept. of Health &
Environment; and
DARIN ATTEBERRY, in his official capacity as City Manager, City of Fort Collins,
Defendants.
DEFENDANT JEFFREY J. ZAYACH’S MOTION TO DISMISS
Defendant Executive Director of Boulder County Public Health Jeffrey J. Zayach
in his official capacity (“BCPH”) respectfully requests that this Court dismiss Plaintiff’s
First Amended Complaint [ECF 14] (“Am. Compl.”). In support, BCPH states as follows:
CONFERRAL
Counsel for BCPH conferred with Plaintiffs’ counsel as required by this Court’s
practice standards. Plaintiffs oppose the Motion, and the Court has granted leave for
BCPH to file.
BACKGROUND
The world is in the midst of a global health emergency occasioned by a novel
coronavirus that causes a disease known as COVID-19. Lawrence v. Colorado, Civil
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Action No. 1:20-cv-00862-DDD-SKC, 2020 U.S. Dist. LEXIS 92910, at *19 (D. Colo.
Apr. 19, 2020); S. Bay United Pentecostal Church v. Newsom, ___ U.S. ___, 140 S. Ct.
1613, 1613 (2020). More than 213,000 Americans have died from the disease.1
“[N]early every jurisdiction around the country and world has recognized [COVID-19] as
a significant danger if left to spread unchecked . . .” Lawrence, 2020 U.S. Dist. LEXIS
92910, at *20.
On March 10, 2020, Governor Polis declared a state of emergency in response
to COVID-19, the illness caused by the SARS-CoV-2 virus. (Am. Compl. ¶ 11.)
Governor Polis and BCPH implemented face covering orders to reduce the spread of
the virus. Specifically, pursuant to Executive Order D 2020 138, individuals in Colorado
over ten years old are required to wear a face covering when entering or moving within
any public indoor space. (See Am. Compl. ¶ 19.) Likewise, BCPH Order 2020-052
requires each person over the age of ten in Boulder County to wear a face covering
outside of their home if they are not able to maintain social distancing. (Id. ¶ 20.)
Plaintiff Mark Milliman is a Boulder County resident who claims to have suffered an
unspecified injury through enforcement of the BCPH order. (Id. ¶ 1 and 18 ¶ 3).3
Plaintiffs ask the Court to invalidate the State and BCPH face covering orders.
ARGUMENT
I. The BCPH Order is constitutional under the Jacobson standard for evaluating
government actions taken in response to a public health emergency.
1 https://www.cdc.gov/nchs/nvss/vsrr/covid19/index.htm
2 The Am. Compl. refers to the BCPH Order as Order 2020-04 rather than 2020-05.
3 The Am. Compl. contains no allegation that BCPH injured Plaintiff Donna Walker and
therefore Walker lacks standing with respect to BCPH. See Valley Forge Christian Coll.
v. Ams. United for the Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).
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BCPH has a statutory duty to investigate and control the causes of epidemic or
communicable diseases. Colo. Rev. Stat. §§ 25-1-506(3)(b)(V); 25-1-506(3)(b)(VII); 25-
1-514. The face covering order falls within BCPH’s wide-ranging legal authority to
address the current public health crisis.
States have general police powers to protect public health through quarantines
and other measures. Jacobson v. Massachusetts, 197 U.S. 11 (1905). In rejecting a
claim that a compulsory vaccination law violated the defendant’s rights under the
Fourteenth Amendment, the Supreme Court emphasized that “the liberty secured by the
Constitution . . . does not import an absolute right in each person to be, at all times and
in all circumstances, wholly freed from restraint.” Id. at 26. Instead, “a community has
the right to protect itself against an epidemic of disease which threatens the safety of its
members.” Id. at 27. Jacobson established a framework under which public health
orders are reviewed. The narrow rule permits judicial review only “if a statute purporting
to have been enacted to protect the public health . . . has no real or substantial relation
to those objects, or is, beyond all question, a plain, palpable invasion of rights secured
by the fundamental law.” Id. at 31.
For the past few months, courts around the country have applied the Jacobson
framework to COVID-19 related restrictions to reject similar constitutional challenges.
See Open Our Or. v. Brown, Civ. No. 6:20-cv-773-MC, 2020 U.S. Dist. LEXIS 87942, at
*6 (D. Or. May 19, 2020) (collecting cases); see also Andrew Wommack Ministries, Inc.
v. Polis, Civil Action No. 20-cv-02922-CMA-KMT, 2020 U.S. Dist. LEXIS 182503 (D.
Colo. Sept. 29, 2020) aff’d No. 20-1336, 2020 U.S. App. LEXIS 32237 (10th Cir. Oct. 5,
2020).
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Under this framework, courts may review whether a challenged emergency
measure implemented by a state or local authority is arbitrary or unreasonable, and
whether the measure lacks basic exceptions for extreme cases. Lawrence, 2020 U.S.
Dist. LEXIS 92910, at *11; see also Jacobson, 197 U.S. at 28, 38-39. But courts should
take care not to “second-guess the wisdom or efficacy of the measures.” In re Abbott,
954 F.3d 772, 785 (5th Cir. 2020) (citing Jacobson, 197 U.S. at 28, 30). “It is no part of
the function of a court . . . to determine [what is] likely to be the most effective for the
protection of the public against disease.” Jacobson, 197 U.S. at 30. It is, rather, the role
of the people’s elected representatives to determine, in light of the available information,
the best course to combat a public health threat, and courts must be careful not to usurp
that role. Id. at 28, 30; see Phillips v. City of N.Y., 775 F.3d 538, 542 (2d Cir. 2015)
(weighing scientific evidence as to societal costs and benefits of public health measures
“is a determination for the legislature, not . . . individual objectors”).
The BCPH Order meets the constitutional standard in Jacobson because it has a
real and substantial relation to the protection of public health and does not constitute a
palpable invasion of rights secured by fundamental law. See Tigges v. Northam, Civil
Action No. 3:20-cv-410, 2020 U.S. Dist. LEXIS 131592, at *18 (E.D. Va. July 21, 2020)
(requirements to wear face coverings are valid because they relate to an effort to slow
rate of infection of COVID-19 and meet the Jacobson test). While Plaintiffs’ Am. Compl.
indicates that Plaintiffs and others disagree about the effectiveness of masks to stem
the spread of the virus, the Court is obligated under Jacobson to give the elected
branches deference on public health matters, especially given the extreme
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consequences of failing to contain the virus. Thus, the Court should dismiss Milliman’s
claims as provided under Jacobson.
II. The BCPH Order does not unconstitutionally infringe on Milliman’s right to
free speech.
Because the BCPH Order meets the Jacobson test, the Court need not delve into
the specific constitutional issues raised in the Am. Compl. Moreover, the Am. Compl.
fails to state a claim under any constitutional theory, including free speech. Milliman
alleges the BCPH Order violates his free speech right as either a content-based
restriction on speech or unconstitutionally compelled speech. However, a face covering
requirement does not present communicative elements sufficient to establish a First
Amendment claim based on freedom of speech. The First Amendment protects only
inherently expressive conduct. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc.,
547 U.S. 47, 66 (2006). Unlike spoken or written words, symbolic conduct is only
protected if it is sufficiently imbued with elements of communication. Cressman v.
Thompson, 798 F.3d 938, 951-52 (10th Cir. 2015).
Should Milliman wear a mask where the BCPH Order requires it, such
compliance with the law conveys no particular message. Similarly, patrons who wear a
shirt and shoes in a restaurant are not conveying a message by following public health
laws for eating establishments. Likewise, those who go topless in public are not
necessarily conveying a message. See, e.g. Free the Nipple v. City of Fort Collins, 216
F. Supp. 3d 1258, 1263 (D. Colo. 2016) aff’d. 916 F.3d 792 (10th Cir. 2019) (“[A]
persuasive amount of case law suggests that public nudity itself is not inherently
expressive of any particular message.”). Thus, Milliman’s professed desire to expose
his face in public places fails to plead facts supporting any speech-based claim. See
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Antietam Battlefield KOA v. Hogan, Civil Action No. CCB-20-1130, 2020 U.S. Dist.
LEXIS 88883, at *31 (D. Md. May 20, 2020) (rejecting a similar claim because “wearing
a face covering would be viewed as a means of preventing the spread of COVID-19, not
as expressing any message”).
Even assuming the BCPH Order regulates speech, the facts alleged in the Am.
Compl. show that the BCPH Order is not a content-based restriction. Plaintiffs allege
that facial coverings limit facial expressions that constitute speech, but the Am. Compl.
fails to identify any portion of the BCPH Order that differentiates between the content of
those expressions. See Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). In other
words, the BCPH Order, with certain content-neutral exceptions, requires that everyone
wear facial covering, which means everyone’s speech, if limited at all, is limited
regardless of content. Thus, no fact alleged in the Am. Compl. shows a basis for a facial
challenge to the BCPH Order as content based.
Finally, even assuming the applicability of the First Amendment’s strict scrutiny
test to these circumstances,4 the BCPH order does not violate Milliman’s right to free
speech because it serves compelling state interests, unrelated to the suppression of
ideas. Specifically, slowing the spread of COVID-19 is a compelling governmental
interest. Antietam Battlefield KOA, 2020 U.S. Dist. LEXIS 88883, at *33; Lawrence,
2020 U.S. Dist. LEXIS 92910, at *23 (face covering requirement valid because the
“State and City have a compelling interest in maintaining the health and safety of their
4 Plaintiffs do not claim that the BCPH Order would be invalid under a rational basis
analysis.
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residents”). Thus, the Court should dismiss Milliman’s free speech claims against
BCPH.
III. The BCPH Order does not infringe on Milliman’s constitutional right to refuse
medical treatment.
The BCPH Order does not provide or proport to provide treatment for COVID-19
or any other medical condition. Instead, the stated goal of the BCPH Order is “to control
and reduce the spread of COVID-19, so as to maintain consistent health care capacity
in Boulder County to adequately treat patients suffering from the disease . . .” (BCPH
Order at 1 https://assets.bouldercounty.org/wp-content/uploads/2020/07/2020-05-
amended-mask-order-0724.pdf). Further, BCPH does not leave Milliman without a
choice regarding whether to accept “treatment” (wear a face covering). He need not
wear a face covering if he remains in his residence or socially distanced outdoors. (Id.
at 4). Thus, the right to refuse medical treatment is inapplicable because the facts as
alleged do not involve medical treatment, and, even if they do, such treatment is not
involuntary.
Even assuming wearing a face covering is involuntary medical treatment, it is not
the type of invasive, life-altering treatment that raises the type of liberty concerns at
issue in Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261 (1990). Moreover, courts
have upheld far more invasive treatment when it is administered for the purpose of
preventing the spread of contagious disease. Jacobson, 197 U.S. at 24-30 (upholding
compulsory vaccination law but recognizing a liberty interest in personal medical
decisions); Reynolds v. McNichols, 488 F.2d 1378, 1382-83 (10th Cir. 1973). The facts
alleged in the Am. Compl. show that BCPH implemented the minimally invasive face
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covering requirement to prevent the spread of COVID-19. Thus, Milliman failed to state
a claim based on involuntary medical treatment.
CONCLUSION
For the foregoing reasons, the Court should dismiss all claims against BCPH with
prejudice.
Dated this 29th day of October 2020.
Respectfully submitted,
BOULDER COUNTY ATTORNEY
By:
/s/ David Hughes
David Hughes
Catherine R. Ruhland
P.O. Box 471
Boulder, CO 80306
(303) 441-3190
dhughes@bouldercounty.org
Counsel for Defendant Jeffrey J. Zayach
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