This Clallam County legal challenge received skewed coverage in local media, clearly intended to diminish its credibility. Based on unsubstantiated assertions about the lawsuit’s basis, and guesses from an uninvolved third party, the Peninsula Daily News discounted the lawsuit’s claims (see below). We will look at the facts, at recent court decisions on other mandate challenges, and at the future implications raised by the lawsuit.

—————————————-

A serious challenge by reputable, diverse businesses, brought by a respected attorney.

Six Clallam County businesses have sued Clallam County and Dr. Allison Berry, Public Health Officer for Clallam and Jefferson Counties, to invalidate her order requiring all persons entering bars and restaurants to provide proof that they are “fully vaccinated” against COVID-19. The order applies to Clallam and Jefferson counties. Restaurants and bars not complying with her order could suffer loss of their operating permit and referral to the Washington State Department of Labor for additional enforcement. “Full vaccination” is defined in Berry’s order as “all the required doses of a vaccine for COVID-19 (e.g., two doses of the Moderna or Pfizer-BioNTech vaccines or one dose of the Johnson & Johnson vaccine.) The definition has not yet been expanded to require proof of booster shots.

The lawsuit (full copy at this link) was filed November 24, 2021 by Sequim attorney William Payne on behalf of Jose’s Famous Salsa, The Oasis Bar & Grill, The Sunshine Grill and Blondies Plate, all of Sequim; Kokopelli Grill/Coyote BBQ Pub of Port Angeles; and The Blackberry Cafe of Joyce. The owners and operators of the restaurants are diverse ethnically and politically. They cannot be branded under one ideological label. Payne is a highly respected attorney, currently serving as Prosecuting Attorney for the Port Gamble* S’Klallam Tribe, formerly as Clallam County Prosecutor and Clallam County Prosecuting Attorney, and Assistant Attorney General for the State of Washington.

The lawsuit challenges Berry’s order on constitutional grounds. It seeks, first, to have the order declared an infringement of a fundamental right, “the freedom to inherit, purchase, lease, sell, hold, and convey real and personal property, and therefore a violation of equal protection of the law.” Were the court to conclude that a fundamental right is at issue, the order must then survive “strict scrutiny.” Defendants would have the burden of proving that the order is necessary to serve a compelling state interest, and the least restrictive means possible to serve that compelling state interest. As an alternate cause of action, the suit claims that the order is “arbitrary and capricious.” Lastly, in a claim that implicates both the other arguments, the suit alleges that the order is “not narrowly tailored.”

Jefferson and Clallam Counties stand almost alone in the state of Washington, indeed across the nation, in requiring restaurants and bars to demand patrons produce proof of “full” vaccination in order to obtain service inside. King County requires proof of vaccination, but also permits entry with proof of a negative COVID test. This author, as reported previously, has visited nine states since Berry issued her order and entered bars and restaurants without any requirement of (a) showing proof of vaccination or (b) even being required to wear a face mask. See, “Travels Outside Washington State Should Shake Faith in Mask Mandates.” Florida, which for most of the pandemic has imposed no mask or vaccine mandates, continues to demonstrate the lowest or one of the very lowest per-capita COVID infection rates in the nation.  Florida’s per capita rate of 7 is lower than that of Washington state, and ten to fifteen times lower than Jefferson and Clallam Counties, which have per capita rates of 65.2 and 104.2, respectively.

If the court agrees with plaintiffs that the proof-of-vaccine mandate impacts a fundamental right, they are almost certain of winning. Few governmental actions survive strict scrutiny. There is almost always a lesser restrictive alternative. In this author’s opinion, however, it is far from certain that the court will reach this conclusion. Business regulations are usually judged under the “reasonableness” standard.

While it can be demonstrated quite clearly that Dr. Berry’s mandate is arbitrary and capricious, the court is in fairly uncharted territory on this argument. Rarely have the emergency powers of a public health officer been reviewed by Washington courts. The authorizing statutes do not contain an “arbitrary and capricious” or “not narrowly tailored” standard that would invalidate the public health officer’s actions. The cost of litigating that argument thoroughly will involve considerable discovery and scientific and medical expert witness testimony. While many states, large employers, and business and employee trade groups have the resources to fund their frequently successful challenges to federal, state and municipal mandates, the restaurants and bars in this case may not enjoy similar deep pockets. From discussions with two of the businesses, it is clear they have sustained severe economic losses, further weakening their ability to take on county government.

If they can get to discovery, they will be able to force Dr. Berry to defend her order on specific medical and scientific grounds. They will be able to uncover any inaccuracies or exaggerations. They will also have their own experts analyze and rebut Dr. Berry’s opinions.

The federal judges that have struck down vaccine mandates and other COVID restrictions enjoy lifetime tenure. Our local judges are elected. Even if plaintiffs prevail here, the decision could ultimately be in the hands of the Washington Supreme Court. That body was one vote shy of releasing the Green River Killer and other violent men and women in an hysterical overreaction to the early COVID panic.

The implications of this lawsuit extend far beyond the limits of the current COVID controversies. Can a public health officer, or governor, vest in themselves unlimited and unreviewable powers by declaring an “emergency”? The Jefferson County Board of Health has declared that “systemic racism” is a public health emergency. Could the public health officer begin issuing unreviewable orders under the authority of that declaration, for instance, by requiring everyone to undergo indoctrination in critical race theory? Could she mandate racial preferences in the delivery of public and private services? Berry is inclined to believe in a “climate change” crisis. Could she declare a climate emergency, and ban gasoline-powered transportation or the burning of wood and fossil fuels for heat? Could she close businesses to reduce communities’ “carbon footprint”?

It will all come down to whether the court will accept being a rubberstamp and giving Dr. Berry complete deference in every aspect of her decision-making. But a court that will not jettison its role at mention of the word “emergency” can find good cause for a hard look into the justification for Dr. Berry’s edicts. There are very good reasons why extremely few jurisdictions have gone as far as she has in curtailing personal liberties and economic freedoms.

COVID Mandates Being Halted by Federal Courts

President Biden’s sweeping employer, federal contractor and healthcare worker vaccine mandates have all been blocked by federal courts.

The Fifth Circuit Court of Appeals halted the nationwide vaccine mandate issued by the Occupational Health and Safety Administration. The Sixth Circuit dealt a procedural blow to the Biden Administration’s effort to, in lay terms, get around the Fifth Circuit ruling. A U.S. District Court in Georgia issued a nationwide injunction against enforcement of the Administration’s vaccine mandate for federal contractors. A Kentucky U.S. District Court had previously enjoined the mandate in the states of Kentucky, Tennessee, and Ohio.

Two decisions delivered since the Clallam suit was filed could help local restaurants and bars. The most significant, perhaps, was the recent ruling in a suit filed by ten states against the vaccination mandate imposed by Center for Medicare and Medicaid Services (“CMS”) on all healthcare facilities in the country. The injunction by the United States District Court for the Eastern District of Missouri was filed November 29, 2021, and blocked the vaccination mandate in the ten states that sought relief: Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire. This decision was released six days after the restaurants and bars filed their suit. A full copy may be read at this link.

Hot on the heels of a regional defeat for the Biden Administration, in Louisiana v. Becerra, a U.S. District Court in Louisiana issued a nationwide injunction against the vaccine mandate for healthcare workers.

These two district court decisions show that “arbitrary and capricious” COVID-related orders cannot withstand legal scrutiny. Even asserted emergency powers are subject to judicial review and must comply with constitutional and statutory laws. As these courts have pointed out, our nation is always facing some crisis, emergency or profound challenge, and will do so again. Courts have and will always have a critical role in measuring the actions of the government against the legal constraints on the exercise of power.

1. “The mandate is arbitrary and capricious because the record is devoid of particularized evidence regarding risk in the targeted facilities.”

So concluded the Missouri U.S. District Court. The CMS had presented no evidence regarding the impacted facilities specifically. It extrapolated data from long term care facilities. Judge Schelp, in very strong wording, repeated in his opinion, pointed out that using the very worst example to justify reaching other facilities, without providing data specific to those facilities was arbitrary and capricious. Long term care facilities have less than 1% of the U.S. population, but accounted for 35% of all COVID deaths during the first year of the pandemic. Of the approximately 656,000 Americans who died while having a COVID diagnosis (not necessarily the primary or direct cause of death), 30% are estimated to have died during a long term care facility stay. Using these grim stats to justify extending the mandate to all health care facilities was not reasonable.

Dr. Berry’s order contains a paragraph providing some factual basis for the exercise of her extraordinary powers, but it is quite vague and unparticularized: “As of August 21, 2021, 495 outbreaks of COVID-19 have been tied traced [sic] to restaurants, and bars in Washington State. Localized transmission of COIVD-19 outbreaks related to restaurants and bars have been documented in Clallam County. Indoor bars and restaurants are known to pose a high risk for COVID-19 transmission as they encourage unmasking of large groups of people indoors.”  She did not define “outbreaks.”

Berry’s statement of justification does not state whether documented COVID transmission occurred between patrons and staff, between patrons who dined/drank together, between patrons who were strangers, or among staff. The mandate applies to unvaccinated patrons only, so to be relevant her data should state how many cases were related to unvaccinated patrons transmitting the virus to other patrons and/or staff. If any transmission was caused by vaccinated patrons, she should back those numbers out to avoid any exaggeration. As for restaurants and bars posing a “high risk” of transmission, that assertion is simply laughable. The DOH reports that Washington has seen a total of 780,835 infections or cases. The total number of infections/cases “tied traced” (Berry will have to decide which) is 495, representing a de minimis 0.06% of all infections/cases.

Dr. Berry also does not state how many of those “outbreaks” were symptomatic or resulted in hospitalizations or deaths, if any. She also apparently lumps into her gross number all positive test results. This can be wildly misleading. It all depends on, in lay terms, how many cycles were run on the sample. As explained ably in the articles published here, and the sources cited therein, many of the PCR test results coming back positive are meaningless because of the way the tests were conducted.  See Dr. Rob Rennebohm, “The Importance of Knowing the Ct Value at Which SARS-Cov-2 PCR Tests Are Positive,” PTFP, 2/7/21.

Berry’s mandate makes no sense when one thinks about who these patrons are coming to a bar or restaurant. Outside the targeted facility they don’t have to wear a mask. They may have been around each other in a home or other private location and may have driven to the restaurant together in the closed space of a motor vehicle. The whole time they may well have been, and probably were, without face coverings. If there is any transmission risk, it was more serious before they entered the restaurant or bar, and the higher transmission risk resumes once they leave and reenter their vehicle or go to another location together. (This assumes, for the sake of argument, that a mask will prevent transmission). It is arbitrary and capricious to require an eating/drinking establishment to demand proof of full vaccination from individuals who have already been congregating in close quarters without masks and without enforcing a vaccine mandate against each other.

Another huge problem with Berry’s order—one mentioned in the complaint—is that vaccines do not prevent the vaccinated person from transmitting the virus, and do not prevent infection. A vaccinated person can transmit the virus to anyone else.

And, as we know, masks do not prevent transmission or infection.

While the Public Health Officer is entitled to some deference, courts cannot be mere “rubber stamps.” A Public Health Officer’s emergency powers are not intended to be an unchecked, unaccountable, and arbitrary dictatorship.

2.  “The mandate is arbitrary and capricious because it rejected alternatives.”

The U.S. District Courts that have found the CMS mandate fatally defective also based their decision on the fact that CMS rejected or ignored the less restrictive, but equally or more effective, alternatives of daily or weekly testing, and also rejected or ignored the scientifically recognized natural immunity of those with a previous COVID infection.  “CMS… rejected natural immunity,” Judge Schelp wrote, “despite an intense public debate and a trove of scientific data on the strength and durability of natural immunity from COVID-19—alone and compared to vaccine-induced immunity.”

In his decision, Missouri U.S. District Court Judge Schelp pointed out that the federal government itself has admitted that it “lacks solid evidence” regarding the transmission of COVID by the vaccinated. Relying on Federal data, coming primarily from the Centers for Disease Control, CMS admitted that “the effectiveness of the vaccine[s] to prevent disease transmission by those vaccinated [is] not currently known. This federal agency also admitted that the continued efficacy of the vaccines is “uncertain.”

Berry’s order assumes, without presenting any evidence, that requiring patrons of bars and restaurants to be vaccinated will prevent transmission. But her order offers nothing to justify this critical, fundamental presumption of what is not only an unproven medical fact, but also a presumption contrary to the best medical evidence available. Vaccination does not prevent transmission. As evidence mounts of the vaccinated transmitting COVID, and of the vaccinated themselves becoming infected, the clay feet of her order are becoming more and more exposed to erosion by facts.

3. “The scant evidence shows” that the mandate “placed a rock on one side of the scale and a feather on the other.”

Judge Schelp overturned the federal mandate because it failed to consider countervailing interests and relative harms. The vaccination mandate for all health facilities, he observed, came with substantial and dire consequences for the impacted facilities and patients. The CMS estimated that just in its first year, compliance would cost $1.38 billon, and could result in loss of employees, closing of facilities, and harm to patients denied or delayed treatment and care.

The Clallam County bars and restaurants allege that the arbitrary and capricious and unconstitutional mandate has caused them “irreparable damage and economic harm… including but not limited to lost revenue, lost customers and employees that have resigned due to the mandate.” While their damages must be proven, estimates shared with Port Townsend Free Press start at 20% loss of business just since Berry imposed her proof-of-vaccine mandate.

Berry’s order nowhere addresses the consequence and costs of her mandate. It assumes she has the authority to issue and enforce any order regardless of its economic and other negative impacts, regardless of its de minimis benefits. Weighed against the costs to these restaurants, and possible business failure, is the fact cited by Berry herself, that there have been only 495 instances of COVID “tied traced” or “related” to bars and restaurants since the start of the pandemic. As discussed above, that is an insignificant 0.06% of all infections/cases in the state, and Berry’s own mushy number fails to distinguish between the vaccinated and unvaccinated, staff and patrons, and patrons (vaxxed or not) who were in close, prolonged social contact before entering the establishment.

The legal question will be whether Berry is endowed with absolute, unreasonable and unreviewable power, and whether she can impose orders that cause injury and damage without sufficient justification and weighing of all interests. The statute under which Berry has issued her orders, RCW 70.05.070, states she shall “take such action as is necessary to maintain public health and sanitation; to control and prevent the spread of any dangerous, contagious or infectious diseases, and to take such measures as deemed necessary in order to promote the public health.” Does the latter italicized language mean there are no limits on the actions Berry can take?

Certainly, the state and federal constitutions check Berry’s power. They must, or else a bureaucrat could make herself a dictator under the mantle of protecting public health simply by declaring an emergency. “Emergency” is a legal term that must be defined by a court or else it is an invitation to rampant and unchecked bureaucratic and executive power. The Biden administration attempted to cry “emergency” to escape judicial review and evade the limits on its power. Federal judges have rejected this last resort argument. “Most, if not all laws passed,” Judge Schelp wrote, quoting a 2013 decision from the U.S. Third Circuit Court of Appeals, ‘are designed to eliminate some real or perceived harm.’ But all laws, and all actions by government officials, are reviewable by courts to ensure compliance with constitutional protections and other prohibitions against arbitrary and capricious exercises of power.”

What’s with the Peninsula Daily News?

On December 3, 2021, the Peninsula Daily News ran a story on the lawsuit.  The reporter got a quote from someone speculating that the plaintiffs probably had not suffered much from Dr. Berry’s mandate. The source, the executive director of the Port Angeles Chamber of Commerce, admitted he did not know if the restaurants and bars had lost business, but then went on to say that he “sensed” that “they are doing very well.” The rest of his quote was yet another guess about why the plaintiffs had filed the suit.

The PDN reporter apparently never thought to call the plaintiffs or their attorney. We did speak with two of the plaintiffs, and they related that their losses are very substantial, perhaps even crippling to the continued viability of their businesses.

The PDN then took a shot at the lawsuit’s claim about people who have natural immunity because they had undergone a bout of COVID. It stated that people who had previously had COVID are “more than twice as likely to be reinfected,” and provided a link. But the link does not go to any source supporting that assertion. The PDN‘s unsupported claim is directly contradicted by the National Institutes of Health, which has found “lasting immunity” from a previous bout of COVID.

*Correction:  The original version misstated the tribe where Payne served as prosecuting attorney.