by Jim Scarantino | Jan 11, 2022 | General
Get Out of Clallam and Jefferson Counties if you’re worried about OMG! Omicron! Counties with the least restrictions seem to be doing the best during the Omicron “surge.” Clallam County, struggling under Dr. Allison Berry’s exclusion of the unvaccinated from dining and drinking establishments and a strict masking requirement for indoor public spaces, has one of the highest rates in the state. The Wild East, those counties where they look at you funny if you wear a mask into a bar, are beating not only Clallam, but also Jefferson County in the 14-day Covid rate matchup.
The Stats Tell the Tale
Clallam County’s 14-day case rate stands, as of this writing, at 1808. That makes it one of the highest rate counties in the state, according to the latest Washington Department of Health data.
Rates per 100,000 Population of Cases, Hospitalizations and Deaths by County
1/11/22
Only King, Pierce, Snohomish, and Thurston County are experiencing a higher rate of positive cases. King County, which like Jefferson and Clallam also bars the unvaccinated from dining or drinking establishments (but allows negative test exemption), has the highest 14-day rate in the state, at 2209.
All those draconian Dr. Berry orders, the burden on restaurant staff, the loss of business for food and drink service businesses, the societal divisions and stresses don’t seem to be making much difference—at least not in the right direction.
Ferry County, where just about no one wears masks and where a vaccine passport requirement would earn the Public Health Officer a ride out of town on a rail, has a 14-day rate of only 594. Other “Wild East” counties also show rates lower than Clallam: Adams, Asotin, Benton, Chelan, Clark, Columbia, Cowlitz, Douglas, Franklin, Garfield, Grant, Kittitas, Klickitat, Lewis, Lewis, Okanogan, Pend Oreille, Skamania, Spokane, Stevens, Walla Walla, Whitman, even Yakima. On the western edge of the state, Grays Harbor, Island, Pacific, San Juan, Kitsap (where Jefferson and Clallam’s unvaxxed go to dine out), Mason and Wahkiakum are doing better than Berry’s locked-down Clallam.
I have been traveling around Washington since June 2020 reporting here on how most of the state is getting along just fine and is operating close to normal. But when you re-enter Berryland, you feel the curtain coming down. The restrictions are supposed to but are not producing superior public health results to what we are seeing in counties where the Public Health Officers and Board of Health are not imposing a kind of medical apartheid on the populace.
What of Jefferson you ask? Jefferson County is also ruled by Berry’s dictates and is doing no better than much of the state. Jefferson’s 14-day rate, as of this writing, was 1010. This is worse than 16 counties (all of them “Red” conservative counties with loose Covid rules and enforcement). Berry’s proof-of-vaccine requirement is not paying the health dividends that would justify the damage it is doing to businesses and community spirit.
But if you’re really, really, really terrified of OMG! Omicron!—I mean if you’re terrified it is going to kill you—where, oh where can you hide?
The answer is: just about anywhere. Only Yakima and King County are showing any deaths. Yakima has a whopping 7-day death rate of 0.4 and King’s death rate, despite having the highest case rate, is only 0.1. The marginal death rate is dropping so fast statewide it is pulling down the cumulative death rate for the entire period of the pandemic. That’s what weeks of zero will do.
And if you are still scared silly, take solace in this week’s admission by the Director of the CDC that throughout the pandemic “the overwhelming number of deaths, over 75%, were among people who had at least four comorbidities,” something we’ve been pointing out here for a long time. Fatalities occurred in people who were already very, very ill in several ways. Dr. Scott Atlas, the Robert Wesson Senior Fellow in health care policy at Stanford University, reports that two-third of deaths reported as Covid deaths were in people with six comorbidities.
Clallam County recently reported a Covid-related death. Whether the death was contributed to by the virus or whether the person died from other causes while also having Covid we don’t know. This sad event apparently has not made it yet to the DOH’s data base. The fact that Clallam has had a Covid-related death while counties without Berry’s proof-of-vaccine order have not further undermines the case for her extreme order.
So, relax. Your chances of dying from OMG! Omicron! are pretty much a big goose egg, the number you will find in DOH’s latest table on death rates in Washington counties.
by Jim Scarantino | Jan 6, 2022 | General
Did They Learn Anything? With the trashed-out Cherry Street Project nowhere near housing its first human occupant, Port Townsend City Council has gone big, very big. Last month they approved the purchase of 14.4 acres next to the first traffic circle at the entrance to the city. They envision an entire neighborhood of subsidized housing. It may have shops. It may have apartments. It may have row homes and townhouses. It may have a plaza. Michelle Sandoval said at a December City Council meeting that she would “love” a plaza, preferably with a Hispanic name.
Plaza Sandoval perhaps?
The former mayor may not get a monument-to-me anytime soon. The City still lacks over $4.2 million for the infrastructure that would open to development all 14.4 acres and perhaps be a meaningful step to extending city utilities to the Glen Cove industrial area. Construction of anything, if Cherry Street is any indication, is a long, long way off. They don’t even know what they will build or who will build it.
But there’s no need to wait to honor Sandoval and her decades of influence over the city’s regulations, taxes and vision—a combination of policies that have contributed greatly to the current housing crisis. There is an edifice available right now that could bear her name. She played a leading role in its entry into our fair town. She was its chief advocate. I’m speaking of the ill-fated, tax dollars-suck of a building called the Carmel House—the heart of the Cherry Street Project. Henceforth, so we not forget, let us recognize this shabby but iconic memorial to ineptitude and dysfunction as Casa Sandoval. In its current state it goes well with the deteriorated condition of most Port Townsend streets, another Sandoval legacy that took years to achieve and will be with taxpayers for many years to come.
Sandoval may be moving on after 20 years of elected power and influence, but taxpayers still have to pay off the $1.4 million indebtedness she and her City Council yes-people incurred. Sandoval the real estate broker will be showing houses in the neighborhood as taxpayers eat the costs of crunching and removing Casa Sandoval. They will be paying the extra charges for toxic materials mitigation inside the same building Sandoval the real estate expert led the charge to buy without ever requesting an inspection.
A Demonstration Project
Mayor Sandoval touted the Cherry Street effort as “a demonstration project.” That was early in the game, back in 2017, when taxpayers were told it would cost only a couple hundred grand and be finished and occupied in the Fall of that year. Projected costs have climbed into the millions. Almost five years later Casa Sandoval remains empty and suffers from vandalism and neglect. It has blighted the neighborhood and is now a safety hazard. Lawyers and insurers would call it “an attractive nuisance.” Kids easily get in there, where city inspectors have found holes in floors and walls large enough someone can fall through. Sometimes people who get into Casa Sandoval launch refrigerators out windows to see if they might fly.
So just what did Mayor Sandoval’s “demonstration project” demonstrate? Are the city councilors who got PT into the Casa Sandoval mess any smarter for the experience? Nope. They have no regrets and proudly declare that if they had it to do over, they wouldn’t do any thing differently.
Denial and Delusion
It’s the December 6, 2021 City Council business meeting. Council is being briefed (click for video) on the possibility of acquiring what is known as the 14.4 acre Evans Vista property. The state Department of Commerce will give them money, more than $1.3 million. With this land, they can do so much more than rehab a modest 70-year old building. They can build an entire neighborhood of affordable and workforce housing. But there’s still that unfinished Cherry Street Project hanging around, what Ariel Speser in her last days on council called “the elephant in the room.”
David Faber, now PT’s mayor, took the white elephant by its ivory tusks.
“I wouldn’t change a single thing about what we did,” David Faber proclaimed. “I am nervous,” he said, about “again” getting “the city significantly involved in a project that doesn’t necessarily have a perfectly clear end project yet—given the status of the Cherry Street project and so forth.” He did not want to get the city involved “in a long-term dragged-out morass.”
But, he would do Cherry Street all over again, the same way, no changes, no regrets.
Pamela Adams, who was in her last month of service on council and who strongly supported the Cherry Street debacle, stood with Faber and declared, “I don’t regret having trucked that, barged that over there.” (Casa Sandoval was barged across the Strait of Juan de Fuca and trucked from a landing next to the Pourhouse to its present hillside above the golf course.)
Ariel Speser, in one of her last meetings, acknowledged, “It is hard to think about this without thinking about the Cherry Street Project.” Ya think? She went on to dismiss the debacle. Failure, she suggested, was to be expected. “It is very rare that you have a successful housing project on the first try.” Since when? Is that a rule-of-thumb for private homebuilders as well as politicians?
Michelle Sandoval was “nervous” but “excited” about getting into another big “affordable” housing project. “We took a risk,” on Cherry Street, she said, “and we got a lot of grief.” (Oy, such a price to pay for wasting millions of dollars and five years in the midst of a housing emergency.) Everybody makes mistakes, she pleaded as if that excused the utter negligence demonstrated by City Council in buying a building without inspection, without a realistic construction estimate, without anyone to do the work—without any plan. This next project, she recognized, is much, much bigger. “It is going to be incredibly expensive.” Buckle up, taxpayers. Like duct tape, your money will be used to fix everything.
But everyone was relieved that “this time,” unlike the implicit “last time,” the city was doing “due diligence.” What exactly is this confidence-inspiring “due diligence” that washes away all sins and failures? Except for confirming compatibility with city zoning, conducting a cultural resources assessment, and snagging enough state funds to pay the asking price, there’s….nothing. The city has merely bought raw land with someone else’s money. It has no plans, no artist conceptions, no number or type of buildings, no street or landscaping schematics, no feasibility study to determine if the units once built can actually be offered and maintained as “affordable” and workforce housing–that magical and all-critical accomplishment known as “penciling out.” There’s no organization that can be held responsible for getting it done (or not), no builder willing and qualified to take on something so big, no reliable statement of projected costs. No money to build the thing.
Just like the Cherry Street Project.
A week after the 12/6/21 discussion, Council voted unanimously to purchase the Evans Vista property for about $1.3 million without any idea of what to do with it.
I will be writing more on the Evans Vista project. It is huge in scope and “incredibly expensive,” as Sandoval admits. This will probably be the largest project ever undertaken by the city. Let me now address those who will say that by doing this I’m trying to stop affordable housing, just as they criticized me for following, predicting and exposing the failures of the Cherry Street Project—er, Casa Sandoval. Port Townsend desperately needs affordable and workforce housing. Casa Sandoval has provided no housing whatsoever. It has absorbed resources and land and been a huge opportunity lost. Barging that building to PT was one of the stupidest things any elected body has done. The result is that the city’s largest housing project has accomplished nothing positive.
It could have been otherwise. That land where the vandalized hulk sits could have been, for instance, a terraced hillside of manufactured homes. Going simple and small, incrementally, being hard-headed, bird-dogging costs and saving money instead of indulging in a grandiose, wasteful gesture—a guilt offering for years of making PT exclusive and expensive—would have helped this city and a good number of workers who can’t afford to live here.
Because it came from the state, money for purchase of the Evans Vista property was free in the eyes of City Council. But that is how they have treated the tax dollars wasted on Casa Sandoval. Every dollar wasted is a dollar that could have but did not accomplish something beneficial.
That old adage about “those who fail to learn the lessons of the past are condemned to repeat them” rings out. City Council appears to have learned nothing. I asked the rhetorical question previously about what Casa Sandoval has demonstrated. Now I propose an answer: it has demonstrated that the City of Port Townsend is very bad at the business of building affordable housing. The cliquish, virtue-signalling, peer pressure-regulated proceedings of City Council have not produced sound decisions. There’s little reason to conclude that things will change under Mayor David “No Regrets” Faber.
The public needs to keep an eagle eye on what happens with the Evans Vista property. We’ll be here, and so will Casa Sandoval.
by Jim Scarantino | Jan 4, 2022 | General
“Mom! They’re throwing a refrigerator out a window!” Teenagers easily gained entrance to the derelict Carmel House and trashed it. Almost every window has been broken. Furniture, light fixtures, random kitchen utensils, a door and, yes, a refrigerator were hurled through glass. I found shards of glass twenty yards from the building. There is broken glass everywhere. Rainspouts were ripped off and thrown over the fence. Drawers launched through the windows have been claimed by a cat as litter boxes.
Note refrigerator against fence behind cat claiming a new litter box.
A neighbor ran to her own window when her son yelled about a refrigerator going airborne. She saw two teenagers in the act. She has seen teenagers in the derelict building on two to three previous occasions and had called the city. A crew eventually boarded up an open ground floor window and pushed the rear fence closer to the building. That window had been wide open for two years. I had seen evidence that it was being used to access the building. The chain link fencing was never locked tight. There has always been an opening at the rear of the building, conveniently in a blind spot—a spot near the place in the trees with the piles of empty beer cans. Teenagers pulled the fence open and pushed in two large plywood sheets and went to work.
The neighbor (who asked that her name not be used) called the police as the kids rampaged through three floors of the building. The police arrived 40 minutes later and entered the building the same way the kids did. “Come out with your hands up,” the neighbor heard the police shouting. The kids were long gone. The neighbor and I found their fresh footprints in the muddy path leading out the back of the building, through the party site and further up hill.
The front doors have been open to the elements for five years, as if the city and Homeward Bound, the nonprofit that had the project for four of those years, did not care what happened to the building. Now the windows are open and a second level door on the back.
I have been in the process of writing a story on the Cherry Street Project and its lessons for the even larger 14.4 acre “affordable” neighborhood development City Council has bitten off. That article should be out this week. Cherry Street was supposed to be, as then Mayor Michelle Sandoval said in 2017, “a demonstration project.” She and the rest of City Council at the time loaded taxpayers with about $1.4 million in debt, and gave away tens of thousands of dollars in cash and services to a nonprofit that couldn’t even pick up construction trash. The latest cost estimate, as we’ve reported, calls for another $1.8 million just to rehab the old building. Looking at photos taken today, ask yourself, exactly what has the Cherry Street Project demonstrated?
Newly elected Mayor David Faber at a December 6, 2021 meeting said that if he had it all to do over again, he would not have done anything differently. Ponder that attitude, taxpayers, and keep your eyes posted for the upcoming story on “Casa Sandoval.”
by Jim Scarantino | Dec 16, 2021 | General
A year ago, Jammi Lee Oxford killed herself. On December 17, 2020 she took her life at Morro Bay, California, in the same spot where her mother had committed suicide before her. Jammi had been living in a Chrysler minivan at the Jefferson County Fairgrounds. She fled in terror after her name had been attached to an anonymous letter to the county commissioners. In that letter, she attempted to notify the commissioners about dangerous conditions at the homeless/squatters camp and open-air drug market. Even though the letter had been submitted anonymously, her name (appearing in the email address) was blurted out when it was read aloud during the public comment section of the meeting.
She had wanted the commissioners to know about a drug dealer operating at the Fairgrounds. She reported that the dealer and his associates were “harassing and bullying” others. “Is there anyone out there?” she asked in a plea for help.
At the next meeting she said there was no point trying to hide her identity since her request for anonymity had not been honored. Now she told the commissioners she was fleeing in fear of the drug dealer she had attempted to report to them. “I have nothing more to lose,” she wrote. She related troubling misconduct by this person, whom she called “Brian.” She said he had managed to gain control over the supplies from the Food Bank and had used that control to gain power over people dependent on that food. He had designated himself “camp cook.” She suggested she had been punished, had fallen out of disfavor and had been denied food. “I have gone to bed hungry. He has shown me how cruel he can be.” She told the commissioners that she had been warned he had hired someone to “take care of” her. She said she didn’t run from people, but she was running now in fear for her life.
“Please, I express my concerns in desperate need of this safe place to be without my life being in jeopardy,” she closed.
That is Jammi Lee Oxford in the photo at the head of this article.
Jammi’s daughter is Kristan Sigler. She was recently promoted to E5, Petty Officer Second Class, in the United States Navy. She reached out to ask if the woman I mentioned in a September 9, 2020 story might have been her mother. She was. I remembered the scared, sensitive, fragile woman who told me she just wanted a place to be safe. She was soft spoken, courteous, and damaged. It was obvious to me she had been homeless for a long time and likely had some serious substance abuse issues. I talked to Jammi a second time, when she was drinking straight liquor in the early afternoon. But so were many of the others in cars and tents at the Fairgrounds that bright, sunny August day.
A man who identified himself as Brian told me that for that night’s dinner he was making steak “for everyone.” That apparently included one of his dogs. It ran by with a large steak in its teeth. This man acted like he was in charge and spoke of plans for a larger encampment. At the time, the homeless and transients were limited, with only one or two exceptions, to a single line of tents and run-down vehicles against the fence that separated the Fairgrounds from the apartments on the next property. He waved his hand over the grassy field. “We want five acres,” he told me. And he explained how “we” (he purported to speak for others) effectively became squatters when “we” decided to exploit the Governor’s no-eviction order and stop paying the minimal camp fees they had been paying up to then. He also explained how many of them, like himself, had incomes, such as SSI and veteran’s and retirement benefits. They just weren’t going to be spending any of it on compensating the Fairgrounds for living there and using the bathrooms with endless hot water and showers, the waste hauling service and the electricity they were tapping into through very, very long extension cords snaking across the field.
Ms. Sigler says that her mother fled the Fairgrounds in terror. A severe downward spiral began when her identity as the letter writer was revealed. Jammi asked Kristan to get her a gun. She thought that because her daughter was in the Navy she would have access to a weapon she could give her mother.
Jammi had addiction problems and struggled with mental illness, Ms. Sigler says. She had suffered much abuse and trauma. The shock and terror that hit Jammi when her name was revealed despite signing her letter “Anonymous”… well, it just made everything worse. County Commissioner Greg Brotherton in the meeting when her second letter was read apologized for previously “outing” her, but the damage had been done.
Kristan Sigler will be visiting Port Townsend on the anniversary of Jammi’s death to spend some time at the Fairgrounds. Jammi had sought safety there. It was her last known place of more than itinerant residence before the terror descended and took hold of her life.
The commissioners should have listened to Jammi. The Fairgrounds became a very dangerous place. Twelve days after Jammi committed suicide in Morro Bay, a young woman was found dead outside her RV by the Fairgrounds employee who usually managed families and retirees spending vacation time in the grassy field. There were at least half a dozen other near-death overdoses handled by Port Townsend police and emergency medical personnel. Michael McCutcheon, then a Dove House employee, on Memorial Day weekend 2021 saved a woman from dying when he applied Narcan. One of the dealers who set up operations there—several relocated to the Wild West of the Fairgrounds—would use Narcan on addicts who OD’d in the tents and RVs.
One Port Townsend police officer on social media reported that he had been called out to the Fairgrounds at least a hundred times. Police records for incidents at the Fairgrounds cover nearly a thousand pages. I reported on some of these incidents in “Fairgrounds Police Log.” That story was published the same day Jammi killed herself.
There were assaults, thefts, fights, mental health crises every week. Neighbors were harassed, stalked and some were assaulted. Crime spiked in surrounding blocks. Neighbors lived in fear. One couple watched as a drunken Fairgrounds squatter fought and injured a police officer in their driveway.
The Fairgrounds is county property under lease to the Fairgrounds Association. Jammi’s wasn’t the only letter to the commissioners pleading with them to act. Others who lived in the tents and RVs wrote and called them regularly. Neighbors wrote them almost every week. The commissioners would wring their hands and talk about “meeting with both sides.” But they did nothing to stop the unfolding tragedy on property they ultimately control. They dumped all the problems on Port Townsend police. An overdose death didn’t shock them into action.
If you listen to the 9/8/20 commissioners’ meeting, where commissioner Brotherton apologized to Jammi for “outing” her, you will see that they were rather nonchalant about conditions at the Fairgrounds. They believed the problem would go away when the weather changed. Commissioner Kate Dean was more upset about a pro law enforcement “Back the Blue” event. In none of their meetings where the Fairgrounds was discussed will you find them spurred to act to end the drug dealing, violence and slow suicides underway on land under their jurisdiction. They could have moved in and cleaned things up, seen that the dealers were kicked out, imposed controls on who went in and out and what behaviors would not be tolerated, and provided round-the-clock security.
As it was, the Fairgrounds became the shopping market for local addicts. The woman who almost died (had not McCutcheon saved her) had come to the Fairgrounds from Seattle—a drug tourist who almost ended her travels here. One of the most notorious dealers—someone other than the man Jammi reported to the commissioners—went so far as to declare himself to police as the Fairgrounds camp leader.
Jefferson County Commissioners should have listened to Jammi and acted. They could have prevented a lot of pain and suffering. And death.
Jammi Lee Oxford was born on Christmas day. She would have been 44 this year.
————————————
Other Port Townsend Free Press coverage of the squatters/homeless camp and open-air drug market at the Fairgrounds:
Lines Form in Battle for Future of Fairgrounds, 9/8/20
Transient/Homeless Village Grows at Fairgrounds, 10/29/20
Squatters Camp Grows at Fairgrounds, 12/1/20
A Grim Existence at the Fairgrounds, 12/9/20
Fairgrounds “Wild West” Spurs Neighbors to Demand Action, 8/2/21
by Jim Scarantino | Dec 10, 2021 | General
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.
“The Court acknowledges the tragic toll that the COVID-19 pandemic has wrought throughout the nation and the globe. However, even in time of crisis this Court must preserve the rule of law and ensure that all branches of government act within the bounds of their constitutionally granted authorities. [The government’s] strong interest in combating the spread of [COVID-19]… does not permit the government to ‘act unlawfully even in the pursuit of desirable ends.’”
– U.S. District Judge R. Stan Baker, Georgia v. Biden
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. Allison Berry, Clallam/JeffCo Health Officer
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.
