A Few Thoughts On Malcolm Johnson v. Kate Brown

On Monday, Judge Michael H. Simon of the U.S. District Court of the District of Oregon issued a fifty-five page opinion ruling on a variety of challenges to the State of Oregon’s vaccine mandate, which is applicable to a variety of public and private employees. To cut to the bottom line: Judge Simon held that the mandates are valid and constitutional, and therefore enforceable. The case is styled Malcolm Johnson et al. v. Kate Brown, and I’ll use the full names of the parties here because a case name of Johnson v. Brown is pretty anodyne.

Click here to read the entire ruling.

I’ve a few quick thoughts right now, and will edit and add more as I find time.

  • Lawyers often care about the “procedural posture” of a case. That means, at what point in the case’s lifespan was the ruling granted, or in other words, what event happened to prompt the Court to issue the ruling? Here, the plaintiffs asked the Court for a temporary restraining order against enforcement of the mandates. That means that they wanted a two- or three-week pause and then to come back to Court a few weeks later, with deeper briefing from both sides. To get it, they had to show (among other things) either that they were likely to succeed on the merits, or that there were “serious questions going to the merits.” That they lost upon this showing bodes poorly for the continued success of the case. But, the Court did not dismiss the case; the State of Oregon hadn’t asked the Court to do that.
  • The core of the ruling appears to be the judge’s assessment that every plaintiff was free to choose whether or not to get the vaccine. There is a cost (loss of continued employment, fines, and perhaps other things) associated with choosing to not get vaccinated. But on page 25 of the slip opinion, the Court writes “Plaintiffs fail to demonstrate that their preference not to receive an FDA-authorized vaccine in a fundamental right under the Due Process Clause. The Supreme Court has not recognized any fundamental right to refuse vaccination.”
  • I’m not clear if a ruling like this is appealable. But if there is an angle to appeal, it’s likely that the plaintiffs will find it and try to get this decision reviewed by the Ninth Circuit. While the Ninth Circuit has a reputation of being among the most liberal of all of the twelve major appellate courts in the Federal judiciary, I’ve found that this is no longer valid. Particularly after the Trump Administration, quite a lot of Republican appointees serve on the Ninth Circuit now and it has issued many opinions in recent years that have pleased political conservatives and displeased political liberals. With that said, the trial court’s factual findings are likely to remain in place (and they don’t seem to be particularly controversial).
  • There looks to be a good mix of plaintiffs here; more than 40 people joined together to challenge the law. Some of them requested medical exemptions to the mandate, some requested religious exemptions. Some of these exemptions were granted and some were not. There are others who contended they oughtn’t have to request exemptions at all. Still others were private employers (mostly medical service providers) who didn’t want to enforce the state’s medical provider mandate or risk fines. So there’s a wide variety of angles in play regarding the validity of various vaccine mandates.
  • I was also reminded recently in a CLE of the case of Trans World Airlines v. Hardison (1977) 432 U.S. 63. Hardison was an aircraft maintenance worker for TWA in Kansas City, Missouri. He joined a Christian church calling itself the Worldwide Church of God, which similarly to the better-known Seventh-Day Adventists, believes that the Sabbath occurred between sundown on Fridays and sundown on Saturdays; consequently, Hardison sought those times off work to comply with his religious belief that he was not allowed to work during those times. He was willing to work during times that were not his church’s Sabbath. The airline and the union worked with him to at least some degree to swap out schedules, but inevitably there came a time that the airline needed him during his Sabbath and there was friction. The punchline is the amount of accommodation that TWA had to give him to remain in compliance with Title VII’s prohibition against religious discrimination was “de minimis.” In other words, if the employer needs to do more than trivial amounts of work to accommodate a religious objection to vaccination, that’s an “undue burden” and the second prong of a requested religious exemption claim will fail (if the employer does not choose to exert itself above and beyond the very low amount of effort that the law requires).
  • I have clients from all over the political spectrum. A lot of the more conservative ones seem to think that because they are conservative and various judges are conservative, that’s good for them. This is as fine an example as I can conceive that partisan electoral politics do not translate well into the judicial arena. At least in some cases, conservative versus liberal in the judiciary has to do with attitudes towards the proper extent of state power, and “conservative” generally means endorsing things governments do. (This is, of course, not uniformly the case.) Both Jacobsen v. Massachusetts (upholding an all-adults, no-exceptions smallpox vaccine mandate issued by a municipality and enforced with a monetary fine; I’ve written about this case in this forum before) and Trans World Airlines v. Hardison were decided by what were considered conservative majorities of the Supreme Court; in today’s world, both liberal (Breyer) and conservative (Barrett) Justices have issued preliminary rulings on behalf of the Court upholding COVID vaccine mandates. As in so many other areas, the kinds of things that motivate voters and legislators and other people dealing with regular mainstream political issues simply don’t translate well to the courts, which very often address issues orthoganal to the kinds of things you read and hear about in the news.
  • Similarly, I recall some pretty substantial thunder from more politically conservative sources during the Obama Administration about the spectre of U.S. courts enforcing international law. Most (though not all) of the challenges to vaccine mandates underway today seem to be coming from that direction also; however, the plaintiffs in Malcolm Johnson v. Kate Brown made one of their centerpiece arguments the international law principle of jus cogens, addressing among other things the claim that because certain of the vaccines are still designated “experimental,” there is a human rights violation in requiring people to take those vaccines. This claim failed; the judge here (an Obama appointee) declined to apply this principle of international law.
  • The plaintiffs were found unlikely to succeed because the Court, after considerable analysis, found Oregon’s vaccine mandates within the proper scope of the exercise of a State’s power. I wonder about the converse in states that have proven much less hospitable to vaccines generally, like Florida and Texas. But that’s an inquiry for a different case, in a different state, on a different day.

I’ll go back and add to this post over the next week or so as I find more time to address the issues raised by this decision, which seems likely to me to be the foundation of any future legal challenge to vaccination mandates in Oregon.

The bottom line is: the Court found that there is no Constitutional right to refuse a vaccine. The State can rely on any reasonable science available to it suggesting that a vaccine mandate would benefit the public health, using the deferential “rational basis” standard of review. There are very few indications that the U.S. Supreme Court will ultimately rule differently on the issue (though we can and have been surprised in the past) regardless of the visccitudes of contemporary partisan politics that so often enmesh discussions of the High Court. So a state can, if it so chooses, impose and enforce vaccine mandates consistent with the Constitution.

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