Branch-Noto v. Sisolak
| Decision Date | 22 December 2021 |
| Docket Number | Case No. 2:21-cv-01507-JAD-DJA |
| Citation | 576 F.Supp.3d 790 |
| Parties | Monica BRANCH-NOTO, individually and on behalf of John Doe Minor No. 1, as guardian of said minor, et al., Plaintiffs v. Stephen F. SISOLAK, in his official capacity as Governor of the State of Nevada, et al., Defendants |
| Court | U.S. District Court — District of Nevada |
Sigal Chattah, Chattah Law Group, Las Vegas, NV, Joseph S. Gilbert, Joey Gilbert Law, Reno, NV, for Plaintiffs.
Craig A. Newby, Office of the Attorney General, Carson City, NV, for Defendants Stephen F. Sisolak, Aaron Darnell Ford.
Kara B. Hendricks, Whitney Welch-Kirmse, Mark E. Ferrario, Greenberg Traurig LLP, Las Vegas, NV, for Defendant Clark County School District.
Order Denying Motion for Preliminary Injunction, Granting in Part Motions to Dismiss, and Closing Case
Two parents of public-school students move for a preliminary injunction against state and school-district COVID-19 mitigation policies that require face coverings for indoor activities during in-person instruction. Citing the Ninth and Fourteenth Amendments, they claim that forcing their children to wear masks to school violates their fundamental right to parent as they see fit and make medical choices for their kids. And adding insult to injury, they were unconstitutionally excluded from "the decision-making medical process" during which the mask policies were adopted. But these perceived wrongs don't violate any constitutional rights. The Constitution does not require an opportunity to participate in the decision-making process for such broadly applicable policies, and the fundamental right to parent does not include the prerogative to dictate school health and safety policies. Because plaintiffs have not established a viable legal basis for their federal claims, I deny their motion for injunctive relief and grant defendants’ motions to dismiss them. I then decline to exercise supplemental jurisdiction over the remaining state-law claims and close this case.
All Americans are acutely familiar with the COVID-19 pandemic and the myriad ways it's altered our daily lives. The coronavirus pandemic has raged in waves, ebbing and flowing, and mutating to become more infectious and deadly.1 The virus and its many variants have infected one in every six Americans and claimed the lives of 808,000,2 including more than 8,000 Nevadans.3 Clark County, Nevada, has been a "sustained hot spot" for the virus, with high test-positivity and transmission rates.4 The Food and Drug Administration (FDA) has fully authorized vaccinations
against COVID-19 for those 16 and older and emergency-authorized them for children between the ages of 5 and 15.5 To date, 61.5% of Americans and 53% of Clark County residents have been fully vaccinated.6
In response to the pandemic, governments at all levels have enacted policies to safeguard public health and slow the virus's spread. Three of those policies—two issued by Nevada Governor Steve Sisolak and one by the Clark County School District (CCSD)7 —are at issue in this case. Following repeated guidance from the Centers for Disease Control and Prevention (CDC) that wearing face masks reduces the spread of COVID-19, Governor Sisolak issued Executive Emergency Directives 047 (ED47) and 048 (ED48), requiring all non-exempt individuals, regardless of vaccination
status, to wear masks in indoor settings, including public, private, and charter schools.8 CCSD then issued a Mask Policy for the 2021–22 school year (CCSD Policy), implementing the CDC's guidance and the Governor's directives and requiring all employees and students to wear masks indoors and on school buses.9 Under the CCSD Policy, parents can opt to enroll their children in the district's online, distance-learning program as an alternative to in-person instruction, and students who cannot safely wear a mask may request an accommodation.10
The plaintiffs are parents of CCSD students. They sue Governor Sisolak, Nevada Attorney General Aaron Ford, and CCSD,11 asking this court to award damages; hold ED47, ED48, and the CCSD Policy unconstitutional; and enjoin the policies’ enforcement.12 Plaintiffs assert claims under the Ninth Amendment; the Due Process, Privileges or Immunities,13 and Equal Protection Clauses of the Fourteenth Amendment; the equal-protection principle of the Due Process Clause of the Fifth Amendment; and the state-law torts of intentional infliction of emotional distress (IIED) and negligence.14 They contend that the school mask requirements were enacted without notice and an opportunity to be heard; violate their fundamental right as parents to make medical decisions for their children; cause physical, mental, and emotional harm to students;15 and, by limiting such policies to counties with large populations, impermissibly discriminate between categories of Nevadans.16
Plaintiffs move to preliminarily enjoin enforcement of the school mask requirements and ask this court to "mandat[e] that [d]efendants immediately allow [p]laintiffs and other members of the public [to] send their children to school without masks during in[-]person instruction."17 They argue that the policies are subject to—and fail—strict scrutiny because they substantially burden a fundamental right and because CCSD did not provide a pre-promulgation hearing.18 CCSD and the state defendants move to dismiss the entirety of the complaint.19 They contend that the policies are subject to rational-basis review and easily pass constitutional muster under each of plaintiffs’ federal theories.20 CCSD also argues that plaintiffs’ federal claims lack a legitimate constitutional underpinning and that their state-law claims are insufficiently pled. The state defendants add that plaintiffs’ state-law claims are barred by sovereign immunity.21
All motions were given lengthy oral argument. During that hearing, plaintiffs’ counsel denied the existence of a pandemic,22 though the World Health Organization, the White House, and the United States Supreme Court have all consistently acknowledged it.23 Counsel also suggested that a more stringent mask policy—one requiring the universal use of specific N95 masks—would survive constitutional scrutiny, but the current, flexible policy does not.24 Despite recognizing that reasonable alternatives to the mask requirements were made available to plaintiffs, counsel confirmed that they chose to send their children to schools subject to the policy and did not seek any accommodations.25 And counsel largely conceded that plaintiffs’ federal claims are unsupported by any case law.26
A preliminary injunction is an "extraordinary" remedy "never awarded as of right."27 The Supreme Court clarified in Winter v. Natural Resources Defense Council, Inc. that, to obtain an injunction, plaintiffs "must establish that [they are] likely to succeed on the merits, that [they are] likely to suffer irreparable injury in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest."28 The Ninth Circuit recognizes an additional standard: if "plaintiff[s] can only show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiffs’ favor,’ and the other two Winter factors are satisfied."29 Under either approach, the starting point is a merits analysis. Because plaintiffs have satisfied neither approach on the merits of any theory, this extraordinary remedy is not available to them. And because the complaint lacks any viable legal theory to support a plausible federal claim for relief, this case must be dismissed.30
"Throughout our history," states "traditionally have had great latitude under their police powers to legislate [for] the protection of the lives, limbs, health, comfort, and quiet" of their citizens.31 To this end, "[o]ur Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the [s]tates to guard and protect."32 Under this well-established state power, courts have upheld seatbelt33 and helmet34 laws, policies requiring patrons to wear shirts35 and shoes in public facilities,36 and smoking bans,37 finding that the liberty interests of the individual must yield to the health and safety interests of the community.
This case pits the state responsibility to protect the general welfare against the liberties of individual parents. Both sides agree that "the right of parents to make decisions concerning the care, custody, and control of their children is a fundamental liberty interest protected by the Due Process clause."38 It's the scope of that right that they dispute. Plaintiffs contend that this substantive-due-process right guarantees them the ability to exempt their children from a school mask requirement during a global pandemic. And because this right is fundamental, they argue, the mask policy must be evaluated under—and fails—strict scrutiny.39
To make their claim, however, plaintiffs ignore the narrow scope of this parental interest, starting with the Supreme Court's 1944 recognitions in Prince v. Massachusetts that these "rights of parenthood" are not "beyond limitation," and "the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare."40 Although this right grants parents the freedom to choose whether to send their children to public, private, or home school,41 it "does not extend beyond the threshold of the school door."42 "[O]nce parents make the choice as to which school their...
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