Milan Puskar Health Right v. Crouch

Decision Date15 July 2021
Docket NumberCIVIL ACTION NO. 3:21-0370
Parties MILAN PUSKAR HEALTH RIGHT, Lawson Koeppel, Alina Lemire, and Carrie Ware, Plaintiffs, v. Bill J. CROUCH, in his official capacity as Cabinet Secretary of the West Virginia Department of Health and Human Resources, Jolynn Marra, in her official capacity as Interim Inspector General and Director of the Office of Health Facility Licensure and Certification, Steve Harrison, in his official capacity as Clerk of the House of Delegates and Keeper of the Rolls, and Rich Olsen, in his official capacity as Director of the Division of Legislative Services, Defendants.
CourtU.S. District Court — Southern District of West Virginia

Corey Davis, Pro Hac Vice, Network for Public Health Law, Edina, MN, Loree Beth Stark, ACLU of West Virginia Foundation, Charleston, WV, for Plaintiffs.

David R. Pogue, Carey Douglas Kessler & Ruby, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE

On June 28, 2021, the Court granted PlaintiffsMotion for Emergency Injunctive Relief and issued a temporary restraining order (ECF No. 11). After holding a preliminary injunction hearing, the Court extended that injunctive relief pending further action. Now, the question before the Court is whether it should further extend that order and issue a preliminary injunction. For the following reasons, the Court DISSOLVES the June 28, 2021, Temporary Restraining Order and DENIES Plaintiffsrequest for a preliminary injunction.

Also pending before the Court is DefendantsMotion to Supplement the Record (ECF No. 26). For reasons appearing to the Court, that motion is GRANTED.

I. BACKGROUND

West Virginia is experiencing an opioid-related epidemic and facing alarming outbreaks of Hepatitis C and HIV, all exacerbated by the spread of infections and other harm related to the use of syringes by drug abusers and others untrained in syringe hygiene. To combat these outbreaks, public health officials have implemented several strategies, including sterile syringe exchanges. These programs, which are also known as "needle exchanges," provide sterile syringes to participants upon request, while promoting other public health services and preventing the spread of disease. As the amicus brief reports, these exchanges are considered harm reduction initiatives that have already demonstrated significant success across West Virginia and are recommended by many governmental and other health care entities.

Despite this success and contrary to the recommendations and objections from authorities in the field, the West Virginia Legislature decided to regulate these syringe services, perhaps to the point of elimination. On April 10, 2021, state lawmakers passed Senate Bill 334, the Syringe Services Program Act, which establishes an oversight scheme for syringe service programs in West Virginia. These measures create a new article of Chapter Sixteen of the West Virginia Code. W. Va. Ann. Code §§ 16-63–10 et seq. (West 2021).1 Among other things, the Bill requires syringe services programs to obtain a license from the Office of Health Facility Licensure and Certification ("OHFLAC"), to "distribute syringes with a goal of a 1:1 model," and to be part of a comprehensive harm reduction program which offers or refers participants to other services. § 16-64–3.

The Bill also authorizes OHFLAC to promulgate emergency rules to "effectuate the provisions of [Senate Bill 334] in accordance with evidence-based practices" by July 1, 2021. § 16-64–7. Defendants have proffered at least five drafts that were sent to interested parties, including Milan Puskar Health Right Director Laura Jones. These draft rules indicate that OHFLAC intended to file its final rule with the West Virginia Secretary of State on July 1, 2021, and for the final rule to go into effect on July 9, 2021—the same day that Senate Bill 334 was set to go into effect. Attach. D to Marra Aff. ECF No. 14-2. Marra testified that OHFLAC decided not to file the rule in light of the Court's TRO.

On June 25, 2021, Plaintiffs Milan Puskar Health Right, Lawson Koeppel, Alina Lemire, and Carrie Ware filed the Verified Complaint for Declaratory and Emergency Injunctive Relief for Constitutional Violations (ECF No. 1) and a Motion for Emergency Injunctive Relief (ECF No. 4). Plaintiffs claim that the law violates their due process and equal protection rights, as well as the West Virginia Constitution. As sterile syringe service providers, Plaintiffs predict that the enforcement of Senate Bill 334 will result in fewer people accessing health services and fewer opportunities to prevent the spread of diseases including HIV, endocarditis, and Hepatitis C. Plaintiffs ask for a preliminary injunction (1) enjoining the State Defendants from enforcing Senate Bill 334; (2) enjoining the Clerk of the House of Delegates and Keeper of the Rolls from exercising any authority granted to him under House Rule 20 to amend Senate Bill 334; and (3) waiving the bond requirement for Plaintiffs.

On June 28, 2021, the Court issued a temporary restraining order granting Plaintiffs’ requested relief, and on July 2, 2021, Defendants submitted their response in opposition (ECF No. 14). On July 7, 2021, the Court entered another order resolving several issues ahead of the preliminary injunction hearing. Specifically, the Court held that Plaintiffs were not likely to succeed on Count I of the Amended Complaint, but only to the extent that it is premised on Senate Bill 334 being irreconcilable with House Bill 2500. The Court also held that Plaintiffs were not likely to succeed on Count IV, which alleged violation of the expressive title requirement under the West Virginia Constitution.

The Court held a preliminary injunction hearing the next day. At the outset of the hearing, the Court reiterated its prior findings and held that Plaintiffs were also not likely to succeed on Count VI, which alleges another violation of the expressive title requirement and a violation of separation of powers under the West Virginia Constitution. The parties then presented evidence and oral argument on the remaining claims. At the close of the hearing, the Court extended the TRO pending this Order.

II. STANDARD OF REVIEW

In deciding whether to issue a preliminary injunction, the Court recognizes that it "is an extraordinary remedy afforded prior to trial at the discretion of the district court that grants relief pendente lite of the type available after the trial." Real Truth About Obama, Inc. v. FEC , 575 F.3d 342, 345 (4th Cir. 2009), vacated , 559 U.S. 1089, 130 S. Ct. 2371, 176 L.Ed.2d 764 (2010), reinstated in part , 607 F.3d 355 (4th Cir. 2010) (citations omitted). "Granting the ultimate relief requested, even temporarily, at an early point in the case, often prior to the issues even being joined in the pleadings, seems rightly reserved for only the most compelling of cases." Dewhurst v. Century Aluminum Co. , 731 F. Supp. 2d 506, 514 (S.D. W. Va. 2010), aff'd , 649 F.3d 287 (4th Cir. 2011).

In order to obtain a preliminary injunction, a party must establish four elements: "[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted). When the government is the party opposing the motion for preliminary injunction, the analyses regarding potential harm to the opposing party and the public interest merge. See Roe v. Dep't of Def. , 947 F.3d 207, 230 (4th Cir. 2020).

III. ANALYSIS
A. Likelihood of Success on the Merits

Plaintiffs’ six-count Amended Verified Complaint asserts that Senate Bill 334 violates (I) the Void for Vagueness Doctrine, (II) Plaintiffs’ procedural due process rights, (III) the Equal Protection Clause, and (IV)-(VI) the West Virginia Constitution. For the following reasons, the Court finds that Plaintiffs are only likely to succeed on the equal protection claim.

Count I—Void for Vagueness

The prohibition against vague laws "is rooted in the Due Process Clause of the Fifth and Fourteenth Amendments." Manning v. Caldwell for City of Roanoke , 930 F.3d 264, 272 (4th Cir. 2019). A law is impermissibly vague if it fails to "give a person of ordinary intelligence adequate notice of what conduct is prohibited," or if it fails to "include sufficient standards to prevent arbitrary and discriminatory enforcement." Id. "The purpose of the fair notice requirement is to enable citizens to conform their conduct to the proscriptions of the law." Id. at 273 (citing City of Chicago v. Morales , 527 U.S. 41, 58, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) ).

Where, as here, the statute at issue is an economic regulation, "a less strict vagueness test" applies because plaintiffs like those here can be "expect[ed] to consult relevant legislation in advance of action or to seek clarification from appropriate administrative sources when necessary." Greenville Women's Clinic v. Comm'r, S.C. Dep't of Health & Env't Control , 317 F.3d 357, 366-67 (4th Cir. 2002) (quoting Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc. , 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ) (internal quotation marks omitted). Similarly, "[l]ess clarity is required in purely civil statutes because the ‘consequences of imprecision are qualitatively less severe.’ " Id. (quoting Hoffman Estates , 455 U.S. at 499, 102 S.Ct. 1186 ).

Plaintiffs contend that the Court should apply a relatively strict test because the penalties in Senate Bill 334 are "quasi-criminal" and have a stigmatizing effect. Senate Bill 334 authorizes civil penalties between $500 and $10,000 per violation, as well as injunctive relief against providers. § 16-64–9. Although the Court agrees that these penalties are...

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