Miller v. Heimuller
| Decision Date | 18 May 2023 |
| Docket Number | 3:23-cv-293-SI |
| Parties | TYLER MILLER, an individual, Plaintiff, v. HENRY HEIMULLER, BRUCE HOLSEY, JEFF FLATT, and SHELLEY HENNESSY, in their official capacities as board members of the Columbia 9-1-1 Communications District, Defendants. |
| Court | U.S. District Court — District of Oregon |
Clifford S. Davidson and Drew L. Eyman, SNELL & WILMER LLP, 1455 SW Broadway, Suite 1750, Portland, OR 97201. Of Attorneys for Plaintiff.
Karen M. O'Kasey, HART WAGNER LLP, 1000 SW Broadway, Suite 2000, Portland, OR 97205. Of Attorneys for Defendants.
Plaintiff Tyler Miller (Miller) is a Scappoose City Councilor, within Columbia County, Oregon. Columbia 9-1-1 Communications District (C911) is the public entity in Columbia County that answers 9-1-1 calls and dispatches public safety responses. Defendants Henry Heimuller, Bruce Holsey, Jeff Flatt, and Shelley Hennessy (collectively, Defendants) are the board members of C911. Miller is suing Defendants solely in their official capacities.
On February 23, 2023, C911, through its board, banned Miller from: (1) attending in-person board meetings at ¶ 911 that are otherwise open to the public; (2) entering C911 premises or any property owned or leased by C911; and (3) contacting C911 employees directly, indirectly, or through C911's communication systems except in an emergency. Compl. Ex. 6. The ban allows Miller to observe C911 meetings remotely by videoconference and to make remote presentations. The ban also indicates that if Miller needs to contact C911 for non-emergency reasons, he may call one phone number, and C911 will respond to written requests for public records in the ordinary course. C911 explains the ban as necessary to protect its employees, stating:
The above notices are necessary to shield [C911] employees from your conduct, which has created a hostile work environment. You have no right to harass and intimidate [C911] employees with your words, your conduct, or with offensive, sexually explicit images. Further, you have no right to put employees in fear of you or fear that you will retaliate against them.
Id. Finally, the ban states that if Miller violates the notices, he Id.
Defendants issued this ban shortly after Miller voiced objections to C911's proposals for its emergency contact system. C911's proposals would invite only one vendor, Motorola Solutions, to submit a sole-source contracting proposal rather than engage in competitive bidding, and would merge C911 with Washington County's 9-1-1 system. Miller disagrees with these proposals and has advocated against them. Miller alleges that the ban stems from his opposition to these proposals. Defendants contend that the ban is a reasonable response to complaints from C911 employees about Miller.
Miller filed his complaint on February 28, 2023, alleging violations of the First Amendment, including First Amendment retaliation. He seeks declaratory, injunctive, and monetary relief under 42 U.S.C. § 1983. On March 1, Miller moved for a temporary restraining order (TRO). His motion for TRO addressed only that portion of the ban that prohibited Miller from physically attending in-person, public meetings of C911. The Court granted Miller's motion on March 13, 2023 (TRO Opinion), enjoining C911 from preventing Miller from physically attending any public meetings that the C911 board conducts in person that are otherwise open to the public. After the Court issued this TRO, C911 has been holding all of its public meetings only online.
Miller now seeks preliminary injunctive relief against the entire ban, including its prohibition on Miller entering any facility owned or leased by C911 or contacting C911 employees. The parties presented written arguments and declarations, and counsel appeared at a hearing held on May 15, 2023. The Court notes that both parties declined to present live witnesses at the hearing, precluding the Court from assessing the credibility of any declarants. For the reasons explained below, the Court grants in part and denies in part Miller's motion for preliminary injunction.
A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm absent preliminary relief; (3) the balance of equities tips in favor of the plaintiff; and (4) that an injunction is in the public interest. Id. at 20.
The Supreme Court's decision in Winter rejected the Ninth Circuit's earlier rule that the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction. Id. at 22. The Winter decision, however, did not disturb the Ninth Circuit's alternative “serious questions” test. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).
“Due to the urgency of obtaining a preliminary injunction at a point when there has been limited factual development, the rules of evidence do not apply strictly to preliminary injunction proceedings.” Herb Reed Enters., LLC v. Florida Entmt. Mgmt., Inc., 736 F.3d 1239, 1250 n.5 (9th Cir. 2013); see also Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009) (). As a result, “a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).
Rule 65 of the Federal Rules of Civil Procedure directs that “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed.R.Civ.P. 65(c). Federal courts, however, have discretion over the amount of security and may even dispense with the security requirement altogether. See Johnson, 572 F.3d at 1086 .
Based on the record evidence, and noting the lack of any request for an evidentiary hearing, the Court finds the following facts by a preponderance of the evidence.
Defendants are the board members of C911. C911 is the entity in Columbia County that answers 911 calls and dispatches public safety responses. C911 is a district within the meaning of Chapter 198 of the Oregon Revised Statutes (ORS), which defines “district” to include 9-1-1 communications districts. ORS § 198.010(24). C911, therefore, is a “public body” under § 192.610(4) and must comply with the Oregon Public Meetings Law. This law states: “All meetings of the governing body of a public body shall be open to the public and all persons shall be permitted to attend any meeting except as otherwise provided.” ORS § 192.630(1). The board of directors is the governing body of C911.
Miller is a resident of Scappoose, Oregon, who was elected to the Scappoose City Council in 2020. The Scappoose City Council appointed Miller as their liaison to C911. First Miller Decl. ¶ 3, Third Miller Decl. ¶ 10. From 2016 to 2017, Miller worked as a consulting subcontractor for C911. Second Miller Decl. ¶ 5. Miller has attended more than one hundred C911 board meetings since 2015. First Miller Decl. ¶ 5. Miller attended more than 70 C911 board meetings in person between October 22, 2015, and April 23, 2020, when C911 meetings went virtual during the COVID-19 pandemic, and 15 in-person meetings since C911 resumed holding in-person meetings on March 31, 2022. Second Miller Decl. ¶ 10.
At the C911 board meeting held on January 11, 2023, the C911 board discussed two proposals: (1) allowing Motorola to submit a sole source contracting proposal; and (2) merging the Columbia County emergency communications system with Washington County's system. First Miller Decl. ¶ 6. The C911 board passed Resolution 2023-001. Compl. Ex. 5 at 4-5 (resolution text). This resolution directed C911 to engage with Motorola and Washington County and, afterward, to present to the C911 board a sole source proposal from Motorola for C911's new public safety radio system (Motorola Proposal). See id.
Miller opposes these proposals and spoke out against them at least a dozen times before February 2023, including before September 2022. Third Miller Decl. ¶ 2. After the board meeting on January 11, 2023, Miller requested a private meeting with a board member, who did not reply; Miller then emailed several board members, stating his concerns. First Miller Decl. ¶ 7; Compl. Ex. 1 (email).
On January 18, 2023, C911...
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