Sehmel v. Shah
| Decision Date | 09 August 2022 |
| Docket Number | 55970-6-II |
| Citation | 514 P.3d 1238 |
| Parties | Andrea SEHMEL, Kevin O'Sullivan, Robert Motzer, Dawn Appelberg, Kenneth Morse, Jeremy Wildhaber, Yienan Song, as individuals, Appellants, v. Umair A. SHAH, in his official capacity as Secretary of Health of the State of Washington, Respondent. |
| Court | Washington Court of Appeals |
Shella Sadovnik Alcabes, Sydney Paige Phillips, Attorneys at Law, P.O. Box 552, Olympia, WA, 98507-0552, for Appellant.
Jeffrey Todd Even, Office of the Attorney General, P.O. Box 40100, 1125 Washington St. Se., Olympia, WA, 98504-0100, Emma Sarah Esq. Grunberg, Office of the Attorney General, P.O. Box 40100, Olympia, WA, 98504-0100, for Respondent.
PUBLISHED OPINION
Worswick, J. ¶ 1 Appellants seek to invalidate the secretary of health's order mandating every person in Washington State to wear a mask indoors and in certain large outdoor settings. Appellants appeal the trial court's order granting the secretary of health's motion for summary judgment. Appellants filed a claim for declaratory and injunctive relief in a verified complaint against the Governor, Jay Inslee, and the Secretary of Health, Umair Shah, to prevent the enforcement of the mask mandate. On appeal, appellants argue that the secretary's order (1) violates their right to free speech because wearing or not wearing a mask is symbolic speech, (2) does not survive strict scrutiny, and (3) compels speech. They also argue that the secretary's order (4) is void because (5) the legislature did not properly delegate authority to the secretary. And, that (6) the Emergency Proclamation, enacted by the governor in response to the coronavirus pandemic, was in excess of the governor's authority. Lastly, they argue that (7) the power delegated to a local health officer is improper.
¶ 2 We affirm the trial court and hold that the mask mandate does not implicate speech, therefore, we do not address whether the mask mandate survives strict scrutiny or compels speech. We also hold that the mask mandate is not void because the legislature properly delegated the authority to address an emergency to the secretary, the governor's Emergency Proclamation was not in excess of his authority, and the power delegated to the local health officer is not improper.
FACTS
¶ 3 COVID-19 is a fatal, highly contagious virus that caused more than 980,000 deaths in the United States, and more than 12,000 deaths in Washington.1 The virus is transmitted mainly through respiratory droplets or small particles produced as a person coughs
, sneezes, or talks. A person may be infected without presenting symptoms or may transmit the virus before presenting with symptoms. Older people or people of any age with certain underlying medical conditions are at higher risk of complication or fatality following exposure to COVID-19. Due to the speed of COVID-19 transmission, an outbreak with patients requiring medical care often overwhelms the healthcare system. At the time this lawsuit commenced in 2021, few drugs or therapies, and no vaccines had been approved by the U.S. Food and Drug Administration to treat or prevent COVID-19.
¶ 4 On February 29, 2020, and following the first confirmed case of COVID-19 in Washington, Governor Jay Inslee issued a state of emergency in Washington through Proclamation 20-05 (Emergency Proclamation) under his authority under chapters 38.08, 38.52, and 43.06 RCW. The Emergency Proclamation stated that the U.S. Centers for Disease Control and Prevention (CDC) identified the potential public health threat posed by COVID-19 in the United States as "high." Clerk's Papers (CP) at 785. On June 24, 2020, the secretary of health issued a statewide order, Order 20-03, requiring all every person in Washington to wear masks in public (the mask mandate) pursuant to authority under RCW 43.70.130, RCW 70.05.070, and the governor's Emergency Proclamation.
¶ 5 The mask mandate stated purpose was to "help control and prevent the spread of COVID-19 in Washington State." CP at 120. The mask mandate applied in "any indoor or outdoor public setting." CP at 120. It also included a list of exceptions where people may remove their face masks and exempted certain groups from wearing a mask, including children younger than two years old and persons with a medical or mental health condition or disability.
¶ 6 Failure to comply with the order resulted in criminal penalties under RCW 70.050.120(4) and WAC 246-100-070(3). Specifically, any person who failed to obey the order would be guilty of a misdemeanor punishable with a fine not more than $100 or imprisonment not to exceed 90 days or both.
¶ 7 Appellants filed a complaint against John Weisman, the Secretary of Health, seeking declaratory judgment and a permanent injunction preventing the enforcement of the mask mandate. Appellants asserted that the mask mandate was issued without legal authority and violated their rights to free speech and substantive due process. The secretary of health moved for summary judgment.
¶ 8 In support of the motion for summary judgment, the secretary presented evidence on the efficacy of masks in preventing the spread of COVID-19. For example, the CDC stated that "face coverings are one of the most powerful weapons we have to slow and stop the spread of the virus—particularly when used universally within a community setting." CP at 229. The secretary cited to studies proving the efficacy of community mask use, reducing transmission by up to 79 percent, and that mask wearing resulted in a reduction of new COVID-19 cases and is correlated with fewer reported symptoms.2
¶ 9 Appellants submitted studies and articles showing that the masks are not scientifically proven to combat the spread of COVID-19. For example, appellants cited to a study relied upon by the secretary which concluded that "there is no direct evidence" on a population-wide level that "widespread use of face masks reduces the spread of COVID-19." CP at 727 (alteration in original).
¶ 11 The trial court granted the secretary's motion for summary judgment and entered final judgment in favor of the secretary.3 Appellants appeal the trial court's order granting the secretary of health's motion for summary judgment.
ANALYSIS
¶ 12 We review an order granting summary judgement de novo. Keck v. Collins , 184 Wash.2d 358, 370, 357 P.3d 1080 (2015). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Champagne v. Thurston County , 163 Wash.2d 69, 76, 178 P.3d 936 (2008). The burden is on the nonmoving party to show that there is no genuine issue of material fact. Hartley v. State , 103 Wash.2d 768, 774, 698 P.2d 77 (1985).
¶ 13 When reviewing an order granting summary judgment, we perform the same inquiry as the trial court, considering all evidence and all reasonable inferences from the evidence in the light most favorable to the nonmoving party. McDevitt v. Harbor view Med. Ctr. , 179 Wash.2d 59, 64, 316 P.3d 469 (2013) ; Keck , 184 Wash.2d at 370, 357 P.3d 1080.
A. Whether Wearing or Not Wearing a Mask is "Speech"
¶ 14 Appellants argue that the act of not wearing a mask communicates a political message, and is therefore entitled to the protections of the First Amendment. We disagree.
¶ 15 Although the First Amendment forbids restrictions on speech, federal case law has long recognized that the First Amendment protects more than the "spoken or written word." Texas v. Johnson , 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). " ‘Speech’ includes nonverbal conduct if the conduct is ‘sufficiently imbued with elements of communication.’ " First Covenant Church of Seattle v. City of Seattle , 120 Wash.2d 203, 216, 840 P.2d 174 (1992) (quoting Spence v. Washington , 418 U.S. 405, 409, 94 S. Ct. 2727, 41 L.Ed.2d 842 (1974) ).
¶ 16 In deciding whether conduct may constitute speech, thereby implicating the First Amendment, courts examine whether (1) the person intended to convey a message, and (2) whether it was likely that a person who viewed the conduct would understand the message. Johnson , 491 U.S. at 404, 109 S.Ct. 2533. The United States Supreme Court rejected the idea that any conduct may be labeled as speech whenever the person engaging in the conduct intends to express or communicate an idea. Johnson , 491 U.S. at 404, 109 S.Ct. 2533. The expression must be "overwhelmingly apparent" and not simply a kernel of expression. Johnson , 491 U.S. at 406, 109 S.Ct. 2533. The fact that " ‘explanatory speech is necessary is strong evidence that the conduct at issue ... is not so inherently expressive that it warrants protection’ as symbolic speech." Stewart v. Justice , 502 F. Supp. 3d 1057, 1066 (S.D. W.Va. 2020) (quoting Rumsfeld v. Forum for Acad. & Inst. Rights, Inc. , 547 U.S. 47, 66, 126 S. Ct. 1297, 164 L.Ed.2d 156 (2006) ).
¶ 17 While Washington cases have not dealt with this exact argument, an extensive line of federal cases has established that the choice to wear a mask is not expressive conduct because "there are several non-political reasons why one may not be wearing a mask at any given moment." Stewart v. Justice , 518 F. Supp. 3d 911, 919 (S.D. W. Va. 2021). See ...
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