United States District Court, D. Oregon
OPINION AND ORDER
F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Mats Järlström (“Plaintiff”) brings
this action against members of the Oregon State Board of
Examiners for Engineering and Land Surveying
(“Board”), seeking declaratory and injunctive
relief under 28 U.S.C. §§ 2201-2202 and 42 U.S.C.
§ 1983. (ECF No. 1.) Plaintiff challenges the
constitutionality of certain provisions of Oregon's
Professional Engineer Registration Act, Or. Rev. Stat.
§§ 672.002-672.325, et seq. (the
“Act”). Specifically, Plaintiff alleges that Or.
Rev. Stat. § 672.005(1)(a)-(b); Or. Rev. Stat. §
672.007(1); Or. Rev. Stat. § 672.020(1); Or. Rev. Stat.
§ 672.045(1); Oregon Administrative Rule
(“OAR”) 820-010-0730(3); and OAR 820-040-0030
(collectively, the “Practice laws”), and Or. Rev.
Stat. § 672.002(2); Or. Rev. Stat. § 672.007(1);
and OAR 820-010-0730(3) (collectively, the “Title
laws”), violate the First Amendment, both as applied to
Plaintiff and on their face.
filed a motion for summary judgment. (ECF No. 72.) The Board
filed a cross-motion for summary judgment, admitting
liability on Plaintiff's as-applied challenge but
opposing Plaintiff's facial challenge. (ECF No. 79). The
Court has jurisdiction under 28 U.S.C. § 1331, and all
parties consent to the jurisdiction of a U.S. Magistrate
Judge under Fed.R.Civ.P. 73(b). For the following reasons,
the Court grants the Board's motion for summary judgment
with respect to Plaintiff's facial challenge to the
Practice laws, and grants Plaintiff's motion for summary
judgment with respect to all other issues.
material facts are not in dispute. Plaintiff is a resident of
Washington County, Oregon, a lawful permanent resident of the
United States, and a citizen of the Kingdom of Sweden.
(Compl. ¶ 8; Answer ¶ 7.) Plaintiff earned the
equivalent of a Bachelor of Science degree in electrical
engineering in Sweden and has spent his career working in the
field of electronics. (Compl. ¶¶ 12-15; Answer
¶ 9.) He does not have a professional engineering
license to practice in any state. (Compl. ¶ 28; Answer
2013, Plaintiff became interested in traffic light timing
after his wife received a “red-light-camera”
ticket. (Compl. ¶ 11; Answer ¶ 9.) Plaintiff spent
three years analyzing the standard method for calculating the
duration of a yellow light and found that the formula failed
to account for drivers who must slow down to make a legal
turn. (Compl. ¶¶ 16-17; Answer ¶¶ 10-11.)
September 2014, Plaintiff emailed the Board and asked for
“support and help” in an attempt to further his
research and broadcast his findings. (Compl. ¶¶
24-25; Answer ¶¶ 18-19.) The Board responded two
days later, informing Plaintiff that he violated engineering
laws by referring to himself as an “electronics
engineer” and stating “I'm an
engineer.” (Compl. ¶¶ 26-27; Answer
¶¶ 20-21.) The Board advised Plaintiff to stop
using those titles until he registered with the Board.
(Compl. ¶ 29; Answer ¶ 23.) Undeterred, Plaintiff
continued to discuss his ideas with the public, including the
National Council of Examiners for Engineering and Surveying,
the 60 Minutes news program, a local news station,
and the physicist who created the original traffic light
timing formula. (Compl. ¶¶ 31-32; Answer ¶
23.) In at least one of those communications, Plaintiff
described himself as an “engineer, ” including in
further emails to the Board. (Compl. ¶¶ 37-38;
Answer ¶¶ 26-27.)
February 12, 2015, the Board's Law Enforcement Committee
conducted a preliminary evaluation and voted to open a
“law enforcement case” against Plaintiff. (Compl.
¶ 43; Answer ¶ 32.) In November 2016, the Board
imposed a $500 civil penalty for Plaintiffs violations of Or.
Rev. Stat. § 672.020; Or. Rev. Stat. § 672.045(1)
and (2); and OAR 820-010-0730. (Compl. ¶¶ 72-74;
Answer ¶¶ 50-52.) Specifically, the Board concluded
that Plaintiff violated Or. Rev. Stat. § 672.020(1), Or.
Rev. Stat. § 672.045(1) and (2), and OAR
820-010-0730(3)(a) and (c) by critiquing the traffic light
timing formula and submitting his critiques to members of the
public, and by “asserting to the public media”
and “to a public body” that he is an engineer.
(Mats Järlström Decl., Ex. 14 ¶¶ 13-17.)
Plaintiff paid the $500 penalty. (Järlström Decl.
¶ 26.) On January 10, 2017, the Board issued its Final
Order finding Plaintiff in violation of Or. Rev. Stat. §
672.020(1), Or. Rev. Stat. § 672.045(1) and (2), and OAR
820-010-0730(3)(a) and (c). (Järlström Decl., Ex.
April 2017, Plaintiff filed this case alleging that
Oregon's engineering practice and title laws violate the
First Amendment's Speech and Petition Clauses both
facially and as applied to Plaintiff. (Compl. ¶¶
103-146; Answer ¶¶ 76-116.) On August 18, 2017, the
Board refunded the $500 fine to Plaintiff.
(Järlström Decl., Ex. 17.) Plaintiff moved for
summary judgment in May 2018. (Mot. for Summ. J.) The Board
filed a cross-motion for summary judgment, asking the Court
to provide only as-applied relief. (Mot. for Summ. J.; Resp.
to Mot. for Summ. J.)
STANDARD OF REVIEW
judgment is appropriate where there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). On a motion for summary
judgment, the court must view the facts in the light most
favorable to the non-moving party, and must draw all
reasonable inferences in favor of that party. Porter v.
Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir.
2005) (citations omitted). The court does not assess the
credibility of witnesses, weigh evidence, or determine the
truth of matters in dispute. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). “Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no ‘genuine
issue for trial.'” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
First Amendment, applied to the states through the Fourteenth
Amendment, prohibits laws “abridging the freedom of
speech.” U.S. Const. amend. I. Plaintiff brings an
as-applied and facial challenge to the Practice and Title
laws, arguing that they are overbroad and violate the First
Amendment's Speech and Petition Clauses. The distinction
between an as-applied and facial challenge affects
Plaintiff's “burden of establishing [a
statute's] unconstitutionality.” Italian Colors
Rest. v. Becerra, 878 F.3d 1165, 1174 (9th Cir. 2018).
If the challenge is only to the application of the law,
Plaintiff “must show only that the statute
unconstitutionally regulates” his own speech.
Id. When the challenge is facial, however, Plaintiff
must either show that “no set of circumstances exists
under which [the challenged law] would be valid, or that it
lacks any plainly legitimate sweep.” Ctr. for
Competitive Politics v. Harris, 784 F.3d 1307, 1314-15
(9th Cir. 2015) (alteration in original) (citation and
quotation marks omitted). Plaintiff asks the Court to declare
the Practice laws facially overbroad, and declare the Title
laws either facially overbroad or invalid in all
applications. (Pl.'s Reply at 25.)
and the Board agree that the Practice and Title laws violate
the First Amendment as applied to Plaintiff, and therefore
the Court enters summary judgment in favor of Plaintiff on
his as-applied challenges.
reaching the merits of Plaintiff's overbreadth challenge
to the Practice laws, the Court must first determine whether
overbreadth review is appropriate in light of Plaintiff's
successful as-applied challenge.
Practice laws that Plaintiff seeks to invalidate generally
prohibit any person from practicing or offering to practice
engineering in Oregon unless the person is registered to
practice engineering in Oregon. SeeOr. Rev. Stat.
§§ 672.020(1) and 672.045(1); OAR 820-010-0730(3).
The Practice laws define the “practice of
engineering” to include “[p]erforming any
professional service or creative work requiring engineering
education, training and experience” and
“[a]pplying special knowledge of the mathematical,
physical and engineering sciences to such professional
services or creative work as consultation, investigation,
testimony, evaluation, planning, design and services during
construction, manufacture or fabrication for the purpose of
ensuring compliance with specifications and design, in
connection with any public or private utilities, structures,
buildings, machines, equipment, processes, works or
projects.” Or. Rev. Stat. § 672.005(1)(a)-(b).
Supreme Court has instructed that courts should address an
as-applied challenge before an overbreadth challenge.
See Bd. of Tr. of State Univ. of N.Y. v.
Fox, 492 U.S. 469, 484-86 (1989) (cautioning against
reaching an overbreadth issue before “it is determined
that the statute would be valid as applied”); see
also Brockett v. Spokane Arcades, 472 U.S. 491,
504 (1985) (noting that the overbreadth doctrine has limited
value “where the parties challenging the statute are
those who desire to engage in protected speech” because
“[t]here is then no want of a proper party to challenge
the statute, no concern that an attack on the statute will be
unduly delayed or protected speech discouraged”);
Members of City Council of L.A. v. Taxpayers for Vincent
et al., 466 U.S. 789, 798 (1984) (finding overbreadth
review inappropriate where the plaintiffs “failed to
identify any significant difference between their claim that
the ordinance is invalid on overbreadth grounds and their
claim that it is unconstitutional when applied to
[them]”). This sequence avoids converting the
overbreadth doctrine “into a means of mounting
gratuitous wholesale attacks upon state and federal
laws.” Id. Many courts have concluded that a
successful as-applied challenge precludes the overbreadth
inquiry. See Serafine v. Branaman, 810 F.3d
354, 362-63 (5th Cir. 2016) (declining to address the
overbreadth of a statute found invalid as applied to
plaintiff); U.S. v. Popa, 187 F.3d 672, 678 (D.C.
Cir. 1999) (refusing to “go on to inquire whether the
statute is overbroad” after finding statute invalid as
applied); Jacobsen v. Howard, 109 F.3d 1268, 1274-75
(8th Cir. 1997) (vacating part of a judgment because the
district court erred in considering an overbreadth challenge
after a successful as-applied challenge).
Ninth Circuit has generally allowed overbreadth review
following a successful as-applied challenge, but only if the
challenged law presents an “unacceptable risk of the
suppression of ideas.” Nunez by Nunez v. City of
San Diego, 114 F.3d 935, 949 (9th Cir. 1997)
(“Technically, the overbreadth doctrine does not apply
if the parties challenging the statute engage in the
allegedly protected expression” but plaintiffs still
“may seek directly on their behalf the facial
invalidation of overly broad statutes that create an
unacceptable risk of the suppression of ideas.”)
(citation and quotation marks omitted). For example, in
Lind v. Grimmer, 30 F.3d 1115 (9th Cir. 1994), the
plaintiff sought to invalidate a Hawaii law requiring
confidentiality around campaign spending investigations. The
court held that the law was unconstitutional as applied to
the plaintiff's speech, but went on to assess overbreadth
because “after striking the portion of [the statute]
that is unconstitutional as applied to Lind, and even
assuming that the statute may have some constitutional
applications, we are left with the fact that [the statute]
has numerous other potential applications that are
unconstitutional.” Lind, 30 F.3d at 1122.
Supreme Court has made clear that “there must be a
realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of parties
not before the Court for it to be facially challenged on
overbreadth grounds.” Vincent, 466 U.S. at
801. Here, Plaintiff has not demonstrated a realistic danger
that the Practice laws will significantly compromise the
First Amendment rights of parties not before the Court. Aside
from Plaintiff's successful as-applied challenge here,
Plaintiff points only to the Board's enforcement actions
against Dale La Forest and Suji Somasundaram as evidence of
the Practice laws' potentially unconstitutional reach.
(Pl.'s Mot. Summ. J. at 22.) In Plaintiff's view, the
Board punished La Forest and Somasundaram simply for their
speech critical of public projects. (Pl.'s Mot. Summ. J.
at 21.) However, the record reflects that, unlike Plaintiff
here, La Forest and Somasundaram did not engage in
engineering on their own behalf. Rather, they were engaged by
clients to provide professional engineering analysis and
advice. SeeDale La Forest Decl., Ex. 1 at 2 (stating
that “La Forest prepared for a client a report . .
.”); Samuel Gedge Decl. ¶ 7, Ex. 5, at 3 (stating
that his company “was hired as an ‘expert
consultant' to provide a professional opinion”);
Gedge Decl. ¶ 45, Ex. 43, at 1 (stating that
Somasundaram prepared a memo “[a]t the request of Stop
the Dump Coalition”). Whereas the Board's
application of the Practice laws to Plaintiff was
unconstitutional because he was not providing a professional
service, its application to these other individuals appears
to fall within the statutes' constitutional sweep.
Supreme Court has long recognized that states have broad
authority to regulate the practice and licensing of certain
professions. See Florida Bar v. Went For It,
Inc., 515 U.S. 618, 625 (1995) (“States have a
compelling interest in the practice of professions within
their boundaries, and . . . as part of their power to protect
the public, health, safety, and other valid interests they
have broad power to establish standards for licensing
practitioners and regulating the practice of
professions.”) (quoting Goldfarb v. Va. State
Bar, 421 U.S. 773, 792 (1975)); see also
Watson v. State of Md., 218 U.S. 173, 176 (1910)
(“It is too well settled to require discussion”
that “the police power of the states extends to the
regulation of certain trades and callings, particularly those
which closely concern the public health.”); Dent v.
W.Va., 129 U.S. 114, 122 (1889) (“[I]t has been
the practice of different states, from time immemorial, to
exact in many pursuits a certain degree of skill and learning
upon which the community may confidently rely.”). The
Supreme Court has recently reaffirmed the continuing validity
of professional licensing regulations. See
Nat'l Inst. of Family & Life Advocates v.
Becerra, 138 S.Ct. 2361, 2373 (2018) (“States may
regulate professional conduct, even though that conduct
incidentally involves speech.”) (citation omitted).
has not demonstrated that the Practice laws present an
unacceptable risk of the suppression of ideas, and therefore
the Court declines to reach Plaintiff's overbreadth
challenge.SeeN.Y. v. Ferber, 458
U.S. 747, 769 (1982) (“[T]he overbreadth doctrine is
strong medicine” and should be employed “with
hesitation, and then only as a last resort.”);
Broadrick v. Okla., 413 U.S. 601, 615 (1973)
(recognizing that the importance of the overbreadth doctrine
“attenuates as the otherwise unprotected behavior that
it forbids the State to sanction moves from pure speech
toward conduct” and that “whatever overbreadth
may exist should be cured through case-by-case
analysis”); see alsoWash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 450 (2008)
(“Exercising judicial restraint in a facial challenge
frees the ...