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Jarlstrom v. Aldridge

United States District Court, D. Oregon

December 28, 2018

MATS JARLSTROM, Plaintiff,
v.
CHRISTOPHER D. ALDRIDGE, WILLIAM J. BOYD, DAREN L. CONE, SHELLY MC DUQUETTE, JASON J. KENT, LOGAN T. MILES, RON SINGH, DAVE M. VAN DYKE, SEAN W. ST. CLAIR, AMIN WAHAB, and OSCAR J. ZUNIGA JR., in their official capacities as members of the Oregon State Board of Examiners for Engineering and Land Surveying, Defendants.

          OPINION AND ORDER

          STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.[1]

         Plaintiff 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.

         BACKGROUND

         The 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 ¶ 22.)

         In May 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.)

         In 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.)

         On 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. 15.)

         In 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.)

         ANALYSIS

         I. STANDARD OF REVIEW

         Summary 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) (citation omitted).

         II. DISCUSSION

         A. First Amendment

         The 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.[2] 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.)

         1. As-Applied Challenge

         Plaintiff 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.

         2.The Practice Laws

         Before 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.

         The 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).

         The 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).

         The 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.

         The 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.

         The 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).

         Plaintiff 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.[3]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 ...


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