Case: McCarter v. Brown

6:20-cv-01048 | U.S. District Court for the District of Oregon

Filed Date: June 30, 2020

Closed Date: Sept. 17, 2020

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Case Summary

This case was about the constitutionality of the Governor of Oregon’s COVID-19 executive orders and the signature requirements for ballot initiatives for the 2020 general election. The plaintiff, an Oregon registered voter and president of an Oregon nonprofit organization, “Move Oregon’s Border,” filed this complaint pro se in the U.S. District Court for the District of Oregon on June 30, 2020, against the Governor and Secretary of State of Oregon, in addition to seventeen county clerks in the state. The plaintiff sued under 42 U.S.C. § 1983, arguing that the state’s laws requiring large numbers of in-person signatures, combined with COVID-19 and the Governor’s orders regarding the pandemic, amounted to a violation of the plaintiff’s First and Fourteenth Amendment rights.

The plaintiff stated that the state’s ballot-access requirements violated his First and Fourteenth Amendment rights by imposing a burden on his ability to advocate for ballot initiatives and by limiting his ability to earn a place for his nonprofit organization’s ballot initiatives on the 2020 ballot. The plaintiff also stated that Oregon’s ballot-access requirements violated his rights under the equal protection clause of the Fourteenth Amendment. The plaintiff requested preliminary and permanent relief prohibiting the enforcement of state and local laws mandating a minimum number of signatures for verification, qualification, and certification of county ballot initiatives in Oregon for the November 2020 election. The plaintiff also requested that the court direct the defendants to certify as a county measure for the election ballot any petitions that had been filed by an agent of Move Oregon’s Border approved by August 5, 2020, without requiring the signatures from voters. The plaintiff also asked for a declaration that Oregon’s signature requirements for the qualification of county ballot initiatives are unconstitutional as applied during the COVID-19 pandemic and the stay-at-home executive orders. The case was assigned to Judge Michael J. McShane.

On July 6, 2020, the plaintiff moved for a preliminary injunction or temporary restraining order. On July 20, the court denied the motion for preliminary relief. 2020 WL 4059698. The court first pointed out that the requested relief relates to Move Oregon’s Border, rather than the plaintiff individually. The court also noted that the plaintiff did not appear to be a licensed attorney and therefore could not represent Move Oregon’s Border in the proceeding. Putting this issue aside, the court also found that the plaintiff’s failure to demonstrate reasonable diligence in collecting the required signatures showed that he was not likely to succeed on the merits of his claim.

The court stated that the right to petition the government is at the core of the First Amendment’s protections, which includes the right to present ballot initiatives. The court stated that restrictions on the initiative process will be found to burden political speech if: (1) the regulations restrict one-on-one communication between petition circulators and voters; or (2) the regulations make it less likely that proponents can obtain the necessary signatures to place the initiatives on the ballot. If the court decides that the restrictions burden political speech, the next step is to decide which level of scrutiny to apply to the restrictions. The court stated that it applies strict scrutiny when: (1) the proponents of the initiative have been reasonably diligent as compared to other initiative proponents; and (2) when the restrictions significantly inhibit the proponents’ ability to place an initiative on the ballot. However, if the plaintiff fails to meet either of these prongs, the court will apply a lesser form of scrutiny. Here, the court found that the plaintiff had not described steps taken to gather signatures and therefore failed to show reasonable diligence compared with other initiative proponents and therefore applied rational basis review. Finding that the defendants had a significant regulatory interest in maintaining the initiative requirements and ensuring that each initiative had sufficient support in order to be placed on the ballot, the court concluded that the plaintiff failed to demonstrate likelihood of success on the merits and denied the requested preliminary relief.

On July 22, the plaintiff filed another motion for a preliminary injunction. The plaintiff argued that he should not need to show that he is more diligent than other initiative proponents but rather that his petitions are attractive enough to the people of Oregon that they would have gained all of the required signatures under normal conditions. In the alternative, the plaintiff requested that the number of signatures required be lowered to one fifth of the normal requirement based on the obstacles posed by the pandemic.

In early August 2020, three of the defendants filed motions to dismiss the case. On August 19, Judge McShane issued a scheduling order again highlighting the fact that the plaintiff appeared to be suing on behalf of Move Oregon’s Border and that the plaintiff did not appear to be a licensed attorney. Judge McShane stated that the action would be dismissed unless the organization filed a notice of representation by a licensed attorney within 14 days and stayed all pending motions until the filing of the notice. On September 17, 2020, the court dismissed the case without prejudice due to Move Oregon’s Border’s failure to file a notice of representation by a licensed attorney. The case is now closed.

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Summary Authors

Nicholas Gillan (12/22/2020)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/17309916/parties/mccarter-v-brown/

Judge(s)

McShane, Michael Jerome (Oregon)

Attorneys(s) for Defendant

Bailey, James E. (Oregon)

Beatty-Walters, Christina L. (Oregon)

Benton, Joel C. (Oregon)

Carollo, Dominic M. (Oregon)

Cloran, William F. (Oregon)

Eisler, John (Oregon)

Hicks, Matthew W. (Oregon)

Marshall, Brian Simmonds (District of Columbia)

Meyer, Paul E. (Oregon)

Judge(s)

McShane, Michael Jerome (Oregon)

Attorneys(s) for Defendant

Bailey, James E. (Oregon)

Beatty-Walters, Christina L. (Oregon)

Benton, Joel C. (Oregon)

Carollo, Dominic M. (Oregon)

Cloran, William F. (Oregon)

Eisler, John (Oregon)

Hicks, Matthew W. (Oregon)

Marshall, Brian Simmonds (District of Columbia)

Meyer, Paul E. (Oregon)

Simmons, Madison T. (Oregon)

Wallace, Jeffrey M. (Oregon)

Attorney Contact Information via CourtListener

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Documents in the Clearinghouse

	Document
6:20-cv-01048	Docket [PACER]	Sept. 17, 2020	Sept. 17, 2020 Docket
1 6:20-cv-01048	Complaint	June 30, 2020	June 30, 2020 Complaint
7 6:20-cv-01048	Motion for Preliminary Injunction and/or Temporary Restraining Order and Attached Memorandum of Law in Support	July 6, 2020	July 6, 2020 Pleading / Motion / Brief
33 6:20-cv-01048	Opinion and Order	July 20, 2020	July 20, 2020 Order/Opinion
35 6:20-cv-01048	Second Motion for Preliminary Injunction and/or Temporary Restraining Order and Attached Memorandum of Law in Support	July 22, 2020	July 22, 2020 Pleading / Motion / Brief
47 6:20-cv-01048	Judgment	Sept. 17, 2020	Sept. 17, 2020 Order/Opinion
48 6:20-cv-01048	Amended Judgment	Sept. 17, 2020	Sept. 17, 2020 Order/Opinion

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Resources

Title	Description		External URL Date / External URL
McCarter v. Brown Stanford-MIT Healthy Elections Project	Plaintiff sought a Temporary Restraining Order and Preliminary Injunction asking for multiple types of relief due to the Governor of Oregon and various local county officials’ executive orders’ viola…	Sept. 28, 2020	Sept. 28, 2020 https://healthyelections-case-tracker.stanford.edu/...

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Docket

See docket on RECAP: https://www.courtlistener.com/docket/17309916/mccarter-v-brown/

Last updated May 23, 2023, 3:03 a.m.

ECF Number	Description	Date	Link Date / Link
1	Complaint. (No Filing Fee Paid or IFP Application Filed) Jury Trial Requested: No. Filed by Michael R. McCarter against All Defendants. (plb) (Entered: 06/30/2020)	June 30, 2020	June 30, 2020 Clearinghouse
2	Notice of Case Assignment: This case is assigned to Judge Michael J. McShane. (Mailed to Pro Se party on 6/30/2020.) (plb) (Entered: 06/30/2020)	June 30, 2020	June 30, 2020 PACER
3	Notice of Appearance of Christina L. Beatty-Walters appearing on behalf of Kate Brown, Bev Clarno Filed by on behalf of Kate Brown, Bev Clarno. (Beatty-Walters, Christina) (Entered: 07/02/2020)	July 2, 2020	July 2, 2020 PACER
4	Notice of Appearance of Brian Simmonds Marshall appearing on behalf of Kate Brown, Bev Clarno Filed by on behalf of Kate Brown, Bev Clarno. (Marshall, Brian) (Entered: 07/02/2020)	July 2, 2020	July 2, 2020 PACER
5	Application for CM/ECF Registration as a Self-Represented Party. Filed by Michael R. McCarter. (ck) (Entered: 07/06/2020)	July 6, 2020	July 6, 2020 PACER
6	Fee in amount of $400 collected; Receipt No. ORX600013445 issued. (Mailed to Pro Se party on 07/06/2020.) (jw) (Entered: 07/06/2020)	July 6, 2020	July 6, 2020 PACER
7	Motion for Preliminary Injunction. Filed by Michael R. McCarter. (Attachment: # 1 Proposed Order) (plb) (Entered: 07/07/2020) 1 Proposed Order View on PACER	July 6, 2020	July 6, 2020 Clearinghouse
8	Notice of Appearance of Paul E. Meyer appearing on behalf of Daniel Loomis Filed by on behalf of Daniel Loomis. (Meyer, Paul) (Entered: 07/08/2020)	July 8, 2020	July 8, 2020 PACER
9	ORDER: Granting 5 Application for CM/ECF Registration as a Self-Represented Party. Signed on 7/8/2020 by Judge Michael J. McShane. (cp) (Entered: 07/08/2020)	July 8, 2020	July 8, 2020 PACER
10	Notice of Case Assignment to Judge Michael J. McShane and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 11/5/2020. Joint Alternate Dispute Resolution Report is due by 12/7/2020. Pretrial Order is due by 12/7/2020. Ordered by Judge Michael J. McShane. (cp) (Entered: 07/08/2020)	July 8, 2020	July 8, 2020 PACER
11	Scheduling Order by Judge Michael J. McShane: Oral Argument regarding Motion for Preliminary Injunction 7 is set for 7/20/2020 at 02:00PM in Eugene by telephone before Judge Michael J. McShane. Response is due by 7/16/2020. The Court will provide the parties with the conference call-in number by separate email. Ordered by Judge Michael J. McShane. (cp) (Entered: 07/10/2020)	July 10, 2020	July 10, 2020 PACER
	1 - Scheduling	July 10, 2020	July 10, 2020 PACER
12	Summons Issued Electronically as to Kate Brown, Bobbi Childers, Robin A. Church, Bev Clarno, Stacie Geaney, Rhiannon Henkels, Stefanie Kirby, Renee Kolen, Sandy Lathrop, Kim Lindell, Rochelle Long, Daniel Loomis, Jenine McDermid, Brenda Percy, Derrin Robinson, Cheryl Seely, Gayle Trotter, Katherine Zemke. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (Attachments - Summons: # 1 Brenda Percy Grant County, # 2 Cheryl Seely Crook County, # 3 Daniel Loomis Douglas County, # 4 Derrin Robinson Harney County, # 5 Gayle Trotter Malheur County, # 6 Gov. Kate Brown, # 7 Jenine McDermid Sherman County, # 8 Katherine Zemke Jefferson County, # 9 Renee Kolen Curry County, # 10 Rhiannon Henkels Josephine County, # 11 Rochelle Long Klamanth County, # 12 Stacie Geaney Lake County, # 13 Stefanie Kirby Baker County, # 14 Bev Clarno Secretary of State, # 15 Kim Lindell Umatilla County, # 16 Robin Church Union County, # 17 Sandy Lathrop Wallowa County) (jw) (Entered: 07/14/2020)	July 14, 2020	July 14, 2020 PACER
13	Notice of Appearance of Matthew W. Hicks appearing on behalf of Rhiannon Henkels Filed by on behalf of Rhiannon Henkels. (Hicks, Matthew) (Entered: 07/15/2020)	July 15, 2020	July 15, 2020 PACER
14	First Notice of Appearance of Jeffrey M. Wallace appearing on behalf of Jenine McDermid Filed by on behalf of Jenine McDermid. (Wallace, Jeffrey) (Entered: 07/15/2020)	July 15, 2020	July 15, 2020 PACER
15	First Answer to 1 Complaint 6:20-CV-01048-MC. Filed by Jenine McDermid. (Attachments: # 1 Memorandum in Support of Answer, # 2 Declaration in Support of Answer) (Wallace, Jeffrey) (Attachment 2 replaced on 7/22/2020) (cw). (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
16	Notice of Appearance of John Eisler appearing on behalf of Cheryl Seely Filed by on behalf of Cheryl Seely. (Eisler, John) (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
17	Response to Motion for Preliminary Injunction 7 . Filed by Rhiannon Henkels. (Hicks, Matthew) (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
18	Response in Opposition to Motion for Preliminary Injunction 7 Oral Argument requested. Filed by Cheryl Seely. (Attachments: # 1 Exhibit Exhibit A, # 2 Attachment Certificate) (Eisler, John) (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
19	Response to Motion for Preliminary Injunction 7 . Filed by Stacie Geaney. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Bailey, James) (Main Document 19 replaced on 7/16/2020) (cw). (Attachment 1 replaced on 7/16/2020) (cw). (Attachment 2 replaced on 7/16/2020) (cw). (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
20	Response to Plaintiff's to Motion for Preliminary Injunction 7 . Filed by Chris Walker. (Benton, Joel) (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
21	Declaration of Chris Walker in support of defendant's response to plaintiff's motion for preliminary injuction and/or temporary restraining order. Filed by Chris Walker. (Related document(s): Response to Motion 20 .) (Benton, Joel) (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
22	Response to Motion for Preliminary Injunction 7 . Filed by Brenda Percy. (Carollo, Dominic) (Main Document 22 replaced on 7/17/2020) (cw). (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
23	Notice of Appearance of Madison T. Simmons appearing on behalf of Chris Walker Filed by on behalf of Chris Walker. (Simmons, Madison) (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
24	Notice of Correction by Clerk regarding 19 Response to Motion. A Clerical error has been discovered in the case record: The incorrect PDF was attached. The following corrections were made to the record: A corrected PDF has been uploaded and has replaced the incorrect attachment. (cw) (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
25	Response to Motion for Preliminary Injunction 7 . Filed by Derrin Robinson. (Carollo, Dominic) (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
26	Response in Opposition to Motion for Preliminary Injunction 7 . Filed by Kate Brown, Bev Clarno. (Marshall, Brian) (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
27	Declaration of Summer S. Davis in Opposition to Motion for Preliminary Injunction and/or Temporary Restraining Order. Filed by Kate Brown, Bev Clarno. (Related document(s): Motion for Preliminary Injunction 7 .) (Marshall, Brian) (Entered: 07/16/2020)	July 16, 2020	July 16, 2020 PACER
	Correction of the Record	July 16, 2020	July 16, 2020 PACER
28	Scheduling Order by Judge Michael J. McShane: Oral Argument set for 7/20/2020 regarding Motion for Preliminary Injunction 7 is vacated. The Court will rule on the pleadings. Ordered by Judge Michael J. McShane. (cp) (Entered: 07/17/2020)	July 17, 2020	July 17, 2020 PACER
29	Notice of Appearance of John R. Huttl appearing on behalf of Renee Kolen Curry County Clerk Filed by on behalf of Renee Kolen. (Huttl, John) (Entered: 07/17/2020)	July 17, 2020	July 17, 2020 PACER
30	Motion for Extension of Time to File a Response/Reply to Motion for Preliminary Injunction 7 . Filed by Renee Kolen. (Huttl, John) (Entered: 07/17/2020)	July 17, 2020	July 17, 2020 PACER
31	Response in Opposition to Motion for Preliminary Injunction 7 . Filed by Renee Kolen. (Huttl, John) (Entered: 07/17/2020)	July 17, 2020	July 17, 2020 PACER
32	Notice of Correction by Clerk regarding 22 Response to Motion. A Clerical error has been discovered in the case record: The document was missing pages (Certificate of Service). The following corrections were made to the record: A corrected PDF has been uploaded and has replaced the incorrect attachment.The Notice of Electronic Filing will be regenerated to all parties. (cw) (Entered: 07/17/2020)	July 17, 2020	July 17, 2020 PACER
	1 - Scheduling	July 17, 2020	July 17, 2020 PACER
	Correction of the Record	July 17, 2020	July 17, 2020 PACER
33	ORDER: Based on this record, Plaintiff does not present any evidence indicating More Oregon's Border was reasonably diligent in collecting the required signatures, the Court denies Plaintiff's motion for emergency injunctive relief 7 . Signed on 7/20/2020 by Judge Michael J. McShane. (cp) (Entered: 07/20/2020)	July 20, 2020	July 20, 2020 Clearinghouse
34	Notice of Correction by Clerk regarding 15 Answer to Complaint. A Clerical error has been discovered in the case record: The document (attachment #2, declaration) was missing pages (Exhibits). The following corrections were made to the record: A corrected PDF has been uploaded and has replaced the incorrect attachment.The Notice of Electronic Filing will be regenerated to all parties. (cw) (Entered: 07/22/2020)	July 22, 2020	July 22, 2020 PACER
35	Motion for Preliminary Injunction. Filed by Michael R. McCarter. (Attachment: # 1 Proposed Order) (plb) (Entered: 07/22/2020) 1 Proposed Order View on PACER	July 22, 2020	July 22, 2020 Clearinghouse
36	Declaration of Michael R. McCarter. Filed by Michael R. McCarter. (plb) (Entered: 07/22/2020)	July 22, 2020	July 22, 2020 PACER
	Correction of the Record	July 22, 2020	July 22, 2020 PACER
37	Response to Motion for Preliminary Injunction 35 . Filed by Stacie Geaney. (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. B, # 3 Exhibit Ex. C) (Bailey, James) (Entered: 07/27/2020)	July 27, 2020	July 27, 2020 PACER
38	First Memorandum in Opposition 6:20-CV-01048-MC to Motion for Preliminary Injunction 35 . Filed by Jenine McDermid. (Attachments: # 1 Certificate of Service) (Wallace, Jeffrey) (Main Document 38 replaced on 7/29/2020) (cw). (Entered: 07/29/2020)	July 29, 2020	July 29, 2020 PACER
39	Notice of Correction by Clerk regarding 38 Memorandum in Opposition. A Clerical error has been discovered in the case record: The incorrect PDF was attached. The following corrections were made to the record: A corrected PDF has been uploaded and has replaced the incorrect attachment.The Notice of Electronic Filing will be regenerated to all parties. (cw) (Entered: 07/29/2020)	July 29, 2020	July 29, 2020 PACER
	Correction of the Record	July 29, 2020	July 29, 2020 PACER
40	Motion to Dismiss . Filed by Kate Brown, Bev Clarno. (Beatty-Walters, Christina) (Entered: 08/05/2020)	Aug. 5, 2020	Aug. 5, 2020 PACER
41	Response to Motion for Preliminary Injunction 35 . Filed by Kate Brown, Bev Clarno. (Beatty-Walters, Christina) (Entered: 08/05/2020)	Aug. 5, 2020	Aug. 5, 2020 PACER
42	Response in Opposition Curry County Clerk to Motion for Preliminary Injunction 35 . Filed by Renee Kolen. (Attachments: # 1 Declaration of Kolen, # 2 Exhibit State election sched) (Huttl, John) (Entered: 08/07/2020)	Aug. 7, 2020	Aug. 7, 2020 PACER
43	Motion to Dismiss for Failure to State a Claim . Filed by Renee Kolen. (Huttl, John) (Entered: 08/07/2020)	Aug. 7, 2020	Aug. 7, 2020 PACER
44	Scheduling Order by Judge Michael J. McShane: Plaintiff appears pro se "in his official capacity as president of Move Oregon's Border." As the Court noted in the opinion denying Plaintiff's motion for injunctive relief, all of the requested relief concerns not Plaintiff individually, but the organization. Plaintiff does not appear to be an attorney and "artificial entities" such as Move Oregon's Border may appear in federal court only through the representation of a licensed attorney. Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993). Plaintiff may not appear pro se on behalf of the organization in an action demanding the organization's initiatives be placed on ballots. The organization is granted 14 days to file a notice of representation by a licensed attorney. Failure to file such a notice will result in a dismissal of this action, without prejudice. All briefings on the pending motion for preliminary injunction and motions to dismiss are stayed pending the filing of a notice of representation. Notice is due by 9/2/2020. Ordered by Judge Michael J. McShane. (cp) (Entered: 08/19/2020)	Aug. 19, 2020	Aug. 19, 2020 PACER
	1 - Scheduling	Aug. 19, 2020	Aug. 19, 2020 PACER
44	Scheduling Order by Judge Michael J. McShane: Plaintiff appears pro se "in his official capacity as president of Move Oregon's Border." As the Court noted in the opinion denying Plaintiff's motion for injunctive relief, all of the requested relief concerns not Plaintiff individually, but the organization. Plaintiff does not appear to be an attorney and "artificial entities" such as Move Oregon's Border may appear in federal court only through the representation of a licensed attorney. Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993). Plaintiff may not appear pro se on behalf of the organization in an action demanding the organization's initiatives be placed on ballots. The organization is granted 14 days to file a notice of representation by a licensed attorney. Failure to file such a notice will result in a dismissal of this action, without prejudice. All briefings on the pending motion for preliminary injunction and motions to dismiss are stayed pending the filing of a notice of representation. Notice is due by 9/2/2020. Ordered by Judge Michael J. McShane. (cp) (Entered: 08/19/2020)	Aug. 19, 2020	Aug. 19, 2020 PACER
	1 - Scheduling	Aug. 19, 2020	Aug. 19, 2020 PACER
45	Counter Response to Objections to Findings & Recommendation. Related document(s): 44 Scheduling,,,,. Filed by Michael R. McCarter. (Attachments: # 1 Proposed Document Representation) (McCarter, Michael) (Entered: 08/24/2020) 1 Proposed Document Representation View on PACER	Aug. 24, 2020	Aug. 24, 2020 RECAP
46	Motion to Dismiss . Filed by Michael R. McCarter. (McCarter, Michael) (Entered: 09/15/2020)	Sept. 15, 2020	Sept. 15, 2020 PACER
47	JUDGMENT: As the deadline for filing a notice of representation by a licensed attorney passed, this action is dismissed without prejudice. Signed on 9/17/2020 by Judge Michael J. McShane. (cp) (Entered: 09/17/2020)	Sept. 17, 2020	Sept. 17, 2020 RECAP
48	AMENDED JUDGMENT: Based on the record, this action is dismissed without prejudice. Signed on 9/17/2020 by Judge Michael J. McShane. (cp) (Entered: 09/17/2020)	Sept. 17, 2020	Sept. 17, 2020 PACER