Local suit against Inslee COVID-19 orders questioned by judge

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WATERVILLE — A Superior Court judge says Douglas County’s elected commissioners may be the wrong plaintiffs to sue the state over COVID-19 shelter-in-place orders.

In a Friday hearing, Okanogan County Judge Henry Rawson — presiding over a suit in Douglas County brought by Commissioners Dan Sutton, Marc Straub and Kyle Steinburg, plus five other men — said the Chelan-Douglas Health District has better standing to challenge Gov. Jay Inslee’s “Stay Home, Stay Healthy” executive order, which has shuttered nonessential businesses and gathering places statewide since March.

“It appears to this court that the proper parties are not here before the court, and that would be the Chelan-Douglas county health district,” Rawson said in a remote hearing streamed via Zoom. “… That’s what it appears to the court — that there’s a misalignment of parties here. When these individual residents of Douglas County go after the governor as such, they’re really bypassing the Chelan-Douglas Health District, who I think should be a party.”

Rawson noted that Straub and Sutton’s standing as members of the Chelan-Douglas Board of Health, which governs the health district, was not at first disclosed in their court filings. He also noted that in a highly similar case in Chelan County — led by the same attorney, Joel Ard — “plaintiffs in Chelan County are health board members.”

The Board of Health draws its eight members from among local elected officials. Wenatchee City Councilmember Ruth Esparza sits on the health board, and is a plaintiff in the Chelan County lawsuit alongside fellow councilmembers Travis Hornby, Linda Herald and Jose Luis Cuevas.

Ard, a Bainbridge Island attorney, said Rawson’s finding may force the plaintiffs to recalibrate their legal claim.

“Bluntly, it’s gonna take me a little while to process through that,” Ard told Rawson. “It’s just not something that had occurred to me. … When we brought this through, it was our belief that the individual parties were the appropriate parties to challenge that harm. It did not ever once occur to me that the board as an entity would be a proper party.”

Inslee signed his “Stay Home, Stay Healthy” executive order March 23, limiting the sizes of public gatherings, closing in-person church services, and shuttering many businesses deemed non-essential to daily life under the coronavirus pandemic, including bars and restaurants. Ard is leading lawsuits in four counties to revoke Inslee’s order, saying the threatened crisis in Washington’s hospital system has passed and local health districts are equipped to manage the ongoing viral spread.

Representing Inslee and the state, deputy attorney general Zachary Jones suggested Straub may have improperly gathered ammunition for the lawsuit. He provided Rawson a declaration from the Chelan County case outlining Straub’s efforts to get health district medical officer Dr. Malcolm Butler to sign off on an eight-point memo, affirming the district’s readiness for an end to state coronavirus restrictions.

Straub put forward the request at a May 18 Board of Health meeting, four days before the Douglas County case was filed with him as a plaintiff. Butler, medical director of Columbia Valley Community Health, had only recently joined the district as chief health officer, and said he had not seen a district pandemic plan drafted in 2008 to deal with an influenza outbreak.

“I think what you are looking for is a statement that right now, from a health system standpoint, we have plenty of capacity to experiment with various levels of/types of reopening,” Butler wrote in an email to Straub after the meeting. “I agree with that. To say ‘we are prepared for an capable of dealing with the current threat to public health posed by COVID-19, as well as any other present and anticipated public health threats’ feels a little expansive.” Butler signed a revised memo two days later.

“Frankly, we were quite troubled by the Straub declaration,” Jones told Rawson. “… It shows, probably most troublingly, a plaintiff in his private capacity in this lawsuit using his official position as a Douglas County commissioner, and as a boardmember of the health district, generating evidence for use in this lawsuit.”

Ard responded: “We’ve never made any bones about the fact that they (plaintiffs) are, often, elected officials, that their officials duties also touch on many of the allegations in the complaint, and the various comments by attorney Jones about any improper acts by the plaintiffs or myself in relation to these are utterly misplaced, and should not properly be raised.”

Ard said he’ll notify Rawson’s office of the future course of his lawsuit by Monday. The state’s lawyers have request a change of venue for all four lawsuits to Thurston County, where Olympia is sited and where Inslee signed his emergency proclamations. Rawson signaled he’s likely to grant the request, unless there’s a change in plaintiffs.

“If it’s just individuals suing the governor, the governor can’t be going all over the state with individual lawsuits,” Rawson said. “It needs to be dealt with in Thurston County, form the court’s perspective.”

Chelan County Superior Court Judge Kristin Ferrera is scheduled to rule Monday in the case against Inslee’s orders there, also weighing whether to suspend the proclamation or reassign the case to Thurston County.

In Chelan and Douglas counties, 419 people have tested positive for COVID-19 since the pandemic began. Nine of them have died.