free speech abolished on tri-met portland pdx

7/30/2019 Free Speech Abolished on Tri-Met Portland PDX

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UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

JENNIE BRICKER, ))

Plaintiff, ) No. 03:12-cv-01868-HU)

vs. ))

TRI-MET, an Oregon municipal ) FINDINGS & RECOMMENDATIONcorporation, ) ON MOTION TO DISMISS

)Defendant. )

________________________________

Charles J. PaternosterParsons Farnell & Grein, LLP1030 SW Morrison StreetPortland, OR 97205

Attorney for Plaintiff

Erik Van HagenDeputy General CounselTriMet4012 SE 17th AvenuePortland, OR 97202

Attorney for Defendant

1 - FINDINGS & RECOMMENDATIONS

Case 3:12-cv-01868-HU Document 22 Filed 02/28/13 Page 1 of 21 Page ID#: 176


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HUBEL, Magistrate Judge:

The plaintiff Jennie Bricker brings this action against the

Tri-County Metropolitan Transportation District of Oregon, a

municipal corporation commonly known as TriMet, for declaratory

and injunctive relief, and nominal damages, arising from events

that began on October 5, 2011. The case is before the court on

TriMets Motion to Dismiss. Dkt. #15. Bricker has opposed the

motion, Dkt. #17, and TriMet has replied, Dkt. #19. The court

heard oral argument on the motion on February 21, 2113. The motion

is fully briefed, and the undersigned submits these findings and

recommendations pursuant to 28 U.S.C. 636(b)(1)(B).

STANDARDS FOR MOTIONS TO DISMISS

Chief Judge Aiken of this court set forth the standard for the

courts consideration of a motion to dismiss in Gambee v.

Cornelius , No. 10-CV-6265-AA, 2011 WL 1311782 (D. Or. Apr. 1, 2011)

(Aiken, C.J.). Judge Aiken observed:

Under Fed. R. Civ. P. 12(b)(6), a com-plaint is construed in favor of the plaintiff,and its factual allegations are taken as true.Daniels-Hall v. Natl Educ. Assn , 629 F.3d992, 998 (9th Cir. 2010). [F]or a complaintto survive a motion to dismiss, the non-conclusory factual content, and reasonableinferences from that content, must beplausibly suggestive of a claim entitling theplaintiff to relief. Moss v. United StatesSecret Serv. , 572 F.3d 962, 969 (9th Cir.2009). A claim has facial plausibility whenthe plaintiff pleads factual content that

allows the court to draw the reasonableinference that the defendant is liable for themisconduct alleged. Ashcroft v. Iqbal , 129S. Ct. 1937, 1949 (2009). [O]nce a claim hasbeen stated adequately, it may be supported byshowing any set of facts consistent with theallegations in the complaint. Bell AtlanticCorp. v. Twombly , 550 U.S. 544, 563[, 127




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S. Ct. 1955, 1969, 167 L. Ed. 2d 929] (2007).[G]enerally the scope of review on a motionto dismiss for failure to state a claim islimited to the Complaint. Daniels-Hall , 629F.3d at 998.

Id. at *2.

FACTUAL AND PROCEDURAL BACKGROUND

The events leading to this action were summarized by City of

Portland Hearings Officer Kimberly M. Graves (HO Graves), in

Findings of Fact following a hearing held on November 8, 2011. See

Dkt. #1-5, ECF pp. 6-9. Gravess findings indicate that on

October 5, 2011, TriMet Inspector Larry Boltjes was conductingroutine fare inspections at the Sunset Transit Center. Id. , ECF

p. 6. Boltjes testified he was on the eastbound platform dealing

with an uncooperative subject when his attention was drawn to

Ms. Bricker. Id. According to Boltjes, the person with whom he

was dealing was yelling loudly, calling Boltjes names and using

abusive language. Boltjes repeatedly told the uncooperative

subject that he did not have a right to yell and be abusive on

TriMet property. . . . [T]he subject responded by stating that it

was his 1st Amendment right to yell and be loud. Id. , ECF p. 7.

During this exchange, Bricker was standing about 30 feet away,

or halfway down the platform, from Boltjes and the subject. Id.

When Bricker, who is an attorney, heard Boltjes tell the subject he

did not have any first amendment rights on the TriMet platform,

Bricker raised her voice enough for Boltjes to hear her, to express

her opinion about the matter. Boltjes told Bricker it was not her

place to interject into the matter that was taking place, but

according to Boltjes, Bricker would not stop yelling. Id.




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Boltjes testified that Brickers yelling was drawing the attention

of all passengers on both platforms, and . . . Bricker was trying

to get other people involved in the incident taking place. Id.

Bricker contradicted Boltjess version of the events, testifying

she was not yelling or trying to get other people involved, and

she was not paying attention to the other people on the platform.

Id. Bricker stated that she had only one goal and that goal was

to express [her] opinion, and [her] opinion was critical. Id.

According to Bricker, she told Boltjes she disagreed with his

statement, and that all individuals had protected First Amendment

rights of free expression on the platform, which was a public placeand public forum. Dkt. #1-13, 6.

Boltjes left the uncooperative subject, who ran off, and

approached Bricker, claiming that she was disturbing everyone on

the platform. Id. , 7. Boltjes left the platform for a few

minutes, and then returned. According to Bricker, when the Max

train arrived, Boltjes would not allow Bricker to board the train,

and he issued a citation and Notice of Exclusion to Bricker for

making excessive noise in violation of TriMet Code (TMC)

28.15(A)(13). Id. , 10. That code section provides as follows:

Excessive Noise: No person shall:(a) Make excessive or unnecessary noise,

including boisterous and unreasonablyloud conduct, within any District Vehicleor District Station with the intent tocause inconvenience, annoyance or alarmto the public, District personnel, or a

peace officer, or with a reckless disre-gard to the risk thereof[.]

TMC 28.15(A)(13). District Station is defined as a transit

station, transit center, bus passenger shelter and awnings, and

a light rail or commuter rail passenger platform including




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shelters, awnings, adjoining stairways, ramps and elevators. TMC

28.10(D).

Bricker requested a hearing with the City of Portland Hearings

Office, and her 30-day exclusion was stayed pending the hearing.

A hearing was held on November 8, 2011. At the hearing, Bricker

argued, among other things, that her conduct was protected by the

United States and Oregon Constitutions. She stated her belief that

her speech was annoying to Inspector Boltjes, but not because of

the conduct and instead because of the content of the speech.

Dkt. #1-5, ECF p. 7. She argued TMC 28.15(A)(13) was unconstitu-

tional as applied to her, contending TriMet cannot regulate herspeech based on content, or unreasonably regulate the volume of her

speech without regard to content. Id.

HO Graves analyzed Brickers argument under the framework set

out by the Oregon Supreme Court in State v. Robertson , 293 Or. 402,

649 P.2d 569 (1982). HO Graves found that TMC 28.15(A)(13) falls

into the category of laws that focus on the forbidden effects of

speech, without referring to the means of expression used to

achieve those effects. HO Graves noted the Robertson court held,

regarding these types of laws, If [a] statute [is] directed only

against causing the forbidden effects, a person accused of causing

such effects by language or gestures would be left to assert (apart

from a vagueness claim) that the statute could not constitutionally

be applied to [her] particular words or other expression, not that

it was drawn and enacted contrary to Art. 1, Sec. 8. Dkt. #1-5,

ECF p. 8 (quoting Robertson , 293 Or. at 417, 649 P.2d at 579). HO

Graves found the code section at issue is directed at the

forbidden effect of excessively loud noise, and does not refer to




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or restrict any particular means by which such noise is created.

The question remaining is then whether [the code section] was

unconstitutionally applied to Ms. Brickers conduct[,] id. , the

same issue Bricker raises in this case.

HO Graves found that during the heated interaction between

Boltjes and the uncooperative subject, a number of people on the

platform were commenting on the contact as it was occurring. Id.

HO Graves found Bricker also began commenting on the interaction,

and Brickers comments were at such a raised volume that they were

distracting to Inspector Boltjes as he attempted to perform his

duties as a TriMet Inspector. Id. HO Graves further foundBoltjes was concerned with the volume of Ms. Brickers statements,

and not the content of the statements, noting that even Bricker,

herself, had stated Boltjes was concerned with her disturbing

everyone on the platform[.] Id. HO Graves concluded that TMC

28.15(A)(13) was not unconstitutional as applied to Bricker,

under either the First Amendment to the United States Constitution,

or Article 1, Section 8, of the Oregon Constitution. Id.

As a result, HO Graves found the Notice of Exclusion issued to

Bricker was valid, and the exclusion would run from November 30 to

December 30, 2011, at 5:00 p.m. Dkt. #1-5, ECF pp. 8-9.

PETITION FOR WRIT OF REVIEW

On December 1, 2011, Bricker filed a Petition for Writ of

Review in the Circuit Court of Multnomah County, pursuant to the

procedure set forth in ORS 34.010 to 34.100. In Oregon, the

writ of review is substantially the common-law writ of certiorari.

Bechtold v. Wilson , 182 Or. 360, 378, 186 P.2d 525, 532 (1947).




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With certain exceptions not relevant here, the review procedure

provides the exclusive means by which any party to any process or

proceeding before any inferior court, officer, or tribunal may have

the decision or determination thereof reviewed for errors[.] ORS

34.020. In her brief opposing TriMets motion to dismiss,

Bricker expressly does not dispute that a Writ of Review is the

exclusive remedy for challenging a quasi-judicial proceeding such

as the hearing officers decision with respect to the Exclusion in

this instance. In other words, the writ . . . is the only means

for challenging the hearing officers decision to uphold the

Exclusion notice against [Bricker]. Dkt. #17, p. 12.A petition for writ of review must:

(1) describe the decision or determination to be reviewed

with convenient certainty, and setting forth the errors

alleged to have been committed therein;

(2) be signed by the petitioner or the petitioners attorney,

with an appropriate verification as described in the statute;

and

(3) be filed within 60 days from the date of the decision or

determination sought to be reviewed.

ORS 34.030. It is undisputed that Brickers petition met all of

these requirements.

Although ORS 34.030 states that if a petition meets all of

the requirements listed above, the writ shall be allowed

(emphasis added), subsequent sections impose additional require-

ments before the writ may be allowed. ORS 34.040 lists the types

of errors that are reviewable; i.e., the court, tribunal, or agency

issuing the decision to be reviewed (a) [e]xceeded its jurisdic-




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tion; (b) [f]ailed to follow the procedure applicable to the matter

before it; (c) [m]ade a finding or order not supported by substan-

tial evidence in the whole record; (d) [i]mproperly construed the

applicable law; or (e) [r]endered a decision that is unconsti-

tutional. ORS 34.040(1). Bricker claims criteria (c), (d), and

(e) apply to HO Gravess decision. Dkt. #1-1, 6; Dkt. #1-13, ECF

p. 7, 34.

Before the writ is allowed, the petitioner must give an under-

taking in the amount of $100, or deposit cash in lieu thereof, to

cover costs that may be awarded to the defendant in connection with

the review. ORS 34.050. Bricker deposited $100 with theMultnomah County Circuit Court in lieu of an undertaking. See Dkt.

#1-2; Dkt. #1-13, ECF p. 27.

When an order is entered allowing the writ, the clerk of court

must issue the writ. ORS 34.080 (Upon the filing of the order

allowing the writ, and the petition and undertaking of the

[petitioner], the clerk shall issue the writ, as ordered.). The

writ itself directs the issuer of the challenged decision, or

custodian of the records or proceedings, to return the writ by a

specified date with a certified copy of the record or proceedings

in question annexed thereto, so that the same may be reviewed by

the circuit court. ORS 34.060.

No statute, procedural rule, or Multnomah County Circuit Court

rule directs the petitioner to submit a proposed form of either the

order allowing the writ, or the writ itself. However, as a

practical matter, proposed forms of the order and writ usually

accompany the petition and undertaking. Cf., generally, Oregon

Civil Pleading & Prac. Deskbook 39.2-10. Although not part of




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the record before this court, the parties agree that when Bricker

filed her petition, she also submitted a proposed order allowing

the Writ of Review. See Dkt. #1-6, ECF p. 4 (TriMets Motion to

Dismiss in the Multnomah County case); Dkt. #1-13, ECF p. 4, 16

(Brickers Complaint and Amended Writ of Review in the Multnomah

County case). Bricker claims the Honorable Jean Kerr Maurer of the

Circuit Court of Multnomah County ordered issuance of the Writ of

Review on December 1, 2011, and this order was entered on

December 5, 2011. Dkt. #1-13, ECF pp. 4-5, 17 & 21. This

order also does not appear in the record before this court.

However, Bricker does not allege that she also submitted a proposedform of the Writ for issuance at the time she filed her petition.

What does appear in the record before this court is the Writ of

Review entered by the Circuit Court of Multnomah County more than

seven months later, on July 13, 2012. Dkt. #1-5, p. 1. The Writ

indicates it was issued [b]y virtue of an order of the above-

entitled court, made and entered on December 5, 2011. . . . Id.

(emphasis added). It is undisputed that TriMet was not served with

a Writ of Review in this matter prior to issuance of the writ on

July 13, 2012.

On December 1, 2011, after filing her petition, Bricker sent

an e-mail to Jana Toran at TriMet, attaching a courtesy copy of a

motion and proposed order, which [Bricker] intend[ed] to present at

ex parte tomorrow, December 2, 2011, at 1:30 pm, at the Multnomah

County Circuit Court. Dkt. #1-13, ECF p. 28. Toran responded as

follows:

Thanks for the courtesy. Ive assigned thiscase to Erik Van Hagen in our office. I [am]not aware that the court has issued the writ




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yet. As for tomorrow, please inform the courtthat we have not been served with the writ andthat at this time we are unable to respond toyour motion.

Id. On December 2, 2011, Bricker did, indeed, present an ex parte

Motion for Stay to the Multnomah County Circuit Court. In her

motion, Bricker requested a stay of her exclusion during the

pendency of the courts review of her petition. Dkt. #1-13, ECF

p. 30. Bricker also submitted a Proposed Order Granting Peti-

tioners Motion for Stay. Dkt. #1-13, ECF p. 29. According to

Bricker, the stay order was entered by the Multnomah County Circuit

Court on December 2, 2011. Dkt. #1-13, ECF p. 5; Dkt. #17, pp. 3-4. No copy of the signed order appears in the record before this

court.

After some procedural delays, TriMet filed a motion on

August 9, 2012, seeking dismissal of the Multnomah County action.

TriMet argued Brickers Exclusion had never been stayed, the 30-day

exclusion had since expired, and therefore, the matter was moot.

See Dkt. #16-1. In response, Bricker filed a Complaint and

Amended Writ of Review in the Multnomah County case, restating her

petition for writ of review, and adding a claim for violation of

her First Amendment rights under 42 U.S.C. 1983, and a claim for

declaratory relief under ORS 28.010. See Dkt. #1-13. TriMet

then removed the case to this court.

In TriMets current motion to dismiss, it relies upon and

renews its Motion to Dismiss filed in the Multnomah County Circuit

Court, where TriMet argued Brickers petition is moot. TriMet also

asserts other grounds for dismissal, each of which is discussed

below. See Dkt. ## 16 & 16-1.




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MOOTNESS

Standards

This courts jurisdiction under Article III of the United

States Constitution depends on the existence of a case or contro-

versy, and an actual controversy must be extant at all stages of

review, not merely at the time the complaint is filed. Preiser v.

Newkirk , 422 U.S. 395, 401, 95 S. Ct. 2330, 2334, 45 L. Ed. 2d 272

(1975) (citations omitted). A claim that has lost its character

as a live controversy is considered moot, and thus we lack juris-

diction to consider it. Independent Living Ctr. of So. Calif.,

Inc. v. Maxwell-Jolly , 590 F.3d 725, 727 (9th Cir. 2009) (citingRosemere Neighborhood Assn v. EPA , 581 F.3d 1169, 1172-73 (9th

Cir. 2009)). A controversy remains live as long as the court can

grant some form of effective relief if the case is decided on its

merits. Id. (citations omitted).

Nevertheless, in the Ninth Circuit, a party seeking dismissal

of a case on the ground of mootness bears a heavy burden. Demery

v. Arpaio , 378 F.3d 1020, 1025 (9th Cir. 2004) (internal quotation

marks, citation omitted). The United States Supreme Court has

described the mootness doctrine as flexible in character, noting

justiciability under Article III is not a legal concept with a

fixed content or susceptible of scientific verification. U.S.

Parole Commn v. Geraghty , 445 U.S. 388, 400-01, 100 S. Ct. 1202,

1211, 63 L. Ed. 2d 479 (1980) (quoting Poe v. Ullman , 367 U.S. 497,

508, 81 S. Ct. 1752, 1759, 6 L. Ed. 2d 989 (1961)). Some excep-

tions to the mootness doctrine have been carved out by the courts.

One of those is the circumstance where a wrong is capable of

repetition, yet evades review. In such exceptional situations,




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generally only where the named plaintiff can make a reasonable

showing that [s]he will again be subjected to the alleged

illegality, the claim does not become moot. City of Los Angeles

v. Lyons , 461 U.S. 95, 109, 103 S. Ct. 1660, 1669, 75 L. Ed. 2d 675

(1983) (citation omitted).

The party asserting mootness bears the burden of establishing

that there is no effective relief remaining that the court could

provide. So. Oregon Barter Fair v. Jackson County, Or. , 372 F.3d

1128, 1134 (9th Cir. 2004).

Discussion

TriMet argues Brickers petition for writ of review is moot

because she never obtained a proper stay of the exclusion order,

which expired of its own terms on December 30, 2011. TriMet

contends that even if a stay order was entered by the Multnomah

County Circuit Court on December 2, 2011, the order had no effect

as to TriMet, which had not yet been served with a writ of review

in the case, and over whom the Multnomah County Circuit Court had

not obtained personal jurisdiction. See Dkt. #16-1. Bricker

responds that the Circuit Court acquired jurisdiction when [she]

timely filed her Petition for Writ of Review, and any defects in

the Petition were both curable and ultimately cured when the

[Circuit] Court issued the Writ in July of 2012. Dkt. #17, p. 2.

The petitioner is charged with the responsibility of serving

the writ on all opposing parties. Thompson v. Bd. of County Comms

of Columbia County , 29 Or. App. 813, 818, 564 P.2d 1378, 1379

(1977). Importantly, lack of service prevents the court from pro-

ceeding further until service occurs ; it does not deprive the court




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of jurisdiction over the petition for a writ of review or over the

challenged decision. Spivak v. Marriott , 213 Or. App. 1, 9 n.6,

159 P.3d 1192, 1196 n.6 (2007) (emphasis added). In other words,

although the court obtains subject matter jurisdiction when the

petition and undertaking are filed, the court only obtains personal

jurisdiction when the writ is served on the opposing parties. As

the Oregon Court of Appeals explained in Clinkscales v. City of

Lake Oswego , 47 Or. App. 1117, 615 P.2d 1164 (1980):

[I]t is clear that the court is vested withjurisdiction over the subject matter when thepetitioner, within 60 days of the decisionsought to be reviewed, files a verified peti-

tion [containing] the requisite allegations.ORS 34.030. The court is then authorized toorder the writ issued by the clerk, and thecourt obtains jurisdiction over the partiesserved with a copy of the writ .

Clinkscales , 47 Or. App. at 1120, 615 P.2d at 1167 (emphasis

added).

The court finds that any order entered by the Multnomah County

Circuit Court prior to July 13, 2012, for purposes of staying

Brickers exclusion, had no effect on TriMet. The circuit court

only obtained personal jurisdiction over TriMet when TriMet was

served with the Writ issued on July 13, 2012. As a result, the

exclusion order went into effect on November 30, 2011, and expired

by its own terms on December 30, 2011. Bricker argues the

technical defect in her petition is curable, and in fact was

cured when TriMet was served in July 2012. She argues the case,

therefore, can proceed, with her potential remedy being

invalidation of the exclusion order and expungement of her record

with TriMet. See Dkt. #17, pp. 6-9. Brickers failure to obtain

a valid stay of the exclusion order was not a technical defect in




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her petition that can be cured. Simply put, the Multnomah County

Circuit Court did not have personal jurisdiction over TriMet prior

to the time the exclusion order expired by its own terms. As

TriMet notes, Bricker, herself, recognized that if the exclusion

order was not stayed, then her petition for writ of review could

become moot. See Dkt. #1-13, ECF p. 30, Brickers Motion for Stay

(Allowing Respondent to enforce the exclusion will cause

Petitioner irreparable harm and may render these proceedings

moot.).

In addition, according to TriMet, there are no adverse conse-

quences that can accrue to Bricker from having the exclusion inTriMets records because the TriMet Code does not provide for

enhanced penalties for subsequent exclusions. Dkt. #16-1, ECF

p. 12 (citing TMC ch. 28, which lists prohibited activities on

district property). Thus, TriMet argues that even assuming, for

purposes of its motion to dismiss, that Bricker was excluded wrong-

fully, she no longer has a remedy because the period of exclusion

expired long ago, and no further adverse consequences can accrue to

Bricker.

The court finds Brickers failure to serve TriMet timely with

the Writ, and then to obtain a valid stay of the exclusion order,

was fatal to her petition for review. Because the exclusion order

has expired, there is nothing left for review. In addition, the

court finds Bricker cannot make, nor has she made, any reasonable

showing that she will be subjected to the same alleged illegality

again. Another exclusion on the same grounds is only likely to

occur if Bricker again makes what a TriMet inspector deems

excessive or unnecessary noise . . . within any District Vehicle




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or District Station[.] Thus, the prospect of future injury rests

on the likelihood that [Bricker] will again be . . . charged with

violations of the [Trimet Code]. . . . OShea v. Littleton , 414

U.S. 488, 496, 94 S. Ct. 669, 676, 38 L. Ed. 2d 674 (1974). This

type of speculative contingency is insufficient to create an

existing controversy for purposes of overcoming mootness. See id.

Accordingly, TriMets motion to dismiss should be granted as to

Brickers petition for writ of review.

SECTION 1983 CLAIM

In Brickers claim under 42 U.S.C. 1983, she attempts torelitigate, in the guise of a federal civil rights action, the very

issues tried to the Hearings Officer. TriMet argues Brickers

failure to obtain review of the exclusion order rendered the

Hearings Officers decision final, precluding Brickers section

1983 claim under Oregon and federal law.

When a state agency acts in a judicial capacity to resolve

disputed issues of fact and law properly before it, and when the

parties have had an adequate opportunity to litigate those issues,

federal courts must give the state agencys fact-finding and legal

determinations the same preclusive effect to which [they] would be

entitled in that states courts. Olson v. Morris , 188 F.3d 1082,

1085 (9th Cir. 1999) (citing Univ. of Tenn. v. Elliott , 478 U.S.

788, 798-99, 106 S. Ct. 3220, 3226, 92 L. Ed. 2d 635 (1986) (where

the Court observed that [h]aving federal courts give preclusive

effect to the factfinding of state administrative tribunals also

serves the value of federalism); Guild Wineries & Distilleries v.

Whitehall Co. , 853 F.2d 755, 758 (9th Cir. 1988)).




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Bricker has made no argument that the administrative hearing

did not allow her a fair opportunity to litigate her constitutional

claims, and HO Gravess decision makes it clear that those claims

were, indeed, given full consideration. There is no indication

that the administrative tribunal did not offer these parties an

adequate opportunity to litigate the issues in the case before an

impartial fact-finder. The Portland City Code provided appropriate

and adequate procedures for the conduct of a contested adminis-

trative proceeding, and, as noted above, Oregons review procedure

provided the parties with a means to appeal the decision. In

addition, the parties were advised of their right to seek review;a copy of ORS 34.010 through 34.100 was appended to HO Gravess

decision. See Dkt. #1-1, ECF pp. 9-10. These factors demonstrate

that the requirements of fairness were met by the administrative

proceeding. See United States v. Utah Constr. & Mining Co. , 384

U.S. 394, 422, 86 S. Ct. 1545, 1560, 16 L. Ed. 2d 642 (1966)

(discussing fairness requirements). The court finds the parties

had a full and fair opportunity to litigate the issues in the case.

Thus, the court must determine whether the proceeding met Oregons

own criteria to require an Oregon court to give preclusive effect

to the Hearing Officers decision. See Miller v. County of Santa

Cruz , 39 F.3d 1030, 1033 (9th Cir. 1994).

In Jackson v. City of Portland , 2009 WL 250035 (D. Or. Feb. 3,

2009), Judge Haggerty of this court described the Oregon standards

for application of issue and claim preclusion to administrative

proceedings, as follows:

Under Oregon law, a party is prohibitedfrom relitigating the same issue in anotherproceeding if: (1) the issue in the two pro-




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ceedings is identical; (2) the issue wasactually litigated and was essential to afinal determination on the merits in the priorproceeding; (3) the party to be precluded hashad a full and fair opportunity to be heard onthat issue; (4) the party to be precluded wasa party or was in privity with a party in theprior proceeding; and (5) the prior proceedingwas the type of proceeding to which the courtwould give preclusive effect. Nelson v.Emerald Peoples Util. Dist. , 318 Or. 99,[104,] 862 P.2d 1293, 1296-97 (Or. 1993). Thelast factor is evaluated by looking at whetherthe administrative forum had formal and com-prehensive procedures; whether the procedureswere trustworthy; whether the application ofissue preclusion would facilitate prompt,orderly and fair problem resolution; andwhether the same quality of proceedings andopportunity to litigate is present in both

proceedings.Under Oregon law, a party is precluded

from relitigating the same claim against thesame defendant if the second action is basedon the same factual transaction at issue inthe first action, seeks an additional remedyto the one requested earlier, and the claimcould have been joined in the first action.Drews [v. EBI Cos. , 310 Or. 134, 139-40, 795P.2d 531,] 535 [(1990)]. Claim preclusiondoes not require actual litigation of an issueof fact or law, as does issue preclusion. Nordoes it require that the determination of theissue be essential to the final or end resultreached in the action, claim, or proceeding.Id.

Jackson , 2009 WL 250035, at *3 (emphasis added).

Based on these criteria, whether evaluating Brickers consti-

tutional claims, or the issues giving rise to those claims, the

unreviewed conclusions of the . . . hearings officer preclude[]

this litigation. Id.

Bricker argues such a conclusion ignores Oregon authority

that permits a party to pursue a remedy under 42 U.S.C. Section

1983 for the alleged violation of First Amendment rights, even in

situations where the claims under state law could be deemed




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untimely or moot. Dkt. #17, p. 10 (citing Barcik v. Kubiaczyk ,

321 Or. 174, 195-96, 895 P.2d 765, 778 (1995); Pangle v. Bend-

Lapine Sch. Dist. , 169 Or. App. 376, 385-86, 10 P.3d 275, 280

(2000))). Brickers argument misses the point. Brickers section

1983 claim is not subject to dismissal on mootness grounds; rather,

her section 1983 claim is precluded by HO Gravess decision

affirming Brickers exclusion, which had no timely review and thus

became final. See Jackson , supra .

For these reasons, TriMets motion to dismiss Brickers

section 1983 claim should be granted.

CLAIM FOR DECLARATORY RELIEF

Bricker asserts a claim for declaratory relief pursuant to ORS

28.010, et seq. , which is Oregons version of the Uniform

Declaratory Judgments Act. In this claim, Bricker states she

intends to continue commuting to work on TriMet vehicles, and she

has a reasonable apprehension that Tri-Met would continue to apply

rule TMC 28.15A(13) to [her] constitutionally protected

statements. Dkt. #1-13, p. 12, 54, 56. She argues her

constitutionally protected speech is chilled because of Tri-Mets

enforcement of TMC 28.15A(13), and she asks the court to find TMC

28.15(A)(13) unconstitutional, and declare that Trimet may not

punish riders for constitutionally protected speech under that

code section. Id. , pp. 12-13, 57-59. Bricker argues her

challenge to the prospective enforcement of TMC 28.15(A)(13) is

properly made by means of a declaratory judgment action. Dkt. #17,

pp. 12-13 (citing Baker v. City of Woodburn , 190 Or. App. 445, 79

P.3d 901 (2003)).




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TriMet argues there is no justiciable controversy here,

because Brickers claim is based on hypothetical future events that

may never occur. Dkt. #19, p. 6 (citation omitted).

The Oregon Supreme Court has described three related but

separate considerations to determine whether a plaintiff is

entitled to seek relief under the Uniform Declaratory Judgments

Act:

The first consideration is that theremust be some injury or other impact upon alegally recognized interest beyond an abstractinterest in the correct application of thevalidity of a law . League of Oregon Citiesv. State , 334 Or. 645, 658, 56 P.3d 892[, 901]

(2002). It is not sufficient that a partythinks an enactment or a decision of agovernment entity to be unlawful. Thestanding requirements of ORS 28.020 requirethat the challenged law must affect that

partys rights, status, or legal relations.

* * *

The second consideration is that theinjury must be real or probable, not hypo-thetical or speculative. As this courtexplained in TVKO v. Howland , 335 Or. 527,534, 73 P.3d 905[, 908] (2003), This courtconsistently has held that courts cannot issuedeclaratory judgments in a vacuum; they mustresolve an actual or justiciable controversy.To be justiciable, a controversy must involvea dispute based on present facts rather thanon contingent or hypothetical events . (Cita-tions omitted.)

* * *

The third and final consideration is thatthe courts decision must have a practicaleffect on the rights that the plaintiff is

seeking to vindicate. . . . That is to say, aconnection must exist between the rights thata plaintiff seeks to vindicate and the reliefrequested. The relief that the plaintiffseeks, if granted, must redress the injurythat is the subject of the declaratory judg-ment action. . . . Otherwise, the courts




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decision will amount to no more than anadvisory opinion.

Morgan v. Sisters Sch. Dist. No. 6 , ___ P.3d ___, 2013 WL 179480,

at *5 (Or. Jan. 17, 2013) (emphasis added; some citations omitted).

Absent a legally-recognized interest, a plaintiff lacks standing to

bring a declaratory judgment action. Further, the plaintiffs

showing of that injury or other impact must not be too

speculative. League of Oregon Cities v. State , 334 Or. 645, 658,

56 P.3d 892, 901 (2002).

Brickers declaratory judgment action fails under the Morgan

criteria. Bricker has failed to show TriMets ongoing enforcementof TMC 28.15(A)(13) is likely to affect her rights, status, or

legal relations. Her apprehension that she might be excluded

under TMC 28.15(A)(13) in the future is speculative, and does not

present a dispute based on present facts. The situation might be

different if the facts indicated, for example, that Bricker

regularly made soapbox speeches on TriMet platforms. She then

might be able to show a legitimate concern regarding future

enforcement of the regulation against her. Under the existing

facts, however, her interest in the prospective application of the

regulation is merely abstract. In addition, the finality of the

Hearing Officers decision precludes any redress related to the

exclusion order, itself. The court finds Bricker lacks standing to

bring her declaratory judgment action. Therefore, TriMets motion

to dismiss that claim should be granted.

/ / /

/ / /

/ / /




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CONCLUSION

For the reasons discussed above, I recommend that TriMets

motion to dismiss be granted, and this case be dismissed with

prejudice in its entirety.

SCHEDULING ORDER

These Findings and Recommendations will be referred to a

district judge. Objections, if any, are due by March 18, 2013 . If

no objections are filed, then the Findings and Recommendations will

go under advisement on that date. If objections are filed, then

any response is due by April 4, 2013 . By the earlier of theresponse due date or the date a response is filed, the Findings and

Recommendations will go under advisement.

IT IS SO ORDERED.

Dated this 28th day of February, 2013.

/s/ Dennis J. Hubel

Dennis James HubelUnites States Magistrate Judge



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