Case 6:19-cv-01163-MC

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BRIAN J. BOQUIST,
Plaintiff,
v.

Civ. No. 6:19-cv-001163-MC
OPINION AND ORDER

OREGON STATE SENATE PRESIDENT
PETER COURTNEY, in his official
capacity, SENATOR FLOYD
PROZANSKI, in his official capacity as
Chairman of the Senate Special Committee on
Conduct, SENATOR JAMES MANNING,
in his official capacity as member of the
Special Senate Conduct Committee,
DEXTER JOHNSON, in his official capacity
as Legislative Counsel, DARON HILL, in his
official capacity as Legislative Administration
Director, JESSICA KNIELING, in her
official capacity as interim Human Resources
Director, BRENDA BAUMGART &
MELISSA HEALY, in their official capacity
as contract investigators to the Oregon State
Senate, and all in their official capacities in
the Legislative Branch of the State of Oregon,
Defendants.
_____________________________
MCSHANE, Judge:
This case stems from a political impasse in the Oregon State Senate. Eleven Republican
senators, wanting to avoid a quorum vote, brought the legislative function to a halt by leaving the
Oregon State Capitol. Oregon Governor Kate Brown ordered State Police to arrest the absent
senators, including Plaintiff Brian Boquist, and bring them back to the Capitol. Governor Brown
also imposed a $500 fine for each day a given senator was absent during the legislative session.

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State Police did not arrest Plaintiff, but Governor Brown did levy a $3,500 fine against him.
Plaintiff paid the fine, but it was ultimately vacated and his money was returned. Due to several
statements Plaintiff made during the ordeal that some perceived as threatening, Senate leadership
determined that Plaintiff may only enter the Capitol if he provides a 12-hour notice of his intent
to do so.
Plaintiff now brings this action against Defendants—who are eight individual employees
or elected officials in the Legislative Branch of the State of Oregon—alleging that the 12-hour
notice requirement is unlawful and Defendants violated his state and federal constitutional rights.
Defendants move to dismiss Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6)—or, in the
alternative, for summary judgment pursuant to Fed. R. Civ. P. 56—arguing that Plaintiff fails to
state a claim for which relief can be granted. Defs.’ Mot. 1–2, ECF No. 8. Because Plaintiff fails
to establish that Defendants’ actions were unlawful, Defendants’ Motion to Dismiss (ECF No. 8)
is GRANTED.
BACKGROUND
In May 2019, the Republican caucus of the Oregon State Senate participated in a
walkout. Pl.’s First Am. Compl. ¶¶ 44, 86, ECF No. 6 (“FAC”); Defs.’ Mot. 3. As a result, the
absent legislators faced $500 per day in fines and potential arrest, imprisonment, and
investigation. Defs.’ Mot. 3. On July 19, 2019, Plaintiff, an elected Republican state senator, told
Senate President Peter Courtney, “Mr. President, and [sic] if you send the [S]tate [P]olice to get
me, Hell’s coming to visit you personally.” FAC ¶ 46; Defs.’ Mot. 3. During the walkout,
Plaintiff said that State Police should “send bachelors and come heavily armed.” Defs.’ Mot. 2.
Ultimately, none of the missing senators were arrested and any fines that were levied against
them were vacated. Id. at 3. However, Plaintiff was disciplined for what some perceived as

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threatening language and his access to the Capitol was conditioned on him giving 12-hour
advance notice of his presence to the Secretary of the Senate. Id. Although it is not always clear
from the Amended Complaint which of the Defendants did what, Plaintiff alleges that some of
the Defendants are responsible for the disciplinary order regulating his access to the Capitol.
Plaintiff also alleges that some Defendants are secretly investigating him and have denied him
access to public records related to this investigation. FAC ¶¶ 8, 11, 13, 15, 17, 70, 75. Finally,
Plaintiff alleges that some of the Defendants are responsible for the orders to fine and arrest him.
Id. at ¶ 11–13, 15.
Plaintiff brought this action on July 26, 2019 and filed an Amended Complaint on
September 24. See Pl.’s Compl., ECF No. 1; FAC. Plaintiff alleges violations of: (1) his First,
Fifth, and Fourteenth Amendment rights under the U.S. Constitution; (2) his rights under Article
I, Section 26 and Article IV, Section 9 of the Oregon Constitution; and (3) 25 C.F.R. §§ 11.404
and 11.448. FAC ¶¶ 5, 10, 12, 13. Plaintiff seeks declaratory judgments stating: (1) that he has
free, unfettered access to the Capitol; (2) that the investigation of him is unconstitutional; (3) that
Defendants violated his First Amendment rights; (4) that Defendants violated his Fifth and
Fourteenth Amendment due process rights; (5) that he is free from fines without due process; (6)
that he is free from arrest without due process; and (7) what the definition of “compel” is under
the Oregon State Constitution. FAC ¶¶ 105–25.
STANDARDS
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual
allegations allow the court to infer the defendant’s liability based on the alleged conduct.

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Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the
mere possibility of misconduct.” Id. at 678.
When considering a motion to dismiss, the court must accept all allegations of material
fact as true and construe those facts in the light most favorable to the non-movant. Burget v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). However, the court is
“not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550
U.S. at 555. If the complaint is dismissed, leave to amend should be granted unless “the pleading
could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494,
497 (9th Cir. 1995).
DISCUSSION
I. Non-Legislator Defendants
Plaintiff fails to state a cognizable claim against Defendants Dexter Johnson, Daron Hill,
Jessica Knieling, Brenda Baumgart, and Melissa Healy.
Ms. Knieling is the Oregon State Legislature’s Interim Human Resources Director. FAC
¶ 33; Defs.’ Mot. 7. Mr. Hill is Ms. Knieling’s immediate supervisor and the Legislative
Administration Director. FAC ¶¶ 33, 36. Mr. Johnson is Legislative Counsel for the State of
Oregon. Id. at ¶ 32; Defs.’ Mot. 6. Ms. Baumgart is a contract investigator who works for Stoel
Rives LLP. FAC ¶ 34; Defs.’ Mot. 7. Ms. Healy is an attorney who works for Stoel Rives LLP.
FAC ¶ 95; Defs.’ Mot. 8.
Plaintiff alleges that Ms. Knieling, Mr. Johnson, and Ms. Baumgart produced a
memorandum for Defendants Courtney and Prozanski. FAC ¶¶ 56, 71. Plaintiff alleges that this
memorandum recommended that officials remove Plaintiff from the workplace pending the end
of an investigation. Id. at ¶¶ 56, 74. Plaintiff also alleges that Mr. Johnson personally authored

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legal opinions recommending fines, arrest, use of physical force, and imprisonment of absent
senators. Id. at ¶ 74. Plaintiff further alleges that the Senate Special Committee illegally
organized a conduct hearing, which met on July 8, 2019. Id. at ¶ 71. Finally, Plaintiff alleges that
Ms. Baumgart spoke at the hearing and “was or is using” Ms. Healy in her secret investigation of
Plaintiff. Id. at ¶¶ 34, 71, 95; Defs.’ Mot. 7 (citing Abrams Decl. Exs. B and C, ECF Nos. 9-2
and 3).
In order to maintain a constitutional claim against an individual, a plaintiff must
adequately allege that an individual subjected plaintiff or caused plaintiff to be subjected to the
deprivation of constitutional rights, privileges, or immunities. Wyatt v. Cole, 504 U.S. 158, 161
(1992). Here, Plaintiff points the finger at individuals who were only tangentially involved in the
alleged constitutional violations. None of these Defendants directly imposed any of the sanctions
on Plaintiff; rather, they appear to have provided legal analysis for the legislative Defendants
who are alleged to have imposed sanctions. These Defendants are dismissed from this case.
II. Legislative Assembly’s Actions
This Court has jurisdiction over Plaintiff’s federal law claims against members of the
legislature. The Eleventh Amendment provides the states with “sovereign immunity,” allowing a
state the privilege not to be sued, whether by its own citizens or those of another state, without its
consent. U.S. Const. amend. XI; Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253
(2011). Absent a waiver or congressional abrogation, federal courts cannot entertain an
individual’s suit against a state. Stewart, 563 U.S. at 253. The courts may, however, entertain an
individual’s suit against state officials in their official capacity under federal law for injunctive
and declaratory relief. Ex parte Young, 209 U.S. 123, 155–56 (1908); see also Stewart, 563 U.S.
at 254–55 (explaining that “when a federal court commands a state official to . . . refrain from

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violating federal law, he is not the State for sovereign-immunity purposes.”). Here, Plaintiff
seeks declaratory relief. See FAC ¶¶ 105–25.
This Court does not, however, have jurisdiction over Plaintiff’s claims regarding the
Oregon Constitution. See Belt v. Ind. Parole Dep't, 241 F. Supp. 2d 905, 907 (N.D. Ind. 2003)
(holding that the Eleventh Amendment precluded the court from interpreting Indiana’s
constitution and requiring state officials to conform their conduct); Cornwell v. Joseph, 7 F.
Supp. 2d 1106, 1108 (S.D. Cal. 1998) (citation omitted) (holding that the Eleventh Amendment
precluded “federal supplemental jurisdiction over state law claims against state officers sued in
their official capacities.”). Plaintiff’s Oregon Constitution claims are dismissed.
III. First Amendment
Plaintiff argues that Defendants violated his First Amendment rights by acting in
response to his expression of free speech on the Senate floor and in the Capitol, blocking his
“practice and expression of religious beliefs” on the Senate floor, and preventing him from freely
assembling with citizens in his office. FAC ¶¶ 8–10.
The First Amendment provides that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the government for a redress of grievances.
U.S. Const. amend. I. The First Amendment is applicable to the states through the Fourteenth
Amendment. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). A government employee
alleging that his employer violated his right to free speech must satisfy five elements:
(1) [W]hether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff
spoke as a private citizen or public employee; (3) whether the plaintiff's protected speech
was a substantial or motivating factor in the adverse employment action; (4) whether the
state had an adequate justification for treating the employee differently from other
members of the general public; and (5) whether the state would have taken the adverse
employment action even absent the protected speech.

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Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc) (citation omitted).
Here, Plaintiff makes conclusory allegations and fails to satisfy the Dahlia factors. See
FAC ¶¶ 8–10, 14, 23, 38. Plaintiff relies heavily on Bond v. Floyd, in which the Court held that
the disqualification of a member of the Georgia House of Representatives in response to
statements he made opposing the Vietnam War violated the First Amendment. See 385 U.S. 116,
137 (1966). Here, Plaintiff is being disciplined not for a political viewpoint, but for the perceived
threats toward others embodied in his statements. He remains a senator and retains all of the
powers attendant to that position.
Even if Plaintiff satisfied the Dahlia factors, Defendants’ 12-hour rule is a reasonable
time, place, and manner restriction. The government may place “content neutral” time, place, and
manner regulations on speech “so long as they are designed to serve a substantial governmental
interest and do not unreasonably limit alternative avenues of communication.” City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 46–47 (1986) (citing Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 293 (1984)); City Council of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 807 (1984); Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647–
648 (1981)). The government may not use such restrictions as a pretext for silencing a particular
viewpoint. See, e.g., Edwards v. City of Coeur d'Alene, 262 F.3d 856, 862 (9th Cir. 2001).
Here, Defendants felt it reasonable to restrict Plaintiff’s access to the Capitol to ensure
others’ safety after he made threatening statements to Defendant Courtney, State Police, and
Legislative Assembly members and staff. See Defs.’ Mot. 2–4, 12. Plaintiff must give 12 hours’
notice of his intent to enter the Capitol. Defendants have not limited the duration or frequency of
Plaintiff’s visits nor the nature of the statements he may make while there.

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While both sides can point fingers and complain that the other is overreacting to a
political situation, Plaintiff’s chosen words on the Senate floor were those of a bully on the
playground. As such, they are unprotected fighting words. See Chaplinsky v. New Hampshire,
315 U.S. 568, 572 (1942) (holding that insults or words which, “by their very utterance inflict
injury or tend to incite an immediate breach of the peace,” are not an essential part of expression
and are of such slight social value that the social interest in order and morality outweighs any
benefit they may have). Remarkably, Plaintiff argues that his statement to Defendant Courtney—
“if you send the [S]tate [P]olice to get me, Hell’s coming to visit you personally”—was a
statement of religious expression. FAC ¶¶ 38, 46. But here, Plaintiff seems to overlook the fact
that he sounds more like a character out of a Clint Eastwood movie than he does Mother Theresa.
In Chaplinsky, the Court reasoned that cursing a public officer was not the exercise of religion.1
315 U.S. at 571. Moreover, Plaintiff made this statement in anticipation of his potential arrest,
not during a religious discussion. Plaintiff also said that if the State Police were to arrest him,
they should “send bachelors and come heavily armed.” Defs.’ Mot. 2. These statements, apart
and together, resonate more as threats than the expression of theological ideas. Senate leadership
has a legitimate interest in assuring that debate on the Senate floor is not suppressed by the
threatening behavior of one of its members. And while it may be that Plaintiff’s words were no
more than dramatic flourishes for media consumption, it is not this Court’s job to second guess
the finding of a state legislative body that some of its members felt frightened by what the
Plaintiff said. Words, it turns out, sometimes have consequences.
Defendants did not violate Plaintiff’s First Amendment rights.

In Chaplinsky, a street preacher called a police officer a “God damned racketeer and a damned Fascist.” Brief for
Appellee at 18–19, 315 U.S. 568 (1942) (No. 255), 1942 WL 53569.
1

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IV. Due Process Under the 5th and 14th Amendments
Plaintiff alleges that Defendants violated his Fifth and Fourteenth Amendment due
process rights by fining him, ordering his arrest and imprisonment, and conducting a secret
investigation. FAC ¶ 11.
To prevail on these claims, Plaintiff must establish: “(1) a liberty or property interest
protected by the Constitution; (2) a deprivation of the interest by the government; (3) lack of
process.” Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). “The fundamental
requirement of due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotations
omitted). Due process rights are flexible, depending largely on the specific factual circumstances
along with a weighing of the governmental and private interests involved. Id. at 334 (internal
citations omitted); Mullane v. Cent. Hannover Bank & Trust Co., 339 U.S. 306, 313 (1950)
(explaining that due process tolerates variances in procedure “appropriate to the nature of the
case.”). Each setting invites its own assessment under Mathews, but generally persons holding
interests protected by the due process clause are entitled to “some kind of a hearing.” See
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citation omitted).
Plaintiff alleges that he paid the $3,500 fine and Defendants vacated it and returned his
payment in response to the filing of his Complaint. FAC ¶¶ 62, 91, 98. Plaintiff filed his initial
Complaint on July 26, 2019. ECF No. 1. Defendants returned Plaintiff’s payment on September
9, 2019. Abrams Decl. Ex. A, at 1, ECF No. 9-1. However, Defendants withdrew fines against
every senator who participated in the walkout, not just Plaintiff. See Ben Botkin, Oregon Senate
leaders drop plan to collect fines from Republicans who walked out, Salem Statesman Journal

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(last updated Aug. 23, 2019, 3:48 p.m.).2 Regardless, Plaintiff fails to establish that the fine
deprived him of a liberty or property interest without due process of law. Next, Plaintiff
concedes that State Police never attempted to arrest or imprison him. FAC ¶ 47. Even if the
Court granted Plaintiff leave to amend his Complaint to cure these defects, Governor Brown
ordered the senators’ arrests and imposed these fines, and Plaintiff has not named Governor
Brown in this action. Finally, Plaintiff cites no authority to support his allegations that a “secret
investigation” of him violates his constitutional rights. Unless and until Defendants pursue civil
or criminal penalties, they have not deprived Plaintiff of a liberty or property interest.
Defendants did not violate Plaintiff’s Fifth and Fourteenth Amendment due process
rights.
V. Code of Federal Regulations
Plaintiff alleges violations of 25 C.F.R. §§ 11.404, false imprisonment, and 11.448, abuse
of office. FAC ¶ 22. Sections 11.404 and 11.448 are part of 25 C.F.R. Part 11, the “Courts of
Indian Offenses and Law and Order Code.” This Code applies to members of Native American
tribes that the Federal Government recognizes as eligible for Bureau of Indian Affairs services
“and any other individual who is an ‘Indian’ for the purposes of 18 U.S.C. 1152–1153.” 25
C.F.R. § 11.106. Plaintiff does not allege that he is a tribal member or Native American. Even if
he were, he admittedly was never arrested or falsely imprisoned and fails to allege specific facts
to support a claim for abuse of office.

2

This article is available at https://www.statesmanjournal.com/story/news/politics/2019/08/23/oregon-senate-dropsplan-to-collect-fines-from-republicans-who-walked-out-salem/2099522001/.

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VI. Requests for Relief
Plaintiff seeks various declaratory judgments regarding his claims. See FAC ¶¶ 105–25.
Because each of Plaintiff’s claims are dismissed as explained above, Plaintiff’s requests for relief
are dismissed.
CONCLUSION
Because Plaintiff fails to state a cognizable claim for relief and amendment would be
futile, Defendants’ Motion to Dismiss (ECF No. 8) is GRANTED and the dismissal is with
prejudice.

IT IS SO ORDERED.
Dated this 7th day of January, 2020.

__s/Michael J. McShane_______
Michael McShane
United States District Judge

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