WATERVILLE — A judge says he will likely move a lawsuit challenging the pandemic state of emergency to Thurston County unless the Chelan-Douglas Health District joins the effort.
Nine Douglas County residents last week sued Gov. Jay Inslee in an attempt to end the pandemic state of emergency. On Friday, Judge Henry Rawson considered two motions: from the plaintiffs, to end the state of emergency in Douglas County, and from the state Attorney Generals’ Office, to move the matter to Thurston County Superior Court.
Judge Henry Rawson said that should the case proceed as a group of individuals suing the governor he’ll likely move the case to Thurston County. But if the Chelan-Douglas Health District joined the suit as a plaintiff he’d be more inclined to leave the case in Douglas County Superior Court, the judge said.
Rawson is an Okanogan County judge presiding over the case because all three Douglas County commissioners are plaintiffs in the lawsuit.
After reviewing the state’s code on influenza preparedness, Rawson said it appeared to him that flu response plans should be developed and implemented by local public health jurisdictions. And while COVID-19 is not a strain of influenza virus, it’s a coronavirus, Rawson said. “We’re not going to split hairs here: this is a flu-like epidemic,” he said.
He said if local pandemic responses are to be led by local health officials, in this case the Chelan-Douglas Health District, and if they have a grievance with the governor’s response, that should be part of the lawsuit.
“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. He added, “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.”
Attorney for the plaintiffs, Joel Ard, said he hadn’t considered that and asked for time to bring the issue to his clients and perhaps look to add the health district to the lawsuit. Two plaintiffs in the suit are members of the health district’s board of directors, Douglas County commissioners Dan Sutton and Marc Straub. Commissioner Kyle Steinberg is party to the lawsuit, as well.
Ard represents the 30 plaintiffs Chelan County suing Inslee in a nearly identical lawsuit in Chelan County Superior Court, including Wenatchee City Councilwoman Ruth Esparza, who’s also on the health district’s eight-person board of directors.
Zachary Jones, attorney for Inslee, took aim at a correspondence between Straub and Dr. Malcolm Butler, the health district’s health officer and chief medical officer with Columbia Valley Community Health.
In the Chelan County lawsuit, the plaintiffs filed an eight-point document signed by Butler that states the local hospital system has adequate resources to begin reopening the economy.
Health officer ‘has significant concerns’
Jeffrey Even, another of Inlsee’s attorney, filed the document in Douglas County Superior Court along with an email chain between Straub and Butler in which Straub asked Butler to sign off on the document but Butler showed concerns for the district’s ability to take over.
“I actually do NOT feel comfortable that I understand the present threat,” Butler wrote on May 18.
Butler signed off on the document May 20. Subsequent emails between the two were not included in the court filing.
“It shows that (Butler) has significant concerns about the capacity of the district to take over preparedness for COVID-19 and 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 board member of the health district generating evidence for use in this lawsuit,” Jones said.
Ard explained that Butler was hired by the district only a few weeks prior to the email exchange and needed time to fully grasp the situation.
And of his clients who are public officials: “We’ve never made any bones about the fact that they are often elected officials that their official duties also touch on many of the allegations of the complaint and the various comments by attorney Jones about any improper acts by plaintiffs or myself in relation to these are utterly misplaced and should not properly be raised.”
As for the issue of transferring the case to Thurston County, Inslee’s attorney’s say that because the emergency declaration was made in Olympia and because there’s state law that requires legal action against a public official to be heard in the county where the individual is an official.
Rawson declined to decide on the issue until Ard has conferred with his clients. The next hearing has not been scheduled, though Ard expects to provide Rawson with an update, namely whether the health district is willing to be added to the suit, by noon Monday.
In the Chelan County case, a decision is expected Monday.