Health order lawsuit hearing postponed

Clallam County answers injunction request, saying more deaths likely if mandate lifted

Rescinding a proof-of-vaccination mandate for Clallam County restaurants and bars would increase COVID-19 infections spread by unvaccinated, unmasked individuals and lead to more deaths, according to a court filing defending the county and Health Officer Dr. Allison Berry.

Bert Boughton, a Clallam County deputy prosecuting attorney, filed an answer last week to an injunction request from six restaurant owners, in anticipation of a hearing originally set for Jan. 7 in Kitsap County Superior Court. The hearing was postponed until Jan. 24 following a COVID-19 outbreak in the Clallam County Courthouse.

“Some may argue that they should have the right to go where they want to go, to eat and drink and to be merry, and that they should be able to do so while claiming the right to be free from any vaccine requirement,” Boughton said in the filing.

“However, their decision to do so effects not only themselves, rather it necessarily bears on the health and the very life of others,” he said.

“That, in turn, should weigh heavily against removing the health order, which protects the health of everyone in the community.”

Boughton said last week that a meeting between the plaintiffs and defendants — in effect a settlement conference, he said — had been scheduled for 2:30 p.m. Jan. 6 in the large, ornate courtroom in the historic section of the courthouse.

But public access to the building was restricted on Jan. 6 and 7 to scheduled to Superior and district court proceedings only because of a COVID-19 outbreak. It had shut down the auditor’s and treasurer’s offices Jan. 3-5.

Boughton said last week that a new date for a meeting between the county and Berry, named as defendants, and the plaintiffs has not been set, but he expects it will be toward the end of January, before the newly scheduled court hearing.

“I’m hoping we can get something on the calendar and get something done next week,” Boughton said on Jan. 7.

Scheduled to attend are Boughton, Deputy Prosecuting Attorney Elizabeth Stanley, and Berry, the health officer for Clallam and Jefferson counties who issued the health order Sept. 2 to stem infections.

Berry’s order

Berry’s health order, which went into effect Sept. 4, allows unvaccinated restaurant customers to buy take-out meals and dine outside.

The Nov. 24 injunction request applies only to Clallam County.

Other participants are expected to include the six restaurant owners in Port Angeles, Sequim and Joyce who filed the request.

The restaurant owners said the order hurt their businesses, was a strain to enforce and violated their constitutional rights.

William Payne, a Sequim lawyer and former Clallam County Prosecuting Attorney, is representing the operators of The Oasis Bar and Grill, Blondie’s Plate, and Jose’s Famous Salsa and Salsa House Restaurant, all in Sequim; Kokopelli Grill/Coyote BBQ Pub in Port Angeles and Blackberry Cafe in Joyce. Payne could not be reached Friday for comment.

Michael McQuay, owner of Kokopelli Grill/Coyote BBQ Pub, said on Jan. 8 he hopes the case can be settled.

“I’m optimistic,” McQuay said. “I’m always optimistic.”

McQuay said in a previous interview that a 50-percent occupancy limit might be more workable to the plaintiffs than a vaccination mandate. He would not comment Saturday on what it would take to withdraw the injunction request or on the county’s contention that rescinding the mandate would open the door to more COVID-19 infections.

The case is being heard by visiting Judge Michelle Adams of Kitsap County Superior Court after all three Clallam County Superior Court judges recused themselves due to their consultations with Berry over COVID-19 safeguards for courtroom proceedings.

All court documents in the case, which are public, are filed in Clallam County Superior Court.

In his 16-page answer, Boughton said rescinding the mandate “would result in the needless infection of, and death of people inside and outside the local Clallam County community,” further burdening health care facilities.

He said the plaintiff’s arguments on due process and equal protection grounds ignore cases that have upheld vaccination requirements for employment and entrance to locations during a pandemic.

The order was implemented due to the high-risk environment for the spread of the virus posed by restaurants and bars, Boughton said.

“The health officer analyzed all other reasonable measures that could be taken, including reducing occupancy rates and outright closure of bars and restaurants,” he said.

“The health officer selected the least restrictive alternative available which effectively addressed the spread of the virus, and at the same time had the least restrictive impact on both the public and on businesses in our community,” hew added.

After the order went into effect on Sept. 4, infection rates fell to fewer than 200 per 100,000 population, Boughton said.

Since then, the rate has increased more than seven-fold.

Driven by the highly contagious omicron variant, the infection rate in the 14 days prior to Friday was 1,491 per 100,000, with eight hospitalizations, 82 deaths and 66 percent of people fully vaccinated.

Nearly one in four people — 23.9 percent — who were tested between Dec. 22-Jan. 4 tested positive for the coronavirus.

A University of Washington study ( verified the effectiveness of limiting access to bars and restaurants, Boughton said.

“Now is not the time to open the barn door and allow omicron to run unchecked through our community,” he said.

“The plaintiffs provide no scientific or factual support for the suggestion that a prior infection and a positive antibody test is an adequate alternative to tested, studied and approved COVID-19 vaccinations,” he added.

The restaurant owners make a “bald assertion” that they have suffered irreparable harm without supporting the claim with facts, Boughton said.

“In any event, loss of income does not constitute the harm necessary to warrant an injunction,” he said.

“If this court were to grant the plaintiff’s motion, more people in our local community will contract the virus and some of those people will die from it, unnecessarily.

“While most of the people will be among the unvaccinated, the risk is not only to them, as some of them will surely spread the virus to others.”