Re v. State of Oregon et al

Filing 24

ORDER: Adopting Findings and Recommendation 20 . Plaintiff's First Amended Complaint 10 is DISMISSED for lack of subject matter jurisdiction. See formal ORDER. Signed on 4/17/2016 by Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
DANIEL RE,

6:15-cv-01097-TC
ORDER
Plaintiff,

v.
STATE OF OREGON; Governor KATE
BROWN; Oregon Judicial Department, by
and through KINGSLEY W. CLICK, as
State Court Administrator,
Defendants.

Tyler Smith
Tyler Smith & Associates P.C.
181 N. Grant Street, Suite 212
Canby, Oregon 97013
Attorney for plaintiff
Sarah Weston
Assistant Attorney General
Oregon Department of Justice
1515 S.W. Fifth Avenue, Suite 410
Portland, Oregon 97201
Attorney for defendants
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AIKEN, Judge:
Magistrate Judge Coffin filed his Findings and Recommendation ("F&R") for this case on
February 19, 2016. The matter is now before me pursuant to 28 U.S.C. § 636(b)(l)(B) and Fed. R.
Civ. P. 72(b)(3). When a party objects to any portion of a magistrate judge's F&R, the district court
must review that portion of the F&R de nova. 28 U.S.C. § 636(b)(1 )(B); McDonnell Douglas Corp.
v. Commodore Bus. Machs., 656 F.2d 1309, 1313 (9th Cir. 1981).
Plaintiff Daniel Re sued defendants the State of Oregon, Governor Kate Brown, and the
Oregon Judicial Department, by and through State Court Administrator Kingsley W. Click, asserting
Or. Rev. Stat. § 23 8. 50 5 is unconstitutional because it denies him equal protection of his right to vote
and violates his right to freedom of association. Or. Rev. Stat. § 238.505 requires elected judges to
enroll in the Public Employee Retirement System ("PERS"). Plaintiff would prefer to elect a judge
who will not become a PERS member. Because section 238.505 eliminates the possibility of voting
for such a candidate, plaintiff avers it infringes his right to vote for his candidate of choice. Plaintiff
further contends the statute infringes his freedom of association by forcing him to associate with
PERS in order to exercise his right to vote. Defendants moved to dismiss plaintiffs complaint for
lack of subject matter jurisdiction and for failure to state a claim. Judge Coffin found plaintiff lacked
standing and his claims were unripe. Therefore, Judge Coffin recommended granting defendants'
motion and dismissing plaintiff's First Amended Complaint. Plaintiff filed Objections to Magistrate
F&R (doc. 22), and defendants filed a Response (doc. 23).
Plaintiff challenges Judge Coffin's conclusions regarding standing and ripeness. After a de
nova review, I agree with Judge Coffin. In particular, I conclude plaintiff lacks prudential standing
to challenge section 238.505. To determine whether a plaintiff has prudential standing, the court
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considers "whether the alleged injury is more than a 'mere generalized grievance,' whether the
plaintiff is asserting [his] own rights or the rights of third parties, and whether the claim 'falls within
the zone of interests to be protected or regulated by the constitutional guarantee in question."' Alaska
Right to Life Political Action Comm. v. Feldman, 504 F.3d 840, 848-49 (9th Cir. 2007) (quoting
Johnson v. Stuart, 702 F.2d 193, 196 (9th Cir. 1983)). The prudential ripeness inquiry considers "the

fitness of the issues for judicial review and the hardship to the parties of withholding court
consideration." Id. at 849 (quoting Thomas v. Anchorage Equal Rights Comm 'n, 220 F.3d 1134,
1141 (9th Cir. 1999)). Plaintiff's objections to Or. Rev. Stat.§ 238.505 are generalized grievances
unfit for judicial review. The appropriate forum for plaintiff's objections is the Oregon State
Legislature, where plaintiff may advocate for amending or repealing Or. Rev. Stat.§ 238.505.
I ADOPT Judge Coffin's F&R (doc. 20). Plaintiff's First Amended Complaint (doc. 10) is
DISMISSED for lack of subject matter jurisdiction.
IT IS SO ORDERED.
Dated this _!/.-"day of April 2016.

Ann Aiken
United States District Judge

Page 3 - ORDER