Eugene attorney Brian Michaels challenges the constitutionality of the 34-year-old Oregon Mass Gathering Act.
STORY BY MELISSA BEARNS • PHOTO BY TODD COOPER
For Brian Michaels, this fight started a long time ago. Even before he went to law school at age 34, the now 50-year-old Eugene attorney spent his free time fighting state and federal officials who wanted to shut down legal counterculture gatherings such as the annual assembly of the Rainbow Family. Prior to getting his law degree, he faced down the government in North Carolina, Texas and West Virginia to name just a few. As an attorney licensed in Oregon, he's fought for medicinal marijuana patients who were illegally searched and arrested. Last year he won a $70,000 judgment against Lane County.
He defends people whose rights have been trampled and much of the time, he does it for a price his clients can afford — even if that means for free. In 2004 he won the Oregon Bar Association's award for the most pro bono work. "Actually, it's kind of embarrassing," he said with a grin. "It's like saying I'm the biggest sucker lawyer in the state."
Now a civil rights case that started in 1996 in Jackson County, Oregon might bring Brian Michaels in front of the U.S. Supreme Court and put him on the national radar as a defender of the First Amendment.
The story has a lot of "ifs," but the potential outcome could send shockwaves through every branch of the Oregon government: If the U.S. Supreme Court agrees to hear Michaels' case, and if they agree with his interpretation of the constitutional right of assembly and of past legal precedent, the U.S. Supreme Court could declare the Oregon Mass Gathering Act, on the books since 1971, unconstitutional.
His chances of making it to the Supreme Court are better than average but statistically, the odds aren't in his favor. That's nothing new for Michaels.
The Beginning of the Rainbow
Born and raised in Queens, New York, Michaels declined to answer any questions about his family and redirected the conversation when the topic moved to the more personal parts of his life. But a long-time friend who's met Michaels' family on more than one occasion (including his recent 120-person 50th birthday bash) described Michaels' family as "one of those normal, funny, Jewish New York families."
He graduated from The New School at Hofstra University on Long Island, New York in 1978 with a degree in American business history and a minor in education. In between starting and finishing college, he took off a few years and hitchhiked around the country. Though his hippie roots are somewhat disguised beneath his formal attire — a blue oxford shirt, a coat, tie and black slacks — it's not hard to imagine this tall, attractive man, with his long salt and pepper hair escaping from a ponytail, bumming around the country in search of the real America. "I saw Custer's battlefield, Mount Rushmore, I went all over," he said, sipping a martini at Café Lucky Noodle. "I hitchhiked around and met America."
Friends told him he'd love Eugene, but for one reason or another, it wasn't until after he graduated from college that he finally made his way to the Willamette Valley. "At that time, it was like I could get anywhere in the world, but I couldn't get to Eugene," he said. "Then I went back to Hoftstra to finish college and I met this woman named Donna Fortuna, whose name means Lady Luck by the way. And we came out to Oregon together."
For a while he lived in a yurt next to the Willamette River and was involved with the community that helped out at the White Bird Clinic. His friend Garrick Beck, who's known Michaels for more than two decades, said that when the clinic's resources were overwhelmed, Michaels would often bring transient people back to the yurt. "But the yurt wasn't like many of the hippie dwellings at the time," Beck explained. "It was carpeted and had this plush furniture like these giant lush couches. And he'd leave this beautiful, beautiful yurt to these people to enjoy for a night or two as a respite from life on the street and go sleep in the garage. That was so Brian."
Then, in the summer of 1979, Michaels went to his first Rainbow Gathering in Arizona. "I love the [Rainbow] Family," he said with emphasis. "I love the spirit. It's the only free thing on the planet." But the allure for Michaels was more than personal. Friends say it's also the politics of the Rainbow Gathering that draw him. "I think what he sees in the Rainbow Gathering is that the event itself helps expand ever so slightly the boundaries of human freedom," Beck said. "There is an endless, ageless struggle between the forces that want to contract freedom and the forces that want to expand it."
Michaels falls squarely in the latter camp. It was that passion for freedom and civil rights that eventually led him to the law. "I really come more from the Rainbow Gatherings," he said. "That's what I did. That's who I hung out with. There's a place the law has that's political as well as professional. And the judiciary has fallen aside in its role of backing the government off the people."
So Michaels taught himself enough legalese to help the Rainbow Gathering fight the Federal government and the U.S. Forest Service. At the time he did it as a self-taught, unlicensed volunteer. Now he does it with the power of a law degree behind him. Over the years, he's won the respect and admiration of many people within the legal community. "You have to have a brave voice for justice in a community," said local attorney Ellen Singer. She's known Michaels since she heard him speak at a political rally after the PATRIOT Act was passed and was so impressed, she sought him out and volunteered to help him. "You have to have someone who's willing to take up the cases of the people who've been victimized by government injustice. And he's the one who does more of that work than anyone else I know in Lane County."
The Fight for the Fair
One of the cases Singer helped Michaels on was the Southern Oregon Barter Fair vs. Jackson County, Oregon. Founded in 1978 by Alan Venet, an organic seed farmer, the Barter Fair was originally intended as a harvest festival to exchange fruits, vegetables and other farm goods. The name is a play on the phrase "Barter Fairly."
About 150 people attended the first October gathering at Venet's house. By 1994, the fair spanned three days, attendance was closer to 7,000 and the location had moved to a 140-acre farm near Ruch. That's when the problems started and that's when Venet went to the ACLU who put him in touch with Michaels.
In 1994 County officials passed a "Barter Fair Ordinance" designed to impose limits and restrictions on the event. In 1995 Jackson County required Venet and other Barter Fair organizers to apply for a permit under the Barter Fair Ordinance and assessed a $3,600 processing fee. That year attendance at the Barter Fair broke 10,000.
"1995 was a very interesting year," Michaels said. "Jerry Garcia had just died and all these people who'd been going to the Dead shows came to the Barter Fair. That same year, a horrible drug was given to people without their knowledge. One woman bit off the ear of her friend. Some kid decided to race his truck through the camping area."
At that point Venet and other fair organizers had already had considerable legal wranglings with Jackson County officials related to the 1994 and 1995 permitting fees, including one lawsuit. In 1996 the situation came to a head.
In a public hearing held Nov. 8, 1995 to discuss the 1996 Barter Fair, Jackson County Sheriff Bob Kennedy and numerous other people testified urging the county commissioners to crack down on the Barter Fair. Neighbors complained about traffic, parking and "the smell of marijuana in the area."
Jon Vote, a resident of Ruch and a Jackson County employee, took a vacation day so he could testify in support of the Barter Fair. "I think they (the people who spoke opposing the fair) tried to make a bigger deal out of it than was really valid," he said. "It wasn't a place you'd be afraid to take your kids. They tried to make it sound like it was this big wild keg party, but that wasn't really how it was."
To hold the 1996 Barter Fair, Jackson County officials told Venet he'd have to get a permit under the Oregon Mass Gathering Act (OMGA). In early January 1996, Michaels and Venet requested an OMGA permit application. The Jackson County Commissioners office wouldn't give them one, explaining that they were drafting a new ordinance that would require them to re-write the permit application. In April, Barter Fair organizers received an identical application to the one from the previous year. They filed it within 24 hours, but the first hearing didn't take place until the end of July. The commissioners didn't reach a decision at that hearing and set another hearing for Aug. 27, 1996. At that hearing, almost nine months after the Barter Fair organizers had first requested a permit form, and just a month before the fair was scheduled to take place, Jackson County officials approved the fair's application. The approval included numerous conditions, restrictions and an $18,000 permit fee. Under the Oregon Mass Gathering Act, the maximum fee a governing body can impose is $5,000.
Michaels went to court. A federal magistrate issued a temporary restraining order and injunction against Jackson County declaring the Oregon Mass Gathering Act unconstitutional and allowing the Barter Fair to go on. Michaels then filed a civil rights action in the district court. His legal claim was on two fronts. First he argued that the OMGA is unconstitutional because it doesn't contain a time restriction that requires the government agency evaluating permit requests to make a decision within a certain time period. Because of that, an agency can let an application languish for so long that it becomes impossible to hold the event.
Michaels also made the claim that even if the law wasn't unconstitutional in and of itself, the way the county applied the law denied the Barter Fair organizers their First Amendment right to assemble by delaying the permit process for so long.
The first part of the case challenging the constitutionality of the OMGA itself was sent to the Ninth Circuit Court and the case against Jackson County officials stayed in the district court.
You Win Some, You Appeal Some
He won the case in the district court against the county. In April 2003, a district court jury awarded the Barter Fair $60,000 in damages. Of that, $35,000 was to compensate the Fair for its economic loss. Jackson County Sheriff Robert Kennedy was fined an additional $25,000 as a punishment for his actions against the Barter Fair.
Michaels didn't win the part of the case that went to the Nonth Circuit Court. Under a new U.S. Supreme Court decision in a case called Thomas vs. Chicago Park District, the Ninth Circuit Court judge said that the Oregon Mass Gathering Act does not violate the U.S. Constitution. Michaels appealed that part of the decision, asking all the judges in the Ninth Circuit Court (there are hundreds of them) to rule on the case. When an entire circuit court agrees to hear a case like this, it's called an en banc hearing. But the majority of the judges in the Ninth Circuit Court declined to hear Michaels' case challenging the constitutionality of the OMGA, thus denying en banc his request.
Writing the opinion for the entire Ninth Circuit Court, a three-judge panel acknowledged "the theoretical possibility that, without a deadline, Jackson County could effectively shut down gatherings by delaying permit decisions indefinitely." But citing the Thomas case, the panel affirmed the judge's decision upholding the constitutionality of the OMGA.
Brian Michaels thinks they're wrong. And so did the seven other judges from the Ninth Circuit Court who wrote an eight-page dissent. "The panel's decision is in square conflict with the very Supreme Court precedent upon which it relies," argued the seven dissenting judges. "The OMGA does not provide for any time limit within which the permitting authorities must respond to a permit request. In the absence of any such limitation, the permitting officials have broad discretion to determine the time interval left to plaintiffs to plan their event at the requested site, or if the permit is denied, make alternate plans. … The result is to accord governmental authorities unbridled discretion, through official footdragging, effectively to veto the holding of an event protected by the First Amendment."
Going To the Top
So just a few weeks ago, Michaels filed a petition for a writ of certiorari asking the U.S. Supreme Court to hear his case. And even though the Supreme Court judges only agree to hear 70 to 80 of the 7,000 or so requests that they get each year, legal experts who study the Supreme Court for a living seem to think that Michaels has a shot.
|One of Michaels' clients drew this caricature of him going into "battle." He now uses it on his business cards.|
"One relatively recent phenomenon deserves note," wrote Patricia M. Wald in 1987, when she was the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, considered the second most important court in the country. "The elaborate statements by dissenting members when en banc is denied. These statements have been described, probably accurately, as thinly disguised invitations to certiorari."
Richard Fallon, a professor of constitutional law at Harvard University, said, "I agree that this is a troubling decision arguably inconsistent with other Supreme Court decisions establishing broad protections for First Amendment rights. And so I would say that there is a much better than average chance that the Supreme Court would agree to hear this case."
Tobias Wolff, also an expert in constitutional law and a professor at UC Davis, said he doesn't think the three judges who wrote the majority opinion denying an en banc hearing made a convincing argument. "They say there are some things in here that do limit the unbridled discretion of state officials," he said. "But they don't address the lack of a time limit, which is exactly what these people [the Barter Fair organizers] are challenging."
Wolff also thinks the OMGA might be unconstitutional as written. "If the discretion of government authorities is not limited and they're not required to satisfy some reasonable standards in making their decisions about whether to grant a permit, then the statute is unconstitutional."
Still Working the Grassroots
The Supreme Court could wait for months, or even years, to decided whether or not to hear Michaels' case. In the meantime, he continues to work at a more grassroots level here in Eugene. He just got back from the 2005 Rainbow Gathering where he spent most of his two-week "vacation" working out of a bus fighting the Forest Service's attempts to heavily police the gathering and shut down the communication tower. "There we were in the middle of the Rainbow gathering and I was hand writing a letter of non-compliance to the Forest Service," said Michaels' significant other, Dayna.
Dayna works at White Bird and she and Michaels have been together just under five months. She's one of two people he's made a serious commitment to since he lost his left eye in a car accident in 1988. Remaining typically taciturn about his private life, Michaels wouldn't discuss the accident or its aftermath.
"It was a terrific blow to him and affected him enormously," Beck said. "What got him the most about it, was that it was a very tiny sliver of glass in exactly the wrongest place. This tiny, tiny piece of the outside world got him."
It was just one sliver of glass, but it cut Michaels' eye and divided his life between the private and the public. After that he poured his energy into his work. "I think the accident put a crimp in him as a social being for a long time," Beck added.
But it also motivated him to go to law school. He graduated from UO in 1992, passed the Oregon Bar and began practicing here in Eugene. His normal day lasts 10 to 12 hours and often the work week is seven days. But his clients love him. One drew him a picture of a cartoon warrior going into battle, axe raised. Michaels put that image on his business cards and also on a T-shirt he gives out which reads, "Notice to law enforcement officers: I do not consent to a search of my person, house, papers, effects, or motor vehicle. I retain my 4th Amendment rights and all other rights under the United States and State Constitution" on the front.
"He's one of the most committed people I've ever met," said John Buffalo, who met Michaels through his work with the Rainbow Gathering and the Southern Oregon Barter Fair. "There's a lot of people that talk about doing things, talk about constitutional issues. Most people just give it lip service. Brian goes out of his way to aid a lot of people who need help."
Sitting together after work on a Thursday evening, Michaels and Dayna relaxed over drinks. They have a natural grace to their interactions, an easy flow of communication. When Michaels left the table for a minute, she explained that she believes some people have what she calls the invisible superhero cape. "And Brian puts one on every morning."