CHOOSING between a Covid-19 vaccination mandate or termination from one’s job is in itself a constitutional violation, said attorney Joseph Horey who represents the nine terminated firefighters in their lawsuit against the Department of Fire and Emergency Medical Services and DFEMS Commissioner Dennis Mendiola in his official and personal capacities.
In response to the Office of the Attorney General’s opposition to the plaintiffs’ request to be reinstated while a decision is still pending in their lawsuit, Horey said: “Defendants argue against plaintiffs’ privacy claim on the ground that no bodily intrusion has yet actually occurred.”
However, he added, “plaintiffs were faced with a so-called ‘Hobson’s choice’ between such an intrusion on the one hand and disciplinary action against them on the other. A choice of this kind is itself a constitutional violation.”
DFEMS, represented by Assistant Attorneys General Keith Chambers II and Abbi Novotny, has asked the court to deny the plaintiffs’ request for a preliminary injunction.
Chambers said the plaintiffs cannot show that “an intrusion rising to the level of a constitutional violation occurred” because no “unconsented physical intrusion” of any kind occurred.
“Plaintiffs cannot provide sufficient evidence to establish that an intrusion rising to the level of a constitutional violation occurred,” he said, “and the court cannot find that defendants violated Article I, Section 10 of the CNMI Constitution.”
But according to Horey, the “Hobson’s choice faced by plaintiffs constitutes irreparable harm. Plaintiffs therefore need not actually have undergone an injection for their right of individual privacy to be ‘infringed’ by the vaccine mandate.”
According to an online dictionary, Hobson’s choice is “a choice of taking what is available or nothing at all.”
Horey said, “Defendants argue that the vaccine mandate will survive even strict scrutiny review, but that is unlikely, because defendants are unlikely to be able to show that the mandate is narrowly tailored — i.e., that imposing this ‘Hobson’s choice’ upon plaintiffs is the least restrictive means available to safeguard the public health.”
On the contrary, he added, “the policy defeats itself by allowing for religious and medical exemptions, which defendants admit they are applying to others, and could and would apply to plaintiffs as well, if only they fell within one of the favored categories (i.e., those with religious or medical objections to the vaccine).”
Horey said there are only nine plaintiffs. “If the executive branch can still function safely with all the religious and medical objectors tucked away somewhere out of harm’s way within it, it can surely find a way to function safely with plaintiffs as well. At least, defendants have not shown that this is not the case, and it is their burden to do so. Rather than show, or even argue, that plaintiffs cannot be accommodated.”
Horey said the defendants “have given no indication that they can show the same superiority with respect to the vaccine at issue in this case, and, indeed, they likely cannot, as recent studies have shown that, although Covid vaccination is largely effective in preventing illness in vaccinated people themselves, it does not prevent them from transmitting it to others.”
He added, “If plaintiffs take the same precautions as are recommended for the population at large, vaccinated or not, to prevent viral transmission (masks, distancing, etc.), then the only people endangered by their unvaccinated status are therefore apparently themselves.”
The nine terminated firefighters are asking the Superior Court to issue an order declaring their terminations invalid and unlawful, and to set their terminations aside.
They were terminated for insubordination following their refusal to take the Covid-19 vaccine as required by the CNMI Governor’s Directive 2021-002.
A preliminary injunction hearing is scheduled for Aug. 12 at 10 a.m. before Superior Court Associate Judge Joseph N. Camacho.
