(Update: State Supreme Court puts hold on judge's ruling pending arguments)
State's emergency motion granted until full court can hear arguments
SALEM, Ore. (AP) — The Oregon Supreme Court late Monday halted a Baker County judge’s order earlier in the day that had tossed out statewide coronavirus restrictions imposed by Democratic Gov. Kate Brown.
State Supreme Court Presiding Justice Thomas Balmer issued a three-paragraph ruling that granted the state's emergency motion after reviewing briefs from both sides, The Oregonian/OregonLive reported.
The hold will remain in effect until the full high court considers the state's full petition to dismiss the Baker County Circuit Court Judge Matthew Shirtcliff's preliminary injunction.
Balmer gave the plaintiffs until Friday to file any responses and said the court would take the matter under advisement, with no set timetable for a decision.
Shirtcliff had ruled that Brown erred by not seeking the Legislature’s approval to extend the stay-at-home orders beyond a 28-day limit.
Shirtcliff declared the restrictions "null and void" in his ruling earlier Monday in a lawsuit brought by churches who had sued saying the social-distancing directives were unconstitutional.
The suit had also argued that emergency powers only last for a month and after that, Brown would have needed legislative approval. The judge agreed.
Brown had said she would immediately appeal the ruling to the state Supreme Court to try to keep the emergency orders in effect.
“This will ensure we can continue to safeguard the health of all Oregonians — including front line health care workers, those living in nursing homes, workers in agriculture and food processing plants, and Oregonians with underlying health conditions –– while the legal process moves forward,” Brown said.
After the Supreme Court issued the stay, Brown issued this statement:
“Following swift action by the Oregon Supreme Court, my emergency orders to protect the health and safety of Oregonians will remain in effect statewide while the court hears arguments in this lawsuit.
“From the beginning of this crisis, I have worked within my authority, using science and data as my guide, heeding the advice of medical experts. This strategy has saved lives and protected Oregonians from the worst of the COVID-19 pandemic.
“There are no shortcuts for us to return to life as it was before this pandemic. Moving too quickly could return Oregon to the early days of this crisis, when we braced ourselves for hospitals to be overfilled and ventilators in short supply.
“The science remains clear: by physically distancing, wearing face coverings, staying home as much as possible and only gradually reopening our communities we can save lives and keep Oregonians safe.
“We all look forward to visiting our loved ones in nursing homes, sending our children to school, and going to the grocery store without fear of spreading this disease. But the simple fact remains, COVID-19 is here in Oregon, and lives are at stake.”
Ray Hacke, the attorney who represented the plaintiffs in the case, said in a phone interview earlier Monday the ruling not only invalidates Brown’s ban on churches gathering for worship but also invalidates the entire stay-at-home order.
Common Sense intervened after the Sacramento-based Pacific Justice Institute filed the case earlier this month on behalf of Oregon businesses, expanding the scope, he said.
“The stay-at-home order is no longer in effect. It is invalidated. If people want to get their haircut, they can. They can leave their home for any reason, whether it’s deemed essential in the eye of the state or not,” he said.
Hacke added that the ruling was a vindication not just for freedom of religion, but for all Oregonians’ freedoms.
“Praise God. I’m excited, and I’m glad that the judge saw that there are limitations on the governor’s power, even in the midst of emergencies,” he said.
The 10 churches that filed suit include Bend Community Church and Prepare the Way nonprofit ministry in Bend.
The plaintiffs successfully argued that ORS 433.441 limits declared public health emergencies to 14 days, or up to 28 days maximum, and because COVID-19 is a public health crisis, that limitation applied, The Oregonian/OregonLive reported.
But the governor’s attorney argued that Brown declared a state of emergency under a different state law, ORS 401.165, which is not limited to any particular time period and continue indefinitely.
"The governor’s orders are not required for public safety when plaintiffs can continue to utilize social distancing and safety protocols at larger gatherings involving spiritual worship,'' Shirtcliff ruled.
He found that the churches can take necessary social distancing precautions, just as grocery stores and other essential businesses have done. He also ruled that the injunction was in the public’s interest, allowing people the right to freely worship and the ability to restore economic viability.
"This court understands that the current pandemic creates an unprecedented crisis in the state as well as in our country,'' Shirtcliff said, speaking from the bench in a videoconference hearing. He said he must protect public health concerns against the constitutional right of freedom of worship.
Attorney Marc Abrams, representing the governor, urged the judge to put a hold on his ruling until the state Supreme Court could review it.
The governor’s office will file Monday asking for “rapid review'' by the state Supreme Court, Abrams said. The governor will cite the importance of Brown’s emergency restrictions on social gathering due to the ”loss of life, spread of the disease,'' Abrams said. He also noted that most states in the United States have taken actions similar to that of Brown.
"There’s evidence that this is working and the hardship balance calls at least for the court to stay its order to allow for legal review and in the interest of maintaining the status quo,'' he argued.
But the judge denied the request.
The Rev. Chuck Currie of the United Church of Christ, who also is assistant professor of religious studies at Pacific University, blasted the judge’s ruling.
"People of faith want to worship. We want to gather. But houses of worship across the world have ended up as hotspots for COVID-19. This decision by Circuit Judge Matthew Shirtcliff is reckless,'' he wrote in a Twitter message after the ruling was reported.
Similar actions have occurred in other states.
The Wisconsin Supreme Court struck down Gov. Tony Evers’ coronavirus stay-at-home order last Wednesday, ruling that his administration overstepped its authority when it extended it for another month without consulting legislators.
And a federal judge in North Carolina on Saturday sided with conservative Christian leaders and blocked the enforcement of restrictions that Gov. Roy Cooper ordered affecting indoor religious services during the coronavirus pandemic.
The order from Judge James C. Dever III came days after two Baptist churches, a minister and a Christian revival group filed a federal lawsuit seeking to immediately block enforcement of rules covering religious services within the Democratic governor’s executive orders.
In Louisiana, a federal judge on Friday refused a minister’s request to temporarily halt Gov. John Bel Edwards’ stay-at-home order, which expired that same day.
In a similar case brought in California, a federal judge ruled this month that state and local stay-at-home orders were a valid exercise of emergency police powers and didn’t violate a church’s constitutional rights. The judge in that case noted that the U.S. Supreme Court more than 100 years ago upheld the government’s right to exercise police powers to promote public safety during a public health crisis.
Gov. Kate Brown's news release:
Governor Kate Brown Statement on Baker County Circuit Court Ruling
Decision to be appealed to Oregon Supreme Court immediately
(Portland, OR) — Governor Kate Brown issued the following statement today on the Elkhorn Baptist Church v. Katherine Brown ruling:
“From the beginning of this pandemic, I have taken action to protect the health and safety of all Oregonians. We acted quickly and decisively at the beginning of the outbreak, using the best science and data available, to protect Oregon from COVID-19.
“Today’s ruling from the Baker County Circuit Court will be appealed to the Oregon Supreme Court within hours to keep my emergency orders in effect. This will ensure we can continue to safeguard the health of all Oregonians — including frontline health care workers, those living in nursing homes, workers in agriculture and food processing plants, and Oregonians with underlying health conditions –– while the legal process moves forward.
“The science behind these executive orders hasn’t changed one bit. Ongoing physical distancing, staying home as much as possible, and wearing face coverings will save lives across Oregon.
“Together Oregonians have turned the tide on the spread of COVID-19, allowing us to only now begin the process of gradually and safely reopening parts of our communities and our economies. Reopening the state too quickly, and without ongoing physical distancing, will jeopardize public health and cost lives.
“It is irresponsible to dismiss the health risks and science behind our measures to stop COVID-19. We would be faced with the prospect of another mass outbreak without the tools that have proven to be effective in protecting our friends, families, neighbors, and loved ones from this disease.”
Statement by Attorney General Rosenblum on Baker City Circuit Court Ruling
Salem, Oregon—Statement from Attorney General Ellen Rosenblum on today’s Baker City Circuit Court Ruling:
“Today, Baker City Circuit Court Judge Matthew Shirtcliff issued a ruling in the Elkhorn Baptist Church et al v Katherine Brown case stating that Governor Brown’s emergency ‘Stay at Home, Save Lives’ executive order cannot extend past 28 days. The case was argued by Oregon DOJ attorneys on Thursday, May 14, 2020. My office will immediately appeal (a writ of mandamus) the decision to the Oregon Supreme Court. When the Legislature adopted public health emergency statutes, it specifically said that it was not limiting the governor’s authority to deal with large-scale emergencies.
“With all respect, I believe the trial court’s grant of a preliminary injunction is legally incorrect. We will argue that the judge erred in his construction of the relevant statutes and that he abused his discretion in issuing the preliminary injunction. We will also be asking for an immediate stay of his order.
“I urge Oregonians to continue to comply with the measures in place. They are there to protect all of us, and they are working. We are in close contact with the Governor and intend to support, as allowed by law, the critical work she has done, guided by public health experts, to ensure the safety and health of all Oregonians.”
Prepare the Way Ministries and Bend Community Church Represented by Pacific Justice Institute Win Court Case: Court Declares Oregon Governor Kate Brown’s Emergency Orders Unconstitutional and “Null & Void” Effective Immediately
Bend, OR – Prepare the Way Ministries and Bend Community Church, along with churches, businesses and individuals across Oregon, applaud the decision out of the Baker County Circuit Court today declaring that Governor Kate Brown violated the Oregon Constitution in her emergency declarations and authoritarian executive orders. The Judge ruled that churches, businesses and individuals have been irreparably harmed by Gov. Brown’s unconstitutional orders. It is time that the free exercise of religion be respected and pastors across the state of Oregon be allowed to safely meet.
The decision was given at 11:45 AM, Monday May 18, when Judge Matthew Shirtcliff of the Baker County Circuit Court definitively declared Gov. Brown’s emergency orders as unconstitutional. He said that all of her executive orders regarding the emergency declarations are “Null and Void” effective immediately.
The case was argued Thursday, May 14 and Ray Hacke of the Pacific Justice Institute (PJI) and Kevin Mannix did an excellent job of presenting the clear facts of the case. The case was filed on May 6th in Baker County, Oregon, and has two key complaints. The first argues that Gov. Kate Brown overstepped her authority according to the Oregon Constitution, which says that the Governor must get approval from the legislature to extend a state of emergency beyond 30 days. Article 10 A of the Oregon Constitution requires the Governor get a 3/5th approval of the entire Legislature to extend any declared emergency beyond 30 days. Gov. Brown extended the current state of emergency until July 6 without approval from the Oregon Legislature. By doing so, she did not let state representatives from all over Oregon serve their constituents by voting on such measures. These measures have had a vastly negative effect not only on churches, but also on businesses, private schools and many other organizations and individuals.
The second part of the complaint asserts that her actions violate churches’ rights under the Constitution to free exercise of religion. Many churches and ministries have been effectively shut down by this unconstitutional order, even though many counties east of the Cascades have not had any cases of COVID-19. Gov. Brown’s lawyers are attempting to claim that this complaint doesn’t apply, as she has allowed many counties to enter Phase 1 of the reopening process. However, Phase 1 still bans all gatherings larger than 25 with criminal prosecution; 97% of churches in Oregon are larger than that. She has continued her emergency declaration until at least July 6th, and if a vaccine or cure is not found, indefinitely.
Stephen Williams has been interviewed on this case and has said, “We live in a Constitutional republic… you can’t throw out the Constitution just because someone declares an emergency.” On the subject of the role of churches in our communities, Stephen said, “How can Lowes and Home Depot, not to mention liquor stores and pot shops, be deemed “essential” by Gov. Kate Brown during this COVID-19 pandemic, but churches are not? We applaud the decision of Governors DeSantis and Abbott of Florida and Texas in declaring Churches essential. Likewise, we affirm the dozen or so states that have made similar statements. Gov. Brown has usurped power she was never intended to have and through emergency declarations, become more of an authoritarian ruler instead of a Constitutionally-bound public servant.”
Stephen Williams was an attendee when the case was argued at the Baker County Circuit Court and listened to all the arguments. He said, “I was shocked by Gov. Brown’s lawyers, Beatty-Walters and Abrams, who asserted that the Governor has NO limits to her power during a state of emergency. They used phrases like, ‘limitless power,’ ‘no limits,’ ‘nothing limits,’ total authority,’ ‘complete power,’ over a dozen times. What makes our country great is the fact that we have a Constitutional Republic that acknowledges we are one nation under God, not a socialistic authoritarian regime where one leader has unlimited power.
During this time, when fear, isolation and hopelessness are so prevalent, churches have an essential message of hope, healing and restoration, and pastors should be given the respect and responsibility to decide how best to safely gather. Working with hundreds of churches across the Pacific Northwest, Stephen has noticed that almost all the pastors he works with just want to be treated as partners in the reopening efforts and allowed to decide how best to safely meet. Churches have a Biblical mandate to “not forsake meeting together” and to “shepherd the flock.”
Generally, pastors have been patiently working within these restrictive guidelines pursuing creative ways to try to stay connected, but it is time to consider churches as essential. Pastors are brainstorming how they can meet safely. Also, we renounce all hateful ways of responding and will always endeavor to speak the truth in love. Stephen and his family have been surprised by the level of hatred targeted at him, his family, and ministries. He says, “In a region and state which prides itself on tolerance and inclusion, it is shocking how hateful some people are in voicing near death threats at a pastor for simply speaking the truth in love and standing up for the principals which made this nation great.”
State GOP Hails Baker County Court Ruling Striking Down The #KateBrownLockdown
Party Chair Sees Decision as “First Step” of Citizens Taking State Back From Governor’s Dictates
Salem, OR – The Oregon Republican Party released the following statement of hailing the Baker County Circuit Court decision today striking down the Governor’s Coronavirus executive orders:
“We welcome the decision by the Baker County Circuit Court to respect the fundamental rights of the people of Oregon and to restore the rule of law,” stated Oregon Republican Party Chairman Bill Currier. “It serves as a powerful reminder that Governor Brown, whatever her intentions, is not a ruler who can ignore Oregon’s Constitution and laws.”Today, in a case heard before Baker County Circuit Court, Judge Matthew B. Shirtcliff declared all executive orders that Oregon Governor Kate Brown has issued related to the coronavirus pandemic as “null and void” for having exceeded the 28 days limit on her executive authority permitted under Oregon Revised Statute (ORS) 433.441 related to public health emergencies. The law requires the Governor to convene the legislature within 30 days to obtain an extension of this authority beyond the statutory limit. Lawyers representing the Governor failed to receive a requested stay of the Judge’s order and have said they will seek an immediate review of the decision by the Oregon Supreme Court.
“We know that today’s ruling is just the first step in the process of citizens taking back their state from the dictates of a Governor who has put herself above the law, but it’s a major first step. This isn’t a partisan victory, but a victory for all Oregonians who believe that their elected officials must follow the law, respect their rights, and prioritize the lives and livelihoods of all our state’s citizens, even during, and perhaps especially during, a temporary health emergency.”
“We now expect the state’s elected legislative representatives to begin to resume their role of responding to the needs and concerns of the people as a co-equal branch of our state government. If the curve has been flattened, then we need to move much more expeditiously to find ways to reopen Oregon’s economy safely, reasonably, and flexibly, particularly for areas of the state with very few cases and almost no fatalities.”
“We continue to emphasize that it is entirely possible to protect public health, especially for those at highest risk, while beginning to repair the lockdown’s economic damage and restore the jobs and livelihoods of Oregonians."