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Oregon Supreme Court rules against Baker County judge, upholds governor’s orders


(Update: Adding Kevin Mannix comment)

High court rules against churches challenging COVID-19 restrictions, says executive orders did not violate 28-day time limit

SALEM, Ore. (KTVZ) -- The Oregon Supreme Court ruled Friday that a Baker County judge erred in ruling that Gov. Kate Brown’s executive orders relating to the coronavirus pandemic violated a 28-day statutory time limit and had therefore expired.

Friday's decision directs Circuit Judge Matthew Shirtcliff to vacate the preliminary injunction he'd issued while the Baker County case – seeking a declaratory judgment and permanent injunction – was pending (which the Supreme Court had previously stayed). The governor’s orders, therefore, remain in effect. 

Shirtcliff's May 18 ruling came in regards to a lawsuit filed by 10 churches, including two in Bend, the nonprofit Pacific Justice Institute and 21 others against the governor. The governor's office quickly appealed to the state Supreme Court, which put a hold on the Baker County judge's permanent injunction, pending further arguments.

The Baker County case remains pending. The next step is for the circuit court and the parties to evaluate the Supreme Court’s ruling and determine how they think the case should proceed.

Kevin Mannix, president of Common Sense for Oregon, said the group disagrees with the high court's interpretation that the time limits of the public health emergency law don't limit the length of time the governor can issue lockdown orders when declaring a general emergency.

"With this ruling in hand, we will ask the Legislature to amend the law to make it clear that the Governor’s lockdown powers truly do have a 28-day time limit, even when the Governor declares a general emergency," Mannix wrote.

Here's a news release from the Oregon Supreme Court regarding the ruling:

Elkhorn Baptist Church et al. v. Katherine Brown, Governor of the State of Oregon et al., (CC 20CV17482) (SC S067736)

On petition for peremptory writ of mandamus from an order of the Baker County Circuit Court, Matthew B. Shirtcliff, Judge. Peremptory writ of mandamus to issue immediately, in terms consistent with the opinion. Opinion of the Court Per Curiam. Justice Christopher L. Garrett filed an opinion concurring in the judgment, in which Justice Thomas A. Balmer joined. Chief Justice Martha L. Walters did not participate in the consideration or decision of the case.

Today, the Oregon Supreme Court issued a peremptory writ of mandamus directing the Baker County Circuit Court to vacate a preliminary injunction that it had granted enjoining enforcement of executive orders issued by Governor Brown in response to the coronavirus pandemic.

The issue arose in an action for declaratory and injunctive relief filed in Baker County Circuit Court against the Governor. Plaintiffs are churches and individual churchgoers. In their complaint, plaintiffs sought judicial declarations that Governor Brown's May 8, 2020, executive order declaring a 60-day state of emergency based on the coronavirus pandemic, and other subsequent orders issued pursuant to that declaration, had expired. They also sought an injunction enjoining enforcement of the orders.

After filing their complaint, plaintiffs moved for a preliminary injunction to enjoin enforcement of the Governor's executive orders while the merits of the claims were being decided in the circuit court. The circuit court granted that motion on May 18, 2020, accepting plaintiffs' argument that the orders violated a 28-day statutory time limit established by ORS 433.441(5).

On the same day that the preliminary injunction issued, the governor petitioned the Oregon Supreme Court for either a peremptory writ of mandamus directing the circuit court to vacate the preliminary injunction or an alternative writ that would allow the circuit court (through plaintiffs) an opportunity "show cause" why the order should not be vacated. The Governor also moved to stay the preliminary injunction, pending resolution of her mandamus petition, which the Court granted.

On May 23, 2020, the Court issued an alternative writ of mandamus. Once the circuit court indicated that it would not comply with the alternative writ, the parties -- which at that point included additional local government officials, business owners, and others who had been permitted to intervene in plaintiffs' declaratory and injunctive relief action and several amici curiae -- filed briefs in support of or in opposition to vacation of the preliminary injunction.

In a per curiam opinion, the Court concluded that the circuit court had erred when it determined that the Governor's executive orders had violated the 28-day statutory time limit in ORS 433.441(5).

At the outset, the Court explained that, in responding to the threat posed by the coronavirus, each of the three branches of Oregon's state government have different roles to play. For example, to the extent that debates about how best to respond to that threat concern policy choices, they are properly for policy makers -- that is, the people's representatives in the legislative and executive branches of government. The role of the judicial branch, by contrast, is to determine whether the other branches have exceeded the legal limits on their authority.

As mentioned, the circuit court granted the preliminary injunction based on its conclusion that the Governor's executive orders violated a statutory time limit. In the ensuing mandamus proceeding, the question before the Court was whether the preliminary injunction had been based on a fundamental legal error or whether the circuit court had acted outside the permissible range of discretion in granting it.

The Court held that the circuit court's preliminary injunction was based on a fundamental error because the circuit court's conclusion about the statutory time limit was incorrect.

The Court explained that the Governor had issued the executive orders pursuant to ORS 401.165, which authorizes the Governor to declare a state of emergency. That statute is one of a series of statutes in ORS chapter 401, which concern states of emergency, ORS 401.165 to 401.236.  The declaration of a state of emergency pursuant to ORS 401.165 gives rise to certain emergency powers.

Those powers, which the legislature has granted to the Governor through statutes, include, but are not limited to, "all police powers vested in the state by the Oregon Constitution in order to effectuate the purposes of [chapter 401]." ORS 401.168(1). The term "police power" refers to "the whole sum of inherent sovereign power which the state possesses, and, within constitutional limitations, may exercise for the promotion of the order, safety, health, morals, and general welfare of the public."

As the United States Supreme Court has held, through the police power, a community can "protect itself against an epidemic of disease which threatens the safety of its members." In addition, the legislature has expressly provided in ORS 433.441(4) that, "[i]f a state of emergency is declared as authorized under ORS 401.165, the Governor may implement any action authorized by ORS 433.441 to 433.452," which include actions relating to public health emergencies.

Although there are many statutory and constitutional limits on the Governor's emergency powers during a state of emergency declared pursuant to ORS 401.165, a declared state of emergency is not subject to a time limit of certain number of days.

Instead, the legislature has expressly provided, "The powers granted to the Governor by ORS 401.165 shall continue until termination of the state of emergency." ORS 401.192. It has also provided that either the Governor or the Legislative Assembly may terminate the state of emergency. ORS 401.204 states, "(1) The Governor shall terminate the state of emergency by proclamation when the emergency no longer exists, or when the threat of an emergency has passed. (2) The state of emergency proclaimed by the Governor may be terminated at any time by joint resolution of the Legislative Assembly."

A statute in a different chapter, ORS chapter 433, provides that a different type of emergency proclamation, one for a "public health emergency" under that same chapter, expires no later than 28 days from the day it is proclaimed. ORS 433.441(5).

The circuit court had relied on that statute in determining that the Governor's executive orders had expired, but the Court explained that, contrary to that conclusion, the challenged orders were not subject to that time limit.

ORS chapter 433 contains a series of statutes that concern public health emergencies, ORS 433.441 to 433.452. The legislature has specifically provided that "[n]othing in ORS 433.441 to 433.452 limits the authority of the Governor to declare a state of emergency under ORS 401.165. If a state of emergency is declared as authorized under ORS 401.165, the Governor may implement any action authorized by ORS 433.441 to 433.452." ORS 433.441(4).

The Court explained that the legislature enacted ORS 433.441 to 433.452 to give the Governor the option of declaring a public health emergency as an alternative to declaring a state of emergency under ORS chapter 401. ORS 433.441(1) authorizes the Governor to proclaim a state of public health emergency. Such a proclamation gives rise to lesser emergency powers than a declaration of a state of emergency pursuant to ORS

401.165 and is subject to the 28-day time limit under ORS 433.441(5). But, by its terms, that time limit applies only to "[a] proclamation of a state of public health emergency." Moreover, the Court explained, related statutes and the legislative history of the time limit show that the legislature did not intend the time limit to affect the duration of, or the Governor's powers during, a state of emergency declared pursuant to ORS 401.165. Therefore, the Court held, the circuit court had erred in concluding that the Governor's executive orders were subject to the time limit under ORS 433.441(5).

In addition, the Court confirmed that the circuit court had correctly rejected plaintiffs' alternative theory for invalidating the Governor's executive orders -- that the state of emergency that had been declared necessarily was subject to the time limit on a "catastrophic disaster" declared under Article X-A of the Oregon Constitution. Finally, the Court noted that it would not address issues pertaining to plaintiffs' constitutionally protected religious freedoms. It explained that plaintiffs had requested the preliminary injunction based on their claim that the Governor's orders had expired -- as evidenced by the fact that they sought to enjoin all of the orders, not just those that they identified as affecting their religious liberties -- and that was the claim on which the circuit court granted the preliminary injunction.

Accordingly, the Court determined that the circuit court had erred when it granted the requested preliminary injunction on the theory that the Governor's executive orders were subject to the statutory time limit set out in ORS 433.411(5). In light of that error, the Court concluded that the preliminary injunction must be vacated, and it ordered the immediate issuance of a peremptory writ of mandamus to that effect.

Justice Christopher L. Garrett filed an opinion concurring in the judgment, in which Justice Thomas A. Balmer joined. He explained that he agreed with the Court's conclusion that the circuit court's preliminary injunction must be vacated, but he would have reached that result by holding that the circuit court's order exceeded its permissible range of discretion under the traditional equitable factors applicable to a request for preliminary injunctive relief. Justice Garrett emphasized that the circuit court erred in failing to give sufficient attention to the Governor's role, in emergency situations, in determining what is in the public interest.

Crime And Courts / News / Oregon-Northwest / Top Stories

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  1. Can’t really say this is any kind of victory for Kate Brown… as it falls under the age old question of whether or not a tree falling in the forest can be heard if no-one is around… so in Kate’s situation- are her Executive Orders legal if looters-rioters-and protesters don’t follow them ???

      1. I know it hilarious. First, they can’t get a SCOTUS judge confirmed. Then lose the Presidency. Then they let Trump pick 2 SCOTUS Judges, hundreds of federal judges, along with the rollback of job crippling regulations. Now they have a presidential candidate hiding in a basement. When will it end?

        Where is the Liberal leadership that is actually effective?

        1. Youve had a republican president for years now and people are still parking the wrong way on streets, how do you live with yourself??????????

          1. We all have had the same President. For you to think i am a republican is ignorant on your part. I am a troll! Do you think we have political allegiance? FOOL!

            1. Funny. You get your feathers very ruffled on behalf of the GOP for a halfway decent troll and only seem to target intelligent folk with a liberal bent. Methinks you doth protest too much, lady.

          1. “Where is the effective leadership?”

            You get a stimulus check from the President there sugar bums ? And what’d you get from Kate’s Unemployment Offices- a defective website- nobody answering phones- and not a single dime !

            Stop being such a biddy ! This President has given the state of Oregon over a billion dollars for this covid nonsense… and all Kate does is whine for more- tell you to stay home- and allow rioters to loot and burn Portland streets !

            Are you really that blind ? Then go to Kate and demand a dog and a cane- good luck with that !

      2. “Watching you people lose…”

        So how do you define victory ? As it sits right now- Kate Brown can extend this shut-down “indefinitely”… like a dictator high on power- our own little Pacific Northwest Hitler who continues to destroy businesses- the state economy- and the daily lives of Oregonians… over a pandemic that never appeared- that flattened in the middle of March- has never over-whelmed the medical facilities- is termed “mild” for 80% of those infected… Do you really need to live under the daily guidance of big Government- the Nanny state- and Kate Brown ?

        Whatta real world wuss you must be ! Who takes care of your dirty undies- wipes your nose- cuts your pork chop for you ??? You still need a nanny to tell you what time to get up- when to brush your teeth- when it’s “snack time” ???

        I want you stop and think for two seconds- how ballistic you all would go if Donald Trump announced “Absolute Control and Authority” of the US- he would decide when businesses will open- he will decide when you can go outside and commune with mother nature- DJ Orange Haired Trump will make the call when you will be able to go back to school- to work- what you will wear !

        Kate Brown-shirt is currently running the State of Oregon as she unilaterally decides- and to date- it’s been a complete disaster !

        1. To be a little more fair about the piece of your portrayal that isn’t obviously just an opinion, keep in mind that under the statute the governor has relied on for her emergency powers, the legislature can terminate the emergency at any time.

          Also, the president does not have nearly the breadth of powers that many governors have (as the current president seems to have recognized back in March), so if he made the announcement you hypothesized, there’d be considerably more grounds for objection.

          On your selective enforcement point, for what it’s worth, Oregon has an extremely limited number of state troopers (about 400), so it’s not clear that at the state level the governor has the personnel to enforce the executive orders against protesters, vs. the applicable cities making (or not making) those enforcement actions. That would substantially cloud the comparison of violations of the orders in the protest context (where local administrations and police have the enforcement power) vs. a state agency like OSHA exercising its enforcement authority. While the governor has used some National Guard troops for crowd control and police support, inserting them directly into the enforcement of civil law would be a very bold step; I can only imagine the “Brownshirt!” cries then.

    1. Another failing redneck judge trying to legislate from the bench. You lose!!! This is classic hillbilly behavior that keeps rural eastside, regressive counties perenially impoverished and continually on the dole from Kate Brown. Soooooo much failing!!!

      Golf and a whore anyone!!!! trump / putin 2020!!!! HELSINKI PROUD!!!

        1. They are correct, that rural and conservative areas, per person, get more .government spending than they pay in taxes, while the multicultural urban professional classes put more in than they get back, contrary to the claims of maga propaganda for decades

    1. An interesting comment, considering that they are elected positions and that Governor Brown’s relatively recent appointment of Judge Shirtcliff in Baker County didn’t seem to have helped her in the lower-court proceeding before him.

    2. “The Baker County case remains pending. The next step is for the circuit court and the parties to evaluate the Supreme Court’s ruling and determine how they think the case should proceed.”

      At this point I would expect that someone is going to challenge the original “Emergency Declaration” as being irrational under the situation (the virus in 5% decline)-over zealous- akin to shouting “fire” in a theater… Sorry Kate- there has been no fire to speak of- so why the “devastating” assault on our glowing economy ???

        1. “The Baker County case remains pending.”

          After seeing the mass gatherings- riots- looters- and protesters the past few weeks in Oregon- it’s safe to say very few people are abiding by Kate’s Executive Orders anymore- she’ll have a hard time explaining why a $14,000 dollar fine can be levied against a Hair salon owner in Salem while anarchists and Antifa (now considered a terrorist organization) are allowed free rein and control of Oregon streets… outside of liberal news outlets like KTVZ- the court of public opinion will have her for lunch.

        1. Elpolloviejo, the judiciary isn’t tasked with catering to the wishes of the voters, it is tasked with interpreting the laws. Judge Shirtcliff, in Baker County, absolutely reached the sort of pandering, activist decision that conservatives say the oppose. And as I posted here when the case was first filed, on the Oregon statutory claims, this issue Was very clear (and the Oregon Supreme Court’s discussion is relatively easy to follow, I suggest you read it). Nothing in the law authorizing the governor’s state-of-emergency powers (401.165) limits the duration of the emergency, although the legislature can terminate it at any time. That the plaintiffs thought she “should have” invoked the public-health-emergency powers of 433.441 instead, or was subject to the limitations placed on those powers because she *could* have addressed the pandemic under either statute, was absolutely unsupported by the statutes. Judge Shirtcliff’s reasoning on those Oregon statutory issues was truly disgraceful.

          Also keep in mind that the US Supreme Court (which is not elected, and a majority of the members of which were appointed by Republican presidents) recently reaffirmed that restrictions on 1st Amendment rights can stand on the grounds of a health emergency (subject to the existing framework for judging those restrictions), and that it is not the judiciary’s role to substitute its judgment for that of the executive branch to which emergency powers have been authorized by the legislature. That really is a core aspect of separation of powers. Before that recent ruling, I gave some chance of victory to claims that Oregon’s Phase 2 restrictions (but not the Phase 1 restrictions) were on the wrong side of existing constitutional limits, but I think Chief Justice Roberts’s indication that the courts should be especially hesitant to assert their judgment when the executive branch confronts a “dynamic and fact-intensive matter” will make the judiciary (or at least the federal judiciary) even more mindful of curtailing any tendency to elevate their own determinations over the executive branch’s when it comes to emergency orders issued in response to the pandemic. At some point, legislatures will come in with non-emergency responses to the pandemic, and the executive branches’ emergency powers will have decreasing relevance, and that’s all as it should be in our system of government.

        2. Only some – not all – actually only the minority not the majority. Your point didn;t stick well… those pesky facts, they get in the way some times huh?

  2. I’m so tired of hearing all the ignorant ass crap in regards to this pandemic. If you Bible thumping Trump loving fools want to get together in a big room and hang out I think you should do it. I’ll take your god and raise you one Darwin. Let’s see who wins?

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