Vote was 5-2: 'That's not how separation of powers work'
(Update: Adding video, councilors' vote, councilor, city staff discussion)
BEND, Ore. (KTVZ) -- Bend city councilors voted 5-2 Wednesday night to reject two colleagues' proposal to forbid the city spending any money to enforce Gov. Kate Brown's new restrictions on faith-based gatherings, agreeing with the city attorney that constitutional interpretations are best left to the courts.
In a brief news release Wednesday morning, Councilors Bill Moseley and Justin Livingston, now in their last month in office, said they would introduce a resolution that stated: "The City of Bend shall not use city monies, equipment, or personnel for the purpose of enforcing pandemic health policies, which single out and discriminate against faith-based organizations or members thereof."
They said they "believe the timing of passing this resolution immediately is important," due to last week's U.S. Supreme Court 5-4 ruling barring restrictions on religious services in New York that Gov. Andrew M. Cuomo had imposed to combat the coronavirus.
They also noted Gov. Kate Brown's current statewide "freeze" and her new metrics that are to be implemented Thursday that the councilors said treat religious institutions differently from other sectors."
"So right now, under the governor's order for instance, my church would be capped at 100 people," Moseley told NewsChannel 21. "But if it were the same-sized shopping mall, it would be 625 people that would be allowed."
"So people are being singled out because they're praying inside, instead of shopping. And that's just not allowed under our Constitution," Moseley added.
Under the new state framework taking effect Thursday, faith institutions and funeral homes in the 25 of 36 counties deemed at "extreme risk" due to COVID-19 cases can have 25% of full occupancy indoors, or 100 people total, whichever is smaller. They can have an outdoor capacity of 150 people, and all services are limited to one hour.
But Mayor Sally Russell noted that the proposed resolution didn't go through the council's process to get on the agenda, so instead, the pair offered their motion toward the end of the night, during the section of the agenda called "council action and reports."
City Attorney Mary Winters set the stage, saying she didn't want to get into "a big legal discussion," but instead lay out concerns about councilors stepping into the typically judicial role of interpreting the First Amendment's right to free exercise of religion.
She noted that the Supreme Court's closely watched decision granted a temporary injunction but focused on the specifics of the New York case, where the governor's order was "extremely strict," with caps of only 10 or 25 people, even in churches that could hold 1,000 people. "That seemed highly unreasonable to the majority," Winters said.
The court also compared to the much less restrictive rules for secular businesses, finding it discriminatory when many businesses were allowed to be completely open, and schools as well -- "not the same factual situation."
Winters said city attorneys advise counselors on issues of concern such as panhandling, and present court rulings that closely mirror the proposed action.
"What we don't do is to not follow a state law or state order," she said. "That is something we have not done. We would be very concerned if the city council, as a legislative body, wants to state making constitutional interpretations on its own. That's what should go through the courts."
Moseley said his motion focused on "expenditure of money. If that's not the very definition of policy-setting, I don't know what is."
But Winters responded that Mosely was proposing to "not have a law enforced. You have budgetary authority, (but) it's more of a back-door way of sending a policy directive," comparing it to a councilor saying, "I don't think we should go after speeders."
Moseley said he'd have brought the proposed resolution up through the normal process, but the governor's new order takes effect Thursday and the Supreme Court ruled last week.
"It's needed action on an urgent basis," he said.
Moseley again noted the different allowed capacity for faith-based groups, a 100-person cap on his church, when even at 25 percent capacity, that would allow over 300 people. He noted all the steps his church takes, from roping off two of three rows, requiring masks and distancing, sanitizing between services.
"They have no problem with the health (requirements)," he said.
Moseley said churches are "just being singled out, based on faith. Some say, 'Hey, this is just like a movie theater' - no, it's not. Movie theaters are not protected under the Constitution -- but my religion is."
Winters noted that some facilities, such as theaters, have even lower caps, and that courts would compare the rules for churches to secular activities.
"From what I've seen so far, what Oregon ahs done would seem to pass muster," she said. "If churches want to challenge it, that's what they should do."
But to have police not enforce state orders: "That's not how separation of powers work," she said.
Moseley brought up the city's stand against enforcing federal immigration policy, but Winters said the resolution declaring Bend a "Welcoming City" is paraphrasing state statute that already exists. "That's a different thing than saying, 'We're not going to follow state law.'"
Livingston noted that some churches meet in retail spaces, yet have lower capacity limits than a retail store next door. "That disparity is wrong," he said, also bringing up the council's direction not to spend city funds enforcing immigration law. "That's a federal law," he said. "We need to be consistent. I don't believe we are."
"We need our churches," Livingston said. "We need them to be active and participating amid this pandemic."
Councilor Genna Goodman-Campbell said she did not support the motion, nor did colleague Chris Piper or Russell.
"We are in the middle of a pandemic," the mayor said, "and I think if we have a problem, if a faith institution or any other group …. appealed this at the state level, I think that's the place where these conversations should be held."
"Whether to enforce or not enforce, I think our job is to follow the laws at the state or federal level. I don't think it's responsible to not do that," Russell said.
But she and colleague Bruce Abernethy said it had been a good conversation to have. In fact, Abernethy said he'd talked to Moseley on the phone and "was leaning toward supporting" the motion, but based on Winters' laying out of the legal issues and council roles, "we could call this premature or not necessary a role council should be taking."
Russell noted that councilors had signed a letter to the governor, urging her to open schools to K-5 students Jan. 4, but "this isn't our jurisdiction."
City Manager Eric King said he'd asked the governor's office to explain the disparity in rules for faith-based gatherings.
"The rationale is the amount of time people spend together is different than in retail - they are in close proximity for a longer period of time, and science shows more likelihood of spread" of the virus in that situation, King said.
Moseley decided earlier this year not to seek re-election, while Livingston lost his race a month ago to challenger Melanie Kebler.