“once the maximum 28-day time provisions of ORS 433.441(5) expired, the Governor’s Executive Order and all other orders were rendered null and void”
A Circuit Court Judge in Oregon has granted an injunction halting the Emergency Order of Governor Kate Brown that, among other things, restricted in-person church services and imposed certain travel restrictions.
The case was brought by a coalition of churches, and focused primarily on the religious services restrictions.
But as I noted when the Wisconsin legislature filed suit, and again in our live online event, holding state government to the procedures required by law could be a fruitful legal strategy. It was a procedural defect that cause the Wisconsin Supreme Court to strike the ‘Safer-at-Home’ administrative order.
The Oregonian has the details on the context of the Judge’s ruling:
A Baker County judge has invalidated Brown’s restrictions on businesses and social gatherings, along with every other executive order Brown has issued under a state of emergency she ordered due to the COVID-19 pandemic.
Finding that [Gov. Kate] Brown exceeded her statutory authority in extending that state of emergency, Baker County Circuit Judge Matthew Shirtcliff granted a preliminary injunction Monday on more than 20 orders dating back to March 12.
The judge declined to stay the order pending the review of a higher court, meaning it took effect immediately, according to Ray Hacke, the attorney who brought the challenge on behalf of faith groups.
“As of now, the orders are no longer in effect,” Hacke said Monday, arguing that was proper. “The whole point is our clients have been irreparably harmed and they are being irreparably harmed every day they cannot practice.”
In a statement, Brown responded, “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.” She continued, “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 Oregon Department of Justice filed a motion with the Supreme Court on Monday afternoon, calling on justices to immediately halt Shirtcliff’s ruling.
AP reports on the lead church involved:
Scott Erickson, chief pastor of one of the churches behind the lawsuit, is waiting to see what the Supreme Court does before making any move to open the doors. Currently, his Peoples Church in Salem, Oregon, has drive-in church, with worshippers tuning in service on their radios from the parking lot, and livestreaming.
“We’re going to wait until there’s finality,” he said in a phone interview.
If the judge’s ruling stands, Erickson’s church, which 3,700 people normally attend regularly, will change its ways, the pastor said. It will adhere to 6-foot (2-meter) distancing, every other row would be empty and anything that people touch, like chairs and pews, will be wiped down before each service. Masks would be optional.
“It would certainly impact our capacity, but that’s where we’re at on this,” Erickson said.
Governor Brown chose to declare a state of emergency pursuant to ORS 401.165. On March 8, 2020, Governor Brown also utilized provisions of ORS 433.441 in her original executive order (see Executive Order 20-03 sec 1. and 3.) and later orders.
Each of these provisions of Oregon law grant the Governor certain powers and limitations during times of emergencies.
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When granting this additional power over the movement and gatherings of citizens, the legislature saw fit to add additional time restrictions. Those time restrictions contained in section (5) of that provision only allow the Governor to extend the emergency declaration for 14 additional days from the original 14-day period. This provision makes the maximum time restriction to be 28 days by operation of law. The Governor in her original executive order 20-3 set her executive order to 60 days. This is well beyond the maximum 28-days allowed by ORS 433.441. This court finds that when the Governor utilized the provisions of ORS 433.441 in her executive order, she triggered all the provisions of ORS 433.441 including the time restrictions in ORS 433.441(5). By doing so, the executive order became null and void beyond the maximum 28-day time period allowed by the statute. Moreover, by not complying with ORS 433.441(5) timelines, the Governor’s subsequent Executive Orders 20-05 through 20-25 are also null and void. (see Executive Order 20-12 extended until terminated by the Governor; Executive Order 20-24 extended for an additional 60-days; Executive Order 20-25 extended until terminated by the Governor as examples of extensions beyond 28 days)….
Once the Governor began utilizing the specific provisions of ORS 433.441(3)(d) in Executive Order 20-12, the rights of citizens to assemble and operate their business became significantly curtailed, thereby ensuring the need for further justification and the statutory limitations in time which create a check on this additional power of the Governor. Although ORS 433.441(4) indicates that nothing in ORS 433.441 to 433.452 limits the authority of the Governor to declare a state of emergency under ORS 401.165, it also does not suspend the time limitations of section (5). This court finds that the Governor was not required to invoke the provisions of Article X-A of the Oregon Constitution. Article X-A clearly states that the Governor has discretion to implement the constitutional provisions because the Governor “may invoke the provisions of this article.” See Article X-A, Section 1(3). However, because the Governor implemented statutory provisions, she is bound by them. Thus, once the maximum 28-day time provisions of ORS 433.441(5) expired, the Governor’s Executive Order and all other orders were rendered null and void….
* * *
This court understands that the current pandemic creates an unprecedented crisis in our state as well as in this country. The Governor has an enormous responsibility to protect the lives of the citizens of our state balanced against the citizens’ constitutional rights to freedom of religion which includes how he or she chooses to worship. 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, just as grocery stores and businesses deemed essential by the Governor have been authorized to do. This court finds that based on these factors the balance of equities tips in favor of Plaintiffs….
The public interest is furthered by allowing people to fully exercise their right to worship and conduct their business. Additionally, the utilization of social distancing protocols without additional restrictions is in the public interest to restore individual liberties and the ability to restore economic viability in our communities.
Based on this opinion, Plaintiffs’ Motion for Preliminary Injunctive Relief is granted.
Here is the Judge’s ruling from the bench:
As of this writing, there are no reports of the Oregon Supreme Court staying the Judge’s order, but that could come at any time. And it probably will come soon, considering that Gov. Kate Brown has appointed 5 of the 7 Supreme Court Justices.
As expected, the Oregon Supreme Court issued an emergency stay.
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