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Oregon Judge strikes down Governor’s lockdown orders (Update: OR Sup Ct issues emergency stay)

Oregon Judge strikes down Governor’s lockdown orders (Update: OR Sup Ct issues emergency stay)

“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”

https://www.youtube.com/watch?v=kyAbzgc4Dks

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.

As we have covered previously, numerous rulings and lawsuits have challenged lockdown orders that applied to religious groups but not secular groups like fast food restaurants and liquor stores.

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“As of now, the orders are no longer in effect,” Hacke said Monday, arguing that was proper.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.

The Judge’s Opinion (pdf.) provides, in part:

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.

* * *

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.

Update

As expected, the Oregon Supreme Court issued an emergency stay.

Order here.

 

——————

Oregon Circuit Court Opinio… by Legal Insurrection on Scribd

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Comments

nordic_prince | May 18, 2020 at 9:39 pm

Now somebody please serve notice to Governor Porkster.

    Milhouse in reply to nordic_prince. | May 18, 2020 at 10:45 pm

    How is a ruling under a specific Oregon statute relevant to the governor of another state?

      nordic_prince in reply to Milhouse. | May 19, 2020 at 7:26 am

      Porkster’s pulling the same type of crap – according to the Illinois Constitution, his “emergency powers” were good for a max of 30 days, yet he acts like he’s king and does whatever the hell he wants, Constitution be damned.

      Logic isn’t state-specific. Same egregious disregard for the rule of law – should face the same bitch slapping.

    Disco Stu_ in reply to nordic_prince. | May 19, 2020 at 7:30 am

    Is it possible there’s no similar TIME LIMITATION for executive emergency-powers declarations here in New York State?

    #CaesarCuomo seems to enjoy his daily cranky lectures to his subjects WAY too much. Is it going to require a state constitutional convention to make him stop?

    And I haven’t heard a peep of dissent from anyone in authority. Even with both houses in the tight grip of Democrats one would think someone might suggest it’s time for proper legislative action.

      gospace in reply to Disco Stu_. | May 19, 2020 at 1:07 pm

      There isn’t. The NY state constitution gives virtually unlimited power to the governor in an emergency, and apparently the governor can declare one. Without bothering to go through the legislature. And Cuomo has set himself up as Dictator.

Obviously the judge missed the part where once elected the democrat governor gets to rule over the masses. So every 28th day the anointed one can reissue the EO saying you belong to the democrat party.
And you might not even get cake if you’re too uppity peasant, now pick up that can.

Why does anyone believe a democrat will follow a judges ruling? They sure as heII don’t follow any other rulings, policies, procedures or LAWS they disagree with. Illegal immigration and sanctuary jurisdictions wouldn’t be a “thing,” otherwise. They’re like my old dog Bo and the electric fence. Once he figured out it wouldn’t kill him, it was just another thing to chew through so he could run around the countryside doing whatever he pleased. Didn’t work out so well for Bo in the end. We need real, meaningful accountability for lawless democrats.

buckeyeminuteman | May 19, 2020 at 12:07 am

Restaurants, bars, businesses and churches need to reopen immediately. Tuesday morning at the latest. Would be much harder to close them once everything is functioning again.

The Oregon Supreme Court has issued a stay blocking the judge’s order:

http://freerepublic.com/focus/f-news/3846373/posts

Well, that didn’t take long.

Oregon Mike | May 19, 2020 at 12:19 am

Baker County is about as far away from the Portland/Salem axis as you can get and still be in the state of Oregon. Obviously Judge Shirtcliff really doesn’t know what’s going on. (/sarc)

The Schoolmarm appointed Shirtcliff to the bench back last September, and he donned the robes November 1.

At this point I don’t know the over/under on affirming the ruling.

“This will ensure we can continue to safeguard the health of all Oregonians . . . while the legal process moves forward.”

The notion that any legal or bureaucratic process can determine the nature of reality—health, science, engineering, finance—is pure madness. Darwinian extinction is the only feasible fate of a society which wallows in such foolishness.

The arguments by the governor will make for interesting reading. In other word super fancy lawyering to attempt to convince the Oregon SC that avoiding the statutory limit of 14 days plus an additional 14 days before needing legislative approval for extension isn’t really relevant.

I didn’t see where the governor had bothered to ask the legislature for an extension. So that appears like it will be a bit of a burden to overcome.

Louis Davout | May 19, 2020 at 3:21 am

Insley, Brown and Newsome…

The West Coast Axis of Stupidity…

(And Tyranny)

welldome

nordic_prince | May 19, 2020 at 7:54 am

It’s time to stop pretending this is about “health” or “safety” or even a “virus.” Pool noodles, paper menus, face masks, etc are all a distraction.

It’s about POWER. Dictatorial POWER, which is what you see cropping up in state after state, especially if they’re blue. Scratch a leftist, find a tyrant…and once these tyrants have tasted power, they will not relinquish it. Not only are they trying to destroy Trump, they intend to use this “crisis” as a means of ensconcing themselves permanently through the farce of mail-in voting and other chicanery.

The face masks and other crap are just psychological manipulation to see how far they can push and how compliant the sheep are. Nobody seriously believes that a bandana or homemade face covering is really going to stop the spread. If they were effective, why weren’t they employed earlier? If they were effective, what is the justification for a continued lockdown? If they were effective, why the continual ban hammer on Christian churches? But no, the Karens in society run around bitching about people not wearing useless face masks, “illegal” haircuts, and people protesting government overreach. “Just wear a face mask…it’s no big deal…if it saves just one life, it’s worth it…” is not all that different from “just put this yellow star on your clothing…it’s no big deal…it’s for the good of society…”

Good God, people – WAKE UP, while we still have a country left.

the current pandemic creates an unprecedented crisis in our state
No. It does not. The authoritarian tendencies of so many in office is what has created the “unprecedented” crisis. Though, if you go back about 250 years, even this isn’t really unprecedented.

texansamurai | May 19, 2020 at 10:57 am

Is there any way businesses could open ANYWAY
as governor has clearly violated the statute for
extension? whether she has violated the statute
doesn’t appear to be at issue but rather whether a mere
Circuit Court Judge can invalidate a gov’s order

Reading a few of these state laws regarding public disasters/emergencies and their time limits, I totally understood the first two weeks. Now that it’s been shown that emergency no longer exists (ie: Oregon with 137 dead out of 4 million +) either every flu season is a pandemic or governors are seriously abusing their power. Question is, do democrat courts and legislatures have the moral and ethical courage to put a stop to the power overruns? (Same here in Michigan, legislature has sued the governor, but no emergency request to state supreme court and no daily rebuttal to the governor) Mich has republican legislature/dem governor where Oregon is dem/dem. Republicans again wont really fight, but dems will go to the hilt as soon as their authority is questioned.

    Milhouse in reply to stl. | May 19, 2020 at 3:09 pm

    In Michigan it seems pretty clear that the governor is in the right. The statute explicitly gives her the power she’s using, and the legislature is just ignoring it.

    Section 10.31 says “During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state […] or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property […] The orders, rules, and regulations […] shall cease to be in effect upon declaration by the governor that the emergency no longer exists.

    The legislature is hanging its hat on the 28-day limit in Section 30.403 (“After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature.”), but Section 30.417 explicitly says “This act shall not be construed to […] Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws”. So the governor wins.

      CommoChief in reply to Milhouse. | May 19, 2020 at 9:39 pm

      You could turn out to be correct. I would not want to be representing the Governor when the the Appellate/SC eventually asks the key question;

      So, counsellor are saying that the Governor has in effect, been given the unilateral authority to declare that she has dictatorial powers and further that by virtue of her declaration she and she alone has the authority to decide when and if those powers end?

      Lawyer for governor: Not at all, the statute…

      Interrupted by court: You just said that this declaration doesn’t do those things mentioned by Justice X, So pray tell us what limiting principle you do concede based on your answer.

      Lawyer for governor: Thinks to themselves oh f29$!, I knew they would ask that and I still don’t have a good answer…

        Milhouse in reply to CommoChief. | May 19, 2020 at 10:33 pm

        The answer is yes, she does have that power. That’s what the statute says. The limiting factor is that the regulations must be reasonable, and that’s a term the courts are very comfortable deciding.

          CommoChief in reply to Milhouse. | May 20, 2020 at 1:42 am

          Milhouse,

          Are you saying reasonable meaning her actions/exercise of authority or reasonable in terms of are these statutes granting authority reasonable? It’s past my bedtime and meds kicking in.

          CommoChief in reply to Milhouse. | May 20, 2020 at 2:07 am

          Looked at that again. Ok I still don’t believe that the Governor prevails.
          Scenario
          Governor issues initial proclamation
          28 days go by
          Day 28 governor can:
          Terminate the initial proclamation at 23:59
          While issuing another proclamation at 00:01 on day 29
          With no conflict between the statute.

          Mandating the termination at 28 day maximum under the more recent statute doesn’t impair the Governor from issuance of a second proclamation nor a third, ad infinitum

          The second statute with a 28 day limit before termination, reissue or ask legislature for extension doesn’t materially impact or burden the Governor ability to act. It does place a ‘political’ media fed mark on the wall expectation by the general public.

          As to whether the orders within the proclamation are reasonable, yeah court may be reluctant to substitute it’s judgment in place of the executive. On the other hand, it isn’t unknown for that to occur.

          The biggest issue that the Governor will lose on is her enforcement actions after day 28 of the original proclamation will likely be overturned/vacated.

      Milhouse in reply to Milhouse. | May 21, 2020 at 6:51 pm

      1. The statute specifically authorizes her to issue reasonable regulations. Any regulation she issues under this statute can be challenged in court as to its reasonableness, and courts are very used to making such judgments. The legal meaning of “reasonable” has been defined down almost to a science.

      2. The point is that she is not limited to 28 days. Only proclamations made under § 30.403 are limited to 28 days; proclamations made under § 10.31 last until she declares that the emergency is over. And § 30.417 explicitly says that § 10.31 is still in effect.

    snopercod in reply to stl. | May 19, 2020 at 4:36 pm

    “Republicans again wont really fight” Ain’t that the truth. Here in NC we have a dem governor and both houses of the legislature are Republican. But the legislature has done NOTHING to rein in our our-of-control governor, even though he has clearly violated the law by not obtaining the concurrence of the “Council of State” (his cabinet) for his emergency orders. In a totally pointless gesture, I wrote my State Senator Chuck Edwards about this last week and he hasn’t even replied. Clearly the republicans don’t give a damn if lives are being destroyed.

texansamurai | May 19, 2020 at 11:05 pm

n Michigan it seems pretty clear that the governor is in the right. The statute explicitly gives her the power she’s using, and the legislature is just ignoring it.

Section 10.31 says “During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state […] or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property […] The orders, rules, and regulations […] shall cease to be in effect upon declaration by the governor that the emergency no longer exists.

The legislature is hanging its hat on the 28-day limit in Section 30.403 (“After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature.”), but Section 30.417 explicitly says “This act shall not be construed to […] Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws”. So the governor wins.
______________________

me thinks not

    Milhouse in reply to texansamurai. | May 21, 2020 at 6:55 pm

    Do you mean you think otherwise, or that you don’t think? I just cited the law. How can you disagree with it? What about the law is in any way unclear? It explicitly gives her the authority to proclaim a state of emergency that lasts until she says it’s over. Not 28 days.

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