Supreme Court sets stage for fight on Brown's stay-home orders
Oregon's Supreme Court will soon weigh the merits of allowing Gov. Kate Brown's executive stay-at-home orders to deal with the COVID-19 coronavirus pandemic to stand.
The court intervened Monday, May 18, to reinstate her orders temporarily. That stay blocked an earlier decision by a Baker County judge to overturn the orders, as requested by 11 churches and 21 individuals in a lawsuit.
The court will consider Brown's request for an order directing Judge Matthew Shirtcliff to set aside his decision.
Department of Justice lawyers have filed arguments on Brown's behalf. The court has asked for a response by the Pacific Justice Institute and Common Sense for Oregon, the groups representing the churches and people in the lawsuit. Their deadline is Friday, March 22.
"This tells me that the court takes this entire case very seriously and wants to issue a decision as soon as possible," said Kevin Mannix, a Salem lawyer and former legislator who represents Common Sense for Oregon. "We will file a comprehensive response. We hope for a decision by the Supreme Court within the near future."
The court has not scheduled oral arguments, but the justices can consider the case solely based on written materials.
Brown issued a statement Monday night after Justice Thomas Balmer signed the stay:
"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."
Although Pacific Justice Institute and Common Sense for Oregon raised questions about how Brown's executive orders infringed upon free expression and other constitutional rights, they focused more on how the orders exceeded her authority. Mannix said that at most, the orders — which began March 8 with a declaration of a state of emergency — were limited to 28 or 30 days without renewal by the Oregon Legislature.
Mannix said in a statement on Tuesday:
"While we await a final decision from the Supreme Court we are faced with devastating unemployment, awful damage to our businesses, the closure of our colleges, universities, and schools, and dramatic restrictions on the capability of people to gather together to worship the Almighty."
But Attorney General Ellen Rosenblum, in a statement she issued before the Supreme Court granted a stay, said Judge Shirtcliff came to the wrong conclusion.
"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," she said. "With all respect, I believe the trial court's grant of a preliminary injunction is legally incorrect."
A 2012 amendment to the Oregon Constitution does enable the governor to declare a "catastrophic disaster," and public health is included but not defined. It was intended to deal with a natural disaster, such as a severe earthquake off the Oregon coast. Under its terms, the governor's declaration has to be renewed by the Legislature after 30 days — but the "catastrophic disaster" itself is limited to 30 days, although the governor can declare a separate event.
There is a separate law defining "public health emergency," but it limits the governor's authority to 14 days, plus one renewal of 14 days — or a declaration by the governor to end the emergency.
Mannix acknowledged that the 2007 law gives the governor the authority to order closures, but not for an indefinite period. He said that under the 2012 constitutional provision, the governor would have even broader authority, subject to legislative renewal.
"The governor never said this is a catastrophic disaster," he said Monday at a livestreamed news conference in Wilsonville. "I think she should have and she could have, but she didn't. We can't force her to use that tool, which is very powerful. I don't know why she didn't use that tool."
Counties and cities can declare their own emergencies, and many have been doing so during the pandemic, but they also require renewals by county board of commissioners or city councils after 14 days. There is no limit on renewals.
The decision in Baker County Circuit Court applies to all of Brown's orders, not just the one barring gatherings of more than 10 people, including religious observances. Under reopening plans approved by Brown for most counties outside the Portland-Salem metro area, that limit on gatherings is raised to 25.
Shirtcliff's decision is similar to what the Wisconsin Supreme Court, in a 4-3 vote last week, did to overturn executive orders by Gov. Tony Evers.
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