Gov. Kate Brown went directly to the Oregon Supreme Court to reinstate all of her executive stay-at-home orders in the state's effort to deal with the COVID-19 coronavirus pandemic.
Lawyers for the Department of Justice successfully petitioned the justices Monday, May 18, after a Baker County circuit judge granted a motion sought by several churches and others to overturn her orders. Solicitor General Benjamin Gutman asked that the high court stay the preliminary injunction by Judge Matthew Shirtcliff.
Supreme Court Justice Thomas Balmer issued a stay at 7:45 p.m. Monday. In effect, that means Shirtcliff's order can't take effect pending further review.
That's the outcome sought by the Brown administration and Attorney General Ellen Rosenblum.
"With all respect, I believe the trial court's grant of a preliminary injunction is legally incorrect," Rosenblum said in a statement before Balmer issued his stay. "We will argue that the judge erred in his construction of the relevant statutes and that he abused his discretion in issuing the preliminary injunction. We will also be asking for an immediate stay of his order.
"I urge Oregonians to continue to comply with the measures in place. They are there to protect all of us, and they are working."
The matter will now come before the Supreme Court for further consideration.
Brown praised the stay. She said in an earlier statement she stands by her orders, the first of which she issued March 8.
"The science behind these executive orders hasn't changed one bit," Brown said. "Ongoing physical distancing, staying home as much as possible, and wearing face coverings will save lives across Oregon."
The lawsuit against Brown was filed on the churches' behalf by the Pacific Justice Institute and joined by Common Sense for Oregon. They argued that Brown exceeded her authority when she failed to seek legislative approval for renewal of the orders after they expired. They objected to the stay.
Common Sense for Oregon is a nonprofit set up by Kevin Mannix, a Salem lawyer, former legislator and former candidate for governor and attorney general.
"Within days, I think, we will see action by the Supreme Court reviewing this matter and deciding whether or not to uphold the judge's injunction or set it aside," Mannix said at a news conference in Wilsonville livestreamed by Portland television station KOIN 6 News.
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 orders to 14 days, plus one renewal of 14 days.
Mannix acknowledged that the law gives the governor the authority to order closures based on public health, 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," Mannix said. "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, but they also require renewals by county board of commissioners or city councils after 14 days.
Brown first declared a state of emergency"back on March 8 as the pandemic evolved.
She said in her statement Monday that lifting all her orders would lead to a worsening of the pandemic.
"It is irresponsible to dismiss the health risks and science behind our measures to stop COVID-19," Brown said. "We would be faced with the prospect of another mass outbreak without the tools that have proven to be effective in protecting our friends, families, neighbors, and loved ones from this disease."
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 counties outside the Portland and Salem areas, that limit on gatherings is raised to 25.
Shirtcliff's decision is similar to one issued by the Wisconsin Supreme Court, in a 4-3 vote last week, to overturn executive orders by Gov. Tony Evers.
Shirtcliff considered arguments from both sides last week.
NOTE: Updated with Department of Justice lawyers filing request for a stay in the Supreme Court, Mannix's comments at press conference.
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