The state of Oregon is open for business again, but not in the way Gov. Kate Brown hoped.
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 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“As of now, the orders are no longer in effect,” Hacke said Monday, arguing that was proper.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.
“The preliminary injunction takes effect immediately and will allow the sort of large gatherings that are likely to spread the novel coronavirus that causes COVID-19—a fact that plaintiffs have not disputed in this litigation,” the motion read. “To minimize that risk, defendants respectfully request at least a temporary stay while the court considers the motion no later than today, May 18, 2020.”
It was unclear whether justices would accede to that timeline.
Wrapped up in the case are executive orders mandating business closures and prohibiting dine-in service as bars and restaurants throughout the state. Prohibitions on large gatherings like festivals and sporting events have also been tossed. Brown is expected to appeal the matter to the state’s Supreme Court in the coming days.
At issue is the matter in which Brown invoked a state of emergency to respond to the coronavirus pandemic. Under state law, there are multiple pathways for doing so.
When she declared an emergency on March 8, Brown opted to use a provision in the statute that grants her broad authority in emergencies and does not expire until the governor or legislative assembly declares the emergency has passed.
But Shirtcliff found that aspects of Brown’s emergency orders more closely resembled the provisions of another section of state law governing public health emergencies — a section that Brown has referenced in her orders.
Those provisions grant the governor more specific powers to prevent citizens from moving around the state or gathering. But they also come with strict time limitations: They expire after 14 days unless the governor extends them by another two weeks. In no case can the public health provisions under this area of the law extend beyond 28 days, Shirtcliff ruled.
Brown also could have declared an emergency via a section of the state constitution that would have expired after 30 days, unless extended by a vote of the Legislature. She did not invoke that section.
The governor’s initial emergency declaration lasted for 60 days. She extended it for an additional 60 days earlier this month. That was illegal, Shirtcliff found.
“Because the Governor implemented statutory provisions, she is bound by them,” Shirtcliff wrote. “Thus, once the maximum 28-day time provisions… expired, the Governor’s Executive Order and all other orders were rendered null and void.”
In a statement Monday, Attorney General Ellen Rosenblum challenged the judge’s reasoning.
“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,” Rosenblum said. “We will also be asking for an immediate stay of his order. I urge Oregonians to continue to comply with the measures in place.”
Oregon is far from the only state where governors’ executive authority has been challenged in the pandemic. In Wisconsin, the state supreme court recently invalidated Gov. Tony Evers’ stay-home order, creating confusion.
Oregon Solicitor General Benjamin Gutman highlighted reports of reckless activity in Wisconsin on Monday, while making the case that the Supreme Court should act.
“This court should immediately stay the preliminary injunction to prevent the same chaos from being unleashed here tonight,” he wrote.