Oregon Supreme Court Weighs Extent Of Governor's Authority Amid Pandemic

By Conrad Wilson (OPB)
Portland, Ore. May 19, 2020 11:05 p.m.

The fight over how quickly Oregon will reopen amid the coronavirus pandemic — and whether the governor can control that process — is now in the hands of the state’s Supreme Court.

On Monday, a Baker County Circuit Court judge issued an order that invalidated more than 20 of Gov. Kate Brown's executives orders related to the coronavirus, restricting everything from the size of social gatherings to business activities.


Those orders have helped flatten the curve and prevented hospitals from becoming overrun with cases of COVID-19, public health officials say. But they've also dealt a historic blow to Oregon's economy. On Tuesday, the Employment Department announced 266,000 jobs were lost in March and April with an unemployment rate at stunning 14.2%.

Related: Oregon Emergency Orders Remain Valid For Now, State Supreme Court Rules

Oregon's Supreme Court ultimately decided to hit the brakes on fully reopening the economy, issuing a temporary stay late Monday evening on the Baker County ruling.

“We could’ve had a real mess yesterday,” said Oregon Attorney General Ellen Rosenblum, whose office is representing the governor in the case. “I think there might actually have been some confusion about the significance of the court’s ruling in the morning, which kind of helped in the sense that we didn’t see sudden openings and ignoring of the executive orders.”

On May 6, a group of churches filed a lawsuit challenging Brown’s orders. They argued the governor exceeded her authority under state law. Though Baker County Circuit Judge Matthew Shirtcliff agreed, his ruling will remain on hold for the foreseeable future.

In a separate lawsuit filed May 12, Open Our Oregon — a nonprofit that represents a group of businesses from around the state — asked a federal judge to issue a temporary restraining order declaring Brown’s executive orders “null and void” under both state and federal law.

On Tuesday, U.S. District Court Judge Michael McShane denied the order under federal law, noting the groups were unlikely to succeed. McShane said the matter would be decided in the Supreme Court case.

“Given that the Oregon Supreme Court will soon rule on the novel issue of state law, this Court declines to exercise jurisdiction over the state law claims,” McShane wrote in his opinion.

Much of Oregon has already begun a phased reopening, easing some of Brown’s orders. Rosenblum said that process should be allowed to continue.

“Really, this case is about the governor’s power to manage this crisis, which is important to preserve, especially at this juncture because things seem to be going well,” Rosenblum said.


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As of Tuesday, Oregon had more than 3,700 cases of COVID-19 and 140 deaths, according to the Oregon Health Authority. By comparison, Washington state has more than 18,000 cases and 1000 deaths, while Idaho has more than 2,400 cases and 70 deaths, according to the Centers for Disease Control and Prevention.

Ray Hacke, an attorney representing the churches that are fighting Brown’s orders, criticized the Supreme Court’s stay Monday.

“For a few hours,” he told OPB, “Oregonians were free. Then the Supreme Court said, ‘Nope, we’re going to take those freedoms, we’re going to snatch those freedoms away again, at least for now.’”

Hacke argues state law requires Brown to seek approval of the Oregon legislature if she wants to extend her original executive orders beyond 28 days from when they were issued in March. He acknowledged that some infringements on personal liberties may be necessary to protect society.

“But she has gone way past that,” Hacke said. “Her infringement has been my no means minimal, and there’s no end to it in sight.”

Hacke acknowledged that the executive orders saved lives and slowed the spread of the virus.

“I don’t necessarily fault Kate for exercising broad powers at the outset to make sure that the numbers don’t get up there,” he said. “At the same time, to put law abiding Oregonians on what effectively is house arrest, to basically tell them they can’t leave for any reason that’s not essential, is extreme.”

Rosenblum said many of the executive orders have already been modified as most of the state’s counties are in the first phases of reopening.

“Completely undoing the measures she’s put into place could undermine what we’ve done so far and undermine sacrifices, everywhere, all Oregonians have made in order to get there,” the attorney general said.

Hacke said the Supreme Court’s stay showed the justices were already “leaning Gov. Brown’s way.”

With the stay in place, the legal arguments turn toward a mandamus petition filed by the Oregon Department of Justice. That petition asks the Supreme Court to require Shirtcliff, the judge in Baker County, to vacate his preliminary injunction.

Hacke and the churches he represents have until Friday to file a brief with the Supreme Court arguing why Shirtcliff’s injunction should stay in place.

After, the Supreme Court has wide discretion to issue a writ, ask the Shirtcliff for more details about his injunction or hold a hearing.