Supreme Court upholds Oregon Gov. Brown's stay-at-home orders during pandemic

PMG FILE PHOTO - The Oregon Supreme Court has backed Gov. Kate Brown's power to act during a pandemic.

Gov. Kate Brown's stay-at-home orders during the coronavirus pandemic will stay in place until either she or the Oregon Legislature ends the state of emergency she invoked.

The Oregon Supreme Court upheld the governor's orders, the first dating back to March 7, in an unsigned opinion released Friday, June 12. The high court reversed a May 18 decision by a Baker County judge, who tossed out the orders because they exceeded a 28-day limit. The court told Judge Matthew Shirtcliff to remove his injunction against the state.

Though a 2003 law does set that limit when the governor proclaims a "public health emergency," the court cited legislative testimony by Dr. Grant Higginson, then the state health officer, when it was being considered. He said the proposed law "in no way affects the governor's ability to declare a state of emergency and that, in the case of a state of emergency, the governor could do anything that's in this bill."

The state-of-emergency law that Brown invoked dates back to 1949. The original 2003 law called it an "impending public health crisis," and it came about after the anthrax scares following the 2001 terrorist attacks on the East Coast. A 2007 law changed it to "public health emergency."

"Thus, the … emergency provisions do not conflict. Instead, they are compatible," the court said. "They were intended to work, and do work, together."

The court also said that a 2012 constitutional change does allow the governor to invoke "a catastrophic disaster," intended for such events as a severe earthquake, floods or other natural disasters — but Brown did not choose to do so. That provision does limit the duration of the "disaster" to 28 days, unless the Legislature renews it.

The decision did not come as a surprise to Kevin Mannix, a Salem lawyer and former legislator who represented one church and 11 individuals who joined on the side of the 10 other churches and 21 individuals who filed the original challenge in Baker County. The latter group was represented by the Pacific Justice Institute.

"We realized this case would be affected by the surrounding environment concerning the coronavirus pandemic," Mannix said in a statement.

But Mannix, who represented Common Sense for Oregon, also said he disagreed with how the high court interpreted the two laws in question.

"With this ruling in hand, we will ask the Legislature to amend the law to make it clear that the governor's lockdown powers truly do have a 28-day time limit, even when the governor declares a general emergency," he said.

The court, however, concluded that Shirtcliff erred when he applied the 28-day limit for a "public health emergency" to the governor's authority to declare a state of emergency.

"Thus, the circuit court's issuance of the preliminary injunction was based on a fundamental legal error," the court said.

Six justices participated in the decision. Chief Justice Martha Walters did not.

Justice Chris Garrett, joined by Justice Thomas Balmer, wrote a separate opinion concurring in the result. But Garrett said Judge Shirtcliff failed to give serious consideration to the governor's determination of the public interest.

"It did not give the necessary weight to the harm to that public interest, as delineated by the state's elected executive, that would result if her orders were enjoined," Garrett wrote.

Though the challengers to Brown's executive orders mentioned in their written arguments that some of the orders infringed on Oregon's guarantees of free expression and the right to worship, they relied primarily on the time limits.

Two churches in Grants Pass and Roseburg did raise the freedom-of-religion argument in a suit against Brown filed in federal court. But the U.S. Supreme Court, on a 5-4 vote May 29, denied a similar request that some California churches sought against restrictions by Gov. Gavin Newsom on the size of public gatherings.

Both the unsigned Oregon Supreme Court opinion and Garrett's separate opinion quoted Chief Justice John Roberts, who said the public health and safety is entrusted to political leaders.

"Those debates include debates about what balance the government should strike between protecting lives and protecting liberties," the Oregon court said. "To the extent that those debates concern policy choices, they are properly for policymakers. That is, those difficult choices must be made by the people's representatives in the legislative and executive branches of the government."

pwong@pamplinmedia.com

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