Canby Firm Sues Governor on Behalf of Businesses Harmed by Covid Shutdowns

A Canby law firm is one of two that filed suit against the governor of Oregon this week, claiming her Covid-related executive orders have violated business owners’ constitutional rights and done “extraordinary harm” to their businesses.

The suit was filed in federal district court May 12 by attorneys James Buchal, of Murphy & Buchal LLP in Portland, and Tyler Smith, of Tyler Smith & Associates P.C. in Canby. Smith is also a former Canby city councilor and planning commissioner, and former vice chairman of the Oregon Republican Party. Buchal is also chairman of the Multnomah County GOP.

They request a preliminary injunction against Governor Kate Brown to prevent her from enforcing her executive orders until the case has run its course.

“The United States Constitutions do not contain a pandemic or emergency clause, and defendants may not run roughshod over fundamental Constitutional principles of liberty and justice with bare assertion that a health crisis requires such action,” the attorneys write in the 37-page injunction and supporting materials. “In an overreaching response to the COVID-19 pandemic, Defendants have criminalized the operation of so-called ‘non-essential’ businesses across Oregon.”

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Also named as a defendant was Oregon Public Health Director Lillian Shirley. The plaintiffs include a diverse swath of independent businesses and sole proprietors: a Salem furniture store that has had to lay off 11 employees (Kuebler’s), a hairdresser who rented space at a salon in the Pearl District, a tattoo and body piercing studio in Hood River (Under the Skin Tattoo), a 24-hour gym in Beaverton (PDX Muscle), a restaurant in Yoncalla (the Why Not Bar & Grill) and two bars, Quin’s in Ontario and A Street Tavern in Vale.

All of these plaintiffs are on the brink of losing their businesses, the attorneys say. Others include businesses that were indirectly impacted by the governor’s orders: a liquor store with locations in Hood River and The Dalles that lost all of their bar and restaurant accounts, and a lingerie store that had to close because it was located inside a mall.

The final plaintiff is Open Our Oregon, a nonprofit representing “multiple businesses seeking to reopen,” according to the lawsuit. No Canby businesses are listed as plaintiffs.

The attorneys employ colorful language in their efforts to make their constitutional case against the state.

For example: “As formerly-hardworking Oregonians suffer under what amounts to a State-wide house arrest, unable to do little more than emerge from their homes for a stroll, they cry out for an adult authority who will put an end to the notion that Oregonians may be herded like cattle under the delusion that disease can be eliminated from the herd.”

And that was just one of multiple cattle metaphors the attorneys used. They also cite numerous precedents in other cases that they say lay the groundwork for their claim, and even quote from philosophers like Albert Camus, author of The Plague.

They say the governor’s rules for closing some businesses to prevent the spread of Covid-19 and not others are “inherently arbitrary.”

“‘Non-tribal card rooms’ are closed, but tribal card rooms are not, when there is no evidence that Native Americans are immune from the disease,” the claim states. “Hardware stores are exempted; jewelry and furniture stores are not. The list reflects more of the Governor’s political judgments as to the public value of various enterprises than any careful examination of the means by which COVID-19 is transmitted.”

The governor’s order should “shock the conscience,” the attorneys argue.

“The notion that healthy Oregonians, operating businesses with healthy employees, should simply cease operations to limit the transmission of a disease akin to COVID-19 is shocking and unprecedented in American history,” they say.

“The action was taken without regard to local conditions, without regard to protective measures businesses may implement, and without regard to all of the countervailing harms — including public health harms — that arise from destroying the lives of Oregon’s working people.”

The suit does not argue that Covid-19 presents no threat at all, just that it warranted narrower measures aimed at protecting those who are most at risk, including those who are over the age of 60, have underlying health conditions or live in communal settings like long-term care facilities.

“There are obviously important and sensible public health restrictions that can and do protect this vulnerable group, such as the restrictions on visitation in nursing, assisted living, and residential care facilities which plaintiffs do not challenge,” the suit says.

Canby attorney Tyler Smith has successfully stayed Governor Brown’s orders in the past, on the grounds that they harmed small business interests and violated owners’ rights, including as recently as six months ago, when his firm won a permanent stay against the state ban on flavored vaping products.

Correction: An earlier version of this story incorrectly implied that one of the plaintiffs, Teri Schudel, owns the Sola Salon Studios franchise in the Pearl District. A statement from Sola Salon explained, “Ms. Schudel is an independent beauty professional who rents space in the Pearl District location and acted independently in filing the lawsuit against Gov. Brown without our knowledge or the knowledge of the local franchisee.

“Ms. Schudel is not the owner or operator of the Sola Salon Studios Pearl District location. Sola Salon Studios fully intends to keep locations closed until state and local officials allow us to reopen and, even then, local franchisees will only reopen their buildings if the appropriate safety measures are in place. They will also allow independent beauty professionals operating in their locations to return to work when they choose to.”

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