Supreme Court Tosses Baker County Decision Invalidating Gov’s Coronavirus Orders

The Oregon Supreme Court has tossed out a Baker County Circuit Court decision that would have invalidated all of the governor’s coronavirus executive orders on legal grounds. The June 12 decision by the state’s highest court means the governor’s orders will remain in place until she or the Oregon Legislature ends them.

Click to access ORSUPCOURTELKHORNRULINGjune122020.pdf

Baker County Circuit Judge Matt Shirtcliff made headlines across the state last month when he ruled that Governor Kate Brown had erred legally and declared all of her orders immediately “null and void,” but an emergency injunction by the Supreme Court later that day put his ruling on hold.

The Baker County judge argued the governor should have followed the 28-day time limit contained in Oregon Revised Statutes 433, which give her the authority to declare a state of emergency for public health situations.

Governor Brown invoked a different statute when she declared a statewide disaster, ORS 401, which has no time limit for emergency declarations, but she did use provisions of ORS 433 in some of her executive orders. Judge Shirtcliff argued that when she used these provisions, it effectively triggered the entire statute, including the time limitation.

The Supreme Court disagreed, saying that the statutes outline the exact process used by the governor, whereby she may activate certain provisions of ORS 433 without the time limit kicking in.

“The powers granted by ORS 433.441 to 433.452 are not powers that may be used only during a public health emergency declared under ORS 433.441(1),” the court opined. “ORS 433.441(4) expressly provides that the same powers may be used during a state of emergency declared under ORS 401.165: ‘If a state of emergency is declared as authorized under ORS 401.165, the Governor may implement any action authorized by ORS 433.441 to 433.452.'”

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ORS 401 has no time limit, but does require the governor to terminate the state of emergency when the emergency no longer exists or when the threat of emergency is passed. The Legislature may also end the state of emergency at any time by joint resolution.

The court’s decision was not well-received by the increasingly vocal opponents of the governor’s strict Covid-19 lock-down policies, who decry the impact they have had on the state’s economy, workers and small business, and believe they are being applied too broadly and inconsistently.

Canby Mayor Brian Hodson expressed frustration on his political Facebook page Friday about both Clackamas County’s decision to punt on phase 2 reopening due to a sharp spike in new coronavirus cases and the high court’s ruling — which he called “another body blow today for normalcy.”

“It’s been beyond frustrating,” Mayor Hodson said in response to a resident’s comment. “I can go demonstrate and march, even riot without any charges being brought against me or my city. But encourage our businesses to open more or host our Independence Day Celebration and I/the city will be held accountable and punished. This is wrong!”

The original lawsuit in Baker County was on behalf of a group of Oregon churches, pastors and other faith leaders, alleging that the governor’s orders infringe on their constitutional rights to worship freely.

A Canby law firm filed a similar lawsuit against the governor in federal district court, on behalf of business owners claiming the governor’s orders violated their rights and have done “extraordinary harm” to their businesses, but it was rejected.

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