The Oregon Supreme Court on Friday ordered a Baker County judge to throw out a preliminary injunction that found Gov. Kate Brown’s executive "Stay Home Save Lives'' orders invalid.
The state’s highest court found that Circuit Judge Matthew B. Shirtcliff relied on the wrong state law in issuing the injunction.
Shirtcliff ruled on May 18 that the governor’s executive orders in response to the pandemic exceeded a 28-day limit adopted by state lawmakers and were no longer valid. His decision came in response to a suit filed by 10 churches, the Pacific Justice Institute and 21 others against the governor.
Within hours of Shirtcliff’s ruling, the governor’s office appealed to the Oregon Supreme Court to keep Brown’s emergency orders in place, arguing that Shirtcliff overstepped his authority and his legal reasoning was flawed. That night, the court put a hold on the injunction.
Document: Oregon Supreme Court opinion
On Friday, the court issued what’s called a peremptory writ of mandamus vacating Shirtcliff’s injunction.
Shirtcliff had pointed to the public health emergency statute ORS 433.441 in finding that the governor’s executive orders violated the 28-day statutory limit.
As the state had argued, Brown relied on a different statute, ORS 401.165, allowing her to declare a state of emergency -- for reasons including public health crises -- without any time limit, the Supreme Court found.
The Legislature has expressly provided that “the powers granted to the Governor by ORS 401.165 shall continue until termination of the state of emergency,'' the court noted. Either the governor or the Legislature may halt the state of emergency, according to state law.
"There have been and will continue to be debates about how best to respond to the threat posed by the coronavirus,'' the opinion said. "Those debates include debates about what balance the government should strike between protecting lives and protecting liberties. To the extent that those debates concern policy choices, they are properly for policymakers.''
The court didn’t review the churches’ allegations that the governor’s orders infringed on their religious freedoms.
The ruling was issued in a per curiam opinion, meaning it was issued as the court, not signed by one judge. That’s fairly unusual but may indicate a united front, according to Steve Kanter, a retired law professor and dean emeritus at Lewis & Clark Law School.
Justice Christopher L. Garrett filed an opinion concurring in the judgment and Justice Thomas A. Balmer joined Garrett’s opinion.
Garrett wrote that he agreed with the court’s conclusion but he would have reached that result a different way, by holding that the Circuit Court judge exceeded his discretion by failing to recognize the governor’s role in emergency situations in determining what’s in the public interest.
"In cases involving competing private interests, consideration of the ‘public interest’ factor may play little or no role,'' Garrett wrote. "In this case, it predominates.''
"The Governor is defending not her personal interests, but her considered understanding of the public interest. Her executive orders, as plaintiffs acknowledge, are directed at protecting the public. As the Governor of Oregon, she is uniquely situated, and duty-bound, to protect the public in emergency situations and to determine, in such emergencies, where the public interest lies.''
In this case, Brown’s orders were issued based on "the range of dangers that different Oregonians may face from COVID-19, the scientific evidence that is available to her regarding how best to contain the disease, and the strong interests of Oregonians in maintaining their religious practices and businesses but also in protecting themselves and their loved ones,'' Garrett’s concurring opinion said.
The governor applauded the ruling.
The Supreme Court’s decision " affirms the Governor’s ability to act to protect the health and safety of all Oregonians during this crisis, and to continue to help prevent and control the spread of COVID-19 in Oregon,'' Brown’s spokeswoman Liz Merah said.
Salem-based attorney Ray D. Hacke, who is affiliated with the nonprofit Pacific Justice Institute and represented the churches and people who filed the suit, called the Supreme Court’s decision "highly disappointing.'' The lead plaintiff was the Elkhorn Baptist Church in Baker City and the other churches were in Bend, Camas Valley, Klamath Falls, Lincoln City, Newberg, Portland, Roseburg and Salem.
Dealing with a state emergency, Hacke said, "cannot be an excuse to infringe on religious liberty.''
Conservative activist and attorney Kevin Mannix, who represented 11 intervenors in the case and the group Common Sense for Oregon Foundation in support of the plaintiffs, said he disagreed with the Supreme Court’s interpretation.
He contends that Oregon’s state of emergency law wasn’t designed for epidemics such as the coronavirus, but addresses outbreaks of disease following a disaster.
"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,'' Mannix said.
Mannix said the governor shouldn’t have "uncontrolled power'' to shut down "the businesses and churches in this state.''
-- Maxine Bernstein
Email at mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
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