Judge declares Oregon Gov. Brown's coronavirus restrictions 'null and void'
SALEM, OR - MAY 02: A woman holds a sign saying Open Oregon on the steps of the state capitol at the ReOpen Oregon Rally on May 2, 2020 in Salem, Oregon. Demonstrators gathered at the state capitol to demand a reopening of the state and to protest Gov. Kate Brown's stay-at-home order which was put in place to slow the spread of the coronavirus (COVID-19). (Photo by Terray Sylvester/Getty Images)

UPDATE: Oregon Supreme Court temporarily reinstates Brown's coronarvirus restrictions in Monday night ruling.

Original story:

SALEM, Ore. -- A judge in rural Oregon on Monday tossed out statewide coronavirus restrictions imposed by Democratic Gov. Kate Brown, saying she didn’t seek the Legislature's approval to extend the stay-at-home orders beyond a 28-day limit.

Baker County Circuit Judge Matthew Shirtcliff issued his opinion in response to a lawsuit filed earlier this month by 10 churches around Oregon that argued the state's social-distancing directives were unconstitutional.

Brown filed paperwork within hours seeking an emergency review by the Oregon Supreme Court and a hold on the ruling until the high court could take it up. Her attorneys had asked the judge to stay his ruling until that time, but he declined.

In a statement, Brown said: “The science behind these executive orders hasn’t changed one bit. Ongoing physical distancing, staying home as much as possible, and wearing face coverings will save lives across Oregon."

In a seven-page opinion, Shirtcliff wrote that the damage to Oregonians and their livelihood was greater than the dangers presented by the coronavirus. He also noted that other businesses deemed essential, such as grocery stores, had been allowed to remain open even with large numbers of people present and have relied on masks, social distancing and other measures to protect the public.

“The governor’s orders are not required for public safety when plaintiffs can continue to utilize social distancing and safety protocols at larger gatherings involving spiritual worship,” he wrote.

Courts in other states have ruled against similar orders. The Wisconsin Supreme Court struck down Gov. Tony Evers’ stay-at-home order last week, ruling that his administration overstepped its authority when it extended the order for another month without consulting legislators.

A federal judge in North Carolina on Saturday sided with conservative Christian leaders and blocked the enforcement of restrictions that Gov. Roy Cooper ordered affecting indoor religious services during the pandemic.

The order from Judge James C. Dever III came days after two churches, a minister and a Christian revival group filed a federal lawsuit seeking to immediately block enforcement of rules covering religious services within the Democratic governor’s executive orders.

In Louisiana, however, a federal judge refused a minister’s request to temporarily halt Gov. John Bel Edwards’ stay-at-home order, which expired that same day.

The ruling in Oregon turns on the legal mechanism Brown used to issue her orders. The plaintiffs allege — and the judge agreed — that they were issued under a statute pertaining to public health emergencies, not an older provision that addresses natural disasters such as storms, earthquakes or floods.

The public health statute contains the 28-day time limit, while the other would give Brown broader powers but is not relevant in the current situation, said Kevin Mannix, who is representing business owners in the case.

California, Washington state and New York — other states where governors have repeatedly extended coronavirus restrictions — give their governors more power in public health emergencies, but Oregon law puts a specific clock on those “extraordinary powers,” he said.

“Maybe other states will take a lesson from us in the future about what to do about public health emergencies,” Mannix said. “We've thought about it, we've balanced the powers of the governor with the powers of the people and their representatives.”

Brown declared a statewide state of emergency due to the virus on March 8 and has issued multiple executive orders since then, including the closure of all schools, non-essential businesses and a ban on dine-in service at restaurants and bars.

Earlier this month, Brown extended the order another 60 days until July 6. All but a handful of Oregon counties, however, got the state's approval to begin loosening those restrictions last Friday.

Oregon Attorney General Ellen Rosenblum urged residents to abide by the stay-at-home orders while the ruling is appealed.

“We will argue that the judge erred in his construction of the relevant statutes and that he abused his discretion in issuing the preliminary injunction,” she said in a statement. “We will also be asking for an immediate stay of his order.”

The top Republican in the Oregon House applauded the judge’s ruling but cautioned people to continue to follow federal guidelines so as not to undo the progress the state has made against the virus.

“This ruling will be appealed but the need for the governor to create the least possible harm in the exercise of extraordinary power remains," Christine Drazan, R-Canby, said. “There has been no accountability throughout this emergency declaration, until now.”

Attorney Ray Hacke, who represented the plaintiffs in the case, said the ruling was a vindication not just for freedom of religion, but for all freedoms of people in the state.

“Praise God. I’m excited, and I’m glad that the judge saw that there are limitations on the governor’s power, even in the midst of emergencies,” he said. “If people want to get their haircut, they can. They can leave their home for any reason whether it’s deemed essential in the eye of the state or not.”


Flaccus reported from Portland, Oregon.

Full Statements:

House Republican Leader Christine Drazan, R-Canby:

Today’s ruling does not negate the need for Oregonians to live with consideration and care for the health of themselves and others. Oregonians have flattened the curve, they have slowed the spread and they have made real sacrifices. We must continue to follow CDC recommended guidelines, but this ruling affirms that checks and balances exist, and the governor must follow the law.
Oregonians have been calling for accountability, and today a Baker County Circuit Court judge provided it. The standard for his injunction was that the plaintiffs are likely to suffer irreparable harm, that the balance of equities tip in the plaintiff’s favor, that an injunction is in the public interest and that the plaintiffs are likely to succeed, based on the merits of their claim.
This ruling will be appealed but the need for the governor to create the least possible harm in the exercise of extraordinary power remains. There has been no accountability throughout this emergency declaration, until now.

Oregon Gov. Kate Brown:

From the beginning of this pandemic, I have taken action to protect the health and safety of all Oregonians. We acted quickly and decisively at the beginning of the outbreak, using the best science and data available, to protect Oregon from COVID-19.
Today’s ruling from the Baker County Circuit Court will be appealed to the Oregon Supreme Court within hours to keep my emergency orders in effect. This will ensure we can continue to safeguard the health of all Oregonians — including frontline health care workers, those living in nursing homes, workers in agriculture and food processing plants, and Oregonians with underlying health conditions –– while the legal process moves forward.
The science behind these executive orders hasn’t changed one bit. Ongoing physical distancing, staying home as much as possible, and wearing face coverings will save lives across Oregon.
Together Oregonians have turned the tide on the spread of COVID-19, allowing us to only now begin the process of gradually and safely reopening parts of our communities and our economies. Reopening the state too quickly, and without ongoing physical distancing, will jeopardize public health and cost lives.
It is irresponsible to dismiss the health risks and science behind our measures to stop COVID-19. We would be faced with the prospect of another mass outbreak without the tools that have proven to be effective in protecting our friends, families, neighbors, and loved ones from this disease.

Oregon Republican Party Chair Bill Currier:

We welcome the decision by the Baker County Circuit Court to respect the fundamental rights of the people of Oregon and to restore the rule of law. It serves as a powerful reminder that Governor Brown, whatever her intentions, is not a ruler who can ignore Oregon’s Constitution and laws.
Today, in a case heard before Baker County Circuit Court, Judge Matthew B. Shirtcliff declared all executive orders that Oregon Governor Kate Brown has issued related to the coronavirus pandemic as “null and void” for having exceeded the 28 days limit on her executive authority permitted under Oregon Revised Statute (ORS) 433.441 related to public health emergencies. The law requires the Governor to convene the legislature within 30 days to obtain an extension of this authority beyond the statutory limit. Lawyers representing the Governor failed to receive a requested stay of the Judge’s order and have said they will seek an immediate review of the decision by the Oregon Supreme Court.
We know that today’s ruling is just the first step in the process of citizens taking back their state from the dictates of a Governor who has put herself above the law, but it’s a major first step. This isn’t a partisan victory, but a victory for all Oregonians who believe that their elected officials must follow the law, respect their rights, and prioritize the lives and livelihoods of all our state’s citizens, even during, and perhaps especially during, a temporary health emergency.”
We now expect the state’s elected legislative representatives to begin to resume their role of responding to the needs and concerns of the people as a co-equal branch of our state government. If the curve has been flattened, then we need to move much more expeditiously to find ways to reopen Oregon’s economy safely, reasonably, and flexibly, particularly for areas of the state with very few cases and almost no fatalities.”
We continue to emphasize that it is entirely possible to protect public health, especially for those at highest risk, while beginning to repair the lockdown’s economic damage and restore the jobs and livelihoods of Oregonians.

Oregon Attorney General Ellen Rosenblum:

Today, Baker City Circuit Court Judge Matthew Shirtcliff issued a ruling in the Elkhorn Baptist Church et al v Katherine Brown case stating that Governor Brown’s emergency ‘Stay at Home, Save Lives’ executive order cannot extend past 28 days. The case was argued by Oregon DOJ attorneys on Thursday, May 14, 2020. My office will immediately appeal (a writ of mandamus) the decision to the Oregon Supreme Court. When the legislature adopted public health emergency statutes, it specifically said that it was not limiting the governor’s authority to deal with large-scale emergencies.
With all respect, I believe the trial court’s grant of a preliminary injunction is legally incorrect. We will argue that the judge erred in his construction of the relevant statutes and that he abused his discretion in issuing the preliminary injunction. We will also be asking for an immediate stay of his order.
I urge Oregonians to continue to comply with the measures in place. They are there to protect all of us, and they are working. We are in close contact with the Governor and intend to support, as allowed by law, the critical work she has done, guided by public health experts, to ensure the safety and health of all Oregonians.
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