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Oregon Supreme Court rules against Baker County judge, upholds governorís orders
ktvz.com, Channel News 21 ^ | June 12, 2020 | By KTVZ news sources

Posted on 06/12/2020 1:49:47 PM PDT by An Appeal to Heaven

(Update: Adding Kevin Mannix comment)

High court rules against churches challenging COVID-19 restrictions, says executive orders did not violate 28-day time limit

SALEM, Ore. (KTVZ) -- The Oregon Supreme Court ruled Friday that a Baker County judge erred in ruling that Gov. Kate Brown’s executive orders relating to the coronavirus pandemic violated a 28-day statutory time limit and had therefore expired.

Friday's decision directs Circuit Judge Matthew Shirtcliff to vacate the preliminary injunction he'd issued while the Baker County case – seeking a declaratory judgment and permanent injunction – was pending (which the Supreme Court had previously stayed). The governor’s orders, therefore, remain in effect.

Shirtcliff's May 18 ruling came in regards to a lawsuit filed by 10 churches, including two in Bend, the nonprofit Pacific Justice Institute and 21 others against the governor. The governor's office quickly appealed to the state Supreme Court, which put a hold on the Baker County judge's permanent injunction, pending further arguments.

The Baker County case remains pending. The next step is for the circuit court and the parties to evaluate the Supreme Court’s ruling and determine how they think the case should proceed.

Kevin Mannix, president of Common Sense for Oregon, said the group disagrees with the high court's interpretation that the time limits of the public health emergency law don't limit the length of time the governor can issue lockdown orders when declaring a general emergency.

"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 wrote.

Here's a news release from the Oregon Supreme Court regarding the ruling:

Elkhorn Baptist Church et al. v. Katherine Brown, Governor of the State of Oregon et al., (CC 20CV17482) (SC S067736)

On petition for peremptory writ of mandamus from an order of the Baker County Circuit Court, Matthew B. Shirtcliff, Judge. Peremptory writ of mandamus to issue immediately, in terms consistent with the opinion. Opinion of the Court Per Curiam. Justice Christopher L. Garrett filed an opinion concurring in the judgment, in which Justice Thomas A. Balmer joined. Chief Justice Martha L. Walters did not participate in the consideration or decision of the case.

Today, the Oregon Supreme Court issued a peremptory writ of mandamus directing the Baker County Circuit Court to vacate a preliminary injunction that it had granted enjoining enforcement of executive orders issued by Governor Brown in response to the coronavirus pandemic.

The issue arose in an action for declaratory and injunctive relief filed in Baker County Circuit Court against the Governor. Plaintiffs are churches and individual churchgoers. In their complaint, plaintiffs sought judicial declarations that Governor Brown's May 8, 2020, executive order declaring a 60-day state of emergency based on the coronavirus pandemic, and other subsequent orders issued pursuant to that declaration, had expired. They also sought an injunction enjoining enforcement of the orders.

After filing their complaint, plaintiffs moved for a preliminary injunction to enjoin enforcement of the Governor's executive orders while the merits of the claims were being decided in the circuit court. The circuit court granted that motion on May 18, 2020, accepting plaintiffs' argument that the orders violated a 28-day statutory time limit established by ORS 433.441(5).

On the same day that the preliminary injunction issued, the governor petitioned the Oregon Supreme Court for either a peremptory writ of mandamus directing the circuit court to vacate the preliminary injunction or an alternative writ that would allow the circuit court (through plaintiffs) an opportunity "show cause" why the order should not be vacated. The Governor also moved to stay the preliminary injunction, pending resolution of her mandamus petition, which the Court granted.

On May 23, 2020, the Court issued an alternative writ of mandamus. Once the circuit court indicated that it would not comply with the alternative writ, the parties -- which at that point included additional local government officials, business owners, and others who had been permitted to intervene in plaintiffs' declaratory and injunctive relief action and several amici curiae -- filed briefs in support of or in opposition to vacation of the preliminary injunction.

In a per curiam opinion, the Court concluded that the circuit court had erred when it determined that the Governor's executive orders had violated the 28-day statutory time limit in ORS 433.441(5).

At the outset, the Court explained that, in responding to the threat posed by the coronavirus, each of the three branches of Oregon's state government have different roles to play. For example, to the extent that debates about how best to respond to that threat concern policy choices, they are properly for policy makers -- that is, the people's representatives in the legislative and executive branches of government. The role of the judicial branch, by contrast, is to determine whether the other branches have exceeded the legal limits on their authority.

As mentioned, the circuit court granted the preliminary injunction based on its conclusion that the Governor's executive orders violated a statutory time limit. In the ensuing mandamus proceeding, the question before the Court was whether the preliminary injunction had been based on a fundamental legal error or whether the circuit court had acted outside the permissible range of discretion in granting it.

The Court held that the circuit court's preliminary injunction was based on a fundamental error because the circuit court's conclusion about the statutory time limit was incorrect.

The Court explained that the Governor had issued the executive orders pursuant to ORS 401.165, which authorizes the Governor to declare a state of emergency. That statute is one of a series of statutes in ORS chapter 401, which concern states of emergency, ORS 401.165 to 401.236. The declaration of a state of emergency pursuant to ORS 401.165 gives rise to certain emergency powers.

Those powers, which the legislature has granted to the Governor through statutes, include, but are not limited to, "all police powers vested in the state by the Oregon Constitution in order to effectuate the purposes of [chapter 401]." ORS 401.168(1). The term "police power" refers to "the whole sum of inherent sovereign power which the state possesses, and, within constitutional limitations, may exercise for the promotion of the order, safety, health, morals, and general welfare of the public."

As the United States Supreme Court has held, through the police power, a community can "protect itself against an epidemic of disease which threatens the safety of its members." In addition, the legislature has expressly provided in ORS 433.441(4) that, "[i]f 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," which include actions relating to public health emergencies.

Although there are many statutory and constitutional limits on the Governor's emergency powers during a state of emergency declared pursuant to ORS 401.165, a declared state of emergency is not subject to a time limit of certain number of days.

Instead, the legislature has expressly provided, "The powers granted to the Governor by ORS 401.165 shall continue until termination of the state of emergency." ORS 401.192. It has also provided that either the Governor or the Legislative Assembly may terminate the state of emergency. ORS 401.204 states, "(1) The Governor shall terminate the state of emergency by proclamation when the emergency no longer exists, or when the threat of an emergency has passed. (2) The state of emergency proclaimed by the Governor may be terminated at any time by joint resolution of the Legislative Assembly."

A statute in a different chapter, ORS chapter 433, provides that a different type of emergency proclamation, one for a "public health emergency" under that same chapter, expires no later than 28 days from the day it is proclaimed. ORS 433.441(5).

The circuit court had relied on that statute in determining that the Governor's executive orders had expired, but the Court explained that, contrary to that conclusion, the challenged orders were not subject to that time limit.

ORS chapter 433 contains a series of statutes that concern public health emergencies, ORS 433.441 to 433.452. The legislature has specifically provided that "[n]othing in ORS 433.441 to 433.452 limits the authority of the Governor to declare a state of emergency 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." ORS 433.441(4).

The Court explained that the legislature enacted ORS 433.441 to 433.452 to give the Governor the option of declaring a public health emergency as an alternative to declaring a state of emergency under ORS chapter 401. ORS 433.441(1) authorizes the Governor to proclaim a state of public health emergency. Such a proclamation gives rise to lesser emergency powers than a declaration of a state of emergency pursuant to ORS

401.165 and is subject to the 28-day time limit under ORS 433.441(5). But, by its terms, that time limit applies only to "[a] proclamation of a state of public health emergency." Moreover, the Court explained, related statutes and the legislative history of the time limit show that the legislature did not intend the time limit to affect the duration of, or the Governor's powers during, a state of emergency declared pursuant to ORS 401.165. Therefore, the Court held, the circuit court had erred in concluding that the Governor's executive orders were subject to the time limit under ORS 433.441(5).

In addition, the Court confirmed that the circuit court had correctly rejected plaintiffs' alternative theory for invalidating the Governor's executive orders -- that the state of emergency that had been declared necessarily was subject to the time limit on a "catastrophic disaster" declared under Article X-A of the Oregon Constitution. Finally, the Court noted that it would not address issues pertaining to plaintiffs' constitutionally protected religious freedoms. It explained that plaintiffs had requested the preliminary injunction based on their claim that the Governor's orders had expired -- as evidenced by the fact that they sought to enjoin all of the orders, not just those that they identified as affecting their religious liberties -- and that was the claim on which the circuit court granted the preliminary injunction.

Accordingly, the Court determined that the circuit court had erred when it granted the requested preliminary injunction on the theory that the Governor's executive orders were subject to the statutory time limit set out in ORS 433.411(5). In light of that error, the Court concluded that the preliminary injunction must be vacated, and it ordered the immediate issuance of a peremptory writ of mandamus to that effect.

Justice Christopher L. Garrett filed an opinion concurring in the judgment, in which Justice Thomas A. Balmer joined. He explained that he agreed with the Court's conclusion that the circuit court's preliminary injunction must be vacated, but he would have reached that result by holding that the circuit court's order exceeded its permissible range of discretion under the traditional equitable factors applicable to a request for preliminary injunctive relief. Justice Garrett emphasized that the circuit court erred in failing to give sufficient attention to the Governor's role, in emergency situations, in determining what is in the public interest.


TOPICS: Constitution/Conservatism; Government; US: Oregon
KEYWORDS: coronavirus; oregon; shutdown; tyranny
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1 posted on 06/12/2020 1:49:47 PM PDT by An Appeal to Heaven
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To: An Appeal to Heaven

Queen Kate maintains control.


2 posted on 06/12/2020 1:50:32 PM PDT by An Appeal to Heaven
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To: An Appeal to Heaven

We are coming to the day of screw all of this and just start voting with the ammunition box.


3 posted on 06/12/2020 1:52:36 PM PDT by Truth29
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To: Truth29
We are coming to the day of screw all of this and just start voting with the ammunition box.

No, we aren't. Give it up. That pipe dream of a last resort fell by the wayside decades ago. Conservative fun owners talk a good game, and I expect responses to that effect, but it's all BS.

4 posted on 06/12/2020 1:54:39 PM PDT by CatOwner
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To: CatOwner

*gun owners


5 posted on 06/12/2020 1:54:57 PM PDT by CatOwner
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To: Truth29

I don’t know how we avoid it.


6 posted on 06/12/2020 1:55:28 PM PDT by Phillyred (Kieran Hussie)
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To: An Appeal to Heaven

Queeen Kate also put a pause on reopening further since we had an increase in cases. I really don’t know how businesses are expected to survive this. How can restaurants continue to operate at these minimum levels?


7 posted on 06/12/2020 1:57:38 PM PDT by An Appeal to Heaven
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To: An Appeal to Heaven

Cutting off their nose to spite their face...let them choke on it.


8 posted on 06/12/2020 2:00:23 PM PDT by EagleUSA
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To: An Appeal to Heaven

You pack the courts with your cronies, you get the judgements you want.


9 posted on 06/12/2020 2:00:25 PM PDT by llevrok (Honor George Forman)
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To: An Appeal to Heaven

Kate “lockdown” Brown doesn’t give a shit about Oregon businesses. Her base is the public sector, not the private sector.

She’s a lowlife.


10 posted on 06/12/2020 2:05:07 PM PDT by unclebankster (globalism is the last refuge of a scoundrel)
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To: An Appeal to Heaven

Elections have consequences.


11 posted on 06/12/2020 2:06:23 PM PDT by Spktyr (Overwhelmingly superior firepower and the willingness to use it is the only proven peace solution.)
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To: Spktyr

Exactly. Organize. Recall and campaign and get better people in there.

And yes have the legislature clarify the 28 day thing.

And yes take it as far as you can in the Courts.

Fight.


12 posted on 06/12/2020 2:12:37 PM PDT by Persevero (I am afraid propriety has been set at naught. - Jane Austen)
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To: CatOwner

Everyone is entitled to their opinion. Yeah, the same game the gun owning revolutionaries talk about 230 years ago. Many denounced it as a pipe dream. I guess that was all BS as well.


13 posted on 06/12/2020 2:14:19 PM PDT by Bellagio
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To: Persevero

“Exactly. Organize. Recall and campaign and get better people in there.”

It’s the way it should be.


14 posted on 06/12/2020 2:16:00 PM PDT by billyboy15
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To: An Appeal to Heaven

If judge Sullivan can do his own thing in the General Flynn matter, then.....


15 posted on 06/12/2020 2:16:35 PM PDT by Darksheare (Those who support liberal "Republicans" summarily support every action by same.)
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To: An Appeal to Heaven

Again - vote Democrat at your peril.

This should be the messaging until Election Day

Although this sounds like a ruling on actual law and not “coz I said so that’s why”
OTOH where’s the call to humanity and natural rights when it’s something they want? Is it REALLY constitutional for a governor and legislature to just maintain dictatorial control until they decide to return liberty?


16 posted on 06/12/2020 2:20:09 PM PDT by Skywise
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To: Bellagio
All I read is "If they come for me, I'll be ready". Nothing about what they would do if they came for your neighbor or someone one block over. Nowhere do I see calls to organize together to deal with a threat. It is always "Me, me, me".

Protecting one's self and family is all good, but none of that means the right will enter a shooting civilk war.

17 posted on 06/12/2020 2:22:29 PM PDT by CatOwner
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To: An Appeal to Heaven

Oregon is the atheist capital of the world.


18 posted on 06/12/2020 2:29:31 PM PDT by boomop1 (term limits NOW)
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To: Persevero

“Recall and campaign and get better people in there.”


How do you collect signatures for a recall under a lockdown?

I’m sure that and other petition drives are one reason she and other governors are doing this.


19 posted on 06/12/2020 2:30:27 PM PDT by Farcesensitive (K is coming)
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To: Truth29

The Church, the true Church, will now have to go underground. It’s the only way for them to survive now. Religious freedom in this country is lost.


20 posted on 06/12/2020 2:35:16 PM PDT by ducttape45 ("Righteousness exalteth a nation; but sin is a reproach to any people." Proverbs 14:34)
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