In a 6-0 decision, the Oregon Supreme Court has sided against Elkhorn Baptist Church, et. al. in a case determining the legality of Governor Brown’s original executive order declaring a state of emergency.

On March 8, The Governor issued Executive Order (EO) 20-03, invoking the statute. Her order begins, "ORS 401.165 et seq. empowers the Governor to declare a state of emergency upon determining that an emergency has occurred or is imminent. Pursuant to that authority, I find that the novel infectious coronavirus has created a threat to public health and safety, and constitutes a statewide emergency under ORS 401.025(1).

ORS 401.192(4) states that, “The powers granted to the Governor by ORS 401.165 to 401.236 shall continue until termination of the state of emergency. The powers granted to the Governor by ORS 401.185 may continue beyond the termination of the state of emergency and shall be terminated by proclamation of the Governor or by joint resolution of the Legislative Assembly.”

The decision notes that plaintiffs’ “requests for relief are based on a specific legal theory: that the Governor's executive orders violate time limits.” At issue, seems to be the fact that the Governor issued the proclamation citing ORS 401 and invoking the time limits (ORS 401), yet including the power and authority outlined in ORS 433, which does have a time limit.

ORS 433.441(5) says that, “A proclamation of a state of public health emergency expires when terminated by a declaration of the Governor or no more than 14 days after the date the public health emergency is proclaimed unless the Governor expressly extends the proclamation for an additional 14-day period.”

The decision concludes, “[T]his case is before this court for a determination whether the circuit court erred in issuing a preliminary injunction based on its conclusion that the Governor's executive orders relating to the coronavirus violated a statutory time limit, specifically, the 28-day time limit in ORS chapter 433. As we have explained, the Governor's orders were issued pursuant to ORS chapter 401, and they are not subject to the time limit in chapter 433. Therefore, the circuit court's preliminary injunction was based on a legal error. Moreover, plaintiffs' alternative arguments do not provide a basis for maintaining the preliminary injunction. Accordingly, it is necessary to vacate the preliminary injunction.”

The 6-0 decision does not identify an author. Chief Justice Martha Walters did not participate in the decision, on account of her friendship with the Governor. Jusices Thomas A. Balmer, Lynn R. Nakamoto, Meagan A. Flynn, Rebecca A. Duncan, Adrienne C. Nelson, and Christopher L. Garrett voted for the decision.

Justice Garrett issued a concurring opinion in which he said that “plaintiffs have not demonstrated a likelihood of prevailing on their statutory arguments.” He elaborated on the hardship placed upon worshippers and businesses as weighed against the likelihood of disease transmission. He said, and was joined by Justice Balmer, that

“The inability of plaintiffs to worship in the manner that they prefer and the inability of intervenors to carry on their businesses in the manner that is usual (or at all) is irreparable harm for these purposes, even if temporary. But, in these circumstances, the harm to their opponents and the public must also be considered, and considered in the light that, in the seemingly likely event that plaintiffs will lose, that harm will have been suffered needlessly.”

The attorney for the plaintiffs, summarized thus, “the Supreme Court has sided against us. Apparently, Governor Brown can use Chapter 401 of the Oregon Revised Statutes to confer upon herself unlimited time to deal with a public health emergency, and she CAN get around the time limits set forth in ORS 433.441(5) and Article X-A, Section 6 of the Oregon Constitution.”


--Staff Reports

Post Date: 2020-06-12 10:40:03

Last Update: 2020-06-12 16:24:21