Baker County Judge Issues Injunction Blocking Governor’s Coronavirus Executive Orders

A Baker County Circuit Court judge this morning issued a preliminary injunction blocking Governor Kate Brown from continuing to enforce her coronavirus executive orders and declaring them “null and void.”

Brown filed paperwork within hours of the decision, seeking an emergency review by the Oregon Supreme Court. Her attorneys had asked Circuit Judge Matt Shirtcliff to stay his ruling until that time, but he declined.

The lawsuit 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. In his May 18 decision, Judge Shirtcliff agreed.

“The Governor has an enormous responsibility to protect the lives of the citizens of our states balanced against the citizens’ constitutional rights to freedom of religion which includes how he or she chooses to worship,” he wrote.

“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 worship, just as grocery stores and businesses deemed essential by the Governor have been authorized to do.”

The judge also acknowledged the impacts the governor’s orders have had on businesses and the general public.

“The public interest is furthered by allowing people to freely exercise their right to worship and conduct their business,” he wrote.

The judge found that the governor’s orders violated Oregon law by failing to follow 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. However, she did use provisions of ORS 433 in some of her executive orders.

Judge Shirtcliff found that when she used these provisions, it effectively triggered the entire statute, including the time limitation.

“Because the Governor implemented statutory provisions, she is bound by them,” he wrote. “Thus, once the maximum 28-day time provisions of ORS 433.441(5) expired, the Governor’s Executive Order and all other orders were rendered null and void.”

In a statement Monday, shortly after the judge’s ruling came down, Governor Brown pleaded for Oregonians to continue to follow the guidelines outlined in her executive orders.

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

Reopening the state too quickly, and without ongoing physical distancing, will jeopardize public health and cost lives, she said.

“It is irresponsible to dismiss the health risks and science behind our measures to stop COVID-19,” she said. “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.”

Later that day, House Republican Leader Christine Drazan, of Canby, agreed that individuals should continue to practice care and caution with regard to Covid-19, while hailing the decision as bringing necessary accountability to the governor’s orders.

“Today’s ruling does not negate the need for Oregonians to live with consideration and care for the health of themselves and others,” she said. “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. … There has been no accountability throughout this emergency declaration, until now.”

Following the news of the judge’s declaration, Oregon Attorney General Ellen Rosenblum released a statement in which she called the decision “legally incorrect.”

“With all respect, I believe the trial court’s grant of a preliminary injunction is legally incorrect,” she said. “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.”

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

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