Baker County Circuit Court Judge on Monday declared all executive orders that Oregon Gov. Kate Brown has issued related to the coronavirus pandemic as “null and void.”Brown will immediately appeal the ruling to the state supreme court, and the executive orders remain in effect.Brown has exceeded her authority by restricting activities, including church services and businesses, for longer than the 28 days the governor is authorized under a state law related to public health emergencies, Shirtcliff said.
The judge granted a preliminary injunction blocking enforcement each of the more than 10 executive orders the governor has issued since March 8.
Shirtcliff’s decision applies to the entire state. He ruled on the motions because the lawsuit challenging the duration of the governor’s legal authority was filed May 6 in Baker County Circuit Court.
Elkhorn Baptist Church of Baker City is the lead plaintiff in the lawsuit, which was filed by Salem attorney Ray Hacke of the Pacific Justice Institute, a nonprofit that defends religious liberty.
. . . In granting the plaintiffs’ motion for a preliminary injunction, Shirtcliff concluded that Brown, by citing a certain state law in some of her executive orders since her original emergency declaration March 8, in effect placed a 28-day limit on the state’s enforcement of those orders.
That law is Oregon Revised Statute (ORS) 433.441.
. . . Although Brown invoked a different law — ORS 401.165 — when she initially declared an emergency, Shirtcliff wrote that 401.165 “does not grant the Governor power directly over the movement of citizens and gatherings.”
. . . The crux of the legal dispute involves the relationship between the two laws the governor has invoked — 401.165 and 433.441.
Brown’s attorneys argued in a May 14 hearing that because the governor cited 401.165 in the emergency declaration, that law, which has no time limits, is the controlling statute.
But Hacke argued — and Shirtcliff agreed — that the governor, but repeatedly citing ORS 433.441 in her executive orders, made those orders subject to the 28-day time limit allowed under that law for public health emergencies.
Moreover, Shirtcliff wrote in his decision that Brown, in order to issue executive orders that restrict residents’ movements and the size of their gatherings, had to involve 433.441 because 401.165 doesn’t give her that authority.
Analysis at The Hill:
The Oregon ruling is likely to generate additional momentum behind opponents of stay-at-home orders, who got a major boost last week when the Wisconsin Supreme Court invalidated the state’s coronavirus health order.Legal experts say governors’ emergency powers are likely to wane as the pandemic persists.
“The longer the crisis wears on, the less compelling it is for the governor to characterize it as an emergency in which there’s no time for the legislature to weigh in,” said Lindsay Wiley of American University.
