Lawyers representing Oregon Gov. Kate Brown in a lawsuit filed last week in Baker County say the plaintiffs have no legal basis for claiming the governor exceeded her authority in declaring an emergency related to the coronavirus pandemic.
In a motion filed Wednesday seeking dismissal of the lawsuit, the governor’s lawyers write that the plaintiffs’ “argument lacks even a scintilla of support.”
A hearing on the plaintiffs’ motion for a preliminary injunction to stop the state from enforcing executive orders Brown has issued over the past two months was scheduled for 8 a.m. today in Baker County Circuit Court before Judge Matt Shirtcliff.
The plaintiffs, including Elkhorn Baptist Church in Baker City, contend that the Oregon Constitution limits the governor’s emergency declarations to 30 days, and that any extension requires approval of the Legislature.
Brown issued an emergency declaration on March 8, followed by a series of executive orders restricting businesses and public gatherings among other things.
But Brown’s attorneys from the state Department of Justice — Marc Abrams and Christina Beatty-Walters — wrote in the motion to dismiss the lawsuit that the governor declared the emergency and took other actions based not on the state constitution, but on Oregon Revised Statute (ORS) chapter 401.
That law outlines the governor’s authority to declare a state of emergency.
Brown’s lawyers also contend that the section of the constitution the plaintiffs cite — Article X-A — does not limit the governor’s authority under ORS 401.
Regardless, Brown’s attorneys wrote in the motion, “The Governor did not utilize Article X-A, nor did she have to.”
“Article X-A and ORS Chapter 401 provide the Governor with separate and independent tools to invoke during crises like the one facing Oregon — and the world — right now,” the attorneys wrote.
The motion from Brown’s lawyers also deem as inaccurate a claim that the plaintiffs added this week to the lawsuit — that the pandemic doesn’t meet the definition of an emergency under ORS 401.
The governor’s lawyers also argue that the plaintiffs have failed to show that current executive orders violate their First Amendment right to religious freedom.
The motion to dismiss the lawsuit cites court decisions in other states in which challenges to emergency orders under the First Amendment were rejected.
The lawyers argue that the governor’s executive orders are “neutral” in that they make no reference to religious practices and apply to civil and cultural gatherings the same as to faith-based ones.
The governor’s attorneys argue that the balance between the governor’s executive orders and the freedom to practice religion favors the governor.
“Although the ability of Oregonians to practice their religion is undeniably important, the right of each Oregonian to be physically safe is also paramount,” the attorneys wrote in the motion. “Every public gathering in this extraordinary time — whether in a park, a courthouse, a place of worship, a restaurant — puts lives at risk.”
Brown’s lawyers also argue that “any impact on constitutional rights is limited, not only because the Executive Orders are temporary and restricted to the current emergency, but also because the Orders do not bar holding services online or even to hold drive-in services as long as those in attendance abide by physical distancing guidelines...”
If the state exempted churches from those guidelines it “would pose a public health risk and create an unreasonable risk of exacerbating the spread of COVID-19, infecting, and potentially killing, many others,” the lawyers wrote in the motion. “It is hard to imagine a situation in which equitable relief could be less appropriate and the public interest more profound.”