Lawyers representing a Baker City church and other plaintiffs on one side, and Oregon Gov. Kate Brown on the other, spent 3 hours Thursday morning making their case to Baker County Circuit Court Judge Matt Shirtcliff regarding the governor’s legal authority to continue restricting Oregonians’ activities as part of the effort to control the spread of coronavirus.
The plaintiffs, including lead plaintiff Elkhorn Baptist Church of Baker City, are seeking a preliminary injunction that would block Brown from continuing to enforce executive orders related to the pandemic.
They were represented in Thursday’s hearing by Ray Hacke of Salem, an attorney with the Pacific Justice Institute, and Kevin Mannix of Salem, a former state legislator.
Mannix represents a group of intervenors, including Bill Harvey, chairman of the Baker County Board of Commissioners, who joined the lawsuit in support of the plaintiffs.
Shirtcliff on Thursday granted Mannix’s motion to add the intervenors to the lawsuit.
Brown was represented by two attorneys from the Oregon Department of Justice, Marc Abrams and Christina Beatty-Walters.
They are asking Shirtcliff to not only reject the motion for a preliminary injunction, but to dismiss the lawsuit.
All four attorneys participated in the hearing by video conference.
At the conclusion of the hearing Shirtcliff said he would issue a written ruling “possibly tomorrow but more likely early next week.”
“I will work as hard as I can and as quickly as I can,” Shirtcliff said. “These are important issues.”
Much of the argument during Thursday’s hearing centered on the question of whether the state laws Brown has invoked during the pandemic place time limits on the executive orders she has issued that restrict certain activities. Restrictions on the number of people who can gather for events, including religious services — 25 people — are part of the lawsuit Hacke filed on May 6.
Some of the intervenors that Mannix represents have also cited the financial hardships they’ve suffered due to business closures and restrictions.
Hacke, who spoke first during Thursday’s hearing, alleged Brown’s “failure to follow constitutional and statutory procedures” in issuing executive orders, and that in doing so she caused “injury to plaintiffs, specifically freedom of speech and assembly.”
Lawyers for both the plaintiffs and the governor agreed about the three primary legal factors at play: two state statutes — ORS chapters 401 and 433 — and Article X-A of the Oregon Constitution.
The statute that Brown initially invoked in declaring an emergency in early March is chapter 401. Unlike chapter 433 and Article X-A, chapter 401 does include time limits on an emergency declaration. It does, however, authorize the Legislature to terminate the state of emergency at any time. The Legislature, which can convene without a request from the governor, has not met during the pandemic.
Both chapter 433 and Article X-A do limit the duration of emergencies declared by the governor, and those were the focus of both Hacke’s and Mannix’s arguments to Shirtcliff.
Hacke questioned whether the pandemic meets the definition of an emergency in chapter 401, the chapter Brown initially cited.
That definition includes both a list of the types of events that can constitute a disaster — one of which is “disease” — and refers to “a rapid influx of individuals from outside this state, a rapid migration of individuals from one part of this state to another or a rapid displacement of individuals if the influx, migration or displacement results from the type of event or circumstance described in paragraph (a) of this subsection.”
Hacke argued that to qualify as an emergency under chapter 401, an event must qualify under both subsections, including the influx or migration. He contends that because neither has happened during the pandemic, the event doesn’t qualify as an emergency and that Brown had no statutory authority to issue executive orders based on that chapter.
Beatty-Walters, one of Brown’s attorneys, said Hacke’s interpretation of chapter 401’s definition of emergency is wrong.
An event does not have to meet both subsections, Beatty-Walters said.
If that were required, she said, then several recent emergency declarations that Brown has issued under chapter 401 — including after severe flooding this winter in Umatilla, Union and Wallowa counties and winter storms in western Oregon in 2019 — would have been illegal because those situations didn’t involve an influx of people from outside the state, a rapid migration inside the state or a rapid displacement of individuals.
Based on Hacke’s interpretation, the governor couldn’t declare an emergency unless the event also caused an influx, migration or displacement, Beatty-Walters said.
“That’s just not what the Legislature intended” in approving chapter 401, she said.
Another thrust of Hacke’s argument is based on Brown’s reference, in executive orders, to chapter 433, which deals specifically with “public health emergencies,” rather than the broader definition of emergencies in chapter 401.
When a governor declares a public health emergency under chapter 433, the emergency is in effect for no more than 14 days, although the statute allows the governor to extend the emergency one time, for no more than 14 additional days for a total of 28 days.
Although Hacke conceded that Brown invoked chapter 401 in her initial emergency declaration, rather than chapter 433 or Article X-A in the Oregon Constitution, he argued that the governor has a legal requirement to balance those three, and that chapter 401, which unlike the other two doesn’t have a time limit, is “not a means by which the governor may bypass the strictures of the Oregon Constitution.”
Beatty-Walters disputed Hacke’s argument that the two statutes and Article X-A are intertwined legally and that, in effect, the governor’s authority is limited to whichever of the three constrains her decisions most strictly.
Instead, Beatty-Walters compared the three to “tools in the governor’s toolbox.”
The governor can invoke any of the three, or all of them, based on what she believes is necessary to best protect the health of Oregonians, Beatty-Walters said.
Although the attorney agreed that Brown has mentioned public health emergencies in regard to the pandemic, and has cited chapter 433, that doesn’t mean she is legally bound by chapter 433’s 14-day limit.
Beatty-Walters cited a subsection in chapter 433 that addresses the relationship between chapter 433 and 401. That subsection reads: “Nothing 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.”
That’s precisely what Brown has done, Beatty-Walters said — she declared a state of emergency under chapter 401, and she has also taken actions authorized under chapter 433.
“They’re two separate tools,” Beatty-Walters said. “She expressly has authority to use tools. She chose not to invoke Article X-A because she didn’t need those tools. There is no conflict among the statutes or that constitutional provision.”
In the lawsuit Hacke focuses more on Article X-A of the Oregon Constitution than on chapters 401 and 433.
He notes that Article X-A, which Oregon voters added to the Constitution by approving a ballot measure in November 2012, allows the governor to declare a “catastrophic disaster” in effect for up to 30 days, but to extend beyond that period the governor would need to obtain a three-fifths vote in both houses of the Legislature.
Hacke argues that because the Legislature has not convened during the pandemic, Brown’s initial emergency declaration of March 8 became null and void 30 days later.
Both Abrams and Beatty-Walters pointed out that Brown has not invoked Article X-A during the pandemic, and that that article neither mentions, nor does it supersede, the governor’s statutory authority to declare emergencies and take actions under chapters 401 and 433.
“There is more than one tool, and the governor picked the statutes,” Abrams said. “That’s what the executive orders are based on.”
In a rebuttal, Hacke disputed the governor’s attorneys’ reference to Article X-A as “just another tool.”
Hacke said the Constitution is the “supreme law of Oregon” that “overrides everything else.”
“Nothing in these statutes can exceed the strictures of the Constitution,” he said.
Mannix, addressing the same issue, said it’s “clear” that the pandemic qualifies as a “catastrophic disaster” as defined in Article X-A, and that the limitations on the governor’s authority, including a 30-day duration without an approved extension from the Legislature, applies to Brown’s executive orders.
The lawyers debated several issues related to the standards for a preliminary injunction, based on past legal cases.
Among the criteria is evidence that the plaintiffs seeking the injunction are suffering “irreparable damage or harm.”
Abrams and Beatty-Walters argued that the plaintiffs have not suffered such damage, in part because they can still worship so long as they maintain social distancing — for example, through video sermons.
“They suffer irreparable harm every day when they cannot worship as they wish,” he said.
Mannix cited affidavits from the 11 intervenors, some of whom have had to layoff employees and have lost significant revenue due to business closures and restrictions under the governor’s executive orders.
“If that isn’t irreparable harm to these folks I don’t know what is,” Mannix said.
Although the lawyers largely confined their comments to legal matters raised in the lawsuit and in the motion to dismiss filed by Abrams and Beatty-Walters, there were a few somewhat more heated statements.
Responding to comments from both Abrams and Beatty-Walters about the governor’s goal being to protect the lives of Oregonians, Hacke said he would suggest that if the governor places such a high value on human life, she “might want to consider abolishing abortion.”
Hacke also bristled at Abrams’ reference to people who are infected with coronavirus but show no symptoms and could unknowingly infect others if the governor’s executive orders are overturned as a result of the lawsuit.
“This virus does not stop at the Baker County border,” Abrams said. “Viruses don’t obey boundaries.”
Hacke described Abrams’ comments as “fear-mongering.”
Hacke accused Brown of “ruling by executive fiat.”
He also said that “liberty is every bit as important as life.”
Shirtcliff asked Abrams and Beatty-Walters about the governor’s executive orders, which allow liquor stores, marijuana dispensaries and other retail stores to stay open as long as the managers enforce social distancing.
Shouldn’t pastors be allowed to do the same? Shirtcliff said.
Beatty-Walters said churches can have worship services if they comply with social distancing.
Abrams said he doesn’t believe it’s valid to compare retail stores with churches because store customers don’t spend long periods of time close to others, as can be the same with church services.
Beatty-Walters emphasized that the restrictions Brown has imposed are temporary, and the lawyer pointed out that even as the hearing was underway, Brown was announcing that most of Oregon’s counties, including Baker County, had qualified to start reopening their economies on Friday.
Just before the hearing ended Thursday, Beatty-Walters told Shirtcliff that if he grants the plaintiffs’ request for a preliminary injunction, the state would seek an immediate review of that decision by the Oregon Supreme Court.
In that event, Beatty-Walters said, she would ask Shirtcliff to issue a stay — that is, the preliminary injunction would not immediately take effect pending the matter going to the Supreme Court.
Hacke immediately objected to Beatty-Walters’ request that Shirtcliff issue a stay, were he to grant the motion for a preliminary injunction.
Doing so, Hacke said, “would defeat the whole point” of the lawsuit since the preliminary injunction would be moot if it didn’t take effect immediately.
Shirtcliff did not decide on Beatty-Walters’ request Thursday.
The judge said that if he grants the preliminary injunction he would then hear arguments from the attorneys about a stay.