A week after Baker County Circuit Court Judge Matt Shirtcliff ruled that Oregon Gov. Kate Brown’s executive orders related to the pandemic exceeded her legal authority, the legal spotlight is cast again on Shirtcliff’s chambers.
Shirtcliff, the former longtime Baker County district attorney whom Brown appointed as Circuit Court judge effective Nov. 1, 2019, on May 18 granted a preliminary injunction to the plaintiffs in a lawsuit challenging Brown’s executive orders that have restricted businesses and other activities since mid March.
The governor’s attorneys appealed to the Oregon Supreme Court, which later on May 18 issued a temporary stay that blocked Shirtcliff’s order and kept Brown’s executive orders in effect.
Last week, attorneys for the plaintiffs, which include Elkhorn Baptist Church in Baker City, and the governor submitted briefs to the Oregon Supreme Court in the matter of the preliminary injunction.
On Saturday the Supreme Court returned the issue to Shirtcliff.
The state’s highest court issued an alternative writ of mandamus, which asks Shirtcliff to either vacate his May 18 order for the preliminary injunction, or submit a written opinion for why the injunction should be reinstated.
The state Supreme Court gave Shirtcliff a deadline of 5 p.m. today to respond.
If Shirtcliff declines to either vacate his order or submit a written opinion, then the Supreme Court would set a deadline of Thursday for the governor’s attorneys to file a brief related to the preliminary injunction.
The plaintiffs’ attorneys would then have until June 2 to file briefs in response to the governor’s brief.
Kevin Mannix, a Salem attorney who is representing a group of intervenors — including Bill Harvey, chairman of the Baker County Board of Commissioners, acting as an individual and business owner, not in his elected capacity — who have joined the plaintiffs in the lawsuit against the governor, said Saturday that he hopes Shirtcliff will either send a written response to the Supreme Court further explaining his decision to issue a preliminary injunction, or do nothing.
Mannix said he’s encouraged by the Supreme Court’s decision to set deadlines for lawyers to submit briefs in the event Shirtcliff chooses either of those two options.
“This means that the Oregon Supreme Court has kept this case on a very short time frame,” Mannix said.
He said he was pleased that the Supreme Court didn’t issue a peremptory writ of mandamus, which would have ordered Shirtcliff to vacate his order granting a preliminary injunction rather than give him the option of defending his earlier decision.
The legal issue at play now is not the lawsuit itself, but rather Shirtcliff’s order granting the preliminary injunction.
Even if that order is vacated — either by Shirtcliff himself or by a later decision of the Supreme Court — the lawsuit would continue, potentially leading to a trial in Baker County Circuit Court.
The governor’s attorneys from the state Department of Justice filed a motion seeking to dismiss the lawsuit, arguing it has no legal merit, but Shirtcliff denied that motion.
Mannix said that both he and Ray Hacke, the Salem attorney from the Pacific Justice Institute who is representing the plaintiffs and filed the lawsuit on May 6, submitted briefs on Friday arguing why they believe Shirtcliff was correct in issuing the preliminary injunction and why the Supreme Court should reinstate that injunction. That would prohibit the state from continuing to enforce Brown’s executive orders.
In all but one of Oregon’s 36 counties — Multnomah, which includes Portland — the state has begun to ease some of the restrictions in those orders. Baker County is among the counties that started phase one of the state’s reopening plan on May 15. The county could potentially move into phase two, which further eases restrictions (details have yet to be announced), on June 5.
Mannix said the 57-page brief he filed includes additional legal support for the plaintiffs’ position — a position with which Shirtcliff concurred in his order granting a preliminary injunction.
That position is that because Gov. Brown has invoked the state’s public health emergency law — Oregon Revised Statute (ORS) 433.441 — in several of the executive orders she has issued since mid March, she was bound by the 28-day limit for public health emergencies as stated in that law.
Attorneys for the governor have argued that the 28-day limit in ORS 433 doesn’t apply to the executive orders because Brown’s initial declaration of a state of emergency due the pandemic was made under a different state law — ORS 401.165 — which does not have a time limit.
In his brief to the Supreme Court, Mannix argues that the two laws overlap, and that when there is a conflict between laws — in this case one law that has a time limit and another law which does not — the more specific law “should take precedence.”
Mannix contends ORS 433 is more specific, not only because it prescribes a time limit but also because it grants the governor particular authorities, including the ability to restrict residents’ movements, that are not included in the more general emergency law, ORS 401.
Indeed, Shirtcliff, in his order granting the preliminary injunction, wrote that Brown had to invoke ORS 433 in some of her executive orders because of the specific powers it conveys to the governor.
Oregon’s Solicitor General, Benjamin Gutman, disagreed, writing in a memo asking the state Supreme Court to vacate the preliminary injunction that Shirtcliff “committed fundamental legal error” in granting the injunction.
“The trial court erred in finding that the Governor’s emergency powers under ORS chapter 401 are time-limited by the provisions of ORS chapter 433,” Gutman wrote. “The provisions for public-health emergencies in chapter 433 supplement rather than supplant the Governor’s powers under chapter 401.”