The Oregon Supreme Court concluded that Baker County Circuit Court Judge Matt Shirtcliff erred in his May 18 ruling that Gov. Kate Brown exceeded her legal authority in issuing executive orders related to the coronavirus pandemic.

The state’s highest court on Friday issued a ruling ordering Shirtcliff to vacate his decision granting a preliminary injunction to a group of plaintiffs, including Elkhorn Baptist Church in Baker City, who sued the governor May 6.

The Supreme Court issued a temporary stay on Shirtcliff’s ruling later on the day he made that decision, so the governor’s executive orders, which limit business activity and the size of public gatherings, among other things, have remained in effect over the past few weeks pending the Supreme Court’s ruling.

The lawsuit itself can continue, as the Supreme Court’s ruling was limited to Shirtcliff’s granting of a preliminary injunction.

Shirtcliff agreed with the plaintiffs’ contention that because Brown, in issuing several executive orders since March, invoked the state’s public health emergency law, chapter 433 of the Oregon Revised Statutes, those orders were constrained by the 28-day limit prescribed in that law.

The governor’s lawyers, meanwhile, argued that the governor’s executive orders were not subject to the 28-day limit because Brown, in her initial March 8 declaration of an emergency related to the coronavirus, cited a different, more general, emergency law, chapter 401, which has no time limit.

Six justices participated in the Supreme Court decision. Chief Justice Martha Walters did not.

Justice Christopher Garrett, joined by Justice Thomas Balmer, wrote a separate opinion concurring with the governor’s lawyers’ argument that Brown’s executive orders are not limited to the 28 days mentioned in chapter 433.

In the main opinion, which was issued by the six judges and not signed by any individual judge, the court found that Shirtcliff’s analysis of the two laws — chapter 401 and chapter 433 — “cannot be reconciled with the statutory text and context, and is directly at odds with how the legislature intended the statute to apply.” Ultimately, the opinion reads, the governor’s executive orders related to the pandemic “are not subject to the statutory time limit on which plaintiffs relied, which is set out in ORS chapter 433.”

The justices cited sections in chapter 401 which state that the governor’s authority under that general emergency law include taking any actions authorized under chapter 433.

“Ordering those actions did not convert the Governor’s chapter 401 declaration into a chapter 433 declaration, and it did not make the executive orders subject to the 28-day limit,” the opinion reads. “Chapter 433 does not limit the Governor’s authority under chapter 401.”

Kevin Mannix, a Salem attorney who represents a group of intervenors who joined the lawsuit on the side of the plaintiffs, issued a statement Friday about the Supreme Court’s ruling.

I am disappointed, of course, in the decision by the Oregon Supreme Court,” Mannix said. “I am not completely surprised, since we realized this case would be affected by the surrounding environment concerning the coronavirus pandemic.”

“The key legal component to the Oregon Supreme Court decision is that they have infused a specific power from the public health emergency law into the general emergency law,” Mannix said. The general emergency law, adopted in 1949, allows the Governor to declare an emergency to deal with disasters such as fires, floods, and storms. It was not designed for epidemics, although it can address outbreaks of disease following a disaster. The general emergency law does not include a provision which allows the Governor to close down churches and businesses throughout the state.”

Mannix said he will seek to have the Oregon Legislature amend state law to expressly limit the governor’s power to close business and restrict gatherings to 28 days, even when, as Brown did, the governor declares a general emergency under chapter 401, which has no time limit.

In his 46-page opinion, the justices wrote that although there have been and continue to be debates about how to respond to the pandemic, “to the extent that those debates concern policy choices, they are properly for policymakers. That is, those difficult choices must be made by the people’s representatives in the legislative and executive branches of the government.”

The Court cited a U.S. decision from 1905, Jacobson v. Massachusetts, in which the high court ruled that “It is no part of the function of a court... to determine which of two modes is likely to be the most effective for the protection of the public against disease.”

The justices concluded that although the judicial branch also has the authority to intervene when the executive or legislative branch act in “an arbitrary, unreasonable manner,” courts should give officials considerable latitude.

The opinion quoted John Roberts, Chief Justice of the U.S., in a recent case regarding the government’s authority during the pandemic, that “in areas fraught with medical and scientific uncertainties, their latitude must be especially broad.”

Although the main opinion cited Shirtcliff’s analysis of the relationship between chapters 401 and 433 as the reason his decision to grant the preliminary injunction was flawed, Justice Garrett, in his separate, supporting opinion, joined by Justice Balmer, cited other reasons for ordering Shirtcliff to vacate his May 18 decision.

Garrett disagrees with Shirtcliff’s contention that the plaintiffs have a strong likelihood in prevailing should their lawsuit go to trial. That’s one of the criteria — likelihood of ultimate success in the lawsuit — that judges consider in deciding whether to grant a preliminary injunction.

But it was another criterion — considering the “public interest” of granting an injunction — that Garrett found to be the predominant legal issue.

Garrett concluded that Shirtcliff exceeded his range of discretion by failing to properly consider the governor’s authority during emergencies to determine what is in the public’s interest.

Shirtcliff, Garrett wrote, “did not give sufficient attention to the Governor’s role, in emergency situations such as the COVID-19 pandemic, in determining what is in the public interest,” and further the judge “did not give the necessary weight to the harm to that public interest... that would result if her orders were enjoined (meaning blocked by the judge’s order).”

Moreover, Garrett wrote, because he believes the plaintiffs are not likely to prevail in their lawsuit, Shirtcliff, by granting a preliminary, which is to say temporary, injunction, would harm the public interest “needlessly” given Garrett’s belief that in the end the plaintiffs would lose.

“For all those reasons, the issuance of the preliminary injunction was outside the permissible range of the circuit court’s discretion,” Garrett wrote.

(1) comment

Dan Collins

Told you it would get tossed...

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