Attorneys for the plaintiffs in a lawsuit filed May 6 in Baker County challenging Gov. Kate Brown’s executive orders during the coronavirus pandemic reiterated their claims, in separate briefs filed Tuesday with the Oregon Supreme Court, that the governor’s orders have legally expired.

Ray Hacke, an attorney with the Pacific Justice Institute in Salem who represents the plaintiffs, including Elkhorn Baptist Church in Baker City, argues that because Brown invoked the state’s public health emergency law, she is bound by its 28-day limit on such emergencies.

Hacke filed a 29-page brief in response to the brief Oregon Solicitor General Benjamin Gutman filed May 28 on behalf of the governor.

The Supreme Court had set a Tuesday deadline for Hacke and another Salem attorney, Kevin Mannix, who represents a group of intervenor-plaintiffs in the lawsuit, to file briefs in response.

Mannix filed a 35-page brief on Tuesday.

At issue is the preliminary injunction that Baker County Circuit Court Judge Matt Shirtcliff granted to the plaintiffs on May 18. The Supreme Court later that day issued a temporary stay that set aside the injunction and allowed the state to continue to enforce the governor’s executive orders restricting some businesses and limiting the size of public gatherings, including church services, to 25 people.

Many Oregon counties, including Baker County, could move into phase 2 of the state’s reopening plan on Friday. The limit on people attending church services will increase to 250, although that’s allowed only if the venue is large enough to allow social distancing.

On May 26 Shirtcliff declined to withdraw his decision granting the preliminary injunction.

The Supreme Court then set deadlines for attorneys on both sides to submit written arguments for why the injunction should or should not stand.

The Supreme Court has not given a timeline for oral arguments on the matter, or for when it will issue a decision.

Whether the Court reinstates the preliminary injunction or vacates it, the lawsuit itself could continue, potentially leading to a trial in Baker County Circuit Court.

Plaintiffs cite 28-day limit in public health emergency law

In his brief, Hacke addresses two state laws Brown has cited during the pandemic.

The first is Oregon Revised Statute (ORS) chapter 401. That’s the general emergency law Brown invoked when she initially declared an emergency due to the pandemic on March 8. Chapter 401 does not set a time limit on the emergency — it can continue until either the governor or the Legislature decides to end it.

The Legislature has not convened since the pandemic started, and Brown has extended the emergency declaration under chapter 401 until July 6.

The second law is ORS chapter 433, which deals specifically with public health emergencies. Chapter 433, which Brown cited in several of the executive orders she issued following the March 8 emergency declaration, has a 28-day limit.

Hacke, as he did during a hearing before Judge Shirtcliff in Baker County Circuit Court on May 14, contends that when two laws are involved, the “newer and more specific provision” is the controlling statute.

Hacke writes in the brief that Brown cannot “treat the time limits imposed under (chapter) 433 as optional” simply because she invoked chapter 401 in her initial emergency declaration.

Hacke contends that chapter 433, which has the 28-day limit, is more specific because it includes a time limit while chapter 401 does not.

In addition, chapter 433 is newer, passed by the Legislature in 2003 and revised in 2007. Chapter 401 dates to 1949.

Shirtcliff agreed with that reasoning in his decision granting the preliminary injunction.

Gutman disputes that interpretation of the interplay between the two laws. He argued in his May 28 brief that the laws are not in conflict but are instead complementary, and that Brown can invoke an emergency under chapter 401, without time limits, but also use the specific powers granted under chapter 433 without then being limited to the 28 days in that statute.

Hacke countered a contention in Gutman’s brief that the plaintiffs “did not assert a free-exercise claim in their complaint.”

Hacke cited sections in the amended lawsuit contending that one of Brown’s executive orders “at least implicitly impinges on plaintiffs’ free exercise of religion” under the Oregon Constitution.

Hacke also argues in his brief that Brown’s executive orders “have consistently shown hostility toward religion.”

He cited executive order 20-25, which limits “faith-based gatherings” to 25 people, regardless of the physical dimensions of the church.

Hacke notes that during phase one of the state’s reopening plan, the governor allows restaurants and bars to determine maximum occupancy while still maintaining social distancing, but doesn’t allow churches to use the same guidelines.

Hacke acknowledged that although Brown signed executive order 20-25 after the lawsuit was filed, two earlier orders also fail to treat religious gatherings with the same leniency as secular gatherings.

Hacke concludes his brief by asking the Supreme Court to affirm Shirtcliff’s decision to grant the preliminary injunction, which would block the governor from enforcing executive orders, including those limiting the number of people attending church services.

The Supreme Court could do so for either of two reasons, Hacke argues.

The first reason is the governor’s failure to abide by the 28-day limit that Hacke contends she is bound by.

The second reason, Hacke writes, is that “the severe curtailment of core constitutional freedoms even in areas of the state that have experienced few or no coronavirus cases cannot be further sustained.”

“When wielding her emergency powers, the Governor can and should — nay, must — respect individual liberties to the greatest extent possible,” Hacke writes.

Baker County has had one confirmed case of COVID-19.

Brief on behalf of intervenors

In his brief, Mannix argued that the governor’s broad powers authorized by chapter 401, the general emergency law that has no time limit, do not include the authority to close businesses and churches, or to impose reopening orders on counties. To take those steps, Mannix contends, the governor, as she did, must invoke chapter 433, and her orders based on that law are limited to 28 days.

“Those unique, extraordinary powers of the public health emergency law expire 28 days after the public health emergency is declared,” Mannix wrote in his brief. “The general emergency law (chapter 401) ... does not authorize restrictions or closures as to churches, businesses, or public gatherings during a public health emergency.”

Mannix also addresses the relationship between chapter 401, the general emergency law, and chapter 433, the public health emergency law.

“The general emergency law may co-exist with a public health emergency, but the existence of the general emergency does not cancel the 28-day expiration provision for the unique, extraordinary powers granted by (chapter 433),” Mannix wrote in his brief.

He also argues that chapter 401 was intended to help the governor deal with emergencies such as floods, storms and wildfires, and that the Legislature’s decision to approve chapter 433, dealing specifically with public health emergencies, is compelling evidence that chapter 401 wasn’t designed to deal with pandemics.

“There is no indication (in chapter 401) that it was designed with a public health emergency in mind other than a reference to “disease,” Mannix wrote in his brief. “(Chapter 401) has zero references to public health emergencies. (The law) does not refer to a ‘pandemic’ or ‘epidemic.’ ”

Mannix, a former state legislator who ran for governor as a Republican in 2002, also addresses the question of whether the current executive orders restricting business operations and the size of public gatherings are necessary to deal with the pandemic.

He argues in his brief that the governor and state officials can respond to the pandemic without continuing to enforce those restrictions.

Mannix cites ORS chapter 431A, enacted in 2007, which he contends “works in conjunction with other Oregon laws to provide a comprehensive system to respond to a pandemic without the need to declare a public health emergency and empower the Governor to impose the draconian restrictions of (chapter 433).”

Mannix notes that chapter 431A authorizes the Oregon Health Authority and local public health administrators during a disease outbreak to, among other things, “issue administrative orders to enforce compliance with public health laws” and to “impose a civil penalty not to exceed $500 a day per violation.”

Chapter 431A also authorizes the state’s public health director to “issue guidelines for private businesses regarding appropriate work restrictions.”

The law does not, however, authorize the governor to close businesses or limit the number of people attending church services or other events.

Mannix argues that the authorities granted under chapter 431A are sufficient to manage the pandemic, even if the Supreme Court reinstates the preliminary injunction, prohibiting the state from continuing to enforce the governor’s executive orders.

“The sky will not fall if the preliminary injunction is allowed to take effect and the 28-day time limit is honored as to the extraordinary powers conferred by ORS Chapter 433,” Mannix writes in his brief.

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