Judge: Oregon governor’s stay-at-home orders unconstitutional and are now “null and void”

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UPDATE: Within hours of Baker County Circuit Judge Matthew Shirtcliff ruling that Governor Brown’s stay at home orders were “null and void,” the state Supreme Court stepped in and put the ruling on hold.

Governor Brown had appealed the decision Monday afternoon asking for a “rapid review” from the Supreme Court.

The update can be found here.

SALEM, OR– Baker County Circuit Judge Matthew Shirtcliff made an astounding decision Monday regarding Oregon Governor Kate Brown’s coronavirus restrictions.

In the lawsuit, initiated by several churches, he ruled the restrictions were “null and void.”

The ruling does not only pertain to religious services, however. It applies to the entire stay at home order.

Ray Hacke, the attorney from Pacific Justice Institute representing the churches, said the following on a phone interview with local news affiliate, KGW:

“The stay-at-home order is no longer in effect. It is invalidated. If people want to get their haircut, they can. They can leave their home for any reason whether it’s deemed essential in the eye of the state or not.”

The Pacific Justice Institute is a non-profit firm defending religious liberties.

The president of the Institute, Brad Dacus, said they support the lawsuit because:

“[Brown’s] executive orders are way too extreme and infringe on religious liberty far more than is necessary to preserve public health and safety.”

The lead plaintiff, Elkhorn Baptist Church in Baker City, as well as several other churches and individuals in Oregon, said that the governor’s executive orders violated their Oregon Constitutional rights to worship and assemble.

They allege that the orders restricting ““non-essential social and recreational gatherings” include religious and church services.

Additionally, the lawsuit stated that the governor’s emergency powers can only last a month according to Article X-A in the State Constitution without further approval from the legislature.

Said the lawsuit:

“Because [the] governor failed to avail herself of the constitutionally prescribed procedure, her initial executive order declaring the public health emergency, issued on March 8, 2020, terminated by operation of law on April 7, 2020, and all subsequent executive orders implementing or extending the original order are legally null and void.”

The judge in the case agreed.

The original order in and of itself was unconstitutional from the beginning, as Governor Brown set it for 60 days, rather than the legally allowed 30 days. She has not brought her legislatures together since to extend the orders.

Hacke said:

“She’s giving herself powers to infringe on constitutional liberties in perpetuity,” Hacke said. “And she can’t do that.”

The governor’s attorney, Marc Abrams, however, argued that she declared a state of emergency under a different law, specifically state law ORS 401.165, which, they said, does not have a time limit and may continue indefinitely, particularly through this pandemic.

Abrams asked the judge to put a hold on his ruling until the state’s Supreme Court can hear the case.

Still, Shirtcliff ruled:

“The governor’s orders are not required for public safety when plaintiffs can continue to utilize social distancing and safety protocols at larger gatherings involving spiritual worship.”

The judge said he was ruling in the best interest of the public.

Speaking from the bench via videoconference, he said:

“This court understands that the current pandemic creates an unprecedented crisis in the state as well as in our country.”

The judge said that just as grocery stores and other “essential” businesses have done, churches can enact social distancing all on their own in order to continue exercising their right to worship.

Moreover, Hacke said that the lawsuit was filed in Baker County for two reasons: The first, because Elkhorn Baptist Church is the lead plaintiff.

The second, however, Hacke said is “symbolic’: Since the beginning of the pandemic, the county has had only one confirmed case of COVID-19.

To this, he said:

“One of our questions is why is this lockdown applying to everyone.”

The plaintiffs complied with the now-confirmed unconstitutional orders prior to the lawsuit for fear of exposing their congregations to jail or incurring fines up to $1,250.

“At the outset of the coronavirus pandemic,” the lawsuit says, “many, if not all, churches shared defendant governor’s concerns about having too many people too close together indoors, thereby increasing the risk of spreading the coronavirus, especially to the persons most vulnerable to it, such as the elderly.”

But with only one case of coronavirus, which was only announced recently, they say the amount of risk does not justify the prohibition of the constitutional right to worship and assemble.

Again, the judge agreed.

Governor Brown announced that she would immediately appeal the judge’s ruling to the state’s Supreme Court to reverse the decision. She said that she planned on filing Monday, the same day as the ruling, asking for “rapid review.”

Brown said:

“This will ensure we can continue to safeguard the health of all Oregonians — including frontline health care workers, those living in nursing homes, workers in agriculture and food processing plants, and Oregonians with underlying health conditions –– while the legal process moves forward.”

Abrams noted that “most states” have taken similar actions to that of Governor Brown:

“There’s evidence that this is working and the hardship balance calls at least for the court to stay its order to allow for legal review and in the interest of maintaining the status quo.”

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What follows is Governor Brown’s statement following Judge Shirtcliff’s ruling:

“From the beginning of this pandemic, I have taken action to protect the health and safety of all Oregonians. We acted quickly and decisively at the beginning of the outbreak, using the best science and data available, to protect Oregon from COVID-19.

“Today’s ruling from the Baker County Circuit Court will be appealed to the Oregon Supreme Court within hours to keep my emergency orders in effect.

This will ensure we can continue to safeguard the health of all Oregonians — including frontline health care workers, those living in nursing homes, workers in agriculture and food processing plants, and Oregonians with underlying health conditions –– while the legal process moves forward.

“The science behind these executive orders hasn’t changed one bit. Ongoing physical distancing, staying home as much as possible, and wearing face coverings will save lives across Oregon.

“Together Oregonians have turned the tide on the spread of COVID-19, allowing us to only now begin the process of gradually and safely reopening parts of our communities and our economies. Reopening the state too quickly, and without ongoing physical distancing, will jeopardize public health and cost lives.

“It is irresponsible to dismiss the health risks and science behind our measures to stop COVID-19. We would be faced with the prospect of another mass outbreak without the tools that have proven to be effective in protecting our friends, families, neighbors, and loved ones from this disease.”

State Attorney General Rosenblum issued the following statement following the ruling:

“Today, Baker City Circuit Court Judge Matthew Shirtcliff issued a ruling in the Elkhorn Baptist Church et al v Katherine Brown case stating that Governor Brown’s emergency ‘Stay at Home, Save Lives’ executive order cannot extend past 28 days.

The case was argued by Oregon DOJ attorneys on Thursday, May 14, 2020. My office will immediately appeal (a writ of mandamus) the decision to the Oregon Supreme Court. 

When the Legislature adopted public health emergency statutes, it specifically said that it was not limiting the governor’s authority to deal with large-scale emergencies.

“With all respect, I believe the trial court’s grant of a preliminary injunction is legally incorrect.  

We will argue that the judge erred in his construction of the relevant statutes and that he abused his discretion in issuing the preliminary injunction. We will also be asking for an immediate stay of his order.

“I urge Oregonians to continue to comply with the measures in place. They are there to protect all of us, and they are working.

We are in close contact with the Governor and intend to support, as allowed by law, the critical work she has done, guided by public health experts, to ensure the safety and health of all Oregonians.”


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