A Baker County judge on Monday ruled that Gov. Kate Brown’s restrictions on religious gatherings as well as her other “Stay Home Save Lives” coronavirus orders are “null and void” because they exceed a 28-day limit — potentially throwing statewide pandemic response plans into disarray.
Less than three hours later, the governor’s office appealed to the state Supreme Court to keep her 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,“ Brown said in a statement.
Circuit Judge Matthew B. Shirtcliff granted a preliminary injunction to 10 churches that had sued the governor, finding they had shown “irreparable harm” from the deprivation of the right to freely exercise their religions.
“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,” he ruled.
He noted: “Plaintiffs have shown that they will be harmed by deprivation of the constitutional right to freely exercise their religion. Other plaintiffs have also shown great economic harm to their businesses and their ability to seek livelihood.”
He found that the churches can take necessary social distancing precautions, just as grocery stores and other essential businesses have done. He also ruled that the injunction was in the public’s interest, allowing people the right to freely worship and the ability to restore economic viability.
“This court understands that the current pandemic creates an unprecedented crisis in the state as well as in our country,” Shirtcliff said, speaking from the bench in a videoconference hearing.
He said he must weigh the governor’s public health concerns against the constitutional right of freedom of worship, but he found that “the balance of equities tips in favor of Plaintiffs.”
Salem-based attorney Ray D. Hacke filed the lawsuit earlier this month on behalf of the nonprofit group Pacific Justice Institute, which takes on religious liberty cases, 10 churches from across the state and 21 individuals. The churches, led by Elkhorn Baptist Church in Baker City, are in Bend, Camas Valley, Klamath Falls, Lincoln City, Newberg, Portland, Roseburg and Salem.
Attorneys for the churches successfully argued that ORS 433.441 limits declared public health emergencies to 14 days, or up to 28 days maximum, and because COVID-19 is a public health crisis, that limitation applied.
But the governor’s attorney countered that Brown declared a state of emergency under a different state law, ORS 401.165, which isn’t limited to any particular time period and continues indefinitely.
Yet the judge found that the governor’s other “Stay Home Save Lives” executive orders placing limits on social gatherings, education and businesses also were void because they exceeded a 28-day limit.
“Moreover, by not complying with ORS 433.441(5) timelines, the Governor’s subsequent Executive Orders 20—05 through 20-25 are also null and void,” the judge wrote.
Attorney Marc Abrams, representing the governor, urged the Baker County judge to put a hold on his ruling until the Oregon Supreme Court could review it. The governor will cite the importance of Brown’s emergency restrictions on social gatherings due to the ”loss of life, spread of the disease,” Abrams said. He also noted that most states in the United States have taken actions similar to that of 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,” he argued.
But Shirtcliff, the former Baker County district attorney who was appointed to his judge’s seat last year by Gov. Brown, denied the hold request.
Within hours of the ruling, Attorney General Ellen Rosenblum urged Oregon residents to continue to comply with the governor’s emergency orders “to protect all of us.’’
By 2:30 p.m., Rosenblum’s office had drafted a petition to the state Supreme Court to throw out the preliminary injunction, arguing that if allowed to stand, it “sharply increases the risk that Oregonians will be exposed to and contract COVID-19.” The office also asked the state’s high court for an immediate hold on the Baker County judge’s injunction.
The trial court exceeded its discretion and committed “fundamental legal error,” because the argument that the governor lacks authority to address the coronavirus emergency “lacks merit,” Solicitor General Benjamin Gutman wrote. He noted that the state constitution grants the governor “all the police power vested in the state.”
Any time limits to the provisions for public health emergencies in state law “supplement rather than supplant” the governor’s unlimited powers under her declaration of a state of emergency, he wrote. He further argued that the public interest overwhelmingly weighs against disturbing the governor’s executive orders.
Because the injunction creates “undisputed dangers,” Gutman urged the state’s high court to exercise its authority and “protect the public health and allow the Governor to oversee an orderly transition from the Stay Home, Stay Safe executive order to less restrictive conditions.”
Earlier this month, Hacke told The Oregonian/OregonLive, “If we’re risking our lives to go to church, if we survive great. If we die, then we’re going to heaven. If we want to take that risk, then it’s on us.”
In a court filing, Abrams took issue with Hacke’s quote. “But when behavior endangers others, it is not just a matter of individual choice and is, instead, a threat to public health,” he wrote.
Brown earlier this month had modified her executive order, allowing social gatherings of up to 25 people with social distancing for counties with state-approved reopening plans.