Baker County judge ruled on Monday that Governor Kate Brown’s restrictions on religious gatherings and his other Stay Home Save Lives coronavirus orders are “void” because they exceed a 28-day limit – this that could potentially trigger a statewide pandemic response plans in disarray.
Less than three hours later, the governor’s office asked the state’s Supreme Court to keep its emergency orders in effect.
“This will allow us to continue to protect the health of all Oregonians – including front-line health workers, those living in nursing homes, workers in agricultural and food processing plants and Oregonians with underlying health conditions – as the legal process progresses, “Brown said in a statement.
Circuit judge Matthew B. Shirtcliff granted a preliminary injunction to 10 churches that had sued the governor, saying they had shown “irreparable harm” to the denial of the right to exercise their religion freely.
“The governor’s orders are not necessary for public safety when the plaintiffs can continue to use social distance and safety protocols at larger gatherings involving spiritual worship,” he said.
He noted, “The claimants have shown that they will be harmed by the deprivation of the constitutional right to freely exercise their religion. Other complainants have also shown great economic harm to their businesses and their ability to seek livelihoods. “
He found that churches can take the necessary social distancing precautions, as have grocery stores and other essential businesses. He also ruled that the injunction was in the public interest, granting people the right to worship freely and the ability to restore economic viability.
“This court understands that the current pandemic is creating an unprecedented crisis in the state as well as in our country,” said Shirtcliff, speaking from the bench during a videoconference hearing.
He said he should weigh the governor’s public health concerns against the constitutional right to freedom of worship, but said “the balance of actions is in the favor of the claimants”.
Salem’s lawyer Ray D. Hacke filed a complaint earlier this month on behalf of the non-profit group Pacific Justice Institute, which deals with religious freedom cases from 10 churches across the state and 21 people. The churches, led by the Elkhorn Baptist Church in Baker City, are located in Bend, Camas Valley, Klamath Falls, Lincoln City, Newberg, Portland, Roseburg and Salem.
Document: Judge’s decision
Document: Formal order of judge granting preliminary injunction
Documents: State emergency request for a stay, State request for writ of mandamus, memorandum
Church lawyers have 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, this limitation is applied.
But counsel for the governor replied that Brown declared a state of emergency under another state law, ORS 401.165, which is not limited to a specific period of time and continues indefinitely.
However, the judge found that other governor’s “Stay Home Save Lives” orders imposing limits on social gatherings, education and business were also void as they exceeded a 28-day limit.
“In addition, by not respecting the deadlines ORS 433.441 (5), the subsequent executive decrees of the governor 20-05 to 20-25 are also null and void,” wrote the judge.
Lawyer Marc Abrams, representing the governor, urged Baker County judge to suspend his decision until the Oregon Supreme Court can review it. The governor will cite the importance of Brown’s emergency restrictions on social gatherings due to “the loss of life, the spread of the disease,” said Abrams. He also noted that most states in the United States have taken action similar to that of Brown.
“There is evidence that it works and the balance of difficulties calls at least the court to stay its order to allow for legal review and in the interest of maintaining the status quo,” he said.
But Shirtcliff, the former Baker County district attorney who was appointed to his seat last year by Governor Brown, denied the stay request.
In the hours following the decision, Attorney General Ellen Rosenblum urged Oregon residents to continue to comply with the governor’s emergency orders “to protect us all.”
At 2:30 p.m., Rosenblum’s office had petitioned the state’s Supreme Court to dismiss the preliminary injunction, arguing that if upheld it “greatly increased the risk of Oregonians being exposed and contracting COVID-19 “. “The office also asked the state high court to immediately suspend the Baker County judge’s injunction.
The trial court exceeded its discretion and committed a “fundamental legal error” because the argument that the governor does not have the power to deal with the coronavirus emergency “is without merit”, wrote Solicitor General Benjamin Gutman. He noted that the state’s constitution provided the governor with “all police powers vested in the state”.
Any delay in public health emergency provisions in state law “complements rather than supplants” the governor’s unlimited powers under his declaration of state of emergency, he wrote. He also argued that the public interest weighed heavily against the disturbance of the governor’s executive. orders.
Because the injunction creates “undisputed dangers,” Gutman urged the state high court to exercise its authority and “protect public health and allow the governor to oversee an orderly transition from the Stay Home, Stay Safe executive order.” towards less restrictive conditions ”. ”
Earlier this month, Hacke told The Oregonian / OregonLive: “If we risk our lives going to church, if we survive very well. If we die, then we go to heaven. If we want to take this risk, then it’s ours. “
In a court case, Abrams challenged Hacke’s citation. “But when one behavior endangers others, it is not just a matter of individual choice and is rather a threat to public health,” he writes.
Brown earlier this month had amended his decree, allowing social gatherings of up to 25 people with social distancing for the counties with state-approved reopening plans.
The governor’s office requested that the prosecution be dismissed, arguing that public health was paramount.
“The executive decrees issued by Governor Brown are not designed to hinder a specific faith, or to hinder worship more than any other activity that, by simply gathering in large numbers, endangers lives.” They are designed to keep Oregonians alive and to stop the spread of COVID-19, “said Abrams in court documents.
Conservative activist Kevin Mannix, former legislator and candidate for governor, has been granted leave to intervene to support the church trial against the governor on behalf of the non-profit group Common Sense Oregon.
Later Monday, state public health experts held a press conference urging residents to maintain social distance, wear masks and wash their hands, whatever happens with the legal skirmish. They stressed the need for a progressive reopening of the state.
“I am very concerned that this is sending the wrong signal,” said Dr. Bruce Goldberg, professor at the OHSU-PSU School of Public Health, about the Baker County judge’s decision. “If we abandon social distancing in a random and uncontrolled manner, we will certainly put more of us in danger. “
The Rev. Chuck Currie of the United Church of Christ, who is also an assistant professor of religious studies at the University of the Pacific, castigated the judge’s decision.
“Believers want to worship. We want to come together. But places of worship around the world have become hot spots for # COVID-19[FEMALE[FEMININE. This decision by circuit judge Matthew Shirtcliff is reckless, ”he wrote in a Twitter message after the decision.
Hacke said he was scrambling with Mannix to respond to the state’s Supreme Court request for review, although he said it was not unexpected. He said the complaint he had filed on behalf of churches and others sought to limit the governor’s orders beyond those that impacted religious gatherings. “She was already exercising broad powers. We have seen fit to exercise our rights to seek a broad remedy, “he said.
Some Republican leaders applauded the decision.
“We welcome the decision of the Baker County Circuit Court to respect the human rights of the people of Oregon and to restore the rule of law,” said Oregon Republican Party President Bill Currier. “This reminds us strongly that Governor Brown, whatever his intentions, is not a leader who can ignore the Constitution and the laws of Oregon.”
Deputy Republican Senate Leader Dennis Linthicum of Klamath Falls said he was “delighted with this significant challenge, which is beyond the reach of our government. (…) Churches, businesses and families have suffered from Governor Brown’s unconstitutional decrees and their lives have been irreparably damaged by the governor’s actions. ”
In a similar California case, a federal judge ruled this month that state and local residence orders were a valid exercise of emergency police powers and did not violate constitutional rights of a church. The judge in this case noted that the United States Supreme Court over 100 years ago upheld the right of the government to exercise police powers to promote public safety during a public health crisis .
However, last week, the Wisconsin Supreme Court quashed Governor Tony Evers’ stay order, ruling that his administration had exceeded his authority by extending the order by a month without consulting lawmakers.
– Maxine Bernstein
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