Baker County Circuit Court Judge Matt Shirtcliff issued a preliminary injunction declaring Gov. Kate Brown’s executive orders related to the coronavirus pandemic as “null and void” Monday morning.

Attorneys for the governor said they would file a motion seeking review of Shirtcliff’s decision by the Oregon Supreme Court.

The lawsuit claims Brown’s coronavirus emergency orders have plainly exceeded a constitutional limit, but experts say the legal issues are thornier than they ostensibly appear.

The complaint, filed by 10 churches and several pastors and congregants, argues that Brown’s restrictions on gatherings should already have expired because she didn’t obtain legislative approval to extend them beyond 30 days, as required by Article 10-A of the Oregon Constitution.

The plaintiffs filed the suit in Baker County Circuit Court on May 6.

Ray Hacke, attorney for the plaintiffs, said that “good intentions are no excuse” for violating the constitution’s catastrophic disaster provision, which is “meant to be a check on the governor’s power.”

“It’s easy for someone in her position to get drunk on power and infringe on religious liberty and other liberties in the name of health and safety,” Hacke said. “There is very serious infringement on religious liberty here.”

The Oregon Legislature granted additional legal authorities to the governor to deal with general emergencies and public health crises, but the plaintiffs argue those earlier statutes are narrowed by a constitutional amendment approved by Oregon voters in 2012.

Under that provision, a “catastrophic disaster” declaration only remains effective for 30 days unless it’s extended by three-fifths majorities of the House and Senate before expiring.

Hacke contends the change was meant to ensure the executive and legislative branches work as a team, but because the current emergency orders weren’t legally extended, that means they’re no longer effective.

“She missed the window,” he said.

Brown has cited a number of statutes — particularly ORS 401.165 and ORS 433.443 — in declaring an emergency and exercising executive power.

While it’s true that constitutional articles will override contradictory statutes, legal experts say it’s not certain such a conflict exists in this case.

First, it’s generally understood that emergency powers granted by the constitution establish a minimum “floor” that can be enhanced with additional authority, rather than a maximum “ceiling” for the governor’s authority, said Steven Kanter, emeritus dean and professor at Lewis & Clark Law, who specializes in constitutional law.

“That is the normal manner that most constitutional provisions are interpreted,” he said.

Also, laws are generally interpreted as working in harmony with each other unless lawmakers explicitly nullify one in favor of another, Kanter said.

“Implicit repealers are disfavored in the law,” he said. “Courts usually try not to find a conflict unless it’s evident and necessary.”

In other words, the 2012 constitutional amendment doesn’t necessarily sweep away the powers granted by the earlier emergency statutes unless they’re flatly irreconcilable with it, Kanter said.

It’s possible the “catastrophic disaster” powers described in the constitutional provision are in a separate category from the emergency statutes being used to address the coronavirus, he said. “You may have a limited notion of what a catastrophe is, which may or may not include this.”

It’s likely that Gov. Brown will argue that she chose to invoke the earlier emergency statutes rather than the constitutional “catastrophic disaster” provision, said Paul Diller, a law professor at Willamette University specializing in legal structures and public health.

Specifically, the constitutional provision would have endowed the governor with greater fiscal powers she hasn’t yet tried to use, such as spending “kicker” funds, re-allocating gas tax money and exceeding the state’s debt limit, he said.

“It gives her additional powers at the cost of having an expiration date of 30 days before calling the Legislature into session,” Diller said. “If you just look at the text, as I have done, it looks like an additional power, not an exclusive power.”

The plaintiffs’ case may be bolstered by the legislative history behind the constitutional amendment, which was referred to voters by lawmakers, he said. If the legislative history shows lawmakers intended the 2012 provision to be the governor’s exclusive emergency power, that would strengthen the lawsuit’s arguments.

However, if lawmakers wanted to abolish the earlier emergency powers, they could have just made their intention clear in the text, Diller said. “I’m skeptical because the Legislature did not rescind the other emergency statutes.”

The Baker City Herald contributed to this report.


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