Matt Shirtcliff

Judge Matt Shirtcliff

The plaintiffs, including a Baker City church, who sued Oregon Gov. Kate Brown in early May, claiming she had exceeded her legal authority in restricting activities due to the pandemic, have voluntarily dismissed their complaint.

In a motion ending the lawsuit, Salem attorney Ray Hacke cited the Oregon Supreme Court’s June 12 ruling in the governor’s favor.

The state’s highest court ordered Baker County Circuit Court Judge Matt Shirtcliff to vacate his May 18 decision to grant a preliminary injunction to the plaintiffs, which include Elkhorn Baptist Church in Baker City.

Shirtcliff agreed with Hacke and another Salem attorney, Kevin Mannix, who represented a group of intervenor-plaintiffs, including Bill Harvey, chairman of the Baker County Board of Commissioners, Grant County Sheriff Glenn Palmer and Grant County Commissioner Sam Palmer.

The plaintiffs argued that Brown’s executive orders related to the pandemic, including ones that restricted businesses and limited the size of public gatherings, were limited to 28 days.

One state law, dealing with public health emergencies, that the governor invoked in many of her orders includes the 28-day limit.

But the governor’s attorneys argued that Brown’s orders were not subject to the 28-day limit because her original emergency declaration invoked a different state law, one that has no time limit.

Shirtcliff sided with the plaintiffs and granted their request for a preliminary injunction that temporarily voided the governor’s executive orders.

But that injunction was only in effect for several hours on May 18. Later that day the Oregon Supreme Court issued a temporary stay on Shirtcliff’s order, which meant Brown’s executive orders remained in effect.

The Supreme Court later accepted written arguments from both sides.

On June 12 the court issued its ruling, ordering Shirtcliff to vacate his decision granting the preliminary injunction.

That decision only affected the injunction, and the lawsuit was at that time still active and could eventually have led to a trial in Baker County Circuit Court.

But Hacke, in his motion to volunarily dismiss the lawsuit, wrote that the Oregon Supreme Court’s June 12 ruling means the plaintiffs “cannot establish that (Brown) failed to comply with statutory and constitutional time limits and procedural requirements concerning the use of her emergency powers.”

Shirtcliff approved Hacke’s motion to dismiss the lawsuit.

Hacke said Wednesday morning that he considered revising the lawsuit, focusing on a claim that Brown’s executive orders violate his clients’ constitutional rights to religious liberty.

But he said it’s unlikely the case would have gone to trial sooner than late fall.

And even if he convinced a jury that Brown had exceeded her legal authority, Hacke said the verdict could be overturned by an appellate court. Hacke said the U.S. Supreme Court ruling in late May, rejecting a California church’s request for an injunction blocking California Gov. Gavin Newsom’s limits on the number of people attending church services, illustrate the steep legal road that confronts plaintiffs challenging such restrictions based on First Amendment protections.

“Governors have a lot of latitude in this time to protect the public,” Hacke said. “They can infringe on individual liberty if they need to to protect the public.”

Hacke said he still believes he can make a compelling case that Brown has exceeded her authority, but he concedes it would be a challenge to prevail not only at the trial court level but also to thwart subsequent appeals.

“I’m not going to say impossible, but it definitely would have been more difficult to win under the circumstances,” he said.

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