SALEM — Gov. Kate Brown’s executive orders during the coronavirus pandemic have already expired under state law, the lawyer for a group of churches and other plaintiffs argues in a brief filed Tuesday in the Oregon Supreme Court.
Ray Hacke, an attorney with the Pacific Justice Institute in Salem, argues that because Brown invoked the state’s public health emergency law, she is bound by its 28-day limit.
Hacke filed a 29-page brief in response to the brief Oregon Solicitor General Benjamin Gutman filed May 28 on behalf of Brown.
The court had set a deadline of Tuesday for Hacke and another Salem attorney, Kevin Mannix, who represents a group of intervenors, to file briefs in response. Mannix also filed his brief Tuesday.
Mannix, in his brief, said the governor still has significant powers to address the coronavirus pandemic under Oregon’s Public Health laws, included in ORS Chapter 431A.
The key point, however, is that these broad powers do not include the powers to close businesses and churches or to impose “re-opening” orders on counties, Mannix argued.
At issue is the preliminary injunction Baker County Circuit Judge Matt Shirtcliff granted to the plaintiffs on May 18. The Supreme Court later that day set aside the injunction and allowed the state to continue to enforce the governor’s executive orders restricting some businesses and limiting the size of public gatherings, including church services, to 25 people.
After Shirtcliff declined to withdraw his decision granting the preliminary injunction, the Supreme Court told attorneys on both sides to submit written arguments for whether the injunction should stand.
The Supreme Court has not given a timeline for its decision.
In his brief, Hacke addresses the two state laws Brown has cited during the pandemic.
The first is Oregon Revised Statute (ORS) chapter 401. That’s the general emergency law Brown invoked when she initially declared an emergency due the pandemic on March 8. Chapter 401 does not set a time limit on the emergency — it can continue until either the governor or the Legislature decides to end it.
The second law is ORS chapter 433, which deals specifically with public health emergencies. Chapter 433, which Brown cited in several of the executive orders she issued following the March 8 emergency declaration, has a 28-day limit.
Hacke contends that when two laws are involved, the “newer and more specific provision” is the controlling statute. He writes in the brief that Brown cannot “treat the time limits imposed under (chapter) 433 as optional.”
In addition, chapter 433 is newer, passed by the Legislature in 2003 and revised in 2007. Chapter 401 dates to 1949.
Shirtcliff, the county judge, agreed with that reasoning in his decision granting the preliminary injunction.
Gutman disputes that interpretation of the interplay between the two laws. He argued in his May 28 brief that the laws are not in conflict but are instead complementary, and that Brown can invoke an emergency under chapter 401, without time limits, but also use the specific powers granted under chapter 433 without then being limited to the 28 days in that statute.
Hacke countered a contention in Gutman’s brief that the plaintiffs “did not assert a free-exercise claim in their complaint.”
Hacke cited sections in the amended lawsuit contending that one of Brown’s executive orders “at least implicitly impinges on plaintiffs’ free exercise of religion” under the Oregon Constitution.
Hacke also argues in his brief that Brown’s executive orders “have consistently shown hostility toward religion.”
He cited executive order 20-25, which limits “faith-based gatherings” to 25 people, regardless of the size of the church building.
Hacke notes that during phase one of the state’s reopening plan, the governor allows restaurants and bars to determine maximum occupancy while still maintaining social distancing, but doesn’t allow churches to use the same guidelines.
Hacke acknowledged that although Brown signed executive order 20-25 after the lawsuit was filed, two earlier orders also fail to treat religious gatherings with the same leniency as secular gatherings.
Hacke concludes his brief by asking the Supreme Court to affirm Shirtcliff’s decision to grant the preliminary injunction, which would block the governor from enforcing executive orders, including those limiting the number of people attending church services.
The Supreme Court could do so for either of two reasons, Hacke argues.
The first reason is the governor’s failure to abide by the 28-day limit by which Hacke contends she is bound.
The second reason, Hacke writes, is that “the severe curtailment of core constitutional freedoms even in areas of the state that have experienced few or no coronavirus cases cannot be further sustained.”
“When wielding her emergency powers, the Governor can and should — nay, must — respect individual liberties to the greatest extent possible,” Hacke writes.