Judge Rules That Oregon Virus Restrictions Are Invalid

May 19, 2020 Updated: May 19, 2020

SALEM, Ore.—A judge in rural Oregon on May 18 tossed out statewide CCP virus restrictions imposed by Democratic Gov. Kate Brown, saying she didn’t seek the Legislature’s approval to extend the stay-at-home orders beyond a 28-day limit.

Baker County Circuit Judge Matthew Shirtcliff issued his opinion in response to a lawsuit filed earlier this month by 10 churches around Oregon that argued the state’s social-distancing directives were unconstitutional.

Brown filed paperwork within hours seeking an emergency review by the Oregon Supreme Court and a hold on the ruling until the high court could take it up. Her attorneys had asked the judge to stay his ruling until that time, but he declined.

In a statement, Brown said: “The science behind these executive orders hasn’t changed one bit. Ongoing physical distancing, staying home as much as possible, and wearing face coverings will save lives across Oregon.”

In a seven-page opinion, Shirtcliff wrote that the damage to Oregonians and their livelihood was greater than the dangers presented by the CCP virus. He also noted that other businesses deemed essential, such as grocery stores, had been allowed to remain open even with large numbers of people present and have relied on masks, social distancing and other measures to protect the public.

“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 wrote.

Courts in other states have ruled against similar orders. The Wisconsin Supreme Court struck down Gov. Tony Evers’s stay-at-home order last week, ruling that his administration overstepped its authority when it extended the order for another month without consulting legislators.

A federal judge in North Carolina on May 16 sided with conservative Christian leaders and blocked the enforcement of restrictions that Gov. Roy Cooper ordered affecting indoor religious services during the pandemic.

The order from Judge James C. Dever III came days after two churches, a minister, and a Christian revival group filed a federal lawsuit seeking to immediately block enforcement of rules covering religious services within the Democratic governor’s executive orders.

In Louisiana, however, a federal judge refused a minister’s request to temporarily halt Gov. John Bel Edwards’s stay-at-home order, which expired that same day.

The ruling in Oregon turns on the legal mechanism Brown used to issue her orders. The plaintiffs allege—and the judge agreed—that they were issued under a statute pertaining to public health emergencies, not an older provision that addresses natural disasters such as storms, earthquakes, or floods.

The public health statute contains the 28-day time limit, while the other would give Brown broader powers but is not relevant in the current situation, said Kevin Mannix, who is representing business owners in the case.

California, Washington state, and New York—other states where governors have repeatedly extended restrictions—give their governors more power in public health emergencies, but Oregon law puts a specific clock on those “extraordinary powers,” he said.

“Maybe other states will take a lesson from us in the future about what to do about public health emergencies,” Mannix said. “We’ve thought about it, we’ve balanced the powers of the governor with the powers of the people and their representatives.”

Brown declared a statewide state of emergency due to the virus on March 8 and has issued multiple executive orders since then, including the closure of all schools, nonessential businesses, and a ban on dine-in service at restaurants and bars.

Earlier this month, Brown extended the order another 60 days until July 6. All but a handful of Oregon counties, however, got the state’s approval to begin loosening those restrictions on May 15.

Oregon Attorney General Ellen Rosenblum urged residents to abide by the stay-at-home orders while the ruling is appealed.

“We will argue that the judge erred in his construction of the relevant statutes and that he abused his discretion in issuing the preliminary injunction,” she said in a statement. “We will also be asking for an immediate stay of his order.”

The top Republican in the Oregon House applauded the judge’s ruling but cautioned people to continue to follow federal guidelines so as not to undo the progress the state has made against the virus.

“This ruling will be appealed but the need for the governor to create the least possible harm in the exercise of extraordinary power remains, “she said. “There has been no accountability throughout this emergency declaration, until now.”

Attorney Ray Hacke, who represented the plaintiffs in the case, said the ruling was a vindication not just for freedom of religion, but for all freedoms of people in the state.

“Praise God. I’m excited, and I’m glad that the judge saw that there are limitations on the governor’s power, even in the midst of emergencies,” he said. “If people want to get their haircut, they can. They can leave their home for any reason whether it’s deemed essential in the eye of the state or not.”

By Gillian Flaccus & Andrew Selsky