Judge Won’t Dismiss His Order Tossing Out Virus Restrictions

PORTLAND, Ore. (AP) — (Update) A rural Oregon judge says he won’t dismiss his ruling which tossed out Oregon Gov. Kate Brown’s stay-at-home orders to fight the spread of the coronavirus. OregonLive reports that Baker County Circuit Judge Matthew B. Shirtcliff told the state Supreme Court Tuesday he will not alter the preliminary injunction that declared Brown’s directives “null and void.″ The Supreme Court last week stayed Shirtcliff’s original ruling.

“I have elected to stand by my original ruling,″ the judge wrote to the lawyers involved in the case. ” I will not be vacating the May 18, 2020 Order Granting Preliminary Injunctive Relief and Denying Motion to Dismiss or taking other action.″

The state Supreme Court will now accept further legal briefs until June 2 before it decides whether it should uphold or dismiss Shirtcliff’s preliminary injunction.

The governor had won an emergency stay, meaning a hold on the injunction, allowing her executive “Stay Home Save Lives″ orders to remain in effect, until the state Supreme Court hears the merits of the case.

The state now has until Thursday to file further briefing in support of its push to dismiss Shirtcliff’s injunction, and the 10 churches and 21 others who sought the injunction will have until next Tuesday to respond.

Shirtcliff had ruled last week that the governor’s executive orders in response to the global pandemic exceeded a 28-day limit adopted by state lawmakers and were no longer valid in response to a suit filed by 10 churches, the non-profit Pacific Justice Institute and 21 others against the governor. Shirtcliff is the only judge seated in Baker County, where the suit was filed.

On Saturday, the high court justices ordered the trial judge to either dismiss the injunction or explain why he shouldn’t.

The state Supreme Court’s direction Saturday showed it had found the governor made a serious challenge to the injunction. If the state’s high court thought the governor’s petition was frivolous, it would have thrown out the petition, said Steve Kanter, a retired law professor and dean emeritus at Lewis & Clark Law School.

Legal observers said they didn’t expect Shirtcliff to back down from his ruling made eight days earlier. Now, the state Supreme Court will decide the merits of the case.

The churches had successfully argued in Baker County 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, that limitation applied. They also had argued that the governor’s social gathering restrictions had violated their constitutional right to the freedom of religion and assembly.


The Oregon Supreme Court is giving a rural judge until Tuesday to toss out his ruling that found the governor’s coronavirus restrictions are invalid.

If the judge declines to do so, justices said Saturday that Baker County Circuit Judge Matthew Shirtcliff must explain why and give the state and churches who sued over the stay-at-home directives an opportunity to make further arguments.

Shirtcliff ruled Monday that Gov. Kate Brown had exceeded her authority by shutting down in-person religious services to slow the spread of the novel coronavirus. The lawsuit was brought by 10 churches around Oregon and later was joined by several local elected officials and business owners.

Shirtcliff’s broad ruling also invalidated many of the other provisions of Brown’s stay-at-home order, including a ban on public gatherings and a ban on non-essential businesses and sit-down service in bars and restaurants.

The Supreme Court quickly stayed Shirtcliff’s order, keeping Brown’s directives in place.

On Saturday, the justices sent the case back to Shirtcliff with orders to expunge his ruling or explain why not.

In his opinion, Shirtcliff wrote that the damage to Oregonians and their livelihood was greater than the dangers presented by the coronavirus. 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’ 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’ stay-at-home order, which expired that same day.

The ruling by the county judge in Oregon turned 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 does not contain a time limit.

Brown maintained in court papers that the statue on public health emergencies was intended by the Legislature to supplement, and not supersede, the emergency powers granted her for natural disasters — including disease — and therefore the time limit doesn’t apply.

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 one Oregon county, however, has since received the state’s approval to begin loosening the coronavirus restrictions. In those counties, restaurants can provide dine-in service with 6 feet (2 meters) of social distancing and salons, gyms and other nonessential businesses can also reopen with strict safety precautions.

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