CIRCUIT COURT OF OREGON Eighth Judicial District Matthew B Baker County Courthouse 1995 3'“ Street, Suite 220 r ac 2 E= Baker City, Clrcun Judge Shlrtcliff, Elaine A. Calloway, Tnal Court Admlmstrator FAX OR 978 l4 5239238 (541) ' (541) 523-6303 5 3 6:2 L \ U L ' (;“a May 18, A OK 2020 '3 E 1:3 S g; ‘/ " < <23 r Pacific Justice Institute 45th Ave. NE, Suite 33 Salem, OR 97305 Marc Abrams and Christina Beatty-Walters Oregon Department ofJustice 100 SW Market Street Portland, OR 97201 Kevin Mannix 2009 State Salem, St. OR 97301 Re: Opinion on Temporary lnjunctive Relief Elkhorn Baptist Church, et a/ v. Katherine Brown Governor of the State of Oregon Case # 20CV1 7482 Dear Mr. Hacke, Mr. Abrams, Ms. Beatty-Walters, and Mr. Mannix: This matter came before the court on May 14, 2020, on Plaintiffs’ ORCP 79 and Defendant’s Motion Motion for Temporary were represented by Ray Hacke. The Defendant, Governor Brown, was represented by Marc Abrams and Christina Beatty—Walters. Kevin Mannix also appeared after filing for intervenor status pursuant to ORCP 33 on behalf of additional plaintiffs. Intervenor status was granted after Mr. lnjunctive Relief Pursuant to to Dismiss. The Plaintiffs Abrams, on behalf of the Governor, did not object to the intervenor status of the additional plaintiffs. On March 8, 2020, in response to the Covid-19 pandemic, Governor Brown declared a state of emergency pursuant to ORS Brown implemented Executive Orders 20-03 through 20-25 between March 8 and May 401.165. She implemented Executive Order 20-03. Governor 2020. Page 1 14, 7‘) -; Ray Hacke 1850 C1 r3 (3 6; ,< fl 3‘7 ”a (:3 K“ n-" QK “" (fl / w (“ 'L ‘3’ " 3; E: ‘ c 2-~ :32 2,. E- _ 5 ¢ ,r, v0 x ,6} O O. o2 r 2020. l8 5 The Governor has multiple "tools” (as described by counsel for the governor) at her disposal implementing emergency orders for the State of Oregon. These include ORS 401.165 Declaration of State of Emergency, ol‘Originul ORS 433.441 (which include in ORS 433.441 through 433.452) Proclamation of Public Health Emergency, and Article X-A of the Oregon Constitution dealing with Catastrophic Disasters. Copy Governor Brown chose to declare a state of emergency pursuant to ORS 401.165. On March 8, Correct 2020, Governor Brown also utilized provisions of (see Executive Order 20-03 sec 1. and 3.) and ORS 433.441 her original executive order in later orders. Verified Each of these provisions of Oregon law grant the Governor certain powers and limitations during times of emergencies. ORS 401.165 This statute allows the Governor to declare a state of the state or throughout the whole state. agencies of state government and agencies in full It emergency within geographical regions of also gives her complete authority over constitutional police powers. the state government though It all executive authorizes her to direct this provision. Other aspects ofthe statute provide the Governor with control over emergency operations, the power to close roads and highways, and otherwise manage emergency response. This statute has no expiration clause other than upon declaration of the Governor or legislative assembly. The limitations are only in the statutory scope of authority given to the Governor. This statute ORS 433.441 was passed into law in 1949. to 433.452 This statutory provision allows the Governor to declare a state of public health emergency. Although there are multiple definitions that can trigger coronavirus clearly meets imminent threat of an is contained illness in ORS 433.442 or health condition that: a public health (4)(a)(B) (a) Is — (4) emergency, one that the ”an occurrence or believed to be caused by any ofthe following: (B) the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin that may be powers than granting the Governor highly contagious.” This statute carries additional ORS 401.165, including those contained in ORS 433.441 (3)(d) the power to ”Control or limit entry into, exit from, movement within and the occupancy given in premises in any public area subject to orthreatened by a public health of emergency and necessary to respond to the public health emergency.” These provisions give the Public Health Director specific powers when authorized by the Governor. ORS 433.452 allows the Public Health Director or Local Public Health Administrator to detain an individual or administrator reasonably believes a person within their jurisdiction to a communicable disease disease or condition that Page 2 is identified by rule of the when the director may have been exposed Oregon Health Authority to be the basis for the public health emergency. a reportable 2020. l8 This statute provides these additional emergency. It powers to the Governor in a specific public health also states in section (4) that: 5 in ORS 433.441 to 433.452 limits the authority of the Governor to declare a emergency under ORS 401.165. If a state of emergency is declared as authorized under 401.165, the Governor may implement any action authorized by ORS ”Nothing ol‘Originul state of Copy 433.441 to 433.452.” Correct The limitations to ORS 433.441 are given in Section (5) ofthis provision which states: Verified ”A proclamation of state of public health emergency expires when terminated by a declaration of the Governor of no more than 14 days after the date the public health emergency proclaimed unless the Governor expressly extends the proclamation for an is additional 14-day period.” ARTICLE X-A OF THE OREGON CONSTITUTION Oregon Constitution was added in 2012 after the voters of Oregon passed it through a ballot measure. It gives the Governor discretion to invoke the provisions of this Article ifthe Governor finds and declares that a catastrophic disaster has occurred. One of the This provision of the definitions of a catastrophic disaster is a Public Health Emergency. disaster (including a public health emergency) as a natural or results in extraordinary levels of death, injury, property state; and It also defines a catastrophic human-caused event damage or disruption of daily (b) severely affects the population, infrastructure, environment, government functioning Clearly the coronavirus in that: (a) economy life in this or the state. pandemic fits this definition. This provision of our Constitution gives the Governor the option and the authority to convene the legislature and allows for certain procedural voting changes the legislature to convene those legislators Section six who in light in a of the catastrophic event. These include sections allowing two thirds of quorum, and allowing attendance through electronic means. the time frame allowed for the Governor to exercise place other than the capitol, voting procedures for constitute a of Article X-A limits extraordinary powers in the case of a catastrophic disaster. Section six provided that the actions taken by the governor once invoked, shall cease to be operative not later than 3O days following the date the Governor invoked the provisions of sections 1 to 5 ofthe article, or on a date recommended by the Governor and determined by the legislative assembly. This when the legislative assembly extends the constitutional provision does allow an extension Governor’s extraordinary powers beyond the 30-day members of each house who limit upon approval of three-fifths of the are able to attend a session described in the Article. STATUTORY AND CONSTITUTIONAL PROVISIONS These two statutory provisions and certain Page 3 powers for the Article X-A of the Oregon Constitution carry with them Governor and certain restrictions. The general provisions of ORS 2020. l8 5 401.165 have allowed Governors since 1949 to direct state resources This is the most expansive statute of the three laws and has the least restrictions, especially as to the time limitation ofthe Governor power directly emergency over the However, the statute does not grant the declaration. movement more various provisions gives the Governor additional and entry into, exit from, movement ORS 433.441 and of citizens and gatherings. ol‘Originul Copy times of emergencies. in specific powers to control or within and the occupancy of premises subject to or threatened by a public emergency in specific in its limit any public area times of public health emergencies. See ORS 433.441(3)(d). This statute gives the Governor power over the movement and Correct gathering of citizens. Reference to provisions of ORS 433.441 through 433.452 and more ORS 433.441(3)(d) are found throughout the Governor’s various executive orders. ORS 433.441(3)(d) is specifically cited in areas where the Governor has ordered that business specifically Verified and retail establishments are prohibited from operating. See Executive Order No. 20—12 sec. 2 Closure of Certain Business essential social and 3 sec. 1 Stay p. Home and p. 4 Save Lives regulating non- and recreational gatherings, which would include churches. Additionally, ORS 433.452 gives the Public Health Director or the Local Public Health Administrator the power to detain individuals that the director or administrator reasonably believes exposed to the When virus. granting this additional legislature saw may have been fit power over the movement and gatherings of citizens, the to add additional time restrictions. Those time restrictions contained in section (5) of that provision only allow the Governor to extend the emergency declaration for 14 additional days from the original 14-day period. This provision makes the maximum time restriction to be 28 days by operation of law. The Governor in her original executive order 20-3 beyond the maximum 28-days allowed by ORS that when the Governor utilized the provisions of ORS 433.441 in her set her executive order to 60 days. This 433.441. This court finds executive order, she triggered in ORS all is well the provisions of ORS 433.441 including the time restrictions 433.441(5). By doing so, the executive order maximum 28—day time became null and void beyond the period allowed by the statute. Moreover, by not complying with ORS 433.441(5) timelines, the Governor’s subsequent Executive Orders 20—05 through 20-25 are and void. (see Executive Order 20-12 extended until terminated by the Governor; Executive Order 20-24 extended for an additional 60-days; Executive Order 20-25 extended also null until terminated by the Governor as examples of extensions beyond 28 days). The statutes are to be read to work together with the more specific statute governing. ”Where there is a conflict between two statutes, both of which would otherwise have full force and effect, and the provisions of one are particular, special and specific in their directions, and the other are general in their terms, the specific provisions must prevail over the general provisions.” Colby v. Larson, 208 Or 121 (1956). ORS 401.165 and ORS 433.441 are in conflict over the length of time the Governor’s orders specific statute and relates pertaining to the restriction of citizens restrictions in in ORS 433.441(3)(d) in 4 lt is in 2007, is the more the more specific statute fit to impose. Once the Governor began utilizing the Executive Order 20-12, the rights of citizens to assemble and operate their business became Page ORS 433.441, enacted the Governor’s executive orders and also carries time that the legislature saw specific provisions of last. directly to public health emergencies. significantly curtailed, thereby ensuring the need for furtherjustification and the statutory limitations time which create in a check on this 2020. additional power of the Governor. Although ORS 433.441(4) indicates that nothing in ORS l8 5 433.441 to 433.452 ORS 401.165, it limits the authority of the Governor to declare a state of emergency under suspend the time limitations of section also does not (5). ol‘Originul This court finds that the Governor Copy was not required to invoke the provisions of Article X-A of the Oregon Constitution. Article X-A clearly states that the Governor has discretion to implement the constitutional provisions because the Governor ”may invoke the provisions of Correct 1(3). However, because the Governor implemented bound by them. Thus, once the maximum 28-day time provisions of ORS 433.441(5) expired, the Governor’s Executive Order and all other orders were rendered this article.” See Article X—A, Section statutory provisions, she Verified is and void. null STANDARD OF REVIEW FOR PRELIMINARY INJUNCTION ln order to obtain a preliminary injunction, the to succeed on the merits, likely of a preliminary injunction, injunction is in plaintiffs must demonstrate that that they are likely to suffer irreparable (2) that the balance of equities tips (3) the public interest. Winter v. Nat. Res. in harm their favor, Def Council, 555 Inc. (1) in and they are the absence (4) U.S. 7, that an 20 (2008). SUCCESS ON THE MERITS The Plaintiffs have demonstrated that the Governor was beyond her statutory authority 433.441 when she exceeded the ORS 433.441(5) timelines required pursuant to proclamation. This court finds that once the provisions of ORS 433.441 were in ORS a public health triggered, powers to restrict are required. Based on these especially including the provisions of section (3)(d) relating to the Governor’s the movement of citizens, the time limitations of section (5) provisions this court finds the Plaintiffs’ likelihood ofsuccess on the merits IRREPARABLE is HARM The United States Supreme Court has recognized that ”the loss of freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, (1976). Plaintiffs have alleged that without the preliminary injunction, their will high. be infringed because they including this next will 427 U.S. freedom of 347 religion be prevented from gathering for worship at their churches, Sunday and thereafter. Moreover, many intervenor affidavits indicating that with the current restrictions in the plaintiffs have provided Governor’s orders they are unable to maintain their businesses and provide for their families. This court finds that the Plaintiffs have made a sufficient showing of irreparable harm. BALANCE OF EQUITIES TIPS Plaintiffs lN THEIR FAVOR have shown that they will be harmed by a deprivation of freely exercise their religion. Other Plaintiffs have also Page 5 the constitutional right to shown great economic harm to their businesses and their ability to seek a livelihood. Indeed, criminal penalties can be imposed if 2020. they violate current restrictions that are in place. This court understands that the current l8 5 pandemic creates an unprecedented crisis in our state as well as has an enormous responsibility to protect the ol‘Originul the citizens’ constitutional rights to lives freedom of in this of the citizens of our state balanced against religion continue to utilize social how he or she chooses when Plaintiffs can which includes to worship. The Governor’s orders are not required for public safety Copy country. The Governor distancing and safety protocols at larger gatherings involving spiritual worship, just as grocery stores and businesses deemed essential by the Governor have been Correct authorized to do. This court finds that based on these factors the balance of equities tips favor of in Plaintiffs. Verified INJUNCTION The public IS IN THE PUBLIC INTEREST interest is furthered by allowing people to fully exercise their right to worship and conduct their business. Additionally, the additional restrictions is in restore economic viability Based on the public interest to restore individual liberties in this opinion, Plaintiffs’ Motion for Preliminary Injunctive is The court has prepared the order 44% atthew B. Sh Circuit Judge Page 6 without and the our communities. Defendant’s Motion to Dismiss Truly yours, utilization of social distancing protocols denied. The court in is conformance with Relief is granted. not awarding attorney fees. this opinion. ability to 2020. STATE OF OREGON ) ) CERTIFICATE OF MAILING ss l8 5 County of Baker ol‘Originul I, Amy ) Swiger, Judicial Assistant, for the Eighth Judicial District, Oregon, hereby certify that the foregoing was emailed t0 the parties herein below named: Copy Case No. 20CV1 7482 Correct Opinion Verified Ray Hacke, rhackegquji .01‘g attorney for plaintiffs Kevin Mannix, attorney for intervenor-plaintiffs Marc Abrams, Assistant Attorney General kevin@mannix1awfirm.com Christina Beatty-Walters, Assistant Attorney General tina.beattywalters@doi.state.or.us Dated at Baker City, Oregon this 18‘“ marc.abrams@doi.state.or.us day of May, 2020. aw 3%, Judicial Assistant *************** I hereby certify that the foregoing and correct copy of the original Dated this 18‘“ in is a true its entirety. day of May, 2020. Judicial Assistant U