Baker City Herald

Baker County Circuit Court Judge Matt Shirtcliff is standing by his May 18 opinion that Oregon Gov. Kate Brown exceeded her legal authority in issuing executive orders related to the coronavirus pandemic.

In a letter dated Tuesday, Shirtcliff wrote that “I have elected to stand by my original ruling.”

The Oregon Supreme Court had given Shirtcliff a deadline of 5 p.m. Tuesday to respond to the alternative writ of mandamus the Court issued on Saturday.

That legal document asked Shirtcliff to either vacate his May 18 ruling, which temporarily prevented the state from enforcing the governor’s executive orders, or to issue a written opinion defending his decision. The Supreme Court issued a stay on May 18, which put a halt to the preliminary injunction and allowed the state to enforce the governor’s executive orders. The state continues to have that authority.

Shirtcliff’s third option is the one he chose — to not vacate his decision but not issue a supplemental written opinion.

The issue now returns to the Oregon Supreme Court.

Attorneys representing the governor have until Thursday to file briefs related to the preliminary injunction. The plaintiffs’ attorneys have until June 2 to file responding briefs.

The current legal issue is the preliminary injunction, not the lawsuit that led to Shirtcliff’s May 18 injunction.

Whether or not the Supreme Court decides to reinstate the injunction, the lawsuit could proceed to trial in Baker County Circuit Court.

The plaintiffs in the lawsuit, led by Elkhorn Baptist Church of Baker City and represented by Salem attorney Ray Hacke of the Pacific Justice Institute, which defends religious freedom, argue that Brown, by invoking in her executive orders a state law dealing with public health emergencies, is subject to that law’s 28-day limit on such emergencies.

By that measure the executive orders ended in early April, and the plaintiffs contend the governor no longer has the legal authority to restrict a variety of activities, including the current 25-person limit on public gatherings, including church services.

Shirtcliff agreed with the plaintiffs and cited the 28-day limit in his May 18 decision granting the preliminary injunction.

Brown’s attorneys, meanwhile, argue that the governor’s executive orders are not subject to the 28-day limit in that law because her initial declaration of an emergency related to the coronavirus was under a different law — a general emergency statute that has no time limit.

Brown has since extended the emergency declaration to July 6.

Kevin Mannix, a Salem attorney and former state legislator who represents a group of intervenors who support the plaintiffs in the lawsuit, issued a statement about Shirtcliff’s letter.

“I am pleased that Judge Shirtcliff chose to stand by his original decision, which I firmly believe is strongly supported by proper analysis of the statutes,” Mannix wrote. “We will now have the opportunity to fully engage with the Governor’s representatives in front of the Supreme Court. We will make the case that the rule of law in Oregon allows continued standard regulation of public health matters, but it does not allow the Governor extraordinary powers to close down businesses and churches, beyond 28 days from the original declaration of a public health emergency.”

Mannix said in a telephone interview this afternoon that the Supreme Court chose what he described as a “middle ground.”

Ellen Rosenblum, Oregon attorney general, issued a statement Tuesday afternoon:

“In a letter to the Oregon Supreme Court (Tuesday) morning, the Baker County Judge announced he is standing by his decision that all of the Governor's “Stay Safe; Stay at Home” Executive Orders are null and void. We appreciate the Oregon Supreme Court’s Saturday (of Memorial Day weekend) ruling and we look forward to the Court’s consideration of the legal issues. We will be filing an extensive brief on Thursday advocating for upholding the orders and allowing for the safe and orderly re-opening of our state that is already well underway. Meanwhile the Governor's orders remain lawful and in effect.”

The state’s highest court could have either dismissed Shirtcliff’s order granting a preliminary injunction, or it could have dismissed the governor’s challenge to the injunction.

Instead, the Supreme Court will now hear legal arguments from both sides on the question of whether the injunction should be tossed out or reinstated.

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