On June 12, 2020, the Oregon Supreme Court struck down a preliminary injunction that had been granted by a lower court to Elkhorn Baptist Church, which had challenged Governor Kate Brown’s COVID-19 executive orders.[1]

Like many governors, Brown implemented a series of emergency executive orders to respond to the public health crisis posed by COVID-19. The most recent orders were issued in mid-March, and they put a 25-person cap on gatherings, including religious services, and required attendees to obey various “social distancing” requirements.[2]

Plaintiffs, a number of churches and individuals, sued and sought to enjoin the governor from enforcing the orders.[3]  Curiously, unlike the plaintiffs in two similar challenges that were recently rejected by the United States Supreme Court,[4] the plaintiffs here did not claim that the orders violated their religious liberties.[5]  Instead, they argued that the orders had expired in late April pursuant to a statutory deadline, or in the alternative, a state constitutional deadline.[6]

The court rejected these arguments concluding that the plaintiffs’ claims failed as a matter of law because the deadlines were inapplicable. 

In reaching that conclusion, the court first worked its way through the complicated interplay of two chapters of the Oregon code. 

The first is chapter 433, which permits the governor to “declare a state of public health emergency” and grants her the power to, among other things, limit “entry into, exit from, movement within, and the occupancy of premises in any public area subject to or threatened by a public health emergency.”[7] This public health emergency and its conferred powers expire after, at most, 28 days.[8] It was this power that the governor wielded when she limited gatherings to 25 people.[9] Accordingly, the plaintiffs argued that the orders expired no later than the end of April and were no longer enforceable.

Although the governor wielded powers set forth in ORS 433.441, she did not invoke that statute when she declared an emergency. Rather, she declared an emergency pursuant to chapter 401, which permits the governor to “declare a state of emergency”[10] and grants her police powers[11] and other powers not relevant to the dispute.[12] This state of emergency and its conferred powers do not expire until the governor or the legislature says so.[13] In other words, the governor declared an emergency pursuant to a statute with no deadline, but wielded powers pursuant to another statute with a 28-day deadline.[14]

The court sided with the governor in holding that because the emergency declaration was made pursuant to chapter 401, there was no deadline. First, it concluded that chapter 433 permits the governor to do wield its powers even if the emergency declaration is made under chapter 401.[15] Section 433.441(4) provides that if the governor declares a state of emergency pursuant to chapter 401, “the Governor may implement any action authorized by ORS 433.441. . .”[16] Second, to the extent that chapter 433 and 401 were in conflict, the court concluded that chapter 401 rendered 433 inoperative.[17]  Lastly, the court picked through the legislative history of chapter 433 and concluded, based on the testimony of legislative witnesses, that the legislature intended for chapter 433 to be “a step short of declaring a state of emergency under chapter 401.”[18]

Alternatively, the plaintiffs also argued that the governor’s orders were subject to a 30-day deadline under Article X-A of the Oregon Constitution.[19] Article X-A permits the governor to declare a “catastrophic disaster” and grants the governor extraordinary powers—beyond those of chapter 401 or 433—which expire after 30 days.[20] The court held that Article X-A’s deadline did not apply because the governor did not invoke Article X-A and did not have to because Article X-A is discretionary.[21]

Justice Christopher Garrett, joined by Justice Thomas Balmer, concurred in the opinion but wrote separately to say that the majority opinion went further than necessary.[22] They would not have said, as the majority did, that the plaintiffs cannot prevail; “it is enough to say that their arguments to this point fall short of what is required for preliminary relief.”[23]

The ultimate effect of Elkhorn is to turn chapter 433’s 28-day deadline into a dead letter, meaning that a governor can give herself all the powers of chapter 433 while avoiding that chapter’s deadline.

 

Note from the Editor:

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[1] Elkhorn Baptist Church v. Brown, 466 P.3d 30 (OR 2020).

[2] Id. at 37.

[3] Id. at 39.

[4]  S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (rejecting an emergency First Amendment challenge to California’s COVID-19 orders); Calvary Chapel Dayton Valley v. Sisolak, No. 19A1070, 591 U.S.__ (2020) (rejecting an emergency First Amendment challenge to Nevada’s COVID-19 orders).

[5] Elkhorn, 466 P.3d at 51.

[6] Id. at 39.

[7] Or. Rev. Stat. § 433.441, et seq.

[8] Id.

[9] Elkhorn, 466 P.3d at 45–46.

[10] Or. Rev. Stat. § 401.165.

[11] Id. § 401.168.

[12] Id. § 401.175.

[13] Id. § 401.192.

[14] The court did not address whether the powers she wielded to limit the size of gatherings qualified as a “police power” for the purposes of chapter 401.

[15] Elkhorn, 466 P.3d at 44.

[16] Or. Rev. Stat. § 433.441(4).

[17] Elkhorn, 466 P.3d at 44.

[18] Id. at 46.

[19] Id. at 49.

[20] Or. Const. art. X.

[21] Elkhorn, 466 P.3d at 50.

[22] Id. at 52 (Garrett, J., concurring).

[23] Id. at 53.