Oregon Shutdown Order: Vacated and Reinstated in One Day

by: Anthony F. Della Pelle
19 May 2020

Another State’s Executive Orders – this time in Oregon – rode a judicial seesaw yesterday.  Earlier in the day, Baker County Circuit Court Judge Matt Shirtcliff issued an opinion and preliminary injunction which declared that all of Oregon Governor Kate Brown’s Executive Orders were “null and void”, and therefore enjoined enforcement of several orders entered as early as March 8.  The opinion cites two main bases for the decision:  (1) That the duration of the orders exceeds the 28-day limit which the Governor is authorized to control under legislatively-granted emergency powers; and (2) the orders impermissibly restrict the rights of some classes of persons – such as the lead plaintiff in this case which is a baptist church – by shutting them down entirely, and allows other classes of persons such as grocery stores to remain open with social distancing and safety protocols.  The plaintiffs in this case included local government officials (in their individual capacity) and they were represented by a non-profit organization which defends religious liberty.

This decision was immediately criticized by various Oregon officials and others, as the measures had been reported to curb the spread of COVID-19 in Oregon, and State officials requested that the Circuit Court judge issue a stay of his rulings while they appealed.   The stay request was denied, but Oregon Attorney General Ellen Rosenblum then authorized the filing of an emergent appeal to the Oregon Supreme Court.

Last night, the Oregon Supreme Court vacated the lower court’s injunction.  The high Court’s opinion and order is not yet available online, but an Associated Press story reports that the Governor’s Orders will still be in effect, thus halting the impact of the injunctive relief entered earlier in the day.  It is presently unclear whether the Supreme Court’s decision includes a reversal of the lower court’s entire decision, thus ending that shutdown challenge litigation, or whether the high Court has only suspended the temporary injunction issued by Judge Shirtcliff, and allows the lawsuit to proceed.  We’ll update this matter as the facts unfold.

Regardles of the scope of the Oregon Supreme Court decision, yesterday’s events there continue to illustrate the growing concern about the duration and scope of “stay at home” and shutdown orders issued around the United States.  Most Americans are now entering their third month of having their businesses either closed or significantly restricted in their scope and it is likely that other challenges will be surfacing in growing frequency as time passes.  As we have stated in earlier posts, the challenges which appear to be getting the most positive reactions from courts around the country are those that focus on the possible overbreadth of the shutdown orders and fall into three main categories –  the orders are challenged as either being beyond the powers specifically vested in the executive branch of government, impermissibly restrict funamental rights guaranteed under State and Federal Constitutions, or result in unequal treatment of different classes of persons which violate the Equal Protection Clause of the 14th Amendment to the United States Constitution.

We are certain that there will be more to this story and these challenges, and will continue to monitor them as the COVID-19 pandemic endures.