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Executive Order Challenge

Litigation That Challenged the Governor’s Power to Issue Orders and Directives Without Calling Legislature To Session

Common Sense for Oregon encourages all Oregonians to be socially responsible and to take action which will reduce the potential spread of coronavirus. All of the litigation described here has to do with recognizing that the Governor has short-term emergency powers to allow her to act beyond regular law. But her Executive Orders had run beyond the time limits allowed by law. We took the position that the Governor must call the Legislature into session to deal with changes in the government appropriations and any extraordinary measures that may be necessary to address the coronavirus pandemic. The Governor could no longer order or direct Oregonians outside of regular law. She could ask, suggest, encourage, and present other advisory guidelines. Please continue reading to understand the details of our position.

The Governor overreached in issuing executive orders which restrict the rights of Oregonians

Common Sense for Oregon Foundation joined the Pacific Justice Institute in their challenge against Governor Kate Brown’s Executive Orders relating to the coronavirus pandemic, also known as COVID-19. Ray Hacke, attorney for the Pacific Justice Institute, filed a complaint, Case No. 20-CV-17482, on May 6, 2020 on behalf of 30 religious organizations and individuals. An amended complaint on behalf of 47 religious organizations and individuals was filed on May 11, 2020 and May 12, 2020 in Baker County.

According to Article X-A of the Oregon Constitution, Governor Brown had the authority to take extraordinary action through Executive Orders in regard to a public health emergency which constitutes a catastrophic disaster. However, that authority expired in 30 days unless it was extended with approval of three-fifths of both the House of Representatives and the Senate before the end of the 30-day period. This did not occur. Governor Brown’s first Executive Order 20-03 relating to the coronavirus pandemic was issued on March 8, 2020. The Legislature was not convened. Thus, under the Oregon constitution, Governor Brown’s executive order powers expired on April 8, 2020. All 19 executive orders relating to the coronavirus are thus unenforceable.

If the Governor insisted that the coronavirus pandemic did not constitute a catastrophic disaster, the Governor’s authority was under the laws relating to public health emergencies. Under the public health emergency statutory scheme, Governor Brown was able to declare a public health emergency for up to 14 days to protect the public health. The Governor has the power to close, regulate, or restrict any facility that may reasonably endanger public health and limit the number of people entering or exiting the premise. The emergency may be extended for an additional 14 days by proclamation by the Governor. But the public health emergency statutory power expires after 28 days.

Under both the Oregon Constitution and statutes, Governor Brown no longer had the authority to issue any more Executive Orders ordering the people of Oregon to do things or prohibiting people from activity, and she could not punish violators with 30 days in jail and/or a fine of $1,250. Governor Brown may issue guidelines, advice, and recommendations, but she may not restrict and punish Oregonians without convening the Legislature.

On May 12, 2020, Kevin Mannix filed an intervention on Ray Hacke’s amended complaint on behalf of 11 plaintiffs challenging the validity of Governor Brown’s 19 Executive Orders. 

The files that document our success on the case are detailed below.

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