6A — THE OBSERVER
State solicitor: Legislature never intended
to limit governor’s emergency powers
By Jayson Jacoby
EO Media Group
SALEM — Oregon’s
solicitor general contends
the Legislature did not
intend to limit the duration
of an emergency that the
governor declared.
Solicitor General Ben-
jamin Gutman asks state
Supreme Court in a brief
to order Baker County Cir-
cuit Court Judge Matt Shirt-
cliff to vacate his May 18
decision granting a prelim-
inary injunction to a group
of plaintiffs, led by Elkhorn
Baptist Church in Baker
City, who sued Gov. Kate
Brown on May 6, claiming
she exceeded her legal
authority in issuing execu-
tive orders during the coro-
navirus pandemic.
That preliminary injunc-
tion, which the state
Supreme Court temporarily
stayed later on the same day
Shirtcliff granted it, would
“upend the Governor’s
phased, data-driven pro-
cess of reopening the state,
threatening to squander the
sacrifices that Oregonians
have already made to keep
one another safe,” Gutman
wrote in his 42-page brief.
“This is not a close case,”
he wrote. “No reason-
able jurist could conclude
that a preliminary injunc-
tion is warranted in these
circumstances.”
Gutman noted most
Oregon counties, including
Baker County, are in Phase
1 of the state’s reopening
plan, which relaxed some
of the restrictions included
in the governor’s executive
orders.
Gutman submitted
the brief on Thursday, as
requested by the Supreme
Court.
Attorneys for the plain-
tiffs and a group of interve-
nors, including Bill Harvey,
Baker County Commis-
sion chairman, have until
Tuesday to submit briefs
defending Shirtcliff’s
SaTuRday, May 30, 2020
STATE
decision.
At issue is the prelimi-
nary injunction the judge
granted.
It temporarily prohib-
ited the state from enforcing
restrictions in Brown’s
executive orders, including
limits on the number of
people in public gatherings,
one of the main objections
the plaintiffs, which include
10 churches, have cited.
But the Oregon Supreme
Court later on May 18
issued a stay that tempo-
rarily stopped the prelimi-
nary injunction from taking
effect.
That remains the case,
and the governor’s execu-
tive orders continue to be in
effect.
Even if the Supreme
Court rules in the gover-
nor’s favor and vacates
Shirtcliff’s preliminary
injunction, the lawsuit itself
would continue, possibly
leading to a trial in Baker
County Circuit Court.
The legal debate over
the preliminary injunction
centers on two state laws
— Oregon Revised Statute
chapters 401 and 433.
Chapter 401, the law the
governor cited in her ini-
tial emergency declaration
on March 8, does not have
any time limits on the emer-
gency. The declaration can
remain in effect until either
the governor, or the Legisla-
ture, decides to terminate it.
The Legislature has not
convened since the pan-
demic started.
Chapter 433 deals spe-
cifically with public health
emergencies, and Brown
has invoked the law in sev-
eral of the executive orders
she issued following the ini-
tial emergency declaration.
Chapter 433 limits the
duration of a public health
emergency to 28 days.
The plaintiffs contend —
and Shirtcliff agreed in his
decision granting the pre-
liminary injunction — that
by invoking chapter 433,
Brown’s executive orders
are subject to the 28-day
limit.
But Gutman, in his brief
to the state Supreme Court,
argues that Shirtcliff “erred
in concluding that those
statutes — ORS chapters
401 and 433 — conflict
with one another, and that
the expiration provisions of
chapter 433 effectively limit
the duration of a state of
emergency declared under
chapter 401.”
Gutman cites a clause
in chapter 433 that states
that nothing in that chapter
“limits the authority of
the Governor to declare a
state of emergency” under
chapter 401.
Chapter 433 also states
that if the governor declares
a state of emergency under
chapter 401, she “may
implement any action autho-
rized” by chapter 433.
The two statutes are
not in conflict, Gutman
argues, but are instead
complementary.
Gutman argues that if the
Legislature had intended,
when it passed chapter
433, to limit the governor’s
authority specifically during
public health emergen-
cies, then lawmakers likely
would have also amended
chapter 401 so that diseases
would no longer qualify as
disasters under that law.
But the Legislature didn’t
do so — chapter 401, which
the governor invoked in her
initial disaster declaration,
lists “disease” as one reason
for such a declaration.
Gutman also notes that
“chapter 433 repeatedly
cross-references chapter
401, underscoring that the
statutes were meant to har-
monize rather than conflict.”
Gutman goes on to cite
statements by legislators in
2003 when they were con-
sidering chapter 433. The
record shows, Gutman
argues, that lawmakers did
not intend chapter 433 to
limit the governor’s powers
under chapter 401.
Gutman includes in
his brief a quote from the
state’s public health officer
who stated that an argu-
ment could be made that
chapter 401, which dates
to 1949, gives the governor
the authority to take all the
actions listed in chapter 433,
and more.
Gutman also argues
that the 28-day time limit
in chapter 433 applies only
to the governor’s procla-
mation of a public health
emergency, but not on the
actions, such as restricting
businesses and the move-
ment of residents, that the
governor is authorized to
take under that law.
Gutman contends
that Shirtcliff should not
have granted the prelim-
inary injunction because
the plaintiffs’ request for
that action doesn’t sat-
isfy the legal requirements,
including a “balance of
harms” and whether the
injunction is in the public
interest.
Although the issue of
the preliminary injunction
doesn’t directly involve the
plaintiffs’ freedom of reli-
gion under the Oregon Con-
stitution, the lawsuit does
mention both the state and
federal constitutional guar-
antees of religious freedom.
Gutman contends that
the governor’s executive
orders do not violate the
plaintiffs’ rights because
the orders “treat faith-based
gatherings the same as non-
faith-based gatherings that
implicate the same pub-
lic-health concerns. They
are neutral laws of general
applicability that do not
target religion for unfavor-
able treatment. Faith-based
gatherings, just as much
as non-faith-based gath-
erings, pose a high risk of
spreading the virus that
causes COVID-19.”
Twitter suspends account
of Oregon group claiming
changes to party affiliations
By Hillary Borrud
The Oregonian/OregonLive via AP
StoryShare
SALEM — Twitter and
Facebook are taking steps
to stop the spread of mis-
information about Ore-
gon’s elections system,
after Republican Secre-
tary of State Bev Clarno’s
administration alerted the
social media companies to
what she said were false-
hoods being shared on their
platforms.
Oregon election offi-
cials, from county clerks to
the secretary of state, hear
complaints from voters
during every primary elec-
tion, because some people
who receive nonpartisan
ballots believed they reg-
istered as Democrats or
Republicans.
This year, those frustra-
tions were amplified when
a Facebook group called
“My party was changed
Oregon” and the Oregon
Republican Party launched
an effort to gather first-
hand accounts from voters
who say their party affili-
ation was changed without
their consent. They shared
some of those accounts with
the reelection campaign of
President Donald Trump,
who has attacked vote-by-
mail in recent weeks and on
Tuesday received his first
Twitter fact-check warning
in response to his remarks
on voting.
Starting in April, some
voters who said they are
lifelong Democrats con-
tacted The Oregonian/Ore-
gonLive to say they were
upset to receive nonpar-
tisan ballots. Most of them
turned out to be infrequent
voters who had been regis-
tered as nonpartisan voters
for years and had not voted
in recent primaries, public
records showed.
Then May 18, the web-
site Gateway Pundit, which
Facebook says is “known
for publishing falsehoods
and spreading hoaxes,”
published an unverified
claim that Oregon offi-
cials changed hundreds
of Republicans’ ballots to
nonpartisan.
After Clarno’s adminis-
tration contacted the social
media companies, Facebook
tagged the post as “partly
false” and began referring
people to fact checks on it
by the websites PolitiFact,
run by the journalism non-
profit Poynter Institute, and
Lead Stories, which is a
project of the nonpartisan
Rand Corporation think
tank. Twitter suspended the
account on Friday.
In the wake of last
week’s primary, “Elec-
tions officials highlighted
social media activity that
was occurring on their plat-
form that was false,” wrote
Andrea Chiapella, legisla-
tive and communications
director for the secretary
of state, in an email. “They
looked into it and their
third-party fact checkers
deemed it partly false.”
That has not deterred
people involved with the
Oregon group. Nicole
Chaisson, founder of the
Facebook group “My party
was changed Oregon,”
announced online Tuesday
she was preparing to launch
paid Facebook ads to solicit
more such stories.
Chaisson said she
stopped the process and
deleted the ads while they
were still going through
Facebook’s review pro-
cess because she wants to
rework the ads to make
them clearer.
Chaisson, who lives out-
side The Dalles, said she
started the Facebook group
in May after a friend who
wanted to vote in the 2nd
Congressional District pri-
mary found out she could not
do so because she was regis-
tered as a nonaffiliated voter.
[ RESPOND RECOVER REBUILD ]
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