LOCAL
6A — BAKER CITY HERALD
PHASE 2
issue as summer approaches
and organizers of local festi-
Continued from Page 1A
vals such as Miners Jubilee
For instance, Bennett
ponder whether to go ahead
pointed out that the larger a with their events.
building, the more people it
The proposal reads: “If an
can accommodate while social attendee cap is going to be
distancing is maintained.
considered, please consider
The state’s current “one-
making that cap higher for
size-fi ts-all” approach, as
outdoor events.”
Bennett describes it, fails to
Restaurants and bars were
acknowledge those differ-
allowed to resume on-site
ences. The limit on gatherings dining during phase one,
under phase one is 25 people. which Baker County started
The county’s proposal also May 15.
asks the governor to consider
The county’s proposal for
differences in the risk of virus phase two suggests allowing
transmission between indoor restaurants and bars to in-
and outdoor events — a key
stall “high dividers, 5 or 6 feet
LAWSUIT
Continued from Page 1A
That preliminary injunction,
which the state Supreme Court
temporarily stayed later on the
same day Shirtcliff granted it, would
“upend the Governor’s phased,
data-driven process of reopening
the state, threatening to squander
the sacrifi ces 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 reasonable jurist could conclude
that a preliminary injunction is
warranted in these circumstances.”
Gutman noted that most Oregon
counties, including Baker County,
are in phase one 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 plaintiffs and a
group of intervenors, including Bill
Harvey, Baker County Commis-
sion chairman, have until June 2 to
submit briefs defending Shirtcliff’s
decision.
At issue is the preliminary injunc-
tion the judge granted.
It temporarily prohibited 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
tall, between booths to create
a barrier similar to plexiglass
protectors at a cash register.
This can allow more booths to
safely be available.”
The county is also asking
the governor to allow res-
taurants and bars to remain
open until midnight — the
current limit is 10 p.m.
The proposal also calls for
truck stop restaurants to “re-
sume fl exible service hours,
up to 24-hour service.”
Under the heading “rec-
reation and entertainment,”
the county’s proposal calls for
allowing theaters, bowling
alleys and “similar venues” to
later on May 18 issued a stay that
temporarily stopped the prelimi-
nary injunction from taking effect.
That remains the case, and the
governor’s executive orders continue
to be in effect.
Even if the Supreme Court rules
in the governor’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 prelimi-
nary injunction centers on two state
laws — Oregon Revised Statute
(ORS) chapters 401 and 433.
Chapter 401, the law the governor
cited in her initial emergency dec-
laration on March 8, does not have
any time limits on the emergency.
The declaration can remain in effect
until either the governor, or the Leg-
islature, decides to terminate it.
The Legislature has not convened
since the pandemic started.
Chapter 433 deals specifi cally
with public health emergencies,
and Brown has invoked the law in
several of the executive orders she
issued following the initial emer-
gency 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 preliminary 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
SATURDAY, MAY 30, 2020
reopen “where social distanc-
ing between parties can be
maintained.”
The county also asks the
governor to allow “guided raft
trips, jet boat trips and simi-
lar activities to resume even
when social distancing cannot
be maintained. If necessary,
and in consultation with the
industry, limit trips to parties
who are together.”
The county also proposes
to open skate parks, and all
campgrounds.
Baker County’s Hewitt and
Holcomb parks on Brownlee
Reservoir near Richland are
open, as are Idaho Power
those statutes — ORS chapters 401
and 433 — confl ict 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 which 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 emer-
gency under chapter 401 — as she
did March 8 — she “may implement
any action authorized” by chapter
433.
The two statutes are not in
confl ict, Gutman argues, but are
instead complementary.
“Contrary to the trial court’s
conclusion, the two statutes do not
confl ict; they give the Governor
complementary powers in distinct
if overlapping circumstances,”
he wrote in the brief. “The text,
context, and legislative history of
chapter 433 show that the legis-
lature did not intend to limit the
Governor’s existing chapter 401
emergency powers.”
Gutman argues that if the Legis-
lature had intended, when it passed
chapter 433, to limit the governor’s
authority specifi cally during public
health emergencies, then lawmak-
ers likely would have also amended
chapter 401 so that diseases would
no longer qualify as emergencies
under that law.
But the Legislature didn’t do so
— chapter 401, which the governor
invoked in her initial emergency
Company campgrounds in
Hells Canyon. Some Oregon
state park campgrounds
opened Friday, and others are
slated to open June 9.
Forest Service and BLM
campgrounds remain closed.
Bennett said he’s confi dent
Baker County will qualify for
phase two. The state’s criteria
include that a county has not
had a “signifi cant increase
in the percentage of positive
cases out of total tests in your
county over the past 7 days.”
As of Friday, Baker County
has had one confi rmed case of
COVID-19. It was reported in
early May.
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 harmonize
rather than confl ict.”
Gutman goes on to cite state-
ments by legislators in 2003 when
they were considering 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
offi cer 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.
“The legislature included a time
limit on chapter 433 declarations
because it understood that if a more
prolonged response were required,
the Governor could declare an
emergency under chapter 401 and
exercise the greater powers autho-
rized under that statute,” Gutman
wrote in his brief.
Gutman also argues that the
28-day time limit in chapter 433
applies only to the governor’s
proclamation of a public health
emergency, but not on the actions,
such as restricting businesses and
the movement of residents, that
the governor is authorized to take
under that law.
Gutman contends that Shirt-
cliff should not have granted the
preliminary injunction because the
“We’re in good shape,” Ben-
nett said.
The county submitted its
application for phase two ap-
proval to the state on Friday.
State offi cials have not
announced specifi c changes
in restrictions during phase
two. The state asked counties
to offer suggestions, which
prompted Baker County to
craft its proposal.
The proposal also urges the
governor to consider creat-
ing a “phase 2A” that would
further ease restrictions in
counties, possibly including
reopening swimming pools
and playgrounds.
plaintiffs’ request for that action
doesn’t satisfy the legal require-
ments, including a “balance of
harms” and whether the injunction
is in the public interest.
Gutman argues in the brief that
both the balance of harms and the
public interest “overwhelmingly
weigh against an injunction dis-
rupting the state’s ongoing effort to
contain the COVID-19 pandemic.”
“The threat to the public health
caused by suddenly lifting the
executive orders overwhelms any
harm that plaintiffs and interve-
nors will suffer from following those
orders for now,” Gutman writes.
Although the issue of the pre-
liminary injunction doesn’t directly
involve the plaintiffs’ freedom of
religion under the Oregon Consti-
tution, the lawsuit does mention
both the state and federal consti-
tutional guarantees of religious
freedom.
In his brief, 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 public-health
concerns. They are neutral laws
of general applicability that do
not target religion for unfavorable
treatment. Faith-based gatherings,
just as much as non-faith-based
gatherings, pose a high risk of
spreading the virus that causes
COVID-19, and all those gather-
ings need to observe reasonable
social distancing measures to slow
the pandemic.”
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