We have a ruling from the Oregon Supreme Court in our litigation challenging the Governor’s lockdown orders as to businesses and churches. Our argument was that the 28 day time limit of lockdown order authority applied so the Governor’s lockdown powers had expired. The Supreme Court of Oregon has now ruled that those time limits do not apply when the Governor declares a general emergency.
Here is the media statement which I have issued:
I am disappointed, of course, in the decision by the Oregon Supreme Court. I am not completely surprised, since we realized this case would be affected by the surrounding environment concerning the coronavirus pandemic.
The key legal component to the Oregon Supreme Court decision is that they have infused a specific power from the public health emergency law into the general emergency law. The general emergency law, adopted in 1949, allows the Governor to declare an emergency to deal with disasters such as fires, floods, and storms. It was not designed for epidemics, although it can address outbreaks of disease following a disaster. The general emergency law does not include a provision which allows the Governor to close down churches and businesses throughout the state.
There is one specific provision of the public health emergency law, in ORS 433.441(3), which creates a new power for the Governor, which is to close down businesses and other places where the public gathers, including churches. This lockdown power did not exist before the public health emergency law was enacted. This law, passed in 2003 and 2007, limited public health emergency powers to 28 days.
The Supreme Court has now ruled that, because the public health emergency law co-exists with the general emergency law, the time limits of the public health emergency law do not limit the length of time that the Governor can issue lockdown orders when the Governor declares a general emergency.
We disagree with that interpretation. With this ruling in hand, we will ask the Legislature to amend the law to make it clear that the Governor’s lockdown powers truly do have a 28-day time limit, even when the Governor declares a general emergency.
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