Baker County Judge Hears Arguments From Churches and State in Lawsuit Against Gov. Brown

“Let’s be real, your honor. It's much easier to social distance in your average church than it is in a 7-Eleven.”

Baker County Circuit Judge Matthew Shirtcliff heard arguments Thursday via livestream from attorneys on both sides of a lawsuit seeking to compel Gov. Kate Brown to let churches hold large worship services.

Attorneys representing the 15 churches and nearly three dozen individual plaintiffs suing Gov. Kate Brown argued that she had overstepped her constitutional authority, while the state's attorneys asked the court to dismiss the case.

For three hours, the parties waded through the thorny legalese of the state Constitution and statutes, sometimes splitting hairs between "ands" and "ors" inserted within legal texts. At the end of the three-hour hearing, Shirtcliff said he would probably issue his written opinion on the matter early next week.

Similar legal battles have been waged in states across the nation over the past few weeks. None was successful until yesterday, when the Wisconsin Supreme Court voted to overturn the governor's stay-at-home orders. That case relied specifically on Wisconsin statutes and does not bear precedence beyond that state. But it may offer an example to the plaintiffs in Oregon, represented by attorneys Ray Hacke and Kevin Mannix.

The plaintiffs, who filed the lawsuit May 6 in Baker County Circuit Court, are seeking an injunction of Brown's emergency powers so that churches can reopen for worship services regardless of the governor's executive orders restricting religious gatherings to 25 people or fewer.

Hacke and Mannix argued that Brown's emergency powers expired April 7 and that she no longer had authority to enforce COVID-19-related executive orders without convening the Legislature within 30 days of declaring a state of emergency March 8.

Hacke, an attorney for a conservative civil liberties and religious freedom nonprofit, the Pacific Justice Institute, argued that businesses were violating social distancing guidelines as it is, yet they're still allowed to remain open.

"Let's be real, your honor. It's much easier to social distance in your average church than it is in a 7-Eleven," Hacke said. "People are allowed to visit liquor stores, marijuana dispensaries, so they can quote-unquote self-medicate. By contrast, plaintiffs are not allowed to host church services."

Marc Abrams, assistant attorney in charge of the civil litigation section of the Oregon Department of Justice, pushed back on this notion.

"For one thing, you don't sit together for two hours in Walmart," Abrams said. "That's not the same as the church situation. And there's also no alternative. You cannot eat food, pick up food, by video conference."

Abrams added that churches have proven they can worship via livestream, and Hacke himself admitted during the hearing that his church in Salem has been livestreaming services. However, Hacke argued, meeting in person is considered essential to some sects of Christianity, and livestreamed services are not a replacement for the real-life version.

The plaintiffs repeatedly pointed out that rural counties have seen few cases of, and even fewer deaths from, COVID-19. Christina Beatty-Walters, senior assistant attorney general, said that's a result of the governor's orders.

“The fact that there are few cases in some rural counties means that what the governor has done in her executive orders is working. It does not mean that she is out over her skis,” Beatty-Walters said. “[Plaintiffs] have not come forward with any evidence that they are prohibited from worshipping.…There has been literally no showing whatsoever of irreparable harm. They are not, your honor, prohibited from worshipping.”

Beatty-Walters added that pews of congregants sitting shoulder to shoulder and singing aloud would exacerbate the spread of the virus. Hacke pushed back and said this argument constitutes "nothing more than basic fearmongering."

"There are people who can be carriers of the flu, there are people who can be carriers of the common cold," Hacke said. "And yet the governor of Oregon cannot put the free, law-abiding citizens of Oregon basically on house arrest based on the fact that they might come into contact with somebody who might carry this virus. If the governor cares so much about [protecting] life, she might want to consider abolishing abortion and not making taxpayers pay for it."

The crux of both parties' arguments is whether Brown has to abide by Article X-A of the state Constitution that says the governor must convene the Legislature within 30 days of declaring a state of emergency in situations of "catastrophic disaster" in order to extend her emergency powers.

Hacke and Mannix say the governor does, in fact, need to abide by this provision, which was passed by the Legislature and approved by voters in 2012. They also pointed out that Brown holds a supermajority in the Legislature, and that it would have been easy for her to get the required three-fifths approval from both the House and Senate to extend her emergency powers.

"She failed to convene the Legislature when she should have. Perhaps, the saving grace might be to still convene the Legislature," Mannix said. "Our position is, the governor needs to be enjoined from pretending she still has emergency powers.…She can ask, she can suggest, but she cannot order, she cannot prohibit."

The state's attorneys argue that the governor has a "toolbox" of statutes from which she may select, and that she is not required to invoke Article X-A of the Constitution.

"She chose not to invoke the X-A provision in the Constitution because she didn't need the tools the provision provides. It was her choice that that was not necessary," Beatty-Walters said. "The governor's interest here, your honor, is saving lives and stopping the spread of this deadly and debilitating disease."

She also pointed out that the Legislature has been empowered to convene at any point since the pandemic began to challenge the governor's orders.

Hacke asked rhetorically whether the governor's omission of X-A is a result of "pure ignorance" or willful disregard.

"Her willingness to ignore basic constitutional procedure," Hacke said, "is indicative that she's also willing to disregard the rights of individual Oregonians."

As the hearing proceeded, the governor was simultaneously holding a press conference in which she announced that 28 counties statewide—including Baker County—could enter Phase 1 of reopening beginning tomorrow, May 15. This complicated arguments from both sides, and Judge Shirtcliff said he would need more information about what bearing the governor's announcement could have on the matter at hand.

Shirtcliff plans to issue his written opinion early next week. But the legal battle could be far from over. As the meeting concluded, Beatty-Walters offered a final note to the judge.

"Your honor, one final note: I just wanted to put on the record here, if the court were inclined to rule in favor of the plaintiffs here," Beatty-Walters said, "it's the state's intention to seek an immediate review from the Oregon Supreme Court."

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