UPDATE — 23 May 2020: The Oregon Supreme Court this afternoon issued an Alternative Writ of Mandamus to Judge Shirtcliff of Oregon's Eighth Circuit. The writ orders him either to vacate his order issued on Monday, 18 May for a preliminary injunction against the governor or to show cause by additional briefing as to why he should not. The justices set a deadline of 5:00 p.m. Tuesday, 26 May. Should the judge respond in the latter manner, the Court gave the governor until Thursday, 28 May to respond with her brief and plaintiffs and intervenors until Tuesday, 2 June. The Court will then consider whether or not to vacate the injunction. Based on the quick action in this instance, the decision could come by the end of that week.
Whatever the Supreme Court decides, however, will not end the issue. This present legal wrangling is over a preliminary injunction issued to stop enforcement of the Executive Orders while the lawsuit proceeded to trial. Whether or not the injunction is upheld, the trial will still move forward.
©Baker City Herald
Monday was lively in courts from the east side of the state to the west. At about 10:00 in the morning Judge Matt Shirtcliff convened a video conference from his Eighth District courtroom in Baker City. With him on the session were the lawyers who had argued a lawsuit last Thursday brought by churches, individuals, and businesses seeking to enjoin the State from further enforcement of the governor's Executive Orders, including the most recent decisions directing a phased re-opening of Oregon economic, social, and spiritual activities. For the next 20 minutes he resoundingly put the State in its place, declaring all Executive Orders with effective dates lasting beyond 5 April "null and void".
The judge denied the State's request to issue an order to stay his verdict, which would delay enforcement, and an alternative request to delay entering his verdict into the record for 48 hours. Thus, as soon the Oregon Dept. of Justice received the certified copy from the court of the preliminary injunction order, lawyers raced into high gear to draft a petition and legal memo supporting a peremptory writ of mandamus ordering the court to vacate the injunction. Attorney General Ellen Rosenblum urged Oregonians to refrain from acting too quickly in celebration of this apparent end of restrictions. The governor whined in a statement, "The science behind these executive orders hasn't changed one bit. Ongoing physical distancing, staying home as much as possible, and wearing face coverings, will save lives across Oregon," completely ignoring the focus of the injunction: stopping abuse of power.
At about 7:45 p.m. Presiding Supreme Court Justice Thomas Balmer responded to the petition. In his three-paragraph order he noted that in addition to the request for immediate action by way of the writ, defendants "filed an emergency motion for an order to stay the preliminary injunction while this court considers its mandamus petition." The justice granted that motion. Responses from plaintiffs and intervenors to the petition must be received by the court "as soon as is practicable and no later than May 22, 2020."
Solicitor General Benjamin Gutman claimed in the petition that Judge Shirtcliff exceeded his authority in issuing the preliminary injunction in favor of plaintiffs because "the governor had clear authority to issue those executive orders to protect the public health in a global pandemic". This claim is completely bogus. Neither the plaintiffs nor the judge deny that the governor was within her authority to declare the state of emergency even if one or both of them might disagree that an emergency existed. The judge found for the plaintiffs because he agreed with their claim that continuing to enforce executive orders that under both statute and the State Constitution have expired is an abuse of power. In the supporting memo Mr. Gutman claimed the injunction was not a proper remedy because the threat still presented by the virus outweighs any infringement on the exercise by plaintiffs of fundamental rights that government is formed to protect. Let that sink in for a bit.
Because his focus is so relentlessly on the nature of the virus and the scope of its spread along with the absence of time restraints in ORS 401.165, Mr. Gutman repeatedly errs in his arguments as he throws his darts at straw men constructions of plaintiffs' claims and the judge's order of his own making. Perhaps the most glaring error is contained in his statement, "the provisions for public health emergencies in chapter 433 supplement rather than supplant the [g]overnor's powers under chapter 401." (emphasis added) That is exactly what the judge stated: "The statutes are to be read to work together with the more specific statute governing." It is Mr. Gutman who is arguing that one statute (ORS 401.165 et. seq.) supplants another (ORS 433.441-.452). Thank you, sir, for adding strength to plaintiffs' case.
Because Justice Balmer, prior to granting the stay, received responses to the State's petition, the grant likely provides a clue to the direction the Court will go. It at least gives insight into Justice Balmer's opinion. Not all litigation that reaches the Supreme Court involves oral arguments. The decision could come as soon as late next week.