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Eastern Oregon church leads suit over Gov. Kate Brown stay-home executive orders

Tjhe plaintiffs contend that Brown's orders, issued on March 23, violates their Oregon constitutional rights to assemble and worship.
Credit: Elkhorn Baptist Church
Churches, including Elkhorn Baptist in Baker City, argue Gov. Kate Brown's three executive orders intended to protect residents from the coronavirus are invalid on “constitutional procedural grounds,” according to a public statement on the suit from Common Sense for Oregon, a nonprofit led by former Republican candidate for governor Kevin Mannix.

BAKER CITY — A group of Oregon churches and individuals, including as lead plaintiff the Elkhorn Baptist Church in Baker City, is suing Gov. Kate Brown claiming her executive orders imposing restrictions due to the coronavirus pandemic are unconstitutional.

The plaintiffs filed the suit in Baker County Circuit Court on Wednesday.

They are represented by attorney Ray D. Hacke of the Pacific Justice Institute in Salem. Hacke said the Institute is a nonprofit law firm that defends religious liberty. It opened its Salem office about 2 years ago.

The plaintiffs are asking for a preliminary injunction prohibiting the governor from enforcing the executive orders.

Hacke said Thursday afternoon that he also filed a motion seeking a temporary restraining order that would prevent the governor from imposing terms of the executive order, including the prohibition on gatherings of people if participants can’t maintain social distancing.

Although the order doesn’t specifically mention church services, the plaintiffs contend that the order’s restrictions on “non-essential social and recreational gatherings” would encompass church services.

Hacke said the plaintiffs contend that executive order 20-12, which Brown issued on March 23, violates their constitutional rights to assemble and worship.

According to the lawsuit, the plaintiffs — “including and especially Baker County’s own EBC (Elkhorn Baptist Church) — have thus far complied” with the executive order because the churches don’t want to expose themselves to criminal liability, or expose their congregations to possible 30-day day jail sentences or $1,250 fines.

The lawsuit also states that “at the outset of the coronavirus pandemic, many, if not all, churches shared defendant governor’s concerns about having too many people too close together indoors, thereby increasing the risk of spreading the coronavirus, especially to the persons most vulnerable to it, such as the elderly.”

However, Hacke said that because there have been relatively few confirmed cases of the virus in many Oregon counties — Baker County’s first, and so far only, confirmed case was announced Wednesday — the risk is not sufficient to justify the continued prohibition on gatherings.

Although religious freedom is an aspect of the lawsuit, Hacke said the chief legal issue is the governor’s authority under the Oregon Constitution.

In the lawsuit he cites the section of the Constitution — Article X-A — that authorizes the governor to declare a state of emergency due to a public health crisis.

Hacke said the plaintiffs don’t dispute that Brown has such authority due to the pandemic. The governor declared the state of emergency on March 8.

But Hacke points to a section in Article X-A which states that the governor’s emergency powers can extend for no more than 30 days unless the Legislature, on at least a three-fifths vote of both the House and the Senate, agrees to extend the governor’s emergency powers.

Brown has not convened the Legislature since declaring the emergency.

“Because governor failed to avail herself of the constitutionally prescribed procedure, her initial executive order declaring the public health emergency, issued on March 8, 2020, terminated by operation of law on April 7, 2020, and all subsequent executive orders implementing or extending the original order are legally null and void,” the lawsuit states.

“She’s giving herself powers to infringe on constitutional liberties in perpetuity,” Hacke said. “And she can’t do that.”

He also contends that because Brown's initial executive order was for 60 days, rather than the 30 days specified in the Constitution, it was unconstitutional from its inception.

Oregon voters added Article X-A to the state Constitution in 2012.

Hacke said he filed the lawsuit in Baker County Circuit Court in part because the Elkhorn Baptist Church is a plaintiff, and in part for what he called a “symbolic” reason — that Baker County has had only one confirmed case of the coronavirus.

“One of our questions is why is this lockdown applying to everyone,” he said.

Brad Dacus, president of the Pacific Justice Institute, said the organization is supporting the lawsuit because Brown's "executive orders are way too extreme and infringe on religious liberty far more than is necessary to preserve public health and safety."

The governor’s office didn’t respond immediately to a request for comment.

This article was originally published by East Oregonian, one of more than a dozen news organizations throughout the state sharing their coverage of the novel coronavirus outbreak to help inform Oregonians about this evolving health issue.

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