Elkhorn Baptist Church

Elkhorn Baptist Church in Baker City is among the lead plaintiffs in a lawsuit seeking to overturn restrictions imposed by the state to limit the spread of COVID-19. Church members and other plaintiffs ague that the ban on ‘non-essential and recreational gatherings’ means they aren’t able to get together for worship services.

A group of ten Oregon churches and about 15 individuals, including lead plaintiff Elkhorn Baptist Church in Baker City, and four Wallowa County residents who have joined the suit as individuals, are suing Gov. Kate Brown.

They claim her executive orders imposing restrictions due to the coronavirus pandemic are unconstitutional.

The plaintiffs filed the suit in Baker County Circuit Court on Wednesday, May 6.

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 two years ago.

The plaintiffs are asking for a preliminary injunction prohibiting the governor from enforcing the executive orders, including the ban on gatherings of more than 25 people, which has affected many church services.

They are also asking for a ruling on the constitutionality of Gov. Brown’s 60-day declaration of emergency. The Oregon constitution permits a maximum 30-day emergency extent.

Enterprise attorney Benjamin Boyd is one of the Wallowa County individuals named as a plaintiff.

“This was very much individual decisions on the part of us from Wallowa County,” he said.

“The outcome that we are asking for is that the court to find that (Brown’s) executive orders were void to begin with because she didn’t comply with the provisions in the constitution which restrict her to declaring a catastrophic disaster, she’s restricted to a 30-day state of emergency under Article 10A,” he said. “That’s our intent, to see the court follow the constitution and essentially overturn these emergency orders.”

If Brown’s orders were rescinded, it could mean the end of travel/shelter at home restrictions. But Boyd is optimistic.

“Wallowa County has its own emergency ordinance, and I’m betting that just about every other county and city has some sort of emergency ordinance,” he said.

“If there are areas of health concern, which could happen here, because there may well be justification for health measures in urban areas, but doing one–size fits all without considering giving deference to our local emergency management, that goes against the Oregon emergency management statutes which give the primary control for emergency management to counties and cities. It’s not with the state,” he said. “Now that we are eight weeks into it, if there are places with higher numbers, the local authorizes should be able to deal with it on a local level.”

The other part of this suit is to uphold freedom of assembly and freedom of religion.

Hacke said Thursday afternoon that he also filed a motion asking a judge to grant the plaintiffs a temporary restraining order. It would prevent the governor from imposing the prohibition on larger gatherings 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.

Annette Lathrop, who is the chairwoman of the Wallowa County Republican Party, is a party to the lawsuit.

“My faith informs all other aspects of my life,” she said. “I have a role in this community in speaking out for values that many hold. This order infringes on constitutional rights and freedoms. This is important for our country.”

It deals with the first amendment, she noted.

“Any infringement on our right to worship freely has to be narrowly tailored and as least as restrictive as possible to meet the need, and do as little damage as possible. “

Lathrop opposes the “one-size-fits-all” open-ended ruling made by Gov. Brown.

“We have virtually no cases in Eastern Oregon. It’s my opinion,” she said, “that you can trust people of faith to act in a way that is wise and protects the community, and you do not have to have the government put a heavy yoke of mandates on people.”

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 cited a number of statutes — particularly ORS 401.165 and ORS 433.443 — in declaring an emergency and exercising executive power.

While it’s true that constitutional articles will override contradictory statutes, legal experts say it’s not certain such a conflict exists in this case.

First, it’s generally understood that emergency powers granted by the constitution establish a minimum “floor” that can be enhanced with additional authority, rather than a maximum “ceiling” for the governor’s authority, said Steven Kanter, emeritus dean and professor at Lewis & Clark Law, who specializes in constitutional law.

Also, laws are generally interpreted as working in harmony with each other unless lawmakers explicitly nullify one in favor of another, Kanter said.

In other words, the 2012 constitutional amendment doesn’t necessarily sweep away the powers granted by the earlier emergency statutes unless they’re flatly irreconcilable with it, Kanter said.

It’s likely that Gov. Brown will argue that she chose to invoke the earlier emergency statutes rather than the constitutional “catastrophic disaster” provision, said Paul Diller, a law professor at Willamette University specializing in legal structures and public health.

Ellen Morris Bishop, EOMGroup and Mateusz Perkowski, Oregon Capital Bureau contributed to this story.

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