Circuit Court Judge Finds Gov. Kate Brown's Orders "Null and Void"

Update 2: From Judge Shirtcliff's opinion:

These two statutory provisions and Article X-A of the Oregon Constitution carry with them certain powers for the Governor and certain restrictions. The general provisions of ORS 401.165 have allowed Governors since 1949 to direct state resources in times of emergencies. This is the most expansive statute of the three laws and has the least restrictions, especially as to the time limitation of the emergency declaration. However, the statute does not grant the Governor power directly over the movement of citizens and gatherings. ORS 433.441 and its various provisions gives the Governor additional and more specific powers to control or limit entry into, exit from, movement within and the occupancy of premises in any public area subject to or threatened by a public emergency in specific times of public health emergencies. See ORS 433.441(3)(d). This statute gives the Governor power over the movement and gathering of citizens. Reference to provisions of ORS 433.441 through 433.452 and more specifically ORS 433.441(3)(d) are found throughout the Governor’s various executive orders. ORS 433.441(3)(d) is specifically cited in areas where the Governor has ordered that business and retail establishments are prohibited from operating. See Executive Order No. 20—12 p. 4 sec. 2 Closure of Certain Business and p. 3 sec. 1 Stay Home and Save Lives regulating nonessential social and recreational gatherings, which would include churches. Additionally, ORS 433.452 gives the Public Health Director or the Local Public Health Administrator the power to detain individuals that the director or administrator reasonably believes may have been exposed to the virus.  

When granting this additional power over the movement and gatherings of citizens, the legislature saw fit to add additional time restrictions. Those time restrictions contained in section (5) of that provision only allow the Governor to extend the emergency declaration for 14 additional days from the original 14-day period. This provision makes the maximum time restriction to be 28 days by operation of law. The Governor in her original executive order 20-3 set her executive order to 60 days. This is well beyond the maximum 28-days allowed by ORS 433.441. This court finds that when the Governor utilized the provisions of ORS 433.441 in her executive order, she triggered all the provisions of ORS 433.441 including the time restrictions in ORS 433.441(5). By doing so, the executive order became null and void beyond the maximum 28—daytime period allowed by the statute. Moreover, by not complying with ORS 433.441(5) timelines, the Governor’s subsequent Executive Orders 20—05 through 20-25 are also null and void. (see Executive Order 20-12 extended until terminated by the Governor; Executive Order 20-24 extended for an additional 60-days; Executive Order 20-25 extended until terminated by the Governor as examples of extensions beyond 28 days).  

The statutes are to be read to work together with the more specific statute governing. ”Where there is a conflict between two statutes, both of which would otherwise have full force and effect, and the provisions of one are particular, special and specific in their directions, and the other are general in their terms, the specific provisions must prevail over the general provisions.” Colby v. Larson, 208 Or 121 (1956). ORS 401.165 and ORS 433.441 are in conflict over the length of time the Governor’s orders last. ORS 433.441, enacted in 2007, is the more specific statute and relates directly to public health emergencies. It is the more specific statute pertaining to the restriction of citizens in the Governor’s executive orders and also carries restrictions in time that the legislature saw fit to impose. Once the Governor began utilizing the specific provisions of ORS 433.441(3)(d) in Executive Order 20-12, the rights of citizens to assemble and operate their business became significantly curtailed, thereby ensuring the need for further justification and the statutory limitations in time which create a check on this additional power of the Governor. Although ORS 433.441(4) indicates that nothing in ORS 433.441 to 433.452 limits the authority of the Governor to declare a state of emergency under ORS 401.165, it also does not suspend the time limitations of section (5). 

I'm updating on the fly as I get new documents. This seems very well reasoned. We'll see what the Oregon Supreme Court says. In my first update I was relying on the Oregonian's reporting (never a wise thing to do). They said the difference was she was depending on ORS 401.165 rather than ORS 443.441. But Judge Shirtcliff said she was relying on both. From the fuller text above:

"Reference to provisions of ORS 433.441 through 433.452 and more specifically ORS 433.441(3)(d) are found throughout the Governor’s various executive orders. ORS 433.441(3)(d) is specifically cited in areas where the Governor has ordered that business and retail establishments are prohibited from operating. See Executive Order No. 20—12 p. 4 sec. 2 Closure of Certain Business and p. 3 sec. 1 Stay Home and Save Lives regulating nonessential social and recreational gatherings, which would include churches."

Update: oregonlive.com is reporting that Gov. Brown is basing her power on ORS 401.165 rather than ORS 443.441 which Judge Shirtcliff ruled is the applicable statute since COVID-19 is a public health issue and she invoked it as one basis for her actions.

ORS 401.192 (4) indicates the governor's power has few limitations.

The powers granted to the Governor by ORS 401.165 (Declaration of state of emergency) to 401.236 (Rules) shall continue until termination of the state of emergency. The powers granted to the Governor by ORS 401.185 (Providing temporary housing during emergency) may continue beyond the termination of the state of emergency and shall be terminated by proclamation of the Governor or by joint resolution of the Legislative Assembly.

However, ORS 401.661 ties ORS 401.165 with ORS 443.441 so the question is does 401.165 have to do with all emergencies (which may have public health needs) except public health emergencies since those are specifically addressed in ORS 443.441 or can the governor choose to treat a public health emergency as a general emergency.
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The Associated Press is reporting that Baker County Circuit Court Judge Matthew Shirtcliff has ruled against Gov. Kate Brown's orders because she did not get legislative approval within a month.

I guess Oregon does have limitations on executive orders requiring legislative approval. The Democrat legislature apparently cared not a whit about it's duty to protect the public from executive power overreach. Not that they wouldn't rubber stamp anything she wanted. But, they didn't even try to fulfill their constitutional duties.

Most of the Oregon media didn't care either. So much for the media as watchdogs.