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Brown did not violate state Constitution

A Baker County Circuit Court judge is expected to rule this week on a lawsuit challenging Gov. Kate Brown’s actions to address the coronavirus pandemic. The plaintiffs claim Brown’s executive orders violated an article of the Oregon Constitution approved by voters in 2012, but the coronavirus, while serious, does not meet the definition of “catastrophic disaster” contained in that amendment.

Ballot Measure 77 was intended to allow the state government to function in the wake of a major disaster such as a massive earthquake. Article X-A gives the governor the power to divert money originally appropriated for other purposes to disaster relief efforts, and allows the Legislature to function if it is impossible to meet at the Capitol and if not all members are able to attend.

That doesn’t sound much like the current situation. Article X-A specifically refers to a “catastrophic disaster,” defined as an event that “(a) Results in extraordinary levels of death, injury, property damage or disruption of daily life in this state; and (b) Severely affects the population, infrastructure, environment, economy or government functioning of this state.”

Brown declared a public health emergency April 7 as a preventative measure. The coronavirus was here, but it had not caused “extraordinary levels of death, injury, property damage or disruption of daily life,” and, thanks to the governor’s prompt action, it still hasn’t. The fact that shutdown orders caused economic damage is unfortunate, but unavoidable.

If the governor had acted under Article X-A, the executive order she issued would have expired after 30 days unless the Legislature voted to extend it. Under the statutory authority she used, that time limit did not apply. The statute she invoked allows the Legislature to terminate the state of emergency at any time, and the Legislature can convene without a request from the governor. It has not done so.

The plaintiffs in the Baker County lawsuit include Elkhorn Baptist Church of Baker City. Attorneys for the plaintiffs argued that the governor had exceeded her authority under the state Constitution, and churches had suffered “irreparable damage” by not being able to worship as they usually do. Department of Justice attorneys representing the governor’s office pointed out that worship services are permitted as long as they maintain social distancing, and grocery stores and other retail outlets can’t be compared to church services, where people spend long periods of time in close proximity.

If the judge in the case grants the plaintiffs’ request for a preliminary injunction, it would invalidate Brown’s orders restricting state residents and businesses. In Wisconsin, where a divided state supreme court threw out the statewide shutdown order, residents flocked to bars, setting off a scramble by cities and counties to impose local restrictions.

That’s the last thing Oregon needs. Much of the state, including Southern Oregon, began a phase one reopening Friday. A gradual, controlled reopening is in everyone’s best interest.

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