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Judge Tosses Republican Challenge To Gov. Kate Brown’s Emergency Authority

State Sen. Dennis Linthicum, R-Klamath Falls, was one of three lawmakers to file suit challenging Gov. Kate Brown's emergency orders for COVID-19. The lawsuit was dismissed this week.
Pool photo by Brian Hayes / Statesman Journal
State Sen. Dennis Linthicum, R-Klamath Falls, was one of three lawmakers to file suit challenging Gov. Kate Brown's emergency orders for COVID-19. The lawsuit was dismissed this week.

Three state lawmakers and one Washington County businessman had argued Oregon's emergency law is too broad.

A Multnomah County judge has become the latest Oregon jurist to reject a challenge to Gov. Kate Brown’s sweeping emergency powers, dismissing a lawsuit filed last year by three Republican state lawmakers and a Washington County business owner.

Multnomah County Circuit Judge Melvin Odin-Orr on Wednesday agreed with state attorneys that the plaintiffs — state Reps. Mike Nearman and E. Werner Reschke, state Sen. Dennis Linthicum and businessman Neil Ruggles — lacked standing to sue Brown and the state over the law granting those powers.

The ruling comes nearly a year after Brown first began wielding her authority to enact widespread restrictions on commerce, education and public gatherings during the COVID-19 pandemic. It’s the latest in a series of decisions that have enabled Brown to maintain a grip on business activity in the state.

First filed in October, the lawsuit took aim not so much at Brown as at the state law she has used repeatedly to make emergency orders. It says that, after declaring an emergency, “the Governor has complete authority over all executive agencies of state government and the right to exercise, within the area designated in the proclamation, all police powers vested in the state…”

That statute is one of three legal provisions that deal with the governor’s emergency power in Oregon, and by far the broadest. It has enabled Brown to put forward rules closing businesses, limiting large gatherings, halting events, preventing evictions and more.

Ruggles and the three lawmakers argued it is so broad that it renders the Legislature largely toothless, circumventing the separation of powers set out in the state Constitution.

“While the Legislature has the power to allow specific statutory authority to take effect upon the declaration of an emergency, the Legislature has here gone further and turned the Governor into a super-legislature, who might strike down ‘all existing law’ at will after such a declaration of emergency, making the effect of all outstanding laws dependent upon the whim of the Governor,” the lawsuit argued.

But whether or not the law is overbroad wasn’t ever considered by Odin-Orr. Instead, he found that none of the three lawmakers had the authority to bring a case against Brown over the law.

“Plaintiff legislators have failed to allege and prove a legally recognized interest to support standing,” the judge wrote in his 11-page ruling.

Ruggle’s situation was different. A martial arts teacher and math tutor, Ruggles argued Brown’s executive orders had decimated his income.

“I have suffered financial losses, and have lost the opportunity to practice martial arts that for thirty years provided me with physical, social, and mental health benefits, by reason of the Governor’s unlawful and unconstitutional orders challenged herein,” Ruggles wrote in court documents.

While this argument proved closer to proceeding, Odin-Orr ruled that Ruggles also did not have standing to sue.

Notably, one high-profile instance of Brown relinquishing her emergency authority appears to have helped her case. In December, the governor announced that she was leaving it up to individual school districts whether to resume in-person instruction. That decision, Odin-Orr found, undercut Ruggles’ claim that Brown was sapping him of his ability to tutor students.

“The Court finds schools are no longer closed by order of the Governor,” the judge wrote. “Assuming, for the sake of argument, Ruggles has a legally recognized interest in his tutoring business to challenge the constitutionality of the Governor’s executive orders preventing in-person instruction in schools, an order from the Court would not redress Plaintiff Ruggles’ injury.”

Ruggles and other plaintiffs were represented in the case by attorney James Buchal, a former chair of the Multnomah County Republican Party. He said the case exemplified a “pernicious trend” among judges of siding with the government.

“People go into court and have a real beef with something the government has done,” Buchal said Friday. “What the government has done is obviously wrong. The answer is, ‘You’re not the person to bring the case.’ It’s a horrible development.”

Buchal said he’d consider filing a suit making identical arguments, if he found a suitable plaintiff.

The lawsuit was only the latest challenging Brown’s executive authority in light of the unprecedented actions she’s taken to stem the spread of COVID-19. Last year, a coalition of churches and public officials challenged her authority to restrict business and religious gatherings. That suit scored a victory in Baker County Circuit Court, but wassoon reversedby the Oregon Supreme Court.

Copyright 2021 Oregon Public Broadcasting

Dirk VanderHart is JPR's Salem correspondent reporting from the Oregon State Capitol. His reporting is funded through a collaboration between public radio stations around the Northwest called the Northwest News Network.