# Judge overturns Oregon Governor's Covid-19 restrictions **URL:** \ **Category:** Politics & Elections\ **Created:** [May 19, 2020, 3:31am UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083 "2020-05-19T03:31:23Z")\ **Posts on this page:** 14\ **Page:** 6
**Author:** ![Aspenglow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aspenglow/32/76_2.png) [@Aspenglow](https://boards.straightdope.com/u/Aspenglow)\ **Post date:** [May 24, 2020, 4:51am UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/101 "2020-05-24T04:51:04Z")
[Well, the Oregon Supreme Court has ruled](https://www.registerguard.com/news/20200523/judge-told-vacate-or-explain-order-nixing-virus-restrictions), at least to the extent that the rural circuit court judge must either vacate his order or show cause why it should remain in effect: (Register Guard) > [@](#): > > The Oregon Supreme Court is giving a rural judge until Tuesday to toss out his ruling that found the governor’s coronavirus restrictions are invalid. > > If the judge declines to do so, justices said Saturday that Baker County Circuit Judge Matthew Shirtcliff must explain why and give the state and churches who sued over the stay-at-home directives an opportunity to make further arguments. Good for our Supreme Court. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 24, 2020, 2:41pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/102 "2020-05-24T14:41:13Z")
> [@Link](#): > > The ruling by the county judge in Oregon turned on the legal mechanism Brown used to issue her orders. The plaintiffs allege — and the judge agreed — that they were issued under a statute pertaining to public health emergencies, not an older provision that addresses natural disasters such as storms, earthquakes or floods. > > The public health statute contains the 28-day time limit, while the other does not contain a time limit. > > Brown maintained in court papers that the statue on public health emergencies was intended by the Legislature to supplement, and not supersede, the emergency powers granted her for natural disasters — including disease — and therefore the time limit doesn’t apply. That seems so results oriented to be absurd. If you can claim that “public health emergencies” are also “natural disasters” then the Legislature has passed a law that is completely without purpose, something that a bajillion court decisions say that they will never assume. Under what circumstance would the Governor EVER be limited to 28 days? ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [May 24, 2020, 4:21pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/103 "2020-05-24T16:21:59Z")
> [@](#): > > That seems so results oriented to be absurd. If you can claim that “public health emergencies” are also “natural disasters” then the Legislature has passed a law that is completely without purpose, something that a bajillion court decisions say that they will never assume. > [@](#): > > If the judge declines to do so, justices said Saturday that Baker County Circuit Judge Matthew Shirtcliff must explain why and give the state and churches who sued over the stay-at-home directives an opportunity to make further arguments. I’d say if so they should use the chance to bring into the court the legislative record of when the respective statutes were passed, to look into what was in fact the legislative purpose. Figure out which of all those provisions is the general vs. the specific in this case and if any of them has the effect of rendering the other inofficious. _Then_ see how that may support or not support each of the parties’ notion of what is righteous and good and true vis-a-vis proper response policy. I’m still attributing it all to legislative sloppiness. _“Let’s legislate about this thing that’s right in front of us right now, and not bother to look up if there’s some other provision to harmonize.”_ Too often I’ve also seen legislators use the existence of judicial review as a backstop, counting on that if what they pass causes a problem then someone will go to court over it and they will not have to be responsible for the eventual outcome. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 24, 2020, 4:36pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/104 "2020-05-24T16:36:42Z")
> [@JRDelirious](#): > > I’d say if so they should use the chance to bring into the court the legislative record of when the respective statutes were passed, to look into what was in fact the legislative purpose. Figure out which of all those provisions is the general vs. the specific in this case and if any of them has the effect of rendering the other inofficious. _Then_ see how that may support or not support each of the parties’ notion of what is righteous and good and true vis-a-vis proper response policy. > > I’m still attributing it all to legislative sloppiness. _“Let’s legislate about this thing that’s right in front of us right now, and not bother to look up if there’s some other provision to harmonize.”_ Too often I’ve also seen legislators use the existence of judicial review as a backstop, counting on that if what they pass causes a problem then someone will go to court over it and they will not have to be responsible for the eventual outcome. Not every judge looks to legislative purpose because it shouldn’t matter why they did something, but what they actually did. Further, how do you find legislative purpose? > [@Edwards v. Aguillard](#): > > The number of possible motivations, to begin with, is not binary, or indeed even finite. In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill’s sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fundraising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted “yes” instead of “no,” or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 24, 2020, 4:48pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/105 "2020-05-24T16:48:04Z")
> [@JRDelirious](#): > > I’m still attributing it all to legislative sloppiness. _“Let’s legislate about this thing that’s right in front of us right now, and not bother to look up if there’s some other provision to harmonize.”_ Too often I’ve also seen legislators use the existence of judicial review as a backstop, counting on that if what they pass causes a problem then someone will go to court over it and they will not have to be responsible for the eventual outcome. But I do absolutely agree with this. You see what is called “legislative creep” in which the popular passing fancy of the day gets enacted because–at various times in recent history—nobody would vote against stricter DUI laws, making English the official language, preserving marriage as one man and one woman, making flag burning illegal, mandatory minimum sentences, etc—and you get a code that taken as a whole is illogical and inconsistent. As an example from the other thread, in my state it is twice the criminal penalty for an adult to solicit a child under age 16 for sex on the internet, six times the criminal penalty to meet a child after the solicitation for sex on the internet, than it is to _actually have sex with a child under age 16_. There is no penalty at all for soliciting a child for sex by other methods. And the reason is exactly what you described. Just vote on the bill in front of you and don’t go back to see if everything fits together as it should: X penalty for solicitation, X+Y for attempt, and X+Y+Z for underage sex. But why do that when you score political points for cracking down on online predators? So for that reason, I think legislative history, if it can be found from that long ago, will do little to help the issue. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [May 24, 2020, 5:36pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/106 "2020-05-24T17:36:49Z")
> [@UltraVires](#): > > Not every judge looks to legislative purpose because it shouldn’t matter why they did something, but what they actually did. Further, how do you find legislative purpose? Ah, but where the law is alleged to be contradictory or create ambiguity – such as two different statutes with different time limits being potentially applicable to the same emergency, and whether it’s entirely a matter of saying the right section number when invoking it or whether the definition of the kind of emergency is determinative – then legislative intent is useful for the court in gleanig out whether what were they meaning to accomplish when the law was passed. You seek out legislative intent in debate and hearings records and in committee reports; or you may find OTOH that they passed it without a second thought and now it is in fact up to the court to do the mopping up. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 24, 2020, 6:08pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/107 "2020-05-24T18:08:12Z")
> [@JRDelirious](#): > > Ah, but where the law is alleged to be contradictory or create ambiguity – such as two different statutes with different time limits being potentially applicable to the same emergency, and whether it’s entirely a matter of saying the right section number when invoking it or whether the definition of the kind of emergency is determinative – then legislative intent is useful for the court in gleanig out whether what were they meaning to accomplish when the law was passed. You seek out legislative intent in debate and hearings records and in committee reports; or you may find OTOH that they passed it without a second thought and now it is in fact up to the court to do the mopping up. But as Scalia argues, how is that helpful? Let’s say that we look at the legislative history of this law and we see this: Majority Leader: Mr. Speaker, I rise today in support of HB 111 which limits the government powers for public health emergencies to 28 days. By this, I mean only to support man made emergencies such as sewage spills and the like. It is my firm believe in supporting this legislation that it would not apply to say, a pandemic, where the Governor has full authority under existing law to have indefinite powers. Okay, we know why the Majority Leader voted for it and what the Majority Leader _thought_ the law did, but that individual’s legal opinion doesn’t count and it says nothing about everyone else who voted for the bill, what people in the other house thought, and what the Governor thought when he/she signed the bill. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [May 24, 2020, 6:57pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/108 "2020-05-24T18:57:34Z")
Scalia being in dissent, while the position that prevailed was partly that intention _counts_. _How much weight_ that intention gets in the decision would depend on the case law and rules of construction in the relevant jurisdiction, and the kind of scrutiny the particular right affected calls for, wouldn’t it? When the language and logical structure of the laws is clear as written and the effects clearly proceed from that, then the court can quickly say “we don’t like it any more than you do, but that’s what it clearly means”; make a dog’s breakfast of the language and logical structure and you are asking the court to do your work for you. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 26, 2020, 2:45pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/109 "2020-05-26T14:45:46Z")
We don’t resort to legislative intent when a statute is unambiguous, as it apparently is in this case except when read along with a separate provision. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 26, 2020, 11:53pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/110 "2020-05-26T23:53:37Z")
This is from Idaho, but is a good general guide about how courts interpret statutes: > **[canons\_w\_commentary.pdf](https://isb.idaho.gov/wp-content/uploads/canons_w_commentary.pdf)** > > 288.30 KB ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 26, 2020, 11:56pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/111 "2020-05-26T23:56:43Z")
I believe that the doctrine of “the specific controls the general” should apply in this case. Yes, one may plausibly say that a public health pandemic qualifies as a “natural disaster” (although IMHO it is a rather strained reading of the term) the Oregon Legislature enacted a statute specifically regarding “public health emergencies” which is a far more specific descriptor about what the Covid-19 pandemic is. Therefore Judge UltraVires rules that the statute regarding “public health emergencies” wins out. ---
**Author:** ![sps49sd](https://avatars.discourse-cdn.com/v4/letter/s/a9a28c/32.png) [@sps49sd](https://boards.straightdope.com/u/sps49sd)\ **Post date:** [May 29, 2020, 6:54pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/112 "2020-05-29T18:54:01Z")
> [@needscoffee](#): > > You can shut down before a lot of people die, or after a lot of people die. Pretty hard to find that sweet spot of just enough dead people to satisfy everyone. Your ghoulish post does not tell us if the Oregon shutdown saved anyone at all. Can you quantify how many people were saved? I’s also like to know why Oregon does not shut down for other pandemics; according to you there was an acceptable amount of dead people for previous illnesses. > [@Czarcasm](#): > > My point? > “Dead Right” is not something you want on a tombstone. Your posts remain neither insightful nor witty. ---
**Author:** ![TroutMan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/troutman/32/6721_2.png) [@TroutMan](https://boards.straightdope.com/u/TroutMan)\ **Post date:** [June 12, 2020, 8:09pm UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/113 "2020-06-12T20:09:40Z")
[The Oregon Supreme court today threw out the judge’s ruling](https://www.oregonlive.com/coronavirus/2020/06/oregon-supreme-court-vacates-baker-county-judges-ruling-that-found-gov-browns-emergency-social-gathering-restrictions-void-during-coronavirus-pandemic.html) and kept in place Governor Brown’s executive order. > [@](#): > > Shirtcliff had pointed to the public health emergency statute ORS 433.441 in finding that the governor’s executive orders violated the 28-day statutory limit. > > As the state had argued, Brown relied on a different statute, ORS 401.165, allowing her to declare a state of emergency – for reasons including public health crises – without any time limit, the Supreme Court found. ---
**Author:** ![dtilque](https://avatars.discourse-cdn.com/v4/letter/d/d6d6ee/32.png) [@dtilque](https://boards.straightdope.com/u/dtilque)\ **Post date:** [June 13, 2020, 10:18am UTC](https://boards.straightdope.com/t/judge-overturns-oregon-governors-covid-19-restrictions/854083/114 "2020-06-13T10:18:14Z")
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