Oregon State Sen. Dennis Linthicum, Oregon State Rep. E. Werner Reschke, Oregon State Rep. Mike Nearman and Neil Ruggles have sued Gov. Kate Brown claiming that she has overstepped her bounds as governor in responding to COVID-19.

In their filing the defendants claim that they have been harmed, including the loss of business, during the various Executive Orders and business shutdowns mandated by Brown.

“Plaintiffs challenge specific Oregon statutes as facially invalid and invalid as applied through the sequence of emergency orders issued by the Governor, because those statutes have purported to allow the Governor to exercise sweeping legislative powers in violation of the separation of powers guaranteed to plaintiffs,” stated the complaint.

Unlike other lawsuits against Brown, which tried to show that the emergency orders she issued were illegal, Linthicum, Reschke and Nearman state that since the Oregon Legislature did not authorize, approve, or extend emergency declarations, the Governor acted inappropriately in extending closures and guidelines for businesses.

The complaint states that the Governor already has broad authority and legal procedures to address communicable diseases, including quarantining, isolating, treating, and testing individuals. Under the current system that, the State Public Health director would need to petition the court for an order of isolation and quarantine against either a specific person or groups of people, which the complaint states does not violate the separation of powers under the Oregon Constitution.

The main claim that the plaintiffs make is that Brown is exercising broad legislative powers, something which she is not allowed to do under the Oregon Constitution, and which would therefore invalidate her executive orders and other rules issued under them, unless they are approved by the Oregon Legislature.

The complaint also states that Brown did not follow the emergency powers granted to her under Article X-A in the Oregon Constitution, which requires that she follow specific legislative and administrative procedures. This includes convening the State Legislature to address the public health emergency and to vote to extend the emergency; without legislative approval the emergency is limited to 60-days.

“This provision requiring the Legislative Assembly to affirmatively extend the emergency beyond any 60-day period is vital to maintain the separation and balance of constitutional power,” said the complaint.

The complaint also called the two statutes that Brown acted under when issuing her executive orders — Chapters 401 and 433 — overly broad and destructive to the separation of power.

Certain words in those chapters — “widespread” and “threatens” — place no limitations on the power that Brown can have when declaring an emergency and grant her too much power when the State Legislature is not in session, the complaint alleges that other health issues affecting people could theoretically fall under one of those two words, with no right to challenge them.

The plaintiffs specifically challenge ORS 401.192(1) and ORS 401.168(1), which grant police powers to the Governor after an emergency is declared, and the authority to override legislation passed by the State Legislature. The complaint said this makes Brown a “super-legislature” and “makes the effect of all outstanding laws dependent upon the whim of the Governor”.

Other rules that Brown has violated, according to the complaint, include the 28-day window that public health emergency orders can last without legislative approval and does not allow her to exercise police power.

Linthicum and Reschke maintain that the issuing of these executive orders did not give Brown, or other state agencies, the right of police power. They maintain that the Oregon State Legislature never gave Brown those rights, and since they have gone beyond the 60-day threshold without an extension being passed, Brown is therefore violating the separation of powers as defined under the Oregon Constitution.

The complaint is therefore asking the Multnomah County Circuit Court to stop Brown from exercising her rights under ORS 401.165 and ORS 401.168 asks that she not be able to issue the executive orders, which they call unconstitutional.

“It’s time for the Governor’s perpetual state of emergency to come to an end. Since March, the Governor has declared an ongoing state of emergency. This has merged two separate branches of government into one person. The Legislature and Executive are co-equal branches as stated by Oregon’s constitution. Gov. Brown has unilaterally declared a state of emergency, without the consent of the people or their legislature, and then extended it three times with no end in sight. The economic and sociological suffering of Oregonians now far outweighs the hope of slowing or stopping the spread of the virus. It is time to end this costly state of emergency,” said Reschke.

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