Oregon: Baker County judge stands by decision to strike down Gov. Brown's coronavirus restrictions

PORTLAND, Ore. — Baker County Judge Matthew Shirtcliff announced Tuesday that he will not vacate his injunction that made Oregon Gov. Kate Brown's stay-at-home orders temporarily "null and void."

The Oregon Supreme Court issued an alternative writ of mandamus Saturday, which said that Shirtcliff had until 5 p.m. Tuesday to either vacate the injunction or explain why it should remain in place.

Since Shirtcliff chose to stand by his original ruling, the state must file a brief with the Oregon Supreme Court by Thursday, May 28 and the plaintiffs must file briefs by Tuesday, June 2.

Shirtcliff's decision tossed out Brown's restrictions on Monday, May 18. He said she didn't seek the Legislature's approval to extend the stay-at-home orders past a 28-day limit. His decision came as a result of a lawsuit brought to him by 10 churches and other plaintiffs that felt Brown's executive order from March 8 that restricted Oregon residents' activities was invalid or had expired.

After the ruling, the Oregon Supreme Court halted Shirfcliff's order when Brown petitioned the higher court to review the lower court judge's decision. This put Brown's orders back in place temporarily.

Kevin Mannix, an attorney for Common Sense Oregon, helped file the lawsuit on behalf of the Oregon churches. He issued a response to Tuesday's development, saying:

“I am pleased that Judge Shirtcliff chose to stand by his original decision, which I firmly believe is strongly supported by proper analysis of the statutes. We will now have the opportunity to fully engage with the Governor’s representatives in front of the Supreme Court. We will make the case that the rule of law in Oregon allows continued standard regulation of public health matters, but it does not allow the Governor extraordinary powers to close down businesses and churches, beyond 28 days from the original declaration of a public health emergency,”

Any legal experts out there that can explain this situation? Is it normal for a Supreme Court to issue an alternative writ of mandamus like this? I’m trying to get a feel for what is really going on with this situation. Is this a political move? Are they stalling, trying to put political pressure on this judge, or is this a normal situation when a county judge rules on something that is so far-reaching?

"Is it normal for a Supreme Court to issue an alternative writ of mandamus like this?"

Not a lawyer or a legal expert.

Here are some things I think are true.

Higher courts have a responsibility to defer to lower courts unless there is good reason. Otherwise those appearing before the lower courts will assume that they always have justification to appeal.

Writs of Mandamus are MANDATES (ORDERS) from the court to a party to DO a certain thing. These are rare because typically lower courts defer to the higher courts. Usually there is time for the higher and lower courts to work out any differences, usually in favor of what the higher court says.

The linked article mentions an "alternative writ of mandamus". I haven't read prior articles on this matter but I believe the higher court must have GRANTED the state's request for a writ and then, after further consideration, decided that the writ was not yet justified. The article doesn't say so but evidently the "alternative writ" must have invalidated their original writ. (Or is it possible that "alternative" means that the higher court DID NOT grant the writ requested but issued a different one? If anybody knows, please speak up.)

As I pointed out, writs of mandamus are rare. Oddly we have witnessed one in just the last few days. The DOJ motioned to drop charges against Flynn. When the judge didn't quickly do that, Flynn's lawyer filed for a writ of mandamus from the DC Court of Appeals to order the charges dropped. The DC Court of Appeals didn't immediately grant the writ requested but did order the lower court judge to explain himself within ten days. Evidently the cost to Flynn of having charges hanging over him for an additional ten days did not justify an immediate order to the lower court to drop the charges. It will be interesting to hear the lower court judge explain himself and what the Appeals Court does about it.

I’m thinking that this is likely similar to what we saw in the Flynn case. I imagine the “Alterate Writ” is perhaps incorrect nomenclature - IANAL - so take it all with a large grain of salt.

What we saw in Flynn was the Appellate court demanding justification from Sullivan. This isn’t the Writ of Mandamus itself, but rather a part of the upper court decision making process. They are developing a record on the issue by getting responses from the court in question.

If the justification doesn’t hold water - then the upper court issues the actual “Writ of Mandamus.”

Again - IANAL - but this seems to be similar and a likely explanation.

If the justification doesn’t hold water - then the upper court issues the actual “Writ of Mandamus.”

Prior to the Flynn case, I don't ever recall hearing of a "writ of mandamus" from a higher court to a lower court. I think that is because the lower court is required by law to defer to the higher court and every order from the higher court has the same weight as a writ of mandamus.

My prior understanding of the purpose of a writ of mandamus was as a way for any court to make a non-court party do a particular thing. Sort of the opposite of an injunction, which is a court order which bars a party from doing a particular thing.

I'm guessing that writs of mandamus are rare because judges have alternatives that don't require the cooperation of a non-court party. Rather than mandate that a business surrender certain property, for example, the court can authorize law enforcement to seize the property. It is better to involve law enforcement rather than tempt the businessman who has a conflict of interest.

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