Statement on Social Distancing Executive Order
I support the current social distancing measures in the effort to slow and eventually stop the spread of the Coronavirus. We must pay special attention to our senior, disabled, and vulnerable members of our communities to ensure their safety, as well as the safety of all Oregonians.
With that being said, I support these measures for short-term use for which they are intended for the next several weeks. We cannot continue these types of restrictions for the long run if we hope to avoid a full-blown depression in Oregon. Our small businesses and those that are currently out of work must be helped in any way we can.
The best way to end these restrictions is to abide by them. If we each, right now, take responsibility for our role in stopping the spread and practicing the necessary social distancing behaviors, soon the disease will have faded, and we can get back to work.
The question has been posed by several of my constituents about whether Governor Brown has the authority to issue an Executive Order mandating that Oregon residents “shelter-in-place” and stay home. I had my staff reach out to the Legislative Counsel, a group of attorneys who work for the Oregon Legislature, to get an opinion on where the Governor’s authority is outlined in the Oregon statutes. Below is the response we received from the Legislative Counsel:
“On March 8, 2020, the Governor declared a statewide state of emergency pursuant to ORS 401.165. A copy of the executive order declaring the state of emergency can be found here. The declaration provides the Governor with additional powers which, in pertinent part, can be found in ORS 401.168, 401.175 and 401.188. The powers described in these statutes are quite broad. For example, ORS 401.168 (1) states that during a state of emergency, the Governor has “the right to exercise…all police powers vested in the state by the Oregon Constitution in order to effectuate the purposes of this chapter.” ORS 401.188 authorizes the Governor to “[p]rescribe and direct activities in connection with use, conservation, salvage and prevention of waste of materials, services and facilities, including, but not limited to, production, transportation, power and communication facilities training, and supply of labor, utilization of industrial plants, health and medical care, nutrition, housing, rehabilitation, education, welfare, child care, recreation, consumer protection and other essential civil needs.”
In addition, ORS 433.441 (4) authorizes the Governor, after declaring a state of emergency, to take any action authorized during a state of public health emergency (ORS 433.441 to 433.452), which includes the power to “[c]lose, order the evacuation of or the decontamination of any facility the Governor has reasonable cause to believe may endanger the public health,” “[r]egulate or restrict by any means necessary the use, sale or distribution of food, fuel, medical supplies, medicines or other goods and services,” and “[t]ake any other action that may be necessary for the management of resources, or to protect the public during a public health emergency.” See ORS 433.441 (3)(a), (b) and (f).
On March 12, 2020, the Governor issued an executive order prohibiting gatherings of 250 or more persons (copy of the order here), and on March 16, 2020, the Governor issued an executive order further restricting gatherings to under 25 persons and prohibiting dine-in food service (copy of the order here). Your constituent has asked how this executive order can have the force of law with a criminal penalty. ORS 401.192 (1) provides that “[a]ll rules and orders issued under authority conferred by ORS 401.165 to 401.236 shall have the full force and effect of law both during and after the declaration of a state of emergency.” The penalty for violating a state of emergency executive order is described in ORS 401.990, which states that “[a]ny person knowingly violating any provision of this chapter, or any of the rules, regulations or orders adopted and promulgated under this chapter, shall, upon conviction thereof, be guilty of a Class C misdemeanor.”
Although the Governor cited ORS 433.441 as one of the statutes authorizing her executive orders, which would not be included in the reference to ORS 401.165 to 401.236 in ORS 401.192, or the reference to chapter 401 in ORS 401.990, we think a court would find that the broad powers described in ORS 401.165 to 401.236 also authorize these executive orders. The orders therefore have the force of law and are subject to the penalties described in ORS 401.990. We also should note that we are in somewhat unchartered territory here, since the current circumstances in this state are quite unusual, there is no case law on any of these statutes and it is unclear if they have ever been challenged.
Finally, a Class C misdemeanor is in fact a crime since a jail sentence may be imposed. See ORS 161.515. A Class C misdemeanor carries a maximum penalty of 30 days’ jail and a $1,250 fine. See ORS 161.615 and 161.635.”
If you have specific questions about your business, the Executive Orders, or anything regarding these measures, please contact my office so that we can help find you answers. My office can be reached at 541-889-8866 or via email.
I ask again that we each do our part to slow the spread of this virus. Stay home, stay healthy and be safe.